U.S. Supreme Court California v. Hodari D., 499
U.S. 621 (1991) California v. Hodari
D. No. 89-1632 Argued Jan. 14, 1991 Decided April 23,
1991 499
U.S. 621 CERTIORARI TO THE COURT OF APPEAL
OF CALIFORNIA, FIRST APPELLATE
DISTRICT Syllabus A group of youths, including respondent Hodari D., fled at the
approach of an unmarked police car on an Oakland, California,
street. Officer Pertoso, who was wearing a jacket with "Police"
embossed on its front, left the car to give chase. Pertoso did not
follow Hodari directly, but took a circuitous route that brought
the two face to face on a parallel street. Hodari, however, was
looking behind as he ran and did not turn to see Pertoso until the
officer was almost upon him, whereupon Hodari tossed away a small
rock. Pertoso tackled him, and the police recovered the rock, which
proved to be crack cocaine. In the juvenile proceeding against
Hodari, the court denied his motion to suppress the evidence
relating to the cocaine. The State Court of Appeal reversed,
holding that Hodari had been "seized" when he saw Pertoso running
towards him; that this seizure was "unreasonable" under the Fourth
Amendment, the State having conceded that Pertoso did not have the
"reasonable suspicion" required to justify stopping Hodari; and
therefore that the evidence of cocaine had to be suppressed as the
fruit of the illegal seizure. Held: The only issue presented here -- whether, at the
time he dropped the drugs, Hodari had been "seized" within the
meaning of the Fourth Amendment -- must be answered in the
negative. To answer this question, this Court looks to the common
law of arrest. To constitute a seizure of the person, just as to
constitute an arrest -- the quintessential "seizure of the person"
under Fourth Amendment jurisprudence -- there must be either the
application of physical force, however slight, or, where that is
absent, submission to an officer's "show of authority" to restrain
the subject's liberty. No physical force was applied in this case,
since Hodari was untouched by Pertoso before he dropped the drugs.
Moreover, assuming that Pertoso's pursuit constituted a "show of
authority" enjoining Hodari to halt, Hodari did not comply with
that injunction, and therefore was not seized until he was tackled.
Thus, the cocaine abandoned while he was running was not the fruit
of a seizure, cf. Brower v. Inyo County, 489 U.
S. 593 , 489 U. S. 597 ; Nester v. United States, 265 U. S. 57 , 265 U. S. 58 ,
and his motion to exclude evidence of it was properly denied. United States v. Mendenhall, 446 U.
S. 544 , 446 U. S. 554 (opinion of Stewart, J.), and its progeny, distinguished. Pp. 499 U. S.
623 -629. Reversed and remanded. Page 499 U. S. 622 SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., joined and WHITE, BLACKMUN, O'CONNOR, KENNEDY, and
SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in
which MARSHALL, J., joined, post, p. 499 U. S.
629 .

															JUSTICE SCALIA delivered the opinion of the Court.

															Late one evening in April, 1988, Officers Brian McColgin and
Jerry Pertoso were on patrol in a high-crime area of Oakland,
California. They were dressed in street clothes but wearing jackets
with "Police" embossed on both front and back. Their unmarked car
proceeded west on Foothill Boulevard, and turned south onto 63rd
Avenue. As they rounded the corner, they saw four or five youths
huddled around a small red car parked at the curb. When the
youths Page 499 U. S. 623 saw the officers' car approaching, they apparently panicked, and
took flight. The respondent here, Hodari D., and one companion ran
west through an alley; the others fled south. The red car also
headed south, at a high rate of speed.

															The officers were suspicious, and gave chase. McColgin remained
in the car and continued south on 63rd Avenue; Pertoso left the
car, ran back north along 63rd, then west on Foothill Boulevard,
and turned south on 62nd Avenue. Hodari, meanwhile, emerged from
the alley onto 62nd and ran north. Looking behind as he ran, he did
not turn and see Pertoso until the officer was almost upon him,
whereupon he tossed away what appeared to be a small rock. A moment
later, Pertoso tackled Hodari, handcuffed him, and radioed for
assistance. Hodari was found to be carrying $130 in cash and a
pager; and the rock he had discarded was found to be crack
cocaine.

															In the juvenile proceeding brought against him, Hodari moved to
suppress the evidence relating to the cocaine. The court denied the
motion without opinion. The California Court of Appeal reversed,
holding that Hodari had been "seized" when he saw Officer Pertoso
running towards him, that this seizure was unreasonable under the
Fourth Amendment, and that the evidence of cocaine had to be
suppressed as the fruit of that illegal seizure. The California
Supreme Court denied the State's application for review. We granted
certiorari. 498 U.S. 807 (1990).

															As this case comes to us, the only issue presented is whether,
at the time he dropped the drugs, Hodari had been "seized" within
the meaning of the Fourth Amendment. [ Footnote 1 ] If Page 499 U. S. 624 so, respondent argues, the drugs were the fruit of that seizure
and the evidence concerning them was properly excluded. If not, the
drugs were abandoned by Hodari and lawfully recovered by the
police, and the evidence should have been admitted. (In addition,
of course, Pertoso's seeing the rock of cocaine, at least if he
recognized it as such, would provide reasonable suspicion for the
unquestioned seizure that occurred when he tackled Hodari. Cf.
Rios v. United States, 364 U. S. 253 (1960).)

															We have long understood that the Fourth Amendment's protection
against "unreasonable . . . seizures" includes seizure of the
person, see Henry v. United States, 361 U. S.
98 , 361 U. S. 100 (1959). From the time of the founding to the present, the word
"seizure" has meant a "taking possession," 2 N. Webster, An
American Dictionary of the English Language 67 (1828); 2 J.
Bouvier, A Law Dictionary 510 (6th ed. 1856); Webster's Third New
International Dictionary 2057 (1981). 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. A ship still fleeing, even
though under attack, would not be considered to have been seized as
a war prize. Cf. 23 U. S. 10
Wheat. 312, 23 U. S.
325 -326 (1825). A res capable of manual
delivery was not seized until "tak[en] into custody." Pelham v.
Rose , 9 Wall. 103, 76 U. S. 106 (1870). To constitute an arrest, however -- the quintessential
"seizure of the person" under our Fourth Amendment jurisprudence --
the mere grasping or application of physical force with lawful
authority, whether or not it succeeded in subduing the arrestee,
was sufficient. See, e.g., Whitehead v. Keyes, 85 Mass.
495, 501 (1862) ("[A]n officer effects an arrest of a person whom
he has authority to arrest, by laying his hand on him for the
purpose of arresting him, though he may not succeed in stopping and
holding him"); 1 Page 499 U. S. 625 Restatement of Torts § 41, Comment h (1934). As one commentator
has described it:

															"There can be constructive detention, which will constitute an
arrest, although the party is never actually brought within the
physical control of the party making an arrest. This is
accomplished by merely touching, however slightly, the body of the
accused, by the party making the arrest and for that purpose,
although he does not succeed in stopping or holding him even for an
instant; as where the bailiff had tried to arrest one who fought
him off by the fork, the court said, 'If the bailiff had touched
him, that had been an arrest. . . .'"

															A. Cornelius, Search and Seizure 163-164 (2d ed.1930) (footnote
omitted).

															To say that an arrest is effected by the slightest application
of physical force, despite the arrestee's escape, is not to say
that, for Fourth Amendment purposes, there is a continuing arrest during the period of fugitivity. If, for example, Pertoso
had laid his hands upon Hodari to arrest him, but Hodari had broken
away and had then cast away the cocaine, it would hardly be
realistic to say that that disclosure had been made during the
course of an arrest. Cf. 85 U. S. Whitman, 18 Wall. 457, 85 U. S. 471 (1874)
("A seizure is a single act, and not a continuous fact"). The
present case, however, is even one step further removed. It does
not involve the application of any physical force; Hodari was
untouched by Officer Pertoso at the time he discarded the cocaine.
His defense relies instead upon the proposition that a seizure
occurs "when the officer, by means of physical force or show of
authority, has in some way restrained the liberty of a
citizen." Terry v. Ohio, 392 U. S. 1 , 392 U. S. 19 , n.
1 (1968) (emphasis added). Hodari contends (and we accept as true
for purposes of this decision) that Pertoso's pursuit qualified as
a "show of authority" Page 499 U. S. 626 calling upon Hodari to halt. The narrow question before us is
whether, with respect to a show of authority as with respect to
application of physical force, a seizure occurs even though the
subject does not yield. We hold that it does not.

															The language of the Fourth Amendment, of course, cannot sustain
respondent's contention. The word "seizure" readily bears the
meaning of a laying on of hands or application of physical force to
restrain movement, even when it is ultimately unsuccessful. ("She
seized the purse-snatcher, but he broke out of her grasp.") It does
not remotely apply, however, to the prospect of a policeman yelling
"Stop, in the name of the law!" at a fleeing form that continues to
flee. That is no seizure. [ Footnote
2 ] Nor can the result respondent wishes to achieve be produced
-- indirectly, as it were -- by suggesting that Pertoso's
uncomplied-with show of authority was a common law arrest, and then
appealing to the principle that all common law arrests are
seizures. An arrest requires either physical force (as
described above) or, where that is absent, submission to the assertion of authority.

															"Mere words will not constitute an arrest, while, on the other
hand, no actual, physical touching is essential. The apparent
inconsistency in the two parts of this statement is explained by
the fact that an assertion of authority and purpose to arrest,
followed by submission of the arrestee, constitutes an arrest.
There can be no arrest Page 499 U. S. 627 without either touching or submission."

															Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)
(footnotes omitted).

															We do not think it desirable, even as a policy matter, to
stretch the Fourth Amendment beyond its words and beyond the
meaning of arrest, as respondent urges. [ Footnote 3 ] Street pursuits always place the public at
some risk, and compliance with police orders to stop should
therefore be encouraged. Only a few of those orders, we must
presume, will be without adequate basis, and since the addressee
has no ready means of identifying the deficient ones, it almost
invariably is the responsible course to comply. Unlawful orders
will not be deterred, moreover, by sanctioning through the
exclusionary rule those of them that are not obeyed. Since
policemen do not command "Stop!" expecting to be ignored, or give
chase hoping to be outrun, it fully suffices to apply the deterrent
to their genuine, successful seizures.

															Respondent contends that his position is sustained by the
so-called Mendenhall test, formulated by Justice Stewart's
opinion in United States v. Mendenhall, 446 U.
S. 544 , 446 U. S. 554 (1980), and adopted by the Court in later cases, see Michigan
v. Chesternut, 486 U. S. 567 , 486 U. S. 573 (1988); INS v. Delgado, 466 U. S. 210 , 466 U. S. 215 (1984):

															"A person has been 'seized' within the Page 499 U. S. 628 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."

															446 U.S. at 446 U. S. 554 . See also Florida v. Royer, 460 U.
S. 491 , 460 U. S. 502 (1983) (opinion of WHITE, J.). In seeking to rely upon that test
here, respondent fails to read it carefully. It says that a person
has been seized "only if," not that he has been seized "whenever";
it states a necessary, but not a sufficient, condition for seizure -- or, more precisely, for seizure effected
through a "show of authority." Mendenhall establishes that
the test for existence of a "show of authority" is an objective
one: not whether the citizen perceived that he was being ordered to
restrict his movement, but whether the officer's words and actions
would have conveyed that to a reasonable person. Application of
this objective test was the basis for our decision in the other
case principally relied upon by respondent, Chesternut,
supra, where we concluded that the police cruiser's slow
following of the defendant did not convey the message that he was
not free to disregard the police and go about his business. We did
not address in Chesternut, however, the question whether,
if the Mendenhall test was met -- if the message that the
defendant was not free to leave had been conveyed -- a Fourth
Amendment seizure would have occurred. See 486 U.S. at 486 U. S. 577 (KENNEDY, J., concurring).

															Quite relevant to the present case, however, was our decision in Brower v. Inyo County, 489 U. S. 593 , 489 U. S. 596 (1989). In that case, police cars with flashing lights had chased
the decedent for 20 miles -- surely an adequate "show of authority"
-- but he did not stop until his fatal crash into a police-erected
blockade. The issue was whether his death could be held to be the
consequence of an unreasonable seizure in violation of the Fourth
Amendment. We did not even consider the possibility that a seizure
could have occurred during the course of the chase because, as we
explained, that "show of authority" did not produce his stop. Id. at 489 U. S. 597 .
And we discussed Page 499 U. S. 629 ibid., an opinion of Justice Holmes, involving a
situation not much different from the present case, where revenue
agents had picked up containers dropped by moonshiners whom they
were pursuing without adequate warrant. The containers were not
excluded as the product of an unlawful seizure because

															"[t]he defendant's own acts, and those of his associates,
disclosed the jug, the jar and the bottle -- and there was no
seizure in the sense of the law when the officers examined the
contents of each after they had been abandoned." Nester v. United States, 265 U. S.
57 , 265 U. S. 58 (1924). The same is true here.

															In sum, assuming that Pertoso's pursuit in the present case
constituted a "show of authority" enjoining Hodari to halt, since
Hodari did not comply with that injunction, he was not seized until
he was tackled. The cocaine abandoned while he was running was, in
this case, not the fruit of a seizure, and his motion to exclude
evidence of it was properly denied. We reverse the decision of the
California Court of Appeal, and remand for further proceedings not
inconsistent with this opinion. It is so ordered [ Footnote 1 ]

															California conceded below that Officer Pertoso did not have the
"reasonable suspicion" required to justify stopping Hodari, see
Terry v. Ohio, 392 U. S. 1 (1968).
That it would be unreasonable to stop, for brief inquiry, young men
who scatter in panic upon the mere sighting of the police is not
self-evident, and arguably contradicts proverbial common sense. See Proverbs 28:1 ("The wicked flee when no man
pursueth"). We do not decide that point here, but rely entirely
upon the State's concession.

															[ Footnote 2 ]

															For this simple reason -- which involves neither
"logic-chopping," post at 499 U. S. 646 ,
nor any arcane knowledge of legal history -- it is irrelevant that
English law proscribed "an unlawful attempt to take a
presumptively innocent person into custody." Post at 499 U. S. 631 .
We have consulted the common law to explain the meaning of seizure
-- and, contrary to the dissent's portrayal, to expand, rather than
contract, that meaning (since one would not normally think that the
mere touching of a person would suffice). But neither usage nor
common law tradition makes an attempted seizure a seizure.
The common law may have made an attempted seizure unlawful in
certain circumstances; but it made many things unlawful, very few
of which were elevated to constitutional proscriptions.

															[ Footnote 3 ]

															Nor have we ever done so. The dissent is wrong in saying that Terry v. Ohio, 392 U. S. 1 (1968)
"broadened the range of encounters . . . encompassed within the
term seizure,'" post at 499 U. S. 635 . Terry unquestionably involved conduct that would
constitute a common law seizure; its novelty (if any) was in
expanding the acceptable justification for such a seizure
beyond probable cause. The dissent is correct that Katz v.
United States, 389 U. S. 347 (1967) "unequivocally reject[s] the notion that the common law of
arrest defines the limits of the term `seizure' in the Fourth
Amendment," post at 499 U. S. 637 .
But we do not assert that it defines the limits of the term
"seizure"; only that it defines the limits of a seizure of the
person. What Katz stands for is the proposition that
items which could not be subject to seizure at common law
( e.g., telephone conversations) can be seized under the
Fourth Amendment. That is quite different from saying that what
constitutes an arrest (a seizure of the person) has
changed. JUSTICE STEVENS, with whom JUSTICE MARSHALL joins,
dissenting.

															The Court's narrow construction of the word "seizure" represents
a significant, and in my view, unfortunate, departure from prior
case law construing the Fourth Amendment. [ Footnote 2/1 ] Almost a quarter of a century ago, in two
landmark cases -- one broadening the protection of individual
privacy, [ Footnote 2/2 ] and the
other broadening the powers of law enforcement officers [ Footnote 2/3 ] -- we rejected the method of
Fourth Amendment analysis that Page 499 U. S. 630 today's majority endorses. In particular, the Court now adopts a
definition of "seizure" that is unfaithful to a long line of Fourth
Amendment cases. Even if the Court were defining seizure for the
first time, which it is not, the definition that it chooses today
is profoundly unwise. In its decision, the Court assumes, without
acknowledging, that a police officer may now fire his weapon at an
innocent citizen and not implicate the Fourth Amendment -- as long
as he misses his target.

															For the purposes of decision, the following propositions are not
in dispute. First, when Officer Pertoso began his pursuit of
respondent, [ Footnote 2/4 ] the
officer did not have a lawful basis for either stopping or
arresting respondent. See App. 138-140; ante at 499 U. S. 623 ,
n. 1. Second, the officer's chase amounted to a "show of force" as
soon as respondent saw the officer nearly upon him. See
ante at 499 U. S.
625 -626, 499 U. S. 629 .
Third, the act of discarding the rock of cocaine was the direct
consequence of the show of force. See Pet. for Cert.
48-49, 52. Fourth, as the Court correctly demonstrates, no common
law arrest occurred until the officer tackled respondent. See
ante at 499 U. S.
624 -625. Thus, the Court is quite right in concluding
that the abandonment of the rock was not the fruit of a common law
arrest.

															It is equally clear, however, that, if the officer had succeeded
in touching respondent before he dropped the rock -- Page 499 U. S. 631 even if he did not subdue him -- an arrest would have occurred.
[ Footnote 2/5 ] See ante at 499 U. S.
624 -625, 499 U. S. 626 .
In that event (assuming the touching precipitated the abandonment),
the evidence would have been the fruit of an unlawful common law
arrest. The distinction between the actual case and the
hypothetical case is the same as the distinction between the common
law torts of assault and battery -- a touching converts the former
into the latter. [ Footnote 2/6 ]
Although the distinction between assault and battery was important
for pleading purposes, see 2 J. Chitty, Pleading
*372-*376, the distinction should not take on constitutional
dimensions. The Court mistakenly allows this common law distinction
to define its interpretation of the Fourth Amendment.

															At the same time, the Court fails to recognize the existence of
another, more telling, common law distinction -- the distinction
between an arrest and an attempted arrest. As the Court teaches us,
the distinction between battery and assault was critical to a
correct understanding of the common law of arrest. See
ante at 499 U. S. 626 ("An arrest requires either physical force . . . or, where
that is absent, submission to the assertion of
authority"). However, the facts of this case do not describe an
actual arrest, but rather, an unlawful attempt to take a
presumptively innocent person into custody. Such an Page 499 U. S. 632 attempt was unlawful at common law. [ Footnote 2/7 ] Thus, if the Court wants to define the
scope of the Fourth Amendment based on the common law, it should
look, not to the common law of arrest, but to the common law of
attempted arrest, according to the facts of this case.

															The first question, then, is whether the common law should
define the scope of the outer boundaries of the constitutional
protection against unreasonable seizures. Even if, contrary to
settled precedent, traditional common law analysis were
controlling, it would still be necessary to decide whether the
unlawful attempt to make an arrest should be considered a seizure
within the meaning of the Fourth Amendment, and whether the
exclusionary rule should apply to unlawful attempts. I The Court today takes a narrow view of "seizure," which is at
odds with the broader view adopted by this Court almost 25 years
ago. In Katz v. United States, 389 U.
S. 347 (1967), the Court considered whether electronic
surveillance conducted "without any trespass and without the
seizure of any material object fell outside the ambit of the
Constitution." Id. at 389 U. S. 353 .
Over Justice Black's powerful dissent, we rejected that "narrow
view" of the Fourth Amendment, and held that electronic
eavesdropping is a "search and seizure" within the meaning of the
Amendment. Id. at 389 U. S. 353 -354. We thus endorsed the position
expounded by two of the dissenting Justices in Olmstead v.
United States, 277 U. S. 438 (1928): Page 499 U. S. 633 "Time and again, this Court, in giving effect to the principle
underlying the Fourth Amendment, has refused to place an unduly
literal construction upon it." Id. at 277 U. S. 476 (Brandeis, J., dissenting).

															"The direct operation or literal meaning of the words used do
not measure the purpose or scope of its provisions. Under the
principles established and applied by this Court, the Fourth
Amendment safeguards against all evils that are like and equivalent
to those embraced within the ordinary meaning of its words." Id. at 277 U. S. 488 (Butler, J., dissenting).

															Writing for the Court in Katz, JUSTICE Stewart explained:

															"Thus, although a closely divided Court supposed in Olmstead that surveillance without any trespass and
without the seizure of any material object fell outside the ambit
of the Constitution, we have since departed from the narrow view on
which that decision rested. Indeed, we have expressly held that the
Fourth Amendment governs not only the seizure of tangible items,
but extends as well to the recording of oral statements, overheard
without any 'technical trespass under . . . local property law.' Silverman v. United States, 365 U. S.
505 , 365 U. S. 511 . Once this
much is acknowledged, and once it is recognized that the Fourth
Amendment protects people -- and not simply 'areas' -- against
unreasonable searches and seizures, it becomes clear that the reach
of that Amendment cannot turn upon the presence or absence of a
physical intrusion into any given enclosure."

															"We conclude that the underpinnings of Olmstead and Goldman
\[v. U.S. , 316 U. S. 129 (1942),] have been
so eroded by our subsequent decisions that the 'trespass' doctrine
there enunciated can no longer be regarded as controlling. The
Government's activities in electronically listening to and
recording the petitioner's words violated the privacy upon which he
justifiably relied while using the telephone Page 499 U. S. 634 booth, and thus constituted a 'search and seizure' within the
meaning of the Fourth Amendment. The fact that the electronic
device employed to achieve that end did not happen to penetrate the
wall of the booth can have no constitutional significance."

															"The question remaining for decision, then, is whether the
search and seizure conducted in this case complied with
constitutional standards."

															389 U.S. at 389 U. S.
353 -354. Significantly, in the Katz opinion,
the Court repeatedly used the word "seizure" to describe the
process of recording sounds that could not possibly have been the
subject of a common law seizure. See id. at 389 U. S. 356 , 389 U. S.
357 .

															Justice Black's reasoning, which was rejected by the Court in
1967, is remarkably similar to the reasoning adopted by the Court
today. After criticizing "language-stretching judges," 389 U.S. at 389 U. S. 366 ,
Justice Black wrote:

															"I do not deny that common sense requires and that this Court
often has said that the Bill of Rights' safeguards should be given
a liberal construction. This principle, however, does not justify
construing the search and seizure amendment as applying to
eavesdropping or the 'seizure' of conversations." Id. at 389 U. S.
366 -367.

															"Since I see no way in which the words of the Fourth Amendment
can be construed to apply to eavesdropping, that closes the matter
for me. In interpreting the Bill of Rights, I willingly go as far
as a liberal construction of the language takes me, but I simply
cannot in good conscience give a meaning to words which they have
never before been thought to have and which they certainly do not
have in common ordinary usage. I will not distort the words of the
Amendment in order to 'keep the Constitution up to date' or 'to
bring it into harmony with the times.' It was never meant that this
Court have such power, which in effect would make us a continuously
functioning constitutional convention." Id. at 389 U. S.
373 . Page 499 U. S. 635 The expansive construction of the word "seizure" in the Katz case provided an appropriate predicate for the
Court's holding in Terry v. Ohio, 392 U. S.
1 (1968), the following year. [ Footnote 2/8 ] Prior to Terry, the Fourth
Amendment proscribed any seizure of the person that was not
supported by the same probable cause showing that would justify a
custodial arrest. [ Footnote 2/9 ] See Dunaway v. New York, 442 U. S. 200 , 442 U. S.
207 -209 (1979). Given the fact that street encounters
between citizens and police officers "are incredibly rich in
diversity," Terry, 392 U.S. at 392 U. S. 13 , the
Court recognized the need for flexibility, and held that
"reasonable" suspicion -- a quantum of proof less demanding than
probable cause -- was adequate to justify a stop for investigatory
purposes. Id. at 392 U. S. 21 -22.
As a corollary to the lesser justification for the stop, the Court
necessarily concluded that the word "seizure" in the Fourth
Amendment encompasses official restraints on individual freedom
that fall short of a common law arrest. Thus, Terry broadened the range of encounters between the police and the
citizen encompassed within the term "seizure," while at the same
time, lowering the standard of proof necessary to justify a "stop"
in the newly expanded category of seizures Page 499 U. S. 636 now covered by the Fourth Amendment. [ Footnote 2/10 ] The Court explained:

															"Our first task is to establish at what point in this encounter
the Fourth Amendment becomes relevant. That is, we must decide
whether and when Officer McFadden 'seized' Terry and whether and
when he conducted a 'search.' There is some suggestion in the use
of such terms as 'stop' and 'frisk' that such police conduct is
outside the purview of the Fourth Amendment because neither action
rises to the level of a 'search' or 'seizure' within the meaning of
the Constitution. We emphatically reject this notion. It is quite
plain that the Fourth Amendment governs 'seizures' of the person
which do not eventuate in a trip to the station house and
prosecution for crime -- 'arrests' in traditional terminology. It
must be recognized that, whenever a police officer accosts an
individual and restrains his freedom to walk away, he has 'seized'
that person." Id. at 392 U. S. 16 (footnote omitted).

															"The distinctions of classical 'stop-and-frisk' theory thus
serve to divert attention from the central inquiry under the Fourth
Amendment -- the reasonableness in all the circumstances of the
particular governmental invasion of a citizen's personal security.
'Search' and 'seizure' are not talismans. We therefore reject the
notions that the Fourth Amendment does not come into play at all as
a limitation upon police conduct if the officers stop short of
something called a 'technical arrest' or a 'full-blown
search.'" Id. at 392 U. S. 19 . Page 499 U. S. 637 The decisions in Katz and Terry unequivocally
reject the notion that the common law of arrest defines the limits
of the term "seizure" in the Fourth Amendment. In Katz, the Court abandoned the narrow view that would have limited a
seizure to a material object, and instead, held that the Fourth
Amendment extended to the recording of oral statements. And in Terry, the Court abandoned its traditional view that a
seizure under the Fourth Amendment required probable cause, and
instead, expanded the definition of a seizure to include an
investigative stop made on less than probable cause. Thus, the
major premise underpinning the majority's entire analysis today --
that the common law of arrest should define the term "seizure" for
Fourth Amendment purposes, see ante at 499 U. S.
624 -625 -- is seriously flawed. The Court mistakenly
hearkens back to common law, while ignoring the expansive approach
that the Court has taken in Fourth Amendment analysis since Katz and Terry. [ Footnote 2/11 ] II The Court fares no better when it tries to explain why the
proper definition of the term "seizure" has been an open question
until today. In Terry, in addition to stating that a
seizure occurs "whenever a police officer accosts an individual and
restrains his freedom to walk away," 392 U.S. at 392 U. S. 16 , the
Court noted that a seizure occurs "when the officer, by means of
physical force or show of authority, has in some way restrained the
liberty of a citizen. . . ." Id. at 392 U. S. 19 , n.
16. The touchstone of a seizure is the restraint of an individual's
personal liberty " in some way. " Ibid. (emphasis
added). [ Footnote 2/12 ] Today the
Court's reaction to respondent's reliance on Terry Page 499 U. S. 638 is to demonstrate that, in "show of force" cases, no common law
arrest occurs unless the arrestee submits. See
ante at 499 U. S.
626 -627. That answer, however, is plainly insufficient,
given the holding in Terry that the Fourth Amendment
applies to stops that need not be justified by probable cause in
the absence of a full-blown arrest.

															In United States v. Mendenhall, 446 U.
S. 544 (1980), the Court

															"adhere[d] to the view that a person is 'seized' only when, by
means of physical force or a show of authority, his freedom of
movement is restrained." Id. at 446 U. S. 553 .
The Court looked to whether the citizen who is questioned "remains
free to disregard the questions and walk away," and, if she is able
to do so, then "there has been no intrusion upon that person's
liberty or privacy" that would require some "particularized and
objective justification" under the Constitution. Id. at 446 U. S. 554 .
The test for a "seizure," as formulated by the Court in Mendenhall, was whether, "in view of all of the
circumstances surrounding the incident, a reasonable person would
have believed that he was not free to leave." Ibid. Examples of seizures include

															"the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the person of the
citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled." Ibid. The Court's unwillingness today to adhere to the
"reasonable person" standard, as formulated by Justice Stewart in Mendenhall, marks an unnecessary departure from Fourth
Amendment case law.

															The Court today draws the novel conclusion that even though no
seizure can occur unless the Mendenhall reasonable person standard is met, see ante at 499 U. S. 628 ,
the fact that the standard has been met does not necessarily mean
that a seizure has occurred. See ibid. ( Mendenhall "states a necessary, but not a sufficient, condition for seizure . . . effected Page 499 U. S. 639 through a show of authority' "). If it were true that a
seizure requires more than whether a reasonable person felt free to
leave, then the following passage from the Court's opinion in INS v. Delgado, 466 U. S. 210 (1984), is at best, seriously misleading: "As we have noted elsewhere:"

															"Obviously, not all personal intercourse between policemen and
citizens involves 'seizures' of persons. Only when the officer, by
means of physical force or show of authority, has restrained the
liberty of a citizen may we conclude that a 'seizure' has
occurred."

															" Terry v. Ohio, supra, at 392 U. S.
19 , n. 16. While applying such a test is relatively
straightforward in a situation resembling a traditional arrest, see Dunaway v. New York, 442 U. S. 200 , 442 U. S.
212 -216 (1979), the protection against unreasonable
seizures also extends to 'seizures that involve only a brief
detention short of traditional arrest.' United States v.
Brignoni-Ponce, 422 U. S. 873 , 422 U. S.
878 (1975). What has evolved from our cases is a
determination that an initially consensual encounter between a
police officer and a citizen can be transformed into a seizure or
detention within the meaning of the Fourth Amendment, 'if, in view
of all the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.' Mendenhall, supra, [446 U.S.] at 446 U. S.
554 (footnote omitted); see Florida v. Royer, 460 U. S.
491 , 460 U. S. 502 (1983)
(plurality opinion)." Id. 466 U.S. at 466 U. S.
215 .

															More importantly, in Florida v. Royer, 460 U.
S. 491 (1983), a plurality of the Court adopted Justice
Stewart's formulation in Mendenhall as the appropriate
standard for determining when police questioning crosses the
threshold from a consensual encounter to a forcible stop. In Royer, the Court held that an illegal seizure had
occurred. As a Page 499 U. S. 640 predicate for that holding, JUSTICE WHITE, in his opinion for
the plurality, explained that the citizen

															"may not be detained even momentarily without
reasonable, objective grounds for doing so; and his refusal to
listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, at 446 U. S.
556 (opinion of Stewart, J.)."

															460 U.S. at 460 U. S. 498 (emphasis added). The rule looks, not to the subjective perceptions
of the person questioned, but rather, to the objective
characteristics of the encounter that may suggest whether a
reasonable person would have felt free to leave.

															Even though momentary, a seizure occurs whenever an objective
evaluation of a police officer's show of force conveys the message
that the citizen is not entirely free to leave -- in other words,
that his or her liberty is being restrained in a significant way.
That the Court understood the Mendenhall definition as
both necessary and sufficient to describe a Fourth Amendment
seizure is evident from this passage in our opinion in United
States v. Jacobsen, 466 U. S. 109 (1984):

															"A 'seizure' of property occurs when there is some meaningful
interference with an individual's possessory interests in that
property.[5]"

															"-----"

															"5. See United States v. Place, 462 U. S.
696 (1983); id. at 462 U. S.
716 (BRENNAN, J., concurring in result); Texas v.
Brown, 460 U. S. 730 , 460 U. S.
747 -748 (1983) (STEVENS, J., concurring in judgment); see also United States v. Chadwick, 433 U. S. 1 , 433 U. S. 13 -14, n. 8 (1977); Hale v. Henkel, 201 U. S. 43 , 201 U. S.
76 (1906). While the concept of a 'seizure' of property
is not much discussed in our cases, this definition follows from
our oft-repeated definition of the 'seizure' of a person within the
meaning of the Fourth Amendment -- meaningful interference, however
brief, with an individual's freedom of movement. See Michigan
v. Summers, 452 U. S. 692 , 452 U. S.
696 (1981); Reid v. Georgia, 488 [448] U.S. 448 U. S. 438 , 448 U. S.
440 , n. (1980) (per curiam); United States v.
Mendenhall, 446 U. S. 544 , 446 U. S.
551 -554 (1980) (opinion of Stewart, J.); Brown v.
Texas, 443 U. S. 47 , 443 U. S.
50 (1979); United States v. Brignoni-Ponce, 422 U. S.
873 , 422 U. S. 878 (1975); Cupp v. Murphy, 412 U. S. 291 , 412 U. S.
294 -295 (1973); Davis v. Mississippi , Page 499 U. S. 641 394 U.
S. 721 , 394 U. S. 726 -727 (1969); Terry v. Ohio, 392 U.S. at 392 U. S.
16 , 392 U. S. 19 , n. 16." Id. 466 U.S. at 466 U. S. 113 ,
and n. 5.

															Finally, it is noteworthy that, in Michigan v.
Chesternut, 486 U. S. 567 (1988), the State asked us to repudiate the reasonable person
standard developed in Terry, Mendenhall, Delgado, and Royer. [ Footnote 2/13 ]
We decided, however, to "adhere to our traditional contextual
approach," 486 U.S. at 486 U. S. 573 .
In our opinion, we described Justice Stewart's analysis in Mendenhall as "a test to be applied in determining whether a person has been "seized" within the meaning of the Fourth
Amendment,'" and noted that "[t]he Court has since embraced this
test." Ibid. Moreover, in commenting on the virtues of the
test, we explained that it focused on the police officer's
conduct: "The test's objective standard -- looking to the reasonable
man's interpretation of the conduct in question -- allows the
police to determine in advance whether the conduct contemplated
will implicate the Fourth Amendment." Id. at 486 U. S. 574 .
Expressing his approval of the Court's rejection of Michigan's
argument in Chesternut, Professor LaFave observed:

															"The 'free to leave' concept, in other words, has nothing to do
with a particular suspect's choice to flee rather than submit or
with his assessment of the probability of successful flight. Were
it otherwise, police would be encouraged to utilize a very
threatening but sufficiently slow chase as an evidence-gathering
technique whenever they lack even the reasonable suspicion needed
for a Terry stop."

															3 W. LaFave, Search and Seizure § 9.2, p. 61 (2d ed.1987,
Supp.1991). Page 499 U. S. 642 Whatever else one may think of today's decision, it
unquestionably represents a departure from earlier Fourth Amendment
case law. The notion that our prior cases contemplated a
distinction between seizures effected by a touching, on the one
hand, and those effected by a show of force, on the other hand, and
that all of our repeated descriptions of the Mendenhall test stated only a necessary, but not a sufficient, condition for
finding seizures in the latter category, is nothing if not creative
lawmaking. Moreover, by narrowing the definition of the term
seizure, instead of enlarging the scope of reasonable
justifications for seizures, the Court has significantly limited
the protection provided to the ordinary citizen by the Fourth
Amendment. As we explained in Terry: "The danger in the logic which proceeds upon distinctions
between a 'stop' and an 'arrest,' or 'seizure' of the person, and
between a 'frisk' and a 'search,' is twofold. It seeks to isolate
from constitutional scrutiny the initial stages of the contact
between the policeman and the citizen. And by suggesting a rigid
all-or-nothing model of justification and regulation under the
Amendment, it obscures the utility of limitations upon the scope,
as well as the initiation, of police action as a means of
constitutional regulation." Terry v. Ohio, 392 U.S. at 392 U. S. 17 . III In this case, the officer's show of force -- taking the form of
a head-on chase -- adequately conveyed the message that respondent
was not free to leave. [ Footnote
2/14 ] Whereas, in Mendenhall, there was

															"nothing in the record [to] sugges[t] that the respondent Page 499 U. S. 643 had any objective reason to believe that she was not free to end
the conversation in the concourse and proceed on her way,"

															446 U.S. at 446 U. S. 555 ,
here, respondent attempted to end "the conversation" before it
began, and soon found himself literally "not free to leave" when
confronted by an officer running toward him head-on who eventually
tackled him to the ground. There was an interval of time between
the moment that respondent saw the officer fast approaching and the
moment when he was tackled, and thus brought under the control of
the officer. The question is whether the Fourth Amendment was
implicated at the earlier or the later moment.

															Because the facts of this case are somewhat unusual, it is
appropriate to note that the same issue would arise if the show of
force took the form of a command to "freeze," a warning shot, or
the sound of sirens accompanied by a patrol car's flashing lights.
In any of these situations, there may be a significant time
interval between the initiation of the officer's show of force and
the complete submission by the citizen. At least on the facts of
this case, the Court concludes that the timing of the seizure is
governed by the citizen's reaction, rather than by the officer's
conduct. See ante at 499 U. S.
626 -627. One consequence of this conclusion is that the
point at which the interaction between citizen and police officer
becomes a seizure occurs, not when a reasonable citizen believes he
or she is no longer free to go, but rather only after the officer
exercises control over the citizen.

															In my view, our interests in effective law enforcement and in
personal liberty [ Footnote 2/15 ]
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 Page 499 U. S. 644 Amendment." Chesternut, 486 U.S. at 486 U. S. 574 .
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.

															In some cases, of course, it is immediately apparent at which
moment the suspect submitted to an officer's show of force. For
example, if the victim is killed by an officer's gunshot, [ Footnote 2/16 ] as in Tennessee v.
Garner, 471 U. S. 1 , 471 U. S. 11 (1985) ("A police officer may not seize an unarmed, nondangerous
suspect by shooting him dead"), [ Footnote 2/17 ] or by a hidden roadblock, as in Brower v. Inyo County, 489 U. S. 593 (1989), the submission is unquestionably complete. But what if, for
example, William James Caldwell (Brower) had just been wounded
before being apprehended? Would it be correct to say that no
seizure had occurred, and therefore the Fourth Amendment was not
implicated even if the pursuing officer had no justification
whatsoever for initiating the chase? The Court's opinion in Brower suggests that the officer's responsibility should
not depend on the character of the victim's evasive action. The
Court wrote:

															"Brower's independent decision to continue the chase can no more
eliminate respondents' responsibility for the termination of his
movement effected by the roadblock than Garner's independent
decision to flee eliminated the Memphis police officer's
responsibility for the termination of his movement effected by the
bullet." Id. at 489 U. S.
595 . Page 499 U. S. 645 It seems equally clear to me that the constitutionality of a
police officer's show of force should be measured by the conditions
that exist at the time of the officer's action. A search must be
justified on the basis of the facts available at the time it is
initiated; the subsequent discovery of evidence does not
retroactively validate an unconstitutional search. The same
approach should apply to seizures; the character of the citizen's
response should not govern the constitutionality of the officer's
conduct.

															If an officer effects an arrest by touching a citizen,
apparently the Court would accept the fact that a seizure occurred,
even if the arrestee should thereafter break loose and flee. In
such a case, the constitutionality of the seizure would be
evaluated as of the time the officer acted. That category of
seizures would then be analyzed in the same way as searches,
namely, was the police action justified when it took place? It is
anomalous, at best, to fashion a different rule for the subcategory
of "show of force" arrests.

															In cases within this new subcategory, there will be a period of
time during which the citizen's liberty has been restrained, but he
or she has not yet completely submitted to the show of force. A
motorist pulled over by a highway patrol car cannot come to an
immediate stop, even if the motorist intends to obey the patrol
car's signal. If an officer decides to make the kind of random stop
forbidden by Delaware v. Prouse, 440 U.
S. 648 (1979), and, after flashing his lights, but
before the vehicle comes to a complete stop, sees that the license
plate has expired, can he justify his action on the ground that the
seizure became lawful after it was initiated, but before it was
completed? In an airport setting, may a drug enforcement agent now
approach a group of passengers with his gun drawn, announce a
"baggage search," and rely on the passengers' reactions to justify
his investigative stops? The holding of today's majority fails to
recognize the coercive and intimidating nature of such behavior,
and creates a rule that may allow such behavior to go
unchecked. Page 499 U. S. 646 The deterrent purposes of the exclusionary rule focus on the
conduct of law enforcement officers, and on discouraging improper
behavior on their part, [ Footnote
2/18 ] and not on the reaction of the citizen to the show of
force. In the present case, if Officer Pertoso had succeeded in
tackling respondent before he dropped the rock of cocaine, the rock
unquestionably would have been excluded as the fruit of the
officer's unlawful seizure. Instead, under the Court's
logic-chopping analysis, the exclusionary rule has no application,
because an attempt to make an unconstitutional seizure is beyond
the coverage of the Fourth Amendment, no matter how outrageous or
unreasonable the officer's conduct may be.

															It is too early to know the consequences of the Court's holding.
If carried to its logical conclusion, it will encourage unlawful
displays of force that will frighten countless innocent citizens
into surrendering whatever privacy rights they Page 499 U. S. 647 may still have. It is not too soon, however, to note the irony
in the fact that the Court's own justification for its result is
its analysis of the rules of the common law of arrest that
antedated our decisions in Katz and Terry. Yet,
even in those days, the common law provided the citizen with
protection against an attempt to make an unlawful arrest. See nn. 499
U.S. 621 fn2/5|>5 and 499
U.S. 621 fn2/7|>7, supra. The central message of Katz and Terry was that the protection the Fourth
Amendment provides to the average citizen is not rigidly confined
by ancient common law precept. The message that today's
literal-minded majority conveys is that the common law, rather than
our understanding of the Fourth Amendment as it has developed over
the last quarter of a century, defines, and limits, the scope of a
seizure. The Court today defines a seizure as commencing, not with
egregious police conduct, but rather with submission by the
citizen. Thus, it both delays the point at which "the Fourth
Amendment becomes relevant" [ Footnote
2/19 ] to an encounter and limits the range of encounters that
will come under the heading of "seizure." Today's qualification of
the Fourth Amendment means that innocent citizens may remain
"secure in their persons . . . against unreasonable searches and
seizures" only at the discretion of the police. [ Footnote 2/20 ]

															Some sacrifice of freedom always accompanies an expansion in the
executive's unreviewable [ Footnote
2/21 ] law enforcement powers. Page 499 U. S. 648 A court more sensitive to the purposes of the Fourth Amendment
would insist on greater rewards to society before decreeing the
sacrifice it makes today. Alexander Bickel presciently wrote that
"many actions of government have two aspects: their immediate,
necessarily intended, practical effects, and their perhaps
unintended or unappreciated bearing on values we hold to have more
general and permanent interest." [ Footnote 2/22 ] The Court's immediate concern with
containing criminal activity poses a substantial, though
unintended, threat to values that are fundamental and enduring.

															I respectfully dissent.

															[ Footnote 2/1 ]

															The Fourth Amendment to the Constitution protects "[t]he right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures. . . ."

															[ Footnote 2/2 ] Katz v. United States, 389 U.
S. 347 (1967).

															[ Footnote 2/3 ] Terry v. Ohio, 392 U. S. 1 (1968).

															[ Footnote 2/4 ]

															The Court's gratuitous quotation from Proverbs 28:1, see
ante at 499 U. S. 623 ,
n. 1, mistakenly assumes that innocent residents have no reason to
fear the sudden approach of strangers. We have previously
considered, and rejected, this ivory-towered analysis of the real
world for it fails to describe the experience of many residents,
particularly if they are members of a minority. See
generally Johnson, Race and the Decision To Detain a Suspect,
93 Yale L.J. 214 (1983). It has long been

															"a matter of common knowledge that men who are entirely innocent
do sometimes fly from the scene of a crime through fear of being
apprehended as the guilty parties, or from an unwillingness to
appear as witnesses. Nor is it true as an accepted axiom of
criminal law that 'the wicked flee when no man pursueth, but the
righteous are as bold as a lion.'" Alberty v. United States, 162 U.
S. 499 , 162 U. S. 511 (1896).

															[ Footnote 2/5 ]

															"[I]f the officer pronounces words of arrest without an actual
touching and the other immediately runs away, there is no escape
(in the technical sense), because there was no arrest. I t would be
otherwise had the officer touched the arrestee for the purpose of
apprehending him, because touching for the manifested purpose of
arrest by one having lawful authority completes the apprehension,
'although he does not succeed in stopping or holding him even for
an instant.'"

															Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 206 (1940)
(footnotes omitted).

															[ Footnote 2/6 ]

															"One who undertakes to make an arrest without lawful authority,
or who attempts to do so in an unlawful manner, is guilty of an
assault if the other is ordered to submit to the asserted
authority, is guilty of battery if he lays hands on the other for
this unlawful purpose. . . ." Id. at 263 (footnotes omitted).

															[ Footnote 2/7 ]

															"[E]ven without touching the other, the officer may subject
himself to liability if he undertakes to make an arrest without
being privileged by law to do so.[5]"

															"-----"

															"5. For example, an officer might be guilty of an assault
because of an attempted arrest, without privilege, even if he did
not succeed in touching the other. Furthermore, if the other
submitted to such an arrest without physical contact, the officer
is liable for false imprisonment. Gold v. Bissell, 1 Wend.
210 (N.Y.Sup.Ct.1828)." Id. at 201.

															[ Footnote 2/8 ]

															"We have recently held that 'the Fourth Amendment protects
people, not places,' Katz v. United States, 389 U. S.
347 , 389 U. S. 351 (1967), and
wherever an individual may harbor a reasonable 'expectation of
privacy,' id. at 389 U. S. 361 (MR. JUSTICE
HARLAN, concurring), he is entitled to be free from unreasonable
governmental intrusion. Of course, the specific content and
incidents of this right must be shaped by the context in which it
is asserted. For 'what the Constitution forbids is not all searches
and seizures, but unreasonable searches and seizures.' Elkins
v. United States, 364 U. S. 206 , 364 U. S.
222 (1960)." Terry v. Ohio, 392 U.S. at 392 U. S. 9 .

															[ Footnote 2/9 ] Hester v. United States, 265 U. S.
57 (1924), the case on which the majority largely
relies, was decided over 40 years before Terry. In that
case, the defendant did not even argue that there was a seizure of
his person. The Court's holding in Hester that the
abandoned moonshine whiskey had not been seized simply did not
address the question whether it would have been the fruit of a
constitutional violation if there had been a seizure of the person
before the whiskey was abandoned.

															[ Footnote 2/10 ]

															The Court applied this principle in Brown v. Texas, 443 U. S. 47 (1979):

															"We have recognized that, in some circumstances, an officer may
detain a suspect briefly for questioning, although he does not have
'probable cause' to believe that the suspect is involved in
criminal activity, as is required for a traditional arrest.
However, we have required the officers to have a reasonable
suspicion, based on objective facts, that the individual is
involved in criminal activity." Id. at 443 U. S. 51 (citations omitted).

															[ Footnote 2/11 ]

															It is noteworthy that the Court has relied so heavily on cases
and commentary that antedated Katz and Terry. [ Footnote 2/12 ]

															"The essential teaching of the Court's decision in Terry -- that an individual's right to personal security
and freedom must be respected even in encounters with the police
that fall short of full arrest -- has been consistently
reaffirmed." INS v. Delgado, 466 U. S. 210 , 466 U. S. 227 (1984) (Brennan, J., concurring in part and dissenting in
part).

															[ Footnote 2/13 ]

															"Petitioner argues that the Fourth Amendment is never implicated
until an individual stops in response to the police's show of
authority. Thus, petitioner would have us rule that a lack of
objective and particularized suspicion would not poison police
conduct, no matter how coercive, as long as the police did not
succeed in actually apprehending the individual." Michigan v. Chesternut, 486 U.S. at 486 U. S.
572 .

															[ Footnote 2/14 ]

															The California Court of Appeal noted:

															"This case involves more than a pursuit, as Officer Pertoso did
not pursue [respondent], but ran in such a fashion as to cut him
off and confront him head on. Under the rationale of Chesternut, this action is reasonably perceived as an
intrusion upon one's freedom of movement, and as a maneuver
intended to block or 'otherwise control the direction or speed' of
one's movement."

															App. A to Pet. for Cert. 9.

															[ Footnote 2/15 ]

															"To determine the constitutionality of a seizure '[w]e must
balance the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the importance of the
governmental interests alleged to justify the intrusion.'" Tennessee v. Garner, 471 U. S. 1 , 471 U. S. 8 (1985)
(citation omitted).

															[ Footnote 2/16 ]

															Even under the common law,

															"If an officer shoots at an arrestee when he is not privileged
to do so, he is guilty of an aggravated assault. And if death
results from an arrest, or attempted arrest, which was not
authorized at all, . . . the arrester is guilty of manslaughter or,
in extreme cases, of murder."

															Perkins, 25 Iowa L.Rev. at 263-264.

															[ Footnote 2/17 ]

															In Tennessee v. Garner, even the dissent agreed with
the majority that the police officer who shot at a fleeing suspect
had " seized' the suspect by shooting him." 471 U.S. at 471 U. S. 25 (O'CONNOR, J., dissenting). [ Footnote 2/18 ]

															The purpose of the Fourth Amendment is " to prevent arbitrary
and oppressive interference by enforcement officials with the
privacy and personal security of individuals.'" INS v.
Delgado, 466 U.S. at 466 U. S. 215 (quoting United States v. Martinez-Fuerte, 428 U.
S. 543 , 428 U. S. 554 (1976)); see Mendenhall, 446 U.S. at 446 U. S.
553 -554 (same); Terry v. Ohio, 392 U.S. at 392 U. S. 12 ("Ever since its inception, the rule excluding evidence seized in
violation of the Fourth Amendment has been recognized as a
principal mode of discouraging lawless police conduct"); 4 W.
LaFave, Search and Seizure § 11.4(j), pp. 459-460 (2d ed.1987)
("Incriminating admissions and attempts to dispose of incriminating
evidence are common and predictable consequences of illegal arrests
and searches, and thus to admit such evidence would encourage such
Fourth Amendment violations in future cases"). Justice Brandeis wrote eloquently about the overarching purpose
of the Fourth Amendment:

															"The makers of our Constitution . . . sought to protect
Americans in their beliefs, their thoughts, their emotions and
their sensations. They conferred, as against the Government, the
right to be let alone -- the most comprehensive of rights and the
right most valued by civilized men. To protect that right, every
unjustifiable intrusion by the Government upon the privacy of the
individual, whatever the means employed, must be deemed a violation
of the Fourth Amendment." Olmstead v. United States, 277 U.
S. 438 , 277 U. S. 478 (1928) (Brandeis, J., dissenting). Today's opinion has lost sight
of these purposes.

															[ Footnote 2/19 ] Terry v. Ohio, 392 U.S. at 392 U. S. 16 .

															[ Footnote 2/20 ]

															Justice Jackson presaged this development when he wrote:

															"[A]n illegal search and seizure usually is a single incident,
perpetrated by surprise, conducted in haste, kept purposely beyond
the court's supervision, and limited only by the judgment and
moderation of officers whose own interests and records are often at
stake in the search. . . . The citizen's choice is quietly to
submit to whatever the officers undertake or to resist at risk of
arrest or immediate violence." Brinegar v. United States, 338 U.
S. 160 , 338 U. S. 182 (1949) (Jackson, J., dissenting).

															[ Footnote 2/21 ]

															"[T]he right to be secure against searches and seizures is one
of the most difficult to protect. Since the officers are themselves
the chief invaders, there is no enforcement outside of court. . . .
There may be, and I am convinced that there are, many unlawful
searches of homes and automobiles of innocent people which turn up
nothing incriminating, in which no arrest is made, about which
courts do nothing, and about which we never hear." Id. at 338 U. S. 181 (Jackson, J., dissenting).

															[ Footnote 2/22 ]

															A. Bickel, The Least Dangerous Branch 24 (1962).