California v. Hodari D: A Criminal Defense Lawyer’s Complaint

California v. Hodari D, 499 U.S. 621 (1991), is a lousy opinion.

It used to be that a person was seized for Fourth Amendment purposes the moment his or her liberty was “restrained” by “some physical force or show of authority” by a police officer. This was the standard established by Terry v. Ohio, the U.S. Supreme Court case that lays the basis for the “stop and frisk,” a type of police intervention that falls short of a full-scale arrest and search of the suspect’s person. The Court in Terry was very clear on the standard:  The touchstone of a seizure is the restraint of an individual’s personal liberty “in some way.” This restraint could be the actual physical touching of the suspect.  It could also be a simple command:  “Stop in the name of the law!”

The standard was further refined by a succession of Supreme Court cases, including United States v. Mendenhall, Michigan v. Chesternut, INS v. Delgado, and Florida v. Royer. Among other things, these cases set out an objective test for determining whether a Fourth Amendment seizure had occurred. As the Court put it in Mendenhall, “a person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

All of this made a lot of sense until Justice Antonin Scalia, writing for the majority in Hodari D, decided that this was not what the Supreme Court meant at all. In fact, any such interpretation could only have been the result of a “careless reading” of Mendenhall.   The opinion did not say that the officer’s show of authority was a sufficient condition for finding a seizure; it was only a necessary one. More was still needed to turn trigger the Fourth Amendment.

Described by the dissent as “creative law-making,” Scalia’s argument sounds like something straight out of George Orwell’s 1984.  The logic is disingenuous. Why would the Supreme Court have devoted so much time to laying out necessary but still insufficient conditions for triggering the Fourth Amendment?  The style of argument is also aggressive:  Terry and the other cases never said what, for over 20 years, you thought they said. Misreading the cases, you are simply too stupid to understand what I now say they have always stood for.

The constitutional implications of Scalia’s distinction are enormous. The suspect in Hodari D, who was huddled around a car with other youths in a high crime area, fled upon seeing a police car approach. When a pursuing police officer was almost upon him, the suspect discarded a small rock of crack cocaine. If the suspect was seized at the moment the police officer began to give chase, if in fact a reasonable person would not have believed he was free to leave at the time the officer began to run after him, then the suspect’s discarding of the crack cocaine would not enter into the reasonable suspicion/probable cause analysis. If, on the other hand, it was not until the police officer had actually put his hands on the suspect, seizing him according to the most literal definition of the term, or if it was not that the suspect actually submitted to the officer’s assertion of authority, then the suspect’s discarding of the crack cocaine could have been factored into the analysis.

You know you are in trouble whenever a court resorts to a dictionary definition as part of its analysis. In this case, Justice Scalia consults Webster’s dictionary to define “seizure” as a “taking possession.”  Writes Scalia:  “For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control.”  Scalia then uses an example to illustrate his point:  “A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize.”

As clever as Scalia’s argument may be on the surface, there are all sorts of things wrong with it. First of all, in defining seizure so literally, Scalia disregarded decades of Supreme Court jurisprudence in which the Court defined Fourth Amendment protections not according to literal dictionary definitions but by the context in which “governmental intrusions” occurred.  In Katz v. United States, for example, a case which laid the basis for Terry, the Court abandoned the “narrow view that would have limited a seizure to a material object.”  In concluding that the Fourth Amendment protects “people, not places,” the Court interpreted the reach of the Fourth Amendment far  more broadly to include non-physical, non-corporeal matters.

Scalia’s opinion also contravenes decades of Supreme Court jurisprudence on the exclusionary rule. As a judicially created remedy, the exclusionary rule is based on the notion that constitutional guarantees will have no value if not backed up by some type of enforcement mechanism.  As such, the rule focuses almost exclusively on the conduct of government actors, particularly police officers. Yet, according to Scalia’s formulation, whether or not a suspect has been seized for the purposes of the Fourth Amendment would depend not on police conduct but on the subjective qualities of the suspect. If the suspect is timid and meek and stops immediately upon the officer’s command (i.e., the “submission to police authority” described in Hodari D), then the Fourth Amendment has been implicated. If, however, the suspect defies the officer’s command, the protections of the Fourth Amendment have not yet kicked in.

Such a subjective approach raises all sorts of implementation problems. Writes Justice Stevens in the dissent, joined by Thurgood Marshall:

In our view, our interests in effective law enforcement and in personal liberty would be better served by adhering to a standard that “allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” The range of possible responses to a police show of force, and the multitude of problems that may arise in determining whether, and at which moment, there has been “submission,” can only create uncertainty and generate litigation.

According to the dissent, the opinion also creates the anomalous situation in which a police officer could fire his weapon at an innocent citizen and, as long as he misses the target, still not implicate the Fourth Amendment. Again, the emphasis under Scalia’s analysis is not on the police officer’s actions. Whether or not the Fourth Amendment is triggered depends instead on the very subjective qualities of the suspect and any fortuitous results of the officer’s actions.  None of this makes any sense.

There are some U.S. Supreme Court cases you have to admire whether or not you agree with the outcome. You think, damn, I wish I could write like that. I wish I could think like that. California v. Hodari D is not one of those cases.