New Mexico Civil Rights Law Blog : New Mexico Civil Rights Lawyer & Attorney : Kennedy Law Firm : Albuquerque NM Excessive Force & Police Misconduct

A person is seized when a reasonable person in like circumstances would not feel free to leave. United States v. Mendenhall, 446 U.S. 554-55 (1980). Generally, an officer must use his authority to detain a citizen physically or order a person to remain before a court will decide that law enforcement has seized a person. Terry v. Ohio, 392 U.S. 1, 16, 19 n.6 (1968). Retention of personal documents, usually means the police are "seizing" the person. Florida v. Royer, 460 U.S. 491, 501-02 (1983).

A seizure must be intentional. Brower v. County of Inyo, 489 U.S. 593 (1989). In other words, the police officer must intend to terminate a person's freedom of movement. Id. (finding that use of roadblock was an intentional seizure of person).

Police use of force constitutes a seizure under the Fourth Amendment. Graham v. Connor, 490 U.S. 386 (1989). "All claims that law enforcement officers have used excessive force - deadly or not - in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard." Vathekan v. Prince George's County, 154 F.3d 173, 178 (4th Cir. 1998), citing Graham v. Connor, 490 U.S. 386, 395 (1989). "This includes attacks by police dogs improperly deployed by their handlers." Id., citing, Kopf v. Wing, 942 F.2d 265 (4th Cir. 1991). "An attack by an unreasonably deployed police dog in the course of a seizure is a Fourth Amendment excessive force violation." Id.

A property seizure is a "meaningful interference" with an individual's property. Soldal v. Cook County, Ill., 506 U.S. 56 (1992)(unlawful taking of a mobile home). A government seizure of property, even if no search takes place, is scrutinized under the Fourth Amendment. United States v. Paige, 136 F.3d 1012, 1017 (5th CIr. 1998). Destruction of property is a "seizure". Bonds v. Cox, 20 F.3d 697 (6th Cir. 1994). Taking animals from a person's property is a seizure and may only be done, absent exigent circumstances, pursuant to a warrant. Di Cesare v. Stuart, 12 F.3d 973 (10th Cir. 1993).

In future tutorials, we will review such issues as when a detetnion becomes an arrest, what constitutes reasonable use of force and when a warrant is necessary to arrest and seize property.

Any entry into an area in which a person has a reasonable expectation of privacy is a search. Rakas v. Illinois, 439 U.S. 128, 143 (1978); United States v. Brack, 188 F.3d 748, 755 (7th Cir. 1999)(hotel room). A warrantless search violates the Fourth Amendment when it is an unreasonable infringement on an objectively reasonable expectation of privacy. United States v. Jacobsen, 466 U.S. 109, 113 (1984). Warrantless searches are presumptively unreasonable. Minnesota v. Dickeson, 508 U.S. 366, 372 (1993).

The "advance of technology" necessarily changes what people can expect to be reasonably private, such as the ability to view property from the air. Kyllo v. United States, 121 S.Ct. 2038, 2043 (2001). However, use of a thermal imager to obtain information about the interior of a home was a search and an unreasonable search. Id.

Urine testing is a search. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 617 (1989).

Drawing blood is a search. Scmerber v. California, 384 U.S. 757, 770 (1966).

Extraction of DNA samples is a search. Shaffer v. Saffle, 148 F.3d 1180,1181 (10th Cir. 1998).

A dog sniff is not a search. United States v. Place, 462 U.S. 696, 707 (1983). A canine sniff on the exterior of a vehicle during a lawful traffic stop does not implicate legitimate privacy interests. Illinois v. Caballes, ___ U.S. ___, 125 S.Ct. 834, 838 (2005). Romo v. Champion, 46 F.3d 1013, 1018 (10th Cir. 1995)(as long as item is lawfully seized, dog sniff not unreasonable).

The use of electronic devices to capture conversations is a search. Berger v. New York, 388 U.S. 41, 51 (1967). However, there is no reasonable expectation of privacy in cordless phones. United States v. Mathis, 96 F.3d 1577, 1583 (11th CIr. 1996).

Touching or movement of luggage is not a search. Bond v. United States, 529 U.S. 334, 338-39 (2000). However, inspection of the interior of luggage is a search. Id.

Illuminating an area that is subject to public view is not a search as long the officer is legally present. Texas v. Brown, 460 U.S. 730, 739-40 (1983).

The act of moving property (stero)that is not contraband in a manner to inspect its serial numbers to determine if it was contraband was held to be a search. Arizona v. Hicks, 480 U.S. 321, 327 (1987).

In sum, always ask two questions:

1) Do you expect privacy in the place or property?

2) Is your expectation of privacy reasonable?

If so, the police viewing of the place or thing (or any other sensory intrusion into the place or thing) is a search.