California v. Hodari, No. 89-1632

CourtUnited States Supreme Court
Writing for the CourtSCALIA
Citation113 L.Ed.2d 690,499 U.S. 621,111 S.Ct. 1547
PartiesCALIFORNIA, Petitioner v. HODARI D
Docket NumberNo. 89-1632
Decision Date23 April 1991

499 U.S. 621
111 S.Ct. 1547
113 L.Ed.2d 690
CALIFORNIA, Petitioner

v.

HODARI D.

No. 89-1632.
Argued Jan. 14, 1991.
Decided April 23, 1991.
Syllabus

A group of youths, including respondent Hodari D., fled at the approach of an unmarked police car on an Oakland, California, street. Officer Pertoso, who was wearing a jacket with "Police" embossed on its front, left the car to give chase. Pertoso did not follow Hodari directly, but took a circuitous route that brought the two face to face on a parallel street. Hodari, however, was looking behind as he ran and did not turn to see Pertoso until the officer was almost upon him, whereupon Hodari tossed away a small rock. Pertoso tackled him, and the police recovered the rock, which proved to be crack cocaine. In the juvenile proceeding against Hodari, the court denied his motion to suppress the evidence relating to the cocaine. The State Court of Appeal reversed, holding that Hodari had been "seized" when he saw Pertoso running towards him; that this seizure was "unreasonable" under the Fourth Amendment, the State having conceded that Pertoso did not have the "reasonable suspicion" required to justify stopping Hodari; and therefore that the evidence of cocaine had to be suppressed as the fruit of the illegal seizure.

Held: The only issue presented here—whether, at the time he dropped the drugs, Hodari had been "seized" within the meaning of the Fourth Amendment—must be answered in the negative. To answer this question, this Court looks to the common law of arrest. To constitute a seizure of the person, just as to constitute an arrest—the quintessential "seizure of the person" under Fourth Amendment jurisprudence—there must be either the application of physical force, however slight, or, where that is absent, submission to an officer's "show of authority" to restrain the subject's liberty. No physical force was applied in this case, since Hodari was untouched by Pertoso before he dropped the drugs. Moreover, assuming that Pertoso's pursuit constituted a "show of authority" enjoining Hodari to halt, Hodari did not comply with that injunction and therefore was not seized until he was tackled. Thus, the cocaine abandoned while he was running was not the fruit of a seizure, cf. Brower v. Inyo County, 489 U.S. 593, 597, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628; Hester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 446, 68 L.Ed. 898, and his motion to exclude evidence of it was properly denied. United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (opinion of Stewart, J.), and its progeny, distinguished. Pp. 623-629.

Reversed and remanded.

Page 622

SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, BLACKMUN, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. STEVENS, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. ----.

Ronald E. Niver, San Francisco, Cal., for petitioner.

Clifford M. Sloan, for U.S. as amicus curiae, Washington, D.C., in support of petitioner, by special leave of Court.

James L. Lozenski, Berkeley, Cal., for respondent.

Justice SCALIA delivered the opinion of the Court.

Late one evening in April 1988, Officers Brian McColgin and Jerry Pertoso were on patrol in a high-crime area of Oakland, California. They were dressed in street clothes but wearing jackets with "Police" embossed on both front and back. Their unmarked car proceeded west on Foothill Boulevard, and turned south onto 63rd Avenue. As they rounded the corner, they saw four or five youths huddled around a small red car parked at the curb. When the youths

Page 623

saw the officers' car approaching they apparently panicked, and took flight. The respondent here, Hodari D., and one companion ran west through an alley; the others fled south. The red car also headed south, at a high rate of speed.

The officers were suspicious and gave chase. McColgin remained in the car and continued south on 63rd Avenue; Pertoso left the car, ran back north along 63rd, then west on Foothill Boulevard, and turned south on 62nd Avenue. Hodari, meanwhile, emerged from the alley onto 62nd and ran north. Looking behind as he ran, he did not turn and see Pertoso until the officer was almost upon him, whereupon he tossed away what appeared to be a small rock. A moment later, Pertoso tackled Hodari, handcuffed him, and radioed for assistance. Hodari was found to be carrying $130 in cash and a pager; and the rock he had discarded was found to be crack cocaine.

In the juvenile proceeding brought against him, Hodari moved to suppress the evidence relating to the cocaine. The court denied the motion without opinion. The California Court of Appeal reversed, holding that Hodari had been "seized" when he saw Officer Pertoso running towards him, that this seizure was unreasonable under the Fourth Amendment, and that the evidence of cocaine had to be suppressed as the fruit of that illegal seizure. The California Supreme Court denied the State's application for review. We granted certiorari. 498 U.S. 807, 111 S.Ct. 38, 112 L.Ed.2d 15 (1990).

As this case comes to us, the only issue presented is whether, at the time he dropped the drugs, Hodari had been "seized" within the meaning of the Fourth Amendment.1 If

Page 624

so, respondent argues, the drugs were the fruit of that seizure and the evidence concerning them was properly excluded. If not, the drugs were abandoned by Hodari and lawfully recovered by the police, and the evidence should have been admitted. (In addition, of course, Pertoso's seeing the rock of cocaine, at least if he recognized it as such, would provide reasonable suspicion for the unquestioned seizure that occurred when he tackled Hodari. Cf. Rios v. United States, 364 U.S. 253, 80 S.Ct. 1431, 4 L.Ed.2d 1688 (1960).)

We have long understood that the Fourth Amendment's protection against "unreasonable . . . seizures" includes seizure of the person, see Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 170, 4 L.Ed.2d 134 (1959). From the time of the founding to the present, the word "seizure" has meant a "taking possession," 2 N. Webster, An American Dictionary of the English Language 67 (1828); 2 J. Bouvier, A Law Dictionary 510 (6th ed. 1856); Webster's Third New International Dictionary 2057 (1981). For most purposes at common law, the word connoted not merely grasping, or applying physical force to, the animate or inanimate object in question, but actually bringing it within physical control. A ship still fleeing, even though under attack, would not be considered to have been seized as a war prize. Cf. The Josefa Segunda, 10 Wheat. 312, 325-326, 6 L.Ed. 320 (1825). A res capable of manual delivery was not seized until "tak[en] into custody." Pelham v. Rose, 9 Wall. 103, 106, 19 L.Ed. 602 (1870). To constitute an arrest, however—the quintessential "seizure of the person" under our Fourth Amendment jurisprudence—the mere grasping or application of physical force with lawful authority, whether or not it succeeded in subduing the arrestee, was sufficient. See, e.g., Whitehead v. Keyes, 85 Mass. 495, 501 (1862) ("[A]n officer effects an arrest of a person whom he has authority to arrest, by laying his hand on him for the purpose of arresting him, though he may not succeed in stopping and holding him"); 1

Page 625

Restatement of Torts § 41, Comment h (1934). As one commentator has described it:

"There can be constructive detention, which will constitute an arrest, although the party is never actually brought within the physical control of the party making an arrest. This is accomplished by merely touching, however slightly, the body of the accused, by the party making the arrest and for that purpose, although he does not succeed in stopping or holding him even for an instant; as where the bailiff had tried to arrest one who fought him off by a fork, the court said, 'If the bailiff had touched him, that had been an arrest. . . .' " A. Cornelius, Search and Seizure 163-164 (2d ed. 1930) (footnote omitted).

To say that an arrest is effected by the slightest application of physical force, despite the arrestee's escape, is not to say that for Fourth Amendment purposes there is a continuing arrest during the period of fugitivity. If, for example, Pertoso had laid his hands upon Hodari to arrest him, but Hodari had broken away and had then cast away the cocaine, it would hardly be realistic to say that that disclosure had been made during the course of an arrest. Cf. Thompson v. Whitman, 18 Wall. 457, 471, 21 L.Ed. 897 (1874) ("A seizure is a single act, and not a continuous fact"). The present case, however, is even one step further removed. It does not involve the application of any physical force; Hodari was untouched by Officer Pertoso at the time he discarded the cocaine. His defense relies instead upon the proposition that a seizure occurs "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Terry v. Ohio, 392 U.S. 1, 19, n. 16, 88 S.Ct. 1868, 1879, n. 16, 20 L.Ed.2d 889 (1968) (emphasis added). Hodari contends (and we accept as true for purposes of this decision) that Pertoso's pursuit qualified as a "show of au thority"

Page 626

calling upon Hodari to halt. The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.

The language of the Fourth Amendment, of course, cannot sustain respondent's contention. The word "seizure" readily bears the meaning of a laying on of hands or application of physical force to restrain movement, even when it is ultimately unsuccessful. ("She seized the purse-snatcher, but he broke out of her grasp.") It does not remotely apply, however, to the prospect of a policeman yelling "Stop, in the name of the law!" at a fleeing form that...

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3375 practice notes
  • McNair v. Coffey, No. 00-1139.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 29, 2002
    ...is not independently a "seizure" of any kind. The McNairs were eventually stopped, and thus seized, compare California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), with Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), but that seizure was s......
  • U.S. v. Ruiz, No. 96-CR-227 S.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • April 3, 1997
    ...consensual. Gardiner did not physically stop defendant or order her to remain. Defendant was never touched. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Gardiner asked if he could speak to the defendant. He identified himself as a narcotics officer at t......
  • Ermini v. Scott, Case No: 2:15-cv-701-FtM-99CM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 5, 2017
    ...qualifies as a "seizure" of a person under the Fourth Amendment. al–Kidd, 563 U.S. at 735, 131 S.Ct. 2074 ; California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). So does the detention of a person. Manuel v. City of Joliet, ––– U.S. ––––, 137 S.Ct. 911, 197 L.Ed......
  • Belcher v. Norton, No. 06-3174.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 15, 2007
    ...plaintiffs must show that they were touched physically by the police or that they yielded to a show of authority. California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The governmental termination of freedom of movement must be intentional. Donovan, 17 F.3d ......
  • Request a trial to view additional results
3370 cases
  • McNair v. Coffey, No. 00-1139.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • January 29, 2002
    ...is not independently a "seizure" of any kind. The McNairs were eventually stopped, and thus seized, compare California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), with Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), but that seizure was s......
  • U.S. v. Ruiz, No. 96-CR-227 S.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • April 3, 1997
    ...consensual. Gardiner did not physically stop defendant or order her to remain. Defendant was never touched. See California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). Gardiner asked if he could speak to the defendant. He identified himself as a narcotics officer at t......
  • Ermini v. Scott, Case No: 2:15-cv-701-FtM-99CM.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • April 5, 2017
    ...qualifies as a "seizure" of a person under the Fourth Amendment. al–Kidd, 563 U.S. at 735, 131 S.Ct. 2074 ; California v. Hodari D., 499 U.S. 621, 624, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). So does the detention of a person. Manuel v. City of Joliet, ––– U.S. ––––, 137 S.Ct. 911, 197 L.Ed......
  • Belcher v. Norton, No. 06-3174.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 15, 2007
    ...plaintiffs must show that they were touched physically by the police or that they yielded to a show of authority. California v. Hodari D., 499 U.S. 621, 625-26, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). The governmental termination of freedom of movement must be intentional. Donovan, 17 F.3d ......
  • Request a trial to view additional results
4 books & journal articles
  • The Broken Fourth Amendment Oath.
    • United States
    • Stanford Law Review Vol. 74 Nbr. 3, March 2022
    • March 1, 2022
    ...Carroll v. United States, 267 U.S. 132, 151 (1925); Boyd v. United States, 116 U.S. 616, 626-27 (1886). (99.) Cf. California v. Hodari D., 499 U.S. 621, 624 (1991) (relying upon Founding-era sources to construe the textual term "seizure"); Ramos v. Louisiana, 140 S. Ct. 1390, 1395-96 (2020)......
  • Police Pursuits: the Legal and Policy Implications of County of Sacramento V. Lewis
    • United States
    • Police Quarterly Nbr. 2-3, September 1999
    • September 1, 1999
    ...121 (Md. 1991).Breck v. Cortez, 490 N.E.2d 88 (Ill. App. Ct. 1986).Brower v. County of Inyo, 489 U.S. 593 (1989).California v. Hodari D, 499 U.S. 621 (1991).City of Canton v. Harris, 489 U.S. 378 (1989).City of Los Angeles v. Heller, 475 U.S. 796 Civil actions against state and local govern......
  • POLICING SUSPICION: QUALIFIED IMMUNITY AND 'CLEARLY ESTABLISHED' STANDARDS OF PROOF.
    • United States
    • Journal of Criminal Law and Criminology Vol. 112 Nbr. 1, January 2022
    • January 1, 2022
    ...United States v. Jones, 565 U.S. 400, 406-08 (2012). (21) Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989). (22) California v. Hodari D., 499 U.S. 621, 628 (23) Id. at 624. (24) E.g., Kentucky v. King, 563 U.S. 452, 469 (2011) ("When law enforcement officers who are not armed with a warran......
  • Recent Legal Developments: Criminal Justice Decisions of the United States Supreme Court, 2,020 Term
    • United States
    • Criminal Justice Review Nbr. 47-1, March 2022
    • March 1, 2022
    ...Oregon, 406 U.S. 404 (1972).Borden v. United States, ___ U.S. ___ (2021).Cady v. Dombrowski, 413 U.S. 433 (1973).California v. Hodari D, 499 U.S. 621 (1991).Caniglia v. Strom, ___ U.S. ___ (2021).Coker v. Georgia, 433 U.S. 584 (1977).Edwards v.Vannoy, ___ U.S. ___ (2021).Greer v. United Sta......

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