{"id":5996,"date":"2011-11-12T13:13:03","date_gmt":"2011-09-08T05:46:22","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-09-08T05:46:22","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5996","title":{"rendered":"DE formulates definition for seizure"},"content":{"rendered":"

Defendant was ordered outside of a house to talk to the police, and that was a seizure under the totality of the circumstances. He dropped drugs and was arrested for that. His discarding the drugs was a product of the illegal detention. Jones v. State<\/a>, 28 A.3d 1046 (Del. 2011):<\/p>\n

Case law from other jurisdictions also is instructive. Given the \u201cnecessarily imprecise\u201d standard for determining whether an individual has been seized,11 other courts have developed factors to consider when evaluating whether a police encounter amounts to a seizure. For example, in United States v. Mendenhall<\/a>, the United States Supreme Court explained that four circumstances might indicate a seizure: (1) \u201cthe threatening presence of several officers,\u201d (2) \u201cthe display of a weapon by an officer,\u201d (3) \u201csome physical touching of the person of the citizen,\u201d or (4) \u201cthe use of language or tone of voice indicating that compliance with the officer’s request might be compelled.\u201d12<\/p>\n

11 See Michigan v. Chesternut<\/a>, 486 U.S. 567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988).
\n12 United States v. Mendenhall<\/a>, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (citing Terry, 392 U.S. at 19 n.16).<\/p><\/blockquote>\n

In United States v. Scheets<\/a>, the Seventh Circuit considered the following six factors in its totality-of-the-circumstances analysis: (1) \u201cwhether the encounter occurred in a public or private place,\u201d (2) \u201cwhether the suspect was informed that he was not under arrest and free to leave,\u201d (3) \u201cwhether the suspect consented or refused to talk to the investigating officers,\u201d (4) \u201cwhether the investigating officers removed the suspect to another area,\u201d (5) \u201cwhether there was physical touching, display of weapons, or other threatening conduct,\u201d and (6) \u201cwhether the suspect eventually departed the area without hindrance.\u201d13<\/p>\n

13 United States v. Scheets<\/a>, 188 F.3d 829, 836-37 (7th Cir. 1999) (citing United States v. McCarthur<\/a>, 6 F.3d 1270, 1276 (7th Cir. 1993)). See also United States v. Withers<\/a>, 972 F.2d 837, 842 (7th Cir. 1992) (\u201cThe factors we consider in determining whether, in the totality of the circumstances, a reasonable person would believe she were free to leave include: whether the encounter occurred in a public or private place; whether the suspect consented or refused to talk to the police; whether the police informed the suspect that she was not under arrest and was free to leave; whether the police removed the suspect to another area; whether the suspect felt capable of refusing to consent to the search; and whether the suspect eventually departs the area without hindrance.\u201d); State v. McGinnis<\/a>, 290 Kan. 547, 233 P.3d 246, 252 (Kan. 2010) (considering a similar set of factors).\n<\/p><\/blockquote>\n

We adopt the Scheets factors here to channel the unavoidable discretion that is part and parcel of our totality of the circumstances inquiry. …<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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