What is a Fourth Amendment “Seizure” After Torres v. Madrid?
The Supreme Court has handed down a new Fourth Amendment case, Torres v. Madrid, ruling that “the application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” I thought it might be useful to get a sense of how far the new case goes, and how Fourth Amendment “seizure” doctrine might now look.
I. Prior Definitions of Fourth Amendment Seizures
First, some context. Although the law of Fourth Amendment “searches” gets tons of attention, the law of Fourth Amendment “seizures” has traditionally been passed over because it has been pretty simple to understand. The basic idea of a Fourth Amendment seizure, I have explained, has been a government taking of control. This plays out somewhat differently for seizures of property and people because the government takes control of people and property differently.
Here’s the blackletter law as I have understood it before Torres. Let’s start with property. The government seizes property when it meaningfully interferes with the possessory interest in that property, a test offered in United States v. Jacobsen, 466 U.S. 109, 113 (1984). Also, the acquisition of physical control must be intentional under Brower v. City of Inyo, 489 U.S. 593 (1989).
When it comes to a person, the seizure test is phrased differently. A person is seized when a government agent, “by means of physical force or show of authority, terminates or restrains his freedom of movement through means intentionally applied.” See Brendlin v. California, 551 U.S. 249, 254 (2007) (cleaned up). When a person responds to a show of authority, as opposed to physical force, the test is that a seizure occurs if “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. at 255.
At first blush the property-seizure and person-seizure tests sound different, as one is about interfering with possession and the other is about restraining freedom of movement and what a reasonable person would think. But I think they’re really the same thing. The government takes control of property by taking possession of it (as having possession, in the law, is just having knowing control). The government takes control of a person by either restraining them through physical force or by making a show of for
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