Fourth Amendment - What is a seizure?

By Hubert Plummer posted 03-25-2021 01:38 PM


The Supreme Court issued and new decision on Fourth Amendment unreasonable search and seizure law.

Respondents Janice Madrid and Richard Williamson, officers with the New Mexico State Police, arrived at an Albuquerque apartment complex to execute an arrest warrant and approached petitioner Roxanne Torres, then standing near a Toyota FJ Cruiser. The officers attempted to speak with her as she got into the driver’s seat. Believing the officers to be carjackers, Torres hit the gas to escape. The officers fired their service pistols 13 times to stop Torres, striking her twice. Torres managed to escape and drove to a hospital 75 miles away, only to be airlifted back to a hospital in Albuquerque, where the police arrested her the next day. Torres later sought damages from the officers under 42 U. S. C. §1983. She claimed that the officers used excessive force against her and that the shooting constituted an unreasonable seizure under the Fourth Amendment.[i]

TORRES v. MADRID ET AL. addresses the issue of what constitutes an arrest.  Torres’ argument was that shooting her was an arrest, which is a type of seizure, and that shooting her was unreasonable for the circumstances.

The police had determined that she was not a suspect or the person named in the warrant.  They had no reason to treat her as potentially dangerous.  She was not armed.  She did not brandish a weapon.  Neither officer was standing in front of the vehicle where they could be injured by her driving away.  Yet, they fired thirteen times.  The Supreme Court referred to it as a “fusillade”.

So, if she had been seized, and the court determined that it was unreasonable, then they would have violated the Fourth Amendment.

The lower courts held that it was not an arrest or seizure, since the officer had never gained actual control of Ms. Torres.  So the suit was dismissed and the issue of reasonableness was never addressed.

The Supreme Court also did not address the reasonableness of the police response, but they did take on the issue of seizure.

The law differentiates between seizure by force and seizure by control.  Seizure by control requires either voluntary submission to a show of authority or the termination of freedom of movement.  This test makes it difficult to determine an arrest, due to the need to actually pinpoint the moment of submission or control.

Seizure by force relies on an officer making an arrest touching the person they are arresting.  The moment of touching is the seizure, whether the person escapes or not.  The Court prefers this test because it is easier to determine.

What is touching then?  Obviously the physical act of placing a hand on a suspect it a touching, but it can be accomplished remotely as well.  Common law from 1605 has held that when a serjeant-at-mace touched a debtor with the mace and stated “we arrest you madam” an effective arrest had been made.

The Court extended that idea of touching through an object to bullets.  “Neither the parties nor the United States as amicus curiae suggests that the officers’ use of bullets to restrain Torres alters the analysis in any way.”  So once the bullets touched the body of Ms. Torres, the arrest was made.

The Court remanded the case back to the lower courts to reconsider using the new rule.

This ruling will likely make it easier to hold police accountable for their abuses of power.

The majority opinion was written by Robert, C.J., and joined by Breyer, Sotomayor, Kagan and Kavanagh.  A dissent was written by Gorsuch and joined by Thomas and Alito.  Barrett did not participate.


The author[s] is solely responsible for this blog submission.  It does not represent the position of the New York State Bar Association or its Committee.