Law of Police Seizures and the Exercise of Discretion Research Paper

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Our society grants the police extraordinary powers. This is not to suggest those powers are limitless. While many police departments have internal rules and guidelines that limit their behavior with respect to the seizure of persons or property, the most important limitations originate in the Fourth Amendment or more specifically in Supreme Court cases explicating the Fourth Amendment. The Fourth Amendment provides in its entirety, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” From these 54 words, a rich body of case law has developed governing searches and seizures. In addition, the Supreme Court has developed a rule of exclusion that generally requires the exclusion of evidence obtained in violation of the Fourth Amendment. The law of searches and the exclusionary rule are both beyond the scope of this research paper, which focuses on the law of seizures and the exercise of discretion.

By its terms, the Fourth Amendment governs two types of seizures: the seizure of things (or more precisely, tangible property) and the seizure of persons. The law of each is different, and each is addressed in turn.

Fundamentals And Key Issues

The Seizure Of Tangible Property

The first task in understanding constitutional limitations with respect to the seizure of tangible property is to understand what constitutes a seizure. The Supreme Court has stated that a seizure occurs “when there is some meaningful interference with an individual’s possessory interests in that property.” In fact, this is a rather common sense approach to defining seizures. As such, a seizure, within the meaning of the Fourth Amendment, occurs when a police officer takes possession of someone’s property, for example, a purse or watch. Likewise, a seizure occurs when the police exercise control over property such that it is no longer available to a person. For example, when a police officer conducts a traffic stop for a traffic violation, a seizure of the vehicle has occurred during the period that the driver or other occupants are prohibited from using the vehicle. The key is that there must be more than only minor interference over the tangible property. Accordingly, moving a sheet of paper a few inches because it is obscuring the serial number of a television does not constitute a seizure of the paper. Similarly, photographing the exterior of a house from a public sidewalk would not constitute a seizure of the house.

However, caution must be exercised in distinguishing between the seizure and search implications of police action. In the examples described above, the movement of the sheet of paper does not so meaningfully interfere with possessory rights to form a seizure of the paper; however, the conduct would constitute a search because it exposes the otherwise obscured serial number to public view. Similarly, photographing the exterior of a house is not a seizure of the house, but “photographing” the interior of the home using heat-detecting thermal technology would constitute a search within the meaning of the Fourth Amendment.

If police conduct amounts to a seizure of property, the second task is to determine whether the seizure is permissible. The Supreme Court has held that police may initiate brief, temporary seizures of property as long as they are reasonable. For example, if the police suspect – but do not yet have probable cause to show – that a suitcase contains narcotics, they can interfere with the owner’s possessory rights for a very short period, only so long as necessary to bring a drug-sniffing dog to the scene.

In general, however, the Supreme Court has required that all police seizures of property be supported by probable cause to believe that the item seized will aid in a particular apprehension or conviction. Although the preference is for the determination of probable cause to be made by a neutral and detached magistrate through the issuance of a warrant, in recent years the Supreme Court has relied on the Fourth Amendment’s prohibition against “unreasonable” searches and seizures to excuse the warrant requirement when a search or seizure without a warrant is reasonable. In general, when it is practical to secure a warrant, a warrant will be required. When it is not practical, the warrant requirement may be excused. A brief example illustrates this distinction. If the police have probable cause to believe that evidence of an identity theft operation will be found in someone’s home, a warrant will normally be required to search and seize the evidence. By contrast, if the police have probable cause to believe that evidence of an identity theft operation will be found in someone’s home and they have reason to believe that the evidence may be destroyed or relocated before they can secure a warrant, a search and seizure will be permitted without a warrant under the exigency exception. Because of the mobility of automobiles, this exception will often permit a search and seizure of items in an automobile without a warrant, so long as there is probable cause to believe the automobile contains contraband. Similarly, the police may seize, without a warrant, any item that is in “plain view” so long as the officer observes the item from a lawful vantage point, has physical access to the item, and has probable cause to believe the item is contraband or evidence of crime. Consider an example in which the police are summoned to respond to a domestic violence call. If, while responding to the domestic violence call, the police observe illegal drugs in plain view, they may seize it.

Lastly, it should be noted that the warrant requirement, and even the probable cause requirement, may be excused when the government has special needs, other than the detection of crime, justifying a seizure. For example, automobile checkpoints designed to check drivers for evidence of intoxication have been justified under the special needs exception, when the primary goal is to insure public safety on the roads, rather than to make arrests. A similar rationale allows temporary detentions at international borders as well as temporary searches and seizures at airports. Since 9/11, the use of special needs searches and seizures, of both persons and property, has grown exponentially.

The Seizure Of Persons: Arrests

The seizure of persons is more complicated. Clearly, an arrest of a person constitutes a seizure. Such a seizure must be supported by probable cause to believe that a crime was committed and that the person to be arrested committed the crime. Beyond the probable cause requirement, the law regarding arrests is fairly straightforward. Absent exigent circumstances or consent, the police must secure an arrest warrant before making an arrest in the arrestee’s home. If the police want to enter a third party’s home to locate the arrestee, they must go still further and obtain a search warrant for the home. By contrast, the police may arrest a person in a public space with or without a warrant, so long as the probable cause requirement is satisfied. To protect against erroneous arrests, a defendant is entitled to a “prompt” postarrest assessment of probable cause by a magistrate, often referred to as a “probable cause hearing.” In County of Riverside v. McLaughlin, 500 U.S. 44 (1991), the Supreme Court held that a jurisdiction “that provides judicial determinations of probable cause within 48 h of arrest will, as a general matter, comply with the promptness requirement.”

The Seizure Of Persons: Terry Stops

A seizure can also occur as a result of activity that falls far short of an arrest. The seminal case permitting seizures short of arrest is Terry v. Ohio, 392 U.S. 1 (1968).

In Terry v. Ohio, the Supreme Court considered for the first time whether a person could be detained in the absence of probable cause to believe that he had committed a crime, the usual prerequisite for an arrest. On its face, such a seizure would seem to violate the “probable cause” language of the Fourth Amendment. However, weighing the Fourth Amendment in the context of rising crime rates, and placing newfound interest in the Fourth Amendment’s reasonableness clause, the Supreme Court interpreted the Fourth Amendment as permitting a limited detention and questioning of a person as long as an officer has specific and articulable facts, that is, reasonable suspicion, to believe that “criminal activity may be afoot.” Expressing concern for the safety of officers, the Court went a step further. If the officer also has reasonable suspicion that a person is armed and dangerous, the officer can couple the limited detention and questioning with a pat down for weapons: in common parlance, a stop and frisk.

It should be noted that Terry v. Ohio recognized that permitting stops and frisks based on reasonable suspicion would invest officers with a fair amount of discretion. The Court also noted that stop and frisk practices, which the police had already been engaging in for years, were not race neutral and would continue to disproportionately burden minorities. Nonetheless, the Court accepted these disadvantages and interpreted the Fourth Amendment as permitting the practice of forcibly stopping individuals based on “reasonable suspicion.”

Several external factors might explain the Court’s decision to allow reasonable suspicion as a compromise between barring all stops absent probable cause and ceding complete discretion to the police to engage in stops without judicial oversight. Just 4 months after oral argument, and 2 months before issuing its decision, riots broke out in cities across the nation, including Washington, DC, suggesting that what was needed was more state police power, not more individual rights. In addition, the Court and Chief Justice Warren in particular had been criticized during the 1964 presidential campaign for promoting individual rights at the expense of law enforcement and were expected to be targeted again in the 1968 campaign.

While it is impossible to say with any certainty what role these external events played in Terry’s outcome, what is certain is that, by settling for the compromise of reasonable suspicion, Terry had the effect of ushering in a shift in direction that, while providing a basis for judicial oversight, would eventually invest officers with almost unfettered discretion to initiate brief, investigatory seizures of individuals.

Because arrests must be supported by probable cause, and stops merely by reasonable suspicion, disputes often arise regarding whether a person’s seizure amounts to an arrest or a stop. Arrests include not only formal arrests but also de facto arrests in which what may have started as a stop takes on the indicia of a custodial arrest. Courts evaluating the level of seizure consider the totality of circumstances surrounding the situation, including the length of the detention, whether the person was moved during the detention, and whether the police seized the person’s possessions.


What Terry has meant in practice, and what Terry means to many, is the apprehension of criminals. Terry is even preventative. It allows the police to stop and question not only those individuals they suspect of having committed a crime but also those individuals who they suspect may be about to commit a crime.

But the discretion that is inherent in Terry stop and frisks remains controversial. The vast majority of individuals stopped and questioned by the police are not engaged in criminal activity nor are they carrying weapons or contraband. That most stops and frisks affect innocent people, however, does not render them unlawful. Put differently, Terry authorizes stops and frisks based on mere reasonable suspicion (less than probable cause), regardless of whether those suspicions prove accurate or not.

Furthermore, it is difficult to know what proportion of stops and frisks that affect innocent people are in fact based on suspicions that were, at the time, reasonable. For the vast majority of the law-abiding citizens stopped, questioned, and even frisked by the police before being let go, there is no record of an arrest, no charge number, and no prosecution. Accordingly, those stops and frisks for the most part remain beyond public or judicial scrutiny. By definition, there is no exclusion of evidence, the remedy for a Fourth Amendment violation, because there is nothing to exclude. And because there is nothing to exclude, the affected citizens are unlikely to initiate judicial review of the police conduct, thereby leaving most stops and frisks outside of public scrutiny.

Of equal concern is the malleability of reasonable suspicion. As Justice Thurgood Marshall noted some years after Terry was decided, reasonable suspicion is often little more than a “chameleon-like way of adapting to any particular set of observations.” This is especially true when it comes to profiling. In United States v. Sokolow, 490 U.S. 1 (1989), Justice Marshall offered a string cite of cases in which a suspect matched one of the DEA’s profiles to show that almost any behavior can be deemed suspicious and thus satisfy Terry’s reasonable suspicion requirement:

Compare, e.g., United States v. Moore, 675 F.2d 802, 803 (C.A.6 1982) (suspect was first to deplane), with United States v. Mendenhall, 446 U.S. 544, 564 (1980) (last to deplane), with United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (C.A.2 1980) (deplaned from middle); United States v. Sullivan, 625 F.3d 9, 12 (C.A.4 1980) (one-way tickets), with United States v. Craemer, 555 F.2d 594, 595 (C.A.6 1977) (round-trip tickets), with United States v. McCaleb, 552 F.2d 717, 720 (C.A.6 1977) (non-stop flight), with United States v. Sokolow, 808 F.2d 1366, 1370 (C.A.9 1987), vacated, 831 F.2d 1413 (C.A.9 1987) (changed planes); Creamer, supra, at 595 (no luggage), with United States v. Sanford, 658 F.2d 342, 343 (C.A.5 1981) (gym bag), with Sullivan, supra, at 12 (new suitcase); United States v. Smith, 574 F.2d 882, 883 (C.A.6 1978) (traveling alone), with United States v. Fry, 622 F.2d 1218, 1219 (C.A.5 1980) (traveling with companion); United States v. Andrews, 600 F.3d 563, 566 (C.A.6 1979) (acted nervously), with United States v. Himmelwright, 551 F.2d 991, 992 (C.A.5 1977) (acted too calmly).

Moreover, the concern raised in Terry v. Ohio that the costs of allowing stops and frisks based on reasonable suspicion would be disproportionately borne by racial minorities appears to have ample merit. Consider recent numbers from New York City, one of the few jurisdictions that require officers to make a record of certain stops and frisks. According to recent data analyzing 867,617 stops over a 2-year period, blacks and Hispanics constituted over 80 % of the individuals stopped, a percentage far greater than their representation in the population. Moreover, of the blacks stopped, 95 % were not found to be engaged in activity warranting arrest. When considered as a percentage of the population, the numbers are even more jarring. Stops of whites, if spread across the population of New York City, would amount to stops of approximately 2.6 % of the white population during the period. By contrast, stops of blacks, if spread across the population, would amount to stops of approximately 21.1 % of the population.

The Seizure Of Persons: Pretext Stops

Another seminal case in any discussion of the law of police seizures and the exercise of discretion is Whren v. United States, 517 U.S. 806 (1996), in which the Court rejected a Fourth Amendment challenge to a pretextual car stop used to search for drugs and other contraband. Justice Scalia, writing for the Court, rejected this argument and concluded that so long as the stop itself was based on an actual traffic violation, the subjective motivation of an officer in singling out a particular motorist, even if race-based, is irrelevant under the Fourth Amendment. Many scholars argue that Whren essentially green-lights the police practice of singling out individuals for pretextual traffic stops in the hope of discovering contraband. Given that most drivers routinely violate traffic laws, that is, by slightly exceeding the speed limit, Whren in fact gives officers almost unlimited discretion in deciding whom to target for a traffic stop.


Like Terry before it, Whren has had racial consequences. Indeed, the terms “driving while black” and “driving while brown” have become part of the common lexicon to describe the belief that many officers consider race and ethnicity in determining whom to target for a traffic stop. Empirical evidence supports the belief that traffic enforcement disproportionately falls on racial minorities. For example, a report compiled by the Maryland State Police revealed that, during the period examined, African-Americans comprised 72.9 % of all of the drivers that were stopped and searched along a stretch of Interstate 95, even though they comprised only 17.5 % of the drivers violating traffic laws on the road.

Again, numbers like these are only part of the story. The other part is how these numbers impact law-abiding minority citizens. For example, in the Maryland study, even though blacks were disproportionately the subjects of searches, the hit rate for blacks, that is, the rate at which contraband was found, was statistically identical to the hit rates for whites. What this means in numbers is that the vast majority of the individuals stopped and searched were law-abiding minorities not in possession of contraband. A more recent analysis of over 810,000 “field data reports” collected by the Los Angeles Police Department found that the stop rate was 3,400 stops higher per 10,000 residents for blacks than for whites and 350 stops higher for Hispanics than for whites. There is also the issue of the discretionary practices that accompany such stops. The same study found police were 127 % more likely to search stopped blacks than to search stopped whites and 43 % more likely to search stopped Hispanics than stopped whites. Notwithstanding the fact that these groups were searched more often, blacks in fact were 37 % less likely to be found with weapons than searched whites and 24 % less likely to be found with drugs than searched whites. Similar numbers were found for searched Hispanics: Hispanics were 33 % less likely to be found with weapons than searched whites and 34 % less likely to be found with drugs than searched whites.

In addition to race, there is evidence that officers consider economic status in determining whom to target for a stop. For example, there is empirical evidence that police officers are significantly less likely to search vehicles driven by those with above-average incomes than vehicles driven by those with below-average incomes.

The Seizure Of Persons: Non-Seizures

Finally, any discussion of the law of police seizures would be incomplete without a discussion of a line of Supreme Court cases that categorize many police-citizen encounters as essentially “consensual,” mere “encounters” that are not seizures and are thus outside the purview of the Fourth Amendment. In United States v. Mendenhall, 446 U.S. 544 (1980), and Florida v. Bostick, 501 U.S. 429 (1991), the Supreme Court held that absent a show of force or other circumstances that would lead a reasonable person to believe he or she was not free to leave, a “stop” is not always a “stop” within the meaning of the Fourth Amendment. An officer need not have even reasonable suspicion to initiate an encounter. An officer surprising an individual, asking that individual to accompany the officer, and asking that individual a series of questions – Where are you going? Do you live nearby? Are you visiting someone here? – would likely be categorized as a consensual encounter, not a stop within the meaning of the Fourth Amendment. As the Supreme Court has interpreted the Fourth Amendment, “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage – provided they do not induce cooperation by coercive means.” The facts in Mendenhall are illustrative. In Mendenhall, two federal agents approached an African-American woman in an airport, asked to see her identification and airline ticket, and asked her to accompany them to another location for further questioning, where they asked her if she would consent to a strip search. Justice Stewart, proposing the “free to leave” test for the first time, rejected her claim that she was ever “seized” within the meaning of the Fourth Amendment, reasoning that she was always free to leave, and as such the officers needed neither probable cause nor reasonable suspicion to engage her in what could be considered a “consensual encounter.” The case of Immigration and Naturalization Service v. Delgado, 466 U.S. 210 (1984), is also illustrative. Delgado involved a factory sweep to determine the presence of undocumented immigrants. Several INS agents positioned themselves near the buildings’ exits, while others dispersed throughout the factory to question most of the workers. The agents “displayed badges, walkie-talkies, and were armed [as they] approached employees and, after identifying themselves, asked from one to three questions relating to their citizenship.” Writing for the majority, Justice Rehnquist rejected any claim that the workers were in any way detained and categorized the encounters as entirely consensual and thus outside the purview of the Fourth Amendment.

As with Terry and Whren, the Mendenhall line of cases likely has race and class implications. Notably, all of the “free to leave” cases from the Supreme Court involved racial minorities. Unfortunately, there is little data about the pervasiveness of consensual encounters as a law enforcement tool, precisely because they are outside the purview of the Fourth Amendment. Turning again to New York’s stop and frisk data, what this means is that the 867,617 stop and frisk reports tell us virtually nothing of the number of additional individuals who were questioned during supposedly “consensual encounters.”


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  4. Capers IB (2011) Rethinking the fourth amendment: race, citizenship, and the equality principle. Harv Civ Rights-Civ Liberties Law Rev 46:1
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