The Future of Fourth Amendment Seizure Analysis after Hodari D. And Bostick

Posted: 7 May 2010

See all articles by Thomas K. Clancy

Thomas K. Clancy

University of Mississippi School of Law

Date Written: 1991

Abstract

The Supreme Court has recently redefined what constitutes a seizure of a person within the meaning of the fourth amendment. A person is now seized only when the police actions would be an arrest at common law, that is, when the person submits to a show of authority by the police or when the police apply physical force. This new, restrictive definition, announced in California v. Hodari D., will significantly expand the way police permissibly operate and correlatively will restrict the privacy interests of individuals. As illustrated by the facts of Hodari D., the new definition removes the applicability of the fourth amendment to the countless daily occurrences where the suspect flees in response to a police show of authority. In Florida v. Bostick, the Supreme Court clarified the reasonable person test, which is utilized to determine when a seizure develops as a result of a police accosting when the suspect complies with the directions of the police. These two decisions also intimate that the Court will significantly restrict what will be considered the fruit of an unlawful seizure. Underpinning these decisions is a historic shift in judicial interpretation of the fourth amendment from favoring individual interests to promoting governmental interests. This article examines these developments and discusses their impact on the future of seizure analysis.

Keywords: fourth amendment, search and seizure, criminal procedure, constitutional law

Suggested Citation

Clancy, Thomas K., The Future of Fourth Amendment Seizure Analysis after Hodari D. And Bostick (1991). Available at SSRN: https://ssrn.com/abstract=1602059

Thomas K. Clancy (Contact Author)

University of Mississippi School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States
662-832-5244 (Phone)

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