When Is a Person Considered ''Seized'' Under the Fourth Amendment ?
A person is "seized" for constitutional purposes when, under the circumstances surrounding that seizure, a reasonable person would believe that he or she is not free to leave. United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497 (1980).
At the time an individual is seized, his or her interaction with the authorities is no longer considered an "encounter" and is, therefore, imbued with the constitutional protections embodied in the Fourth Amendment. However, the courts of this state have become increasingly aware of the amorphous distinction between seizures which are investigative detentions, on the one hand, or custodial arrests on the other.
Recently, the court of criminal appeals noted that the heretofore applied standards such as:
(1) whether one's liberty of movement has been restricted;
(2) whether a person has been actually placed under restraint;
(3) whether a reasonable person would have believed that he was not free to leave, have been inadequate. Francis v. State, 922 S.W.2d 176, 179 (Tex. Crim. App. 1996)
To eliminate the ambiguity, the court proposed a new test, namely "whether, given the totality of the circumstances, a reasonable person would believe the seizure was to be brief." Id.
In assessing this standard, the court provided a laundry list of factors which a court may consider.
It noted at the outset of its analysis that "the actual length of time the seizure lasts, while important, is not dispositive." Id.
In other words, "it is erroneous to assume that a reasonable person would have believed that the seizure was to be brief simply because it actually was brief." Id.
Another element is the type and scope of the seizing officer's questions.
"The officer's questions must be such that they either vitiate or confirm his reasonable, articulable suspicions, thereby leading to either release or arrest." Id.
Additionally, the court held that certain actions by authorities may be considered.
Such actions include:
(1) the use of handcuffs;
(2) drawn weapons;
(3) approach by officers far outnumbering the number of citizens;
(4) use of threatening language;
(5) moving the citizen to another location;
(6) use of physical force to restrain the citizen. 922 S.W.2d at 180.
The court warned, however, that these factors only provide "amplification of a reasonable person's sense that he or she will not soon be free to leave." Id.