American Criminal Law Review Volume: 48 Issue: 3 Dated: Summer 2011 Pages: 1485-1500
This article examines the divide between the Circuit Courts regarding conflicting definitions of physical seizure by law enforcement and when the exact moment of physical seizure occurs.
In the 1st, 5th, 6th, 8th, and 11th Circuit Courts of the United States, the exact moment of physical seizure of a suspect occurs upon contact with intent to restrain (California vs. Hodari D.), while in the 4th, 9th, and 10th Circuit Courts, the exact moment of physical seizure requires the intended termination of movement (Brower vs. County of Inyo). This difference in interpretation of the definition of the physical seizure of a suspect is examined in detail in this article. The article begins with a discussion of major seizure law cases that explain the status of physical seizure prior to split definitions found in the circuit courts. This is followed by a section examining cases in which the two different definitions of the exact moment of physical seizure have been applied by the courts. The final section of the paper analyzes and rebuts the arguments made for not using the Hodari D. standard for physical seizure. The author argues that in cases where the exact moment of physical seizure is in doubt, courts should follow the standard established by Hodari D. where physical contact with intent to restrain constitutes a seizure. In cases where the seizure does not involve the use of physical force, then the courts should apply the standard established by Brower.
United States of America