Massachusetts well explains the totality of circumstances test applied to what a civilian would find an inherently coercive police citizen contact but the courts hardly ever do. Commonwealth v. Matta, 2019 Mass. LEXIS 582 (Oct. 21, 2019):
i. Standard. “[N]ot every encounter between a law enforcement official and a member of the public constitutes [a seizure].” Franklin, 456 Mass. at 820, quoting Commonwealth v. Lopez, 451 Mass. 608, 611, 887 N.E.2d 1065 (2008). We have long held that “[p]olice have seized a person in the constitutional sense ‘only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave.’” Commonwealth v. Barros, 435 Mass. 171, 173-174, 755 N.E.2d 740 (2001), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (opinion of Stewart, J.). See Florida v. Royer, 460 U.S. 491, 502, 103 S. Ct. 1319, 75 L. Ed. 2d 229 (1983). See also Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985). However, because civilians rarely feel “free to leave” a police encounter, a true application of the test would result in nearly every police inquiry being deemed a seizure in the constitutional sense.3 See 4 W.R. LaFave, Search and Seizure § 9.4(a), at 580 (5th ed. 2012) (“[I]f the ultimate issue is perceived as being whether the suspect ‘would feel free to walk away,’ then virtually all police-citizen encounters must in fact be deemed to involve a Fourth Amendment seizure. The Mendenhall-Royer standard should not be given such a literal reading as to produce such a result” [footnotes omitted]).
A review of our case law reveals that rather than focusing primarily on whether a reasonable person would have believed that he or she was free to leave, we look at the totality of the circumstances to determine whether a member of law enforcement has “engaged in some show of authority” that a reasonable person would consider coercive; that is, behavior “which could be expected to command compliance, beyond simply identifying [him-or herself] as police” (quotation and citation omitted). Commonwealth v. Sanchez, 403 Mass. 640, 644, 531 N.E.2d 1256 (1988).
Thus, rather than attempting to determine whether a reasonable person would believe he or she was free to leave, in our view, the more pertinent question is whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay. See Barros, 435 Mass. at 175-176 (question is whether officer was “communicating what a reasonable person would understand as a command that would be enforced by the police power”). See also Commonwealth v. Sykes, 449 Mass. 308, 311, 867 N.E.2d 733 (2007), quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen”). If applied literally, the Mendenhall-Royer standard would require a court to treat “seizure” as a state of mind induced by the mere presence of law enforcement, rather than a discrete and intentional act of law enforcement. See Black’s Law Dictionary 1631 (11th ed. 2019) (defining “seize” as “[t]o forcibly take possession [of a person or property]”). Cf. California v. Hodari D., 499 U.S. 621, 625, 111 S. Ct. 1547, 113 L. Ed. 2d 690 (1991), quoting Thompson v. Whitman, 85 U.S. 457, 471, 21 L. Ed. 897 (1873) (“A seizure is a single act, and not a continuous fact”). Cf. also Nieves v. McSweeney, 241 F.3d 46, 55 (2001) (pretrial release conditions do not constitute seizure because seizure is “generally a discrete event, quintessentially an arrest, … or at least a physical detention”). In other words, while the attending circumstances of a police encounter are relevant, a “seizure” must arise from the actions of the police officer.
