Torres v. Madrid: What is a Seizure for Purposes of the Fourth Amendment?

What is a seizure for purposes of the Fourth Amendment?

If police take evidence (contraband, drugs, computers) from you, that’s a seizure. If police arrest you, place handcuffs on your wrists, and take you to the jail, that’s also a seizure.

But what if police attempt to arrest you and you escape? Was that a seizure for purposes of the Fourth Amendment? Is it a seizure if police yell, “You’re under arrest!” as you are running away? If they grab your arm but you pull away and escape? What if police shoot you in the back as you are running but you still escape?

In Torres v. Madrid, the US Supreme Court held that “[t]he application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person,” finding that it was a Fourth Amendment seizure when police shot Torres as she drove away from them.

Why does it matter, and what are some practical criminal defense applications for the rule in Torres?

What is a Seizure for Purposes of the Fourth Amendment?

The Fourth Amendment prohibits unreasonable seizures by government agents. When a seizure by a government agent is found to be unreasonable, it can result in:

  1. Exclusion of any evidence that was discovered as a result of the unreasonable seizure, and
  2. A 42 USC Section 1983 lawsuit for violation of the person’s Fourth Amendment rights.

Before the court can decide whether a seizure was unreasonable, however, it must first decide whether a seizure happened at all. For example, when Torres sued for violation of her First Amendment rights because police shot her as she drove away from them, the police argued that there was no Fourth Amendment violation because shooting someone is not a seizure if the person escapes…

The US Supreme Court disagreed – when police 1) applied physical force to Torres’ body 2) with the intent to restrain her, she was “seized,” at least in the moment that the officer’s bullets ripped into her body.

The Court did not decide whether the seizure was reasonable or whether Torres is entitled to damages in her lawsuit – that’s a question for the lower courts. What they did is clarify that, when police intend to seize someone and they physically touch that person (whether it is with their hands or a bullet from a gun), that is a seizure for purposes of the Fourth Amendment.

What is a Seizure? It Depends on the Nature of the Object Being Seized

The Court draws a distinction that the dissent did not seem able to grasp – that the definition of a seizure depends on the nature of the object being seized

For example, if a police officer shoots a bag of weed that they find in your car, they have not seized the bag of weed. If they pick it up, attach a label to it, put it in their patrol car, and deposit it in the evidence locker at the station, however, it has been seized.

When an officer “seizes” a person, unlike a bag of weed, that person might run away or otherwise escape arrest. That doesn’t mean they have not been seized or that the Fourth Amendment is not implicated – they have, and it is.

Use of Force + Intent to Restrain = Seizure

If there is physical contact – the officer touches the person in some way, and if the officer’s intent is to restrain the person, then it is a seizure:

We stress, however, that the application of the common law rule does not transform every physical contact between a government employee and a member of the public into a Fourth Amendment seizure. A seizure requires the use of force with intent to restrain. Accidental force will not qualify. See County of Sacramento v. Lewis, 523 U. S. 833, 844 (1998). Nor will force intentionally applied for some other purpose satisfy this rule. In this opinion, we consider only force used to apprehend…

In Torres’ case, the officers physically contacted her body with bullets, and their purpose in shooting her was to restrain her by preventing her from driving off; therefore, whether it was reasonable or not, it was a Fourth Amendment seizure:

…the officer’s shooting applied physical force to her body and objectively manifested an intent to restrain her from driving away. We therefore conclude that the officers seized Torres for the instant that the bullets struck her.

This is not a new rule – it is a restatement of prior court opinions that hold a seizure occurs when:

  1. An officer intends to arrest a person and the officer makes physical contact with the person, or
  2. An officer intends to arrest a person and the person submits to the arrest.

The SC Supreme Court has announced the same rule in the context of when a person can be convicted for resisting arrest – if the person is not under arrest, they cannot resist arrest…

State v. Brannon – a Practical Application of the Seizure Rule

In State v. Brannon, although it did not involve a shooting, the SC Supreme Court reached the same conclusion.

In Torres, there was a seizure because the officers intended to restrain Torres and physically touched her (with a bullet to her body). In Brannon, there was no seizure because the officers did not intend to arrest Brannon and they did not physically touch him.

Brannon’s conviction for resisting arrest was reversed on appeal where 1) the officers said that they intended to question Brannon when they approached him (as opposed to arresting him), 2) the officers did not physically touch Brannon before he ran from them, and 3) Brannon did not submit to arrest.

It doesn’t matter if an officer is yelling, “Stop! You’re under arrest!” as a suspect runs from them. Even if the officer’s intent is to make an arrest, there is no seizure unless the officer physically restrains the suspect before they run, or the suspect submits to the arrest.

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