[*] Associate Professor, California State Fullerton, Division of Political Science and Criminal Justice; Former Deputy District Attorney, Los Angeles, California; J.D., Loyola Law School, Los Angeles, 1987; B.A., University of California, Los Angeles, 1983. Return to text.

[1] Ohio v. Robinette, 117 S. Ct. 417, 419 (1996). Return to text.

[2] See id. at 420-21. Return to text.

[3] 117 S. Ct. 417 (1996). Return to text.

[4] See id. at 421. Return to text.

[5] See id. The Fourth Amendment provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV. See Robinette, 117 S. Ct. at 421 (citing the Court's prior refusal in Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973), to mandate as a precondition to voluntary consent that persons be warned of their right to refuse consent to search). Return to text.

[6] See Robinette, 117 S. Ct. at 424 (Stevens, J., dissenting). Return to text.

[7] Id. at 419. Return to text.

[8] See Schneckloth v. Bustamonte, 412 U.S. 218, 231 (1973). Return to text.

[9] 392 U.S. 1 (1968). Return to text.

[10] See id. at 4. Chief Justice Warren, writing for the majority, noted: "We would be less than candid if we did not acknowledge that this question thrusts to the fore difficult and troublesome issues regarding a sensitive area of police activity—-issues which have never before been squarely presented to this Court." Id. at 9-10. For a thorough discussion of Terry's impact on individual freedom from seizures on the street, see Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L. REV. 1258 (1990). Return to text.

[11] See Terry, 392 U.S. at 5-6. Return to text.

[12] Id. at 6-7. Return to text.

[13] See id. at 7. Return to text.

[14] See id. Return to text.

[15] Id. at 16. Return to text.

[16] Id. at 10. Return to text.

[17] Id. at 11 n.5 (citing People v. Rivera, 14 N.Y.2d 441, 445, 447 (1964)). Return to text.

[18] Id. at 11. The Court elaborated on this contention by noting that "[t]he heart of the Fourth Amendment, the argument runs, is a severe requirement of specific justification for any intrusion upon protected personal security, coupled with a highly developed system of judicial controls to enforce upon the agents of the State the commands of the Constitution." Id. Return to text.

[19] Id. at 16. Return to text.

[20] Id. Return to text.

[21] Id. at 19 n.16. Return to text.

[22] Chief Justice Warren noted: "We cannot tell with any certainty upon this record whether any such 'seizure' took place here prior to Officer McFadden's initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitutionally protected rights had occurred." Id. Return to text.

[23] Chief Justice Warren flatly stated: "We therefore reject the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a 'technical arrest' or a 'full-blown search.'" Id. at 19. Return to text.

[24] Id. at 17. Return to text.

[25] Id. at 20. Much of the Court's discussion regarding the subsequent scope of government intrusion related to searches rather than seizures. For instance, Chief Justice Warren noted: "This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope." Id. at 17-18. Further, "The scope of the search must be 'strictly tied to and justified by' the circumstances which rendered its initiation permissible." Id. at 19. However, the Court indicated the force of this logic applied to both searches and seizures, when, in rejecting the notion that stops and frisks are not subject to constitutional scrutiny, it offered: "In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all exigencies of the case, a central element in the analysis of reasonableness." Id. at 17-18 n.15. Return to text.

[26] See id. at 19 (reaffirming its requirement that the scope of a search must be "strictly tied to and justified by" the circumstances which rendered its initiation permissible). Interestingly, Terry unwittingly locked in the structure of detention analysis for the next three decades. The Court ever since has approached every investigatory detention, despite Terry's recognition of the "protean variety" of street encounters, with one query: at what point during an encounter does the Fourth Amendment become relevant? Id. at 15. This narrow focus has left an equally important inquiry unresolved: at what point during an encounter does the Fourth Amendment cease being relevant? When does Fourth Amendment protection stop? In short, when does a seizure of the person end? Terry, of course, did not consider the end point of seizures because that question was not before the Court. Yet, nothing in the majority opinion suggested that future courts should limit their consideration of Fourth Amendment protection to a dogmatic recital of the initiation of constitutional protection. This Article thus considers the definition of the end point of detentions of the person. Return to text.

[27] 394 U.S. 721 (1969). Return to text.

[28] See id. Return to text.

[29] See id. Return to text.

[30] Id. at 726-27. Return to text.

[31] 407 U.S. 143 (1971). Return to text.

[32] See id. at 144. Return to text.

[33] See id. at 144-45. Return to text.

[34] See id. at 145. Return to text.

[35] See id. Return to text.

[36] Id. Return to text.

[37] Id. at 146. Return to text.

[38] Id. Return to text.

[39] See id. Return to text.

[40] 422 U.S. 873 (1975). Return to text.

[41] Brignoni-Ponce reaffirmed the broad admonition in Terry that "[w]henever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person." Id. at 878. Return to text.

[42] Id. at 879. Return to text.

[43] Id. at 880. Return to text.

[44] 440 U.S. 648 (1979). Return to text.

[45] See id. at 650-51. Return to text.

[46] See id. at 653. Return to text.

[47] Justice White opined: "The marginal contribution to roadway safety possibly resulting from a system of spot checks cannot justify subjecting every occupant of every vehicle on the roads to a seizure—limited in magnitude compared to other intrusions but nonetheless constitutionally cognizable—at the unbridled discretion of law enforcement officials." Id. at 661. Return to text.

[48] Id. Return to text.

[49] Id. at 662-63. Justice White continued: "People are not shorn of all Fourth Amendment protection when they step from their homes onto the public sidewalks. Nor are they shorn of those interests when they step from the sidewalks into their automobiles." Id. The Court reiterated its concern regarding the potential abuse of attendant "unfettered discretion" in Brown v. Texas, 443 U.S. 47, 50-51 (1979). Return to text.

[50] 446 U.S. 544 (1980). Return to text.

[51] See id. at 547. Return to text.

[52] See id. at 547-48. Return to text.

[53] See id. at 548. Return to text.

[54] See id. Return to text.

[55] See id. Return to text.

[56] Id. at 552. Return to text.

[57] Id. at 552-53. Return to text.

[58] Id. at 552. Return to text.

[59] Id. at 551. Return to text.

[60] Id. at 553. Return to text.

[61] Id. Return to text.

[62] Id. Justice Stewart premised his recognition of "consensual encounters" (the class of police activity falling short of a "seizure") on the assumption that individuals who remain and answer police questions despite their right to ignore such interrogations must do so of their own volition. In this vein, Justice Stewart described the nonseizure encounter as when a person responds to the officer in some fashion not out of submission, but "voluntarily in a spirit of apparent cooperation." Id. Return to text.

[63] Id. at 553-54. Return to text.

[64] Id. at 554. Return to text.

[65] See id. Return to text.

[66] Id. Return to text.

[67] See id. at 555. Justice Stewart continued: "The respondent was not seized simply by reason of the fact that the agents approached her, asked her if she would show them her ticket and identification, and posed to her a few questions." Id.

Of particular interest to the Court's later analysis in Robinette, Justice Stewart in Mendenhall contrasted an encounter with a pedestrian from that of a motorist:

[S]topping or diverting an automobile in transit, with the attendant opportunity for a visual inspection of areas of the passenger compartment not otherwise observable, is materially more intrusive than a question put to a passing pedestrian, and the fact that the former amounts to a seizure tells very little about the constitutional status of the latter.
Id. at 556-57. Return to text.

[68] Id. Return to text.

[69] Although initially accepted by only one other member of the Court (Justice Rehnquist), Justice Stewart's formulation of a Fourth Amendment seizure in Mendenhall was ultimately recognized by a majority of the Court. See INS v. Delgado, 466 U.S. 210, 228 (1984). Justice Brennan noted: "A majority of the Court has since adopted [Justice Stewart's] formula as the appropriate standard for determining when inquiries made by the police cross the boundary separating merely consensual encounters from forcible stops to investigate a suspected crime." Id. (Brennan, J., concurring and dissenting); see also Wayne R. LaFave, Pinguitudinous Police, Pachydermatous Prey: Whence Fourth Amendment "Seizures"?, 1991 U. ILL. L. REV. 729, 736 (1991) (observing that "[a]lthough this trifurcation in Mendenhall seemed to deprive the case of any significance, the Stewart standard later came to command a majority of the Court"). Indeed, Justice Stewart's "test" ultimately was "embraced" by a unanimous Court. See Michigan v. Chesternut, 486 U.S. 567, 573 (1988). Return to text.

[70] 460 U.S. 491 (1983). Return to text.

[71] See id. Return to text.

[72] Id. at 497-98. Return to text.

[73] 469 U.S. 1 (1984). Return to text.

[74] Id. at 6. Return to text.

[75] 466 U.S. 210 (1984). Return to text.

[76] Id. at 212. Return to text.

[77] Id. at 212. Justice Brennan, in a separate opinion, labeled the Court's description as "an unrealistic view of the facts." See id. at 229 (Brennan, J., concurring and dissenting). Return to text.

[78] Id. at 215. Return to text.

[79] See id. Thus, the Delgado majority considered whether the circumstances before it would initiate a Fourth Amendment seizure, but, as the issue was not before it, the Court did not have the occasion to consider which facts could end the seizure, thus returning it to a consensual encounter. See id. Return to text.

[80] Id. at 216. Return to text.

[81] Id. Return to text.

[82] Id. Return to text.

[83] Id. at 215 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Return to text.

[84] In a separate opinion, Justice Brennan stated:

The Court goes astray, in my view, chiefly because it insists upon considering each interrogation in isolation as if respondents had been questioned by the INS in a setting similar to an encounter between a single police officer and a lone passerby that might occur on a street corner. Obviously, once the Court begins with such an unrealistic view of the facts, it is only a short step to the equally fanciful conclusion that respondents acted voluntarily when they stopped and answered the agents' questions. . . . The surrounding circumstances in this case are far different from an isolated encounter between the police and a passerby on the street.
Id. at 229 (Brennan, J., concurring and dissenting). Return to text.

[85] Id. at 217. Return to text.

[86] Id. Return to text.

[87] Id. Return to text.

[88] Id. at 218. Return to text.

[89] Id. Return to text.

[90] Id.; see also id. at 226, 229-30 (Brennan, J., concurring and dissenting). Return to text.

[91] 486 U.S. 567 (1987). Return to text.

[92] See id. at 569. Return to text.

[93] Id. Return to text.

[94] See id. Return to text.

[95] See id. Return to text.

[96] See id. Return to text.

[97] See id. at 570. Return to text.

[98] In this sense, the Chesternut Court adopted an approach favoring an "intermediate response," much as it did in Terry. See Terry v. Ohio, 392 U.S. 1, 17-19 (1968); Adams v. Williams, 407 U.S. 143, 145 (1972). Return to text.

[99] Chesternut, 486 U.S. at 572. Justice Blackmun continued: "Thus, petitioner would have us rule that a lack of objective and particularized suspicion would not poison police conduct, no matter how coercive, as long as the police did not succeed in actually apprehending the individual." Id.

This logical extreme became the standard rule only four years later in California v. Hodari D., 499 U.S. 621 (1991), wherein Justice Scalia defined a Fourth Amendment seizure, based on the common law of arrest, as requiring "either physical force . . . or, where that is absent, submission to the assertion of authority." Id. at 626 (emphasis added). Return to text.

[100] Chesternut, 486 U.S. at 572. Return to text.

[101] Id. at 572-73. Return to text.

[102] Id. at 573 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Return to text.

[103] Id. at 574. Return to text.

[104] See id. Return to text.

[105] Id. at 573 (emphasis added). Return to text.

[106] Id. Return to text.

[107] Id. at 576. Return to text.

[108] See id. at 569 (stating that the four policemen "followed the respondent around the corner" and thus did not merely drive up alongside him while patrolling). Return to text.

[109] United States v. Mendenhall, 446 U.S. 544, 554 (1980). Return to text.

[110] As to the number of officers, Justice Stewart found as a relevant factor "the threatening presence of several officers." Id. Moreover, Justice Stewart deemed important the fact that the agents who approached Mendenhall "wore no uniforms." Id. at 555. Return to text.

[111] "The record does not reflect that the police activated a siren or flashers; or that they commanded respondent to halt, or displayed any weapons; or that they operated the[ir] car in an aggressive manner to block respondent's course or otherwise control the direction or speed of his movement." Chesternut, 486 U.S. at 575. A demonstration of the continued parsing of facts is provided in the next sentence: "While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure." Id. (emphasis added). Return to text.

[112] Id. at 576. Return to text.

[113] 499 U.S. 621 (1991). Return to text.

[114] See id. at 623. Return to text.

[115] See id. Return to text.

[116] See id. Return to text.

[117] Id. Return to text.

[118] See id. Return to text.

[119] Justice Scalia framed the question thusly: "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." Id. at 623. Return to text.

[120] Id. at 624. Return to text.

[121] Id. Return to text.

[122] See id. (citing The Josefa Segunda, 10 Wheat. 312, 325-26 (1825)). Return to text.

[123] Id. Return to text.

[124] Id. at 627. Return to text.

[125] Justice Scalia's failure to consider Terry might have been no accident. He had previously criticized Terry for failing to consider the state of the law at the time of ratification:

I take it to be a fundamental principle of constitutional adjudication that the terms in the Constitution must be given the meaning ascribed to them at the time of their ratification. Thus, when the Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" (emphasis added), it "is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted," . . . . The decision of ours that gave approval to such searches, Terry v. Ohio . . . made no serious attempt to determine compliance with traditional standards, but rather, according to the style of this Court at the time, simply adjudged that such a search was "reasonable" by current estimations.
Minnesota v. Dickerson, 508 U.S. 366, 379-80 (1993) (Scalia, J., concurring) (citations omitted). Stepping outside of the analysis followed by the Terry line of precedent, the Hodari Court reconsidered the boundaries of a seizure somewhat independent of that case law. Included within this discussion was not only an analysis of the starting point of a seizure, but also mention of its end point. Justice Scalia noted:

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. "A seizure is a single act, and not a continuous fact."
Hodari, 499 U.S. at 625 (emphasis added) (citation omitted). Beyond this dictum, no rule is established to identify the end point of all seizures. Return to text.

[126] Id. at 626 (parenthetical and emphasis added). Although Justice Scalia's analysis of the common law at the time of ratification represented a departure in method from Terry and its progeny, the words ultimately used in the Hodari test would not have sounded entirely alien to the justices on the bench at the time of Terry or Mendenhall. In a footnote Chief Justice Warren mentioned in reference to seizures of the person: "Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a 'seizure' has occurred." Terry v. Ohio, 392 U.S. 1, 20 n.16 (1968). Justice Stewart cited this language in his opinion in Mendenhall. See United States v. Mendenhall, 446 U.S. at 544, 552 (1980). However, neither reference included the citizen's own actions as part of the seizure definition. Return to text.

[127] Hodari, 499 U.S. at 626. Return to text.

[128] Id. at 627 (emphasis added). Return to text.

[129] Id. Justice Scalia's implied criticism of the "so-called" Mendenhall test is curious, for he joined Chesternut, the unanimous decision that he himself acknowledged adopted this as the standard of a Fourth Amendment seizure of a person. Return to text.

[130] Id. at 628. Return to text.

[131] Id. Return to text.

[132] See id. Return to text.

[133] 501 U.S. 429 (1991). Return to text.

[134] See id. at 431. Return to text.

[135] Id. (quoting Bostick v. State, 554 So. 2d 1153, 1154 (Fla. 1989)). Return to text.

[136] Id. Return to text.

[137] See id. at 431-32. Return to text.

[138] See id. at 432. Return to text.

[139] See id. Return to text.

[140] Id. Justice O'Connor considered these two facts so crucial that she repeated them later in the opinion: "Here, the facts recited by the Florida Supreme Court indicate that the officers did not point guns at Bostick or otherwise threaten him and that they specifically advised Bostick that he could refuse consent." Id. at 437. Return to text.

[141] See id. at 434. Return to text.

[142] See id. at 435. Return to text.

[143] Id. at 434 ("The Court has dealt with similar encounters in airports and has found them to be 'the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest.'") (quoting Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984)). This statement was in turn taken by the Rodriguez Court from Mendenhall. See Rodriguez, 469 U.S. at 5-6 (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)). Return to text.

[144] See Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). Return to text.

[145] Bostick, 501 U.S. at 434. Justice O'Connor felt so comfortable with this truism of constitutional law that she repeated its substance twice within two paragraphs. The Court's other statement of this rule is as follows: "Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions." Id. Return to text.

[146] See id. Return to text.

[147] Id. at 435. Return to text.

[148] Id. at 437. Return to text.

[149] Id. Return to text.

[150] Terry v. Ohio, 392 U.S. 1, 16 (1968). Return to text.

[151] Bostick, 501 U.S. at 435-36. Return to text.

[152] Id. at 436. Return to text.

[153] Id. at 437. Return to text.

[154] Id. at 434 (quoting Florida v. Rodriguez, 469 U.S. 1, 5-6 (1984)). Justice O'Connor mirrored this approach in her initial statement of the issue of the case:

We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus.
Id. at 431. Return to text.

[155] Id. at 435. Return to text.

[156] See id. at 436. Return to text.

[157] See id. Return to text.

[158] Michigan v. Chesternut, 486 U.S. 567, 575 (1988). Return to text.

[159] Id. Return to text.

[160] Bostick, 501 U.S. at 432. This fact was so "worth noting" that the Court noted it twice. See id. at 437. Return to text.

[161] See State v. Robinette, 653 N.E.2d 695, 698 (Ohio 1995). Return to text.

[162] 470 U.S. 675 (1984). Return to text.

[163] See id. at 683. Return to text.

[164] See id. at 677. Return to text.

[165] See id. Return to text.

[166] See id. at 678. Return to text.

[167] See id. Return to text.

[168] See id. Return to text.

[169] See id. Return to text.

[170] See id. at 678-79. Return to text.

[171] See id. at 679. Return to text.

[172] See id. at 683. Return to text.

[173] Id. at 684. Return to text.

[174] Id. at 685. Return to text.

[175] Id. (emphasis added). Return to text.

[176] Id. at 686. Return to text.

[177] See id. Return to text.

[178] See id. Return to text.

[179] Id. at 687. Return to text.

[180] Id. Return to text.

[181] Id. at 685. Return to text.

[182] Id. at 686. Return to text.

[183] Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). Return to text.

[184] See id. Return to text.

[185] See id. Return to text.

[186] 434 U.S. 106 (1977). Return to text.

[187] See Robinette, 117 S. Ct. at 421. Return to text.

[188] See id. Return to text.

[189] See Mimms, 434 U.S. at 107, 109. Return to text.

[190] See id. at 107. Return to text.

[191] See id. Return to text.

[192] See id. Return to text.

[193] Rather than considering Mimms' danger to the officers at this traffic stop, the Court took a wider view. See id. at 109. For instance, the Court consulted the literature regarding dangers to police in traffic stops in general: "'According to one study, approximately 30% of police shootings occurred when a police officer approached a suspect seated in an automobile.'" Id. at 110 (quoting Adams v. Williams, 407 U.S. 143, 148 n.3 (1972)). Noting that not all these approaches involved traffic violations, the Court still concluded "'that a significant percentage of murders of police officers occurs when the officers are making traffic stops.'" Id. (quoting United States v. Robinson, 414 U.S. 218, 234 n.5 (1973)). Return to text.

[194] Id. at 111 n.6. Return to text.

[195] See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). Return to text.

[196] See id. Return to text.

[197] California v. Hodari D., 499 U.S. 621, 626-28 (1991). Return to text.

[198] Id. at 626 (parenthetical and emphasis added). Return to text.

[199] Michigan v. Chesternut, 486 U.S. 567, 572 (1987). Return to text.

[200] Id. Return to text.

[201] See supra text accompanying notes 196-200. Return to text.

[202] See Florida v. Bostick, 501 U.S. 429, 435-37 (1991). Return to text.

[203] Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). Return to text.

[204] 117 S. Ct. 882 (1997). Return to text.

[205] The Wilson Court concluded: "We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop." Id. at 886. Return to text.

[206] Id. at 885 n.1 (citation omitted). Return to text.

[207] See supra text accompanying notes 193-206. Return to text.

[208] Wilson, 117 S. Ct. at 885. Return to text.

[209] Terry v. Ohio, 392 U.S. 1, 13 (1968). Return to text.

[210] See supra text accompanying notes 193-223. Return to text.

[211] 453 U.S. 454 (1981). Return to text.

[212] Id. at 458 (citations omitted). Return to text.

[213] Id. (citing Dunaway v. New York, 442 U.S. 200, 213-14 (1979)). Return to text.

[214] See id. Return to text.

[215] See Ohio v. Robinette, 117 S. Ct. 417, 419 (1996); Brief for Amicus Curiae of the American Civil Liberties Union and the ACLU of Ohio in Support of Respondent at 1, Ohio v. Robinette, 117 S. Ct. 417 (1996) (No. 14074) [hereinafter ACLU Brief]. Return to text.

[216] See Robinette, 117 S. Ct. at 419; Brief for Respondent at 1, Ohio v. Robinette, 117 S. Ct. 417 (1996) [hereinafter Respondent's Brief]. Return to text.

[217] State v. Robinette, 653 N.E.2d 695, 696 (Ohio 1995). Return to text.

[218] See Robinette, 117 S. Ct. at 419. Return to text.

[219] See id. Return to text.

[220] See ACLU Brief, supra note 215, at 1. Return to text.

[221] See id.; Respondent's Brief, supra note 216, at 2. Return to text.

[222] See Robinette, 117 S. Ct. at 419. Return to text.

[223] Respondent's Brief, supra note 216, at 2-3. Return to text.

[224] Id. at 2. Return to text.

[225] Robinette, 117 S. Ct. at 422 (Ginsburg, J., concurring). Return to text.

[226] Respondent's Brief, supra note 216, at 18. Return to text.

[227] State v. Robinette, No. 14074, 1994 WL 147806, at *1 (Ohio App. 2d. Apr. 15, 1994). Return to text.

[228] See State v. Robinette, 653 N.E.2d 695, 696 (Ohio 1995). Return to text.

[229] See id. Return to text.

[230] ACLU Brief, supra note 215, at 2. Return to text.

[231] See Robinette, 653 N.E.2d at 696. Return to text.

[232] See id. Return to text.

[233] See id. at 697. Return to text.

[234] Id. at 696. Return to text.

[235] See id. Return to text.

[236] See id. Return to text.

[237] State v. Robinette, No. 14074, 1994 WL 147806, at *1 (Ohio App. 2d Apr. 15, 1994). Return to text.

[238] Id. at *2. Return to text.

[239] Robinette, 653 N.E.2d at 697. Return to text.

[240] Id. (emphasis added). Return to text.

[241] See id. at 698. Return to text.

[242] Id. at 697-98. Although the Ohio Supreme Court correctly identified the issue in this case as one involving the scope of a legal detention, its statements regarding violation upon requesting an individual to get out of the vehicle during a traffic stop are contrary to Pennsylvania v. Mimms, 434 U.S. 106, 111 n.6 (1977). Thus, the improper extension of the detention actually occurred after Robinette was out of the car, when Deputy Newsome had completed his task of warning Robinette about speeding. In the majority opinion in this case, Chief Justice Rehnquist noted the Ohio Supreme Court's failure to heed Mimms. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). Return to text.

[243] Robinette, 653 N.E.2d at 698. Return to text.

[244] Id. Return to text.

[245] Id. Return to text.

[246] Id. Return to text.

[247] Id. at 699. Return to text.

[248] See infra text accompanying notes 265-85. Return to text.

[249] Robinette, 653 N.E.2d at 699. Return to text.

[250] See infra Part III.B. Return to text.

[251] Ohio v. Robinette, 117 S. Ct. 417, 420 (1996) (citations omitted). Return to text.

[252] Id. at 419-20 (citing Robinette, 653 N.E.2d at 699). Return to text.

[253] Id. at 420 (emphasis added). Return to text.

[254] See Robinette, 653 N.E.2d at 697. Return to text.

[255] Id. at 696. In this ruling, as indicated in both the majority and dissenting opinions of the United States Supreme Court, the Ohio Supreme Court applied an improper standard to the legality of the detention, incorrectly focusing on the subjective motivations of Deputy Newsome himself. See Robinette, 117 S. Ct. at 420-21. The state supreme court, therefore, while improperly measuring the legality of the detention, at least recognized that the detention was the proper issue in the case. See Robinette, 653 N.E.2d at 697. Return to text.

[256] Robinette, 653 N.E.2d at 697. Return to text.

[257] Id. at 697-99. Return to text.

[258] See id. at 698. Return to text.

[259] See Robinette, 117 S. Ct. at 420-21. Return to text.

[260] Id. at 421. Return to text.

[261] Id. Return to text.

[262] Id. Return to text.

[263] See id. Return to text.

[264] Id. at 421. Return to text.

[265] Id. Return to text.

[266] Id. (citing Florida v. Jimeno, 500 U.S. 248, 250 (1991)). Return to text.

[267] 500 U.S. 248 (1991). Return to text.

[268] See id. at 250; see also Robinette, 117 S. Ct. at 421. Return to text.

[269] See Robinette, 117 S. Ct. at 421. Return to text.

[270] Justice Rehnquist cited language from Florida v. Royer, 460 U.S. 491 (1983), in which the Court traced the increasing level of intrusion upon a traveler in an airport terminal and required that government justification match each advancement in invasion of liberty interests; Michigan v. Chesternut, 486 U.S. 567 (1988), wherein the Court considered whether a cruiser driving along a person running on the sidewalk constituted a seizure; and Florida v. Bostick, 501 U.S. 429 (1991), in which the Court considered whether an encounter during a bus sweep constituted a seizure. Return to text.

[271] Robinette, 117 S. Ct. at 421. Return to text.

[272] Id. Return to text.

[273] See id. Return to text.

[274] Id. Return to text.

[275] 412 U.S. 218 (1973). Return to text.

[276] See Robinette, 117 S. Ct. at 421. Return to text.

[277] Id. Return to text.

[278] See id. Return to text.

[279] See infra text accompanying notes 289-319. Return to text.

[280] See Robinette, 117 S. Ct. at 421. Return to text.

[281] See id. Return to text.

[282] See Terry v. Ohio, 392 U.S. 1, 17 (1968). Return to text.

[283] Id. at 16. Return to text.

[284] Id. at 17. Return to text.

[285] Delaware v. Prouse, 440 U.S. 648, 651 (1979). Return to text.

[286] Indeed, the Court so readily recognized the traffic stop to be a detention that it immediately launched into the justifications for the seizure without first establishing Fourth Amendment application: "We believe the issue as to the continuing legality of the detention is a 'predicate to an intelligent resolution' of the question presented . . . ." Ohio v. Robinette, 117 S. Ct. 417, 420 (1996). Return to text.

[287] See discussion supra Part II.A. Return to text.

[288] The Supreme Court of Ohio recognized this dynamic:

[C]itizens who have not been detained immediately prior to being encountered and questioned by police are more apt to realize that they need not respond to a police officer's questions. A "consensual encounter" immediately following a detention is likely to be imbued with the authoritative aura of the detention. Without a clear break from the detention, the succeeding encounter is not consensual at all.
State v. Robinette, 653 N.E.2d 695, 699 (Ohio 1995). Return to text.

[289] See United States v. Mendenhall, 446 U.S. 544, 555 (1980). Return to text.

[290] See Florida v. Royer, 460 U.S. 491, 501 (1983). Return to text.

[291] See Robinette, 117 S. Ct. at 419. Return to text.

[292] See id. Return to text.

[293] Indeed, Mimms involved a detention under the Fourth Amendment. The only issue was the reasonableness of its scope in asking a motorist to exit the vehicle with no further justification beyond the reason for the initial stop. See Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977). Return to text.

[294] See Robinette, 117 S. Ct. at 419. Return to text.

[295] As indicated in Adams, an example of this dynamic was once recognized by Chief Justice Rehnquist himself: "A brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Adams v. Williams, 407 U.S. 143, 146 (1971). Here, Justice Rehnquist recognized the power of an officer to maintain the status quo during a field detention. Return to text.

[296] See Robinette, 117 S. Ct. at 419. Return to text.

[297] See United States v. Mendenhall, 446 U.S. 544, 548 (1980). Return to text.

[298] See Robinette, 117 S. Ct. at 419. Return to text.

[299] Respondent's Brief, supra note 216, at 2-3. Return to text.

[300] See State v. Robinette, 653 N.E.2d 695, 696 (Ohio 1995). Return to text.

[301] Id. Return to text.

[302] Respondent's Brief, supra note 216, at 2. Return to text.

[303] See Robinette, 117 S. Ct. at 422 (Ginsburg, J., concurring). Return to text.

[304] Id. Return to text.

[305] In his dissenting opinion, Justice Stevens noted:

Moreover, as an objective matter it is fair to presume that most drivers who have been stopped for speeding are in a hurry to get to their destinations; such drivers have no interest in prolonging the delay occasioned by the stop just to engage in idle conversation with an officer, much less to allow a potentially lengthy search. I also assume that motorists—even those who are not carrying contraband—have an interest in preserving the privacy of their vehicles and possessions from the prying eyes of a curious stranger. The fact that this particular officer successfully used a similar method of obtaining consent to search roughly 786 times in one year . . . indicates that motorists generally respond in a manner that is contrary to their self-interest. Repeated decisions by ordinary citizens to surrender that interest cannot satisfactorily be explained on any hypothesis other than an assumption that they believed they had a legal duty to do so.
Id. at 425 (Stevens, J., dissenting) (citations omitted). Return to text.

[306] Respondent's Brief, supra note 216, at 18. Return to text.

[307] Id. at 3 (emphasis added). Return to text.

[308] Id. at 2. Return to text.

[309] Id. Return to text.

[310] Florida v. Bostick, 501 U.S. 429, 438 (1991). Return to text.

[311] "[T]he fact that [an] officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Whren v. United States, 116 S. Ct. 1769, 1774 (1996) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). Return to text.

[312] Bostick, 501 U.S. at 437. Return to text.

[313] State v. Robinette, No. 94-14074, 1994 WL 147806, at *1 (Ohio App. 2d Apr. 15, 1994). Return to text.

[314] State v. Robinette, 653 N.E.2d 695, 696 (Ohio 1995). Return to text.

[315] ACLU Brief, supra note 215, at 2. Return to text.

[316] See Robinette, 653 N.E.2d at 696. Return to text.

[317] See Bostick, 501 U.S. at 435-36. Return to text.

[318] Robinette, 653 N.E.2d at 698 (parenthetical in original). Justice Stevens, in his dissenting opinion, agreed:

Several circumstances support the Ohio courts' conclusion that a reasonable motorist in respondent's shoes would have believed that he had an obligation to answer the "one question" and that he could not simply walk away from the officer, get back in his car, and drive away. The question itself sought an answer "before you get gone."
Ohio v. Robinette, 117 S. Ct. 417, 425 (1996) (Stevens, J., dissenting). Return to text.

[319] Justice Stevens noted:

[T]he facts that respondent had been detained, had received no advice that he was free to leave, and was then standing in front of a television camera in response to an official command, are all inconsistent with an assumption that he could reasonably believe that he had no duty to respond.
Robinette, 117 S. Ct. at 425 (Stevens, J., dissenting). Return to text.

[320] Justice Stevens agreed with the Ohio Supreme Court and noted:

Most people believe that they are validly in a police officer's custody as long as the officer continues to interrogate them. The police officer retains the upper hand and the accouterments of authority. That the officer lacks legal license to continue to detain them is unknown to most citizens, and a reasonable person would not feel free to walk away as the officer continues to address him.
Id. at 425 (quoting Robinette, 653 N.E.2d at 698). Return to text.

[321] INS v. Delgado, 466 U.S. 210, 217 (1984). Return to text.

[322] Michigan v. Chesternut, 486 U.S. 567, 576 (1987). Return to text.

[323] See Florida v. Bostick, 501 U.S. 429, 435-36 (1991). Return to text.

[324] See supra Part III.D.1. Return to text.

[325] See United States v. Mendenhall, 446 U.S. 544, 555 (1980). Return to text.

[326] Chesternut, 486 U.S. at 567. Return to text.

[327] Bostick, 501 U.S. at 437. Return to text.

[328] Chesternut, 486 U.S. at 575. Return to text.

[329] See id. Return to text.

[330] See Bostick, 501 U.S. at 432. Return to text.

[331] Chesternut, 486 U.S. at 575. Return to text.

[332] California v. Hodari D., 499 U.S. 621, 626 (1991). Return to text.

[333] See Ohio v. Robinette, 117 S. Ct. 417, 419 (1996) Return to text.

[334] State v. Robinette, 653 N.E.2d 695, 698 (Ohio 1995). Return to text.

[335] Id. Return to text.

[336] See discussion supra Part II.C. Return to text.

[337] New York v. Belton, 453 U.S. 454, 458 (1981). Return to text.

[338] California v. Hodari D., 499 U.S. 621, 626 (1991). Return to text.

[339] "Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged." Id. at 627. Return to text.

[340] See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). Return to text.

[341] See supra text accompanying notes 251-58. Return to text.

[342] Robinette, 117 S. Ct. at 427 (Stevens, J., dissenting) (emphasis added). Return to text.

[343] For example, the officer should allow the motorist to resume his or her travels once the initial purpose of the traffic stop (the writing of a ticket or the administration of a speeding warning) is finished. Return to text.

[344] For instance, an officer may initially pull a vehicle over for running a red light only to discover upon approach that the motorist's speech is slurred. Of course, the officer may then graduate her actions to meet these new facts. She can, among other things, order the motorist to perform a series of field sobriety tests. Yet, suppose the motorist passes the tests and cogently explains that the slurred speech is the result of a recent visit to the dentist. Then, the officer's duties triggered by her slurred speech observations are fulfilled, and she must let the driver proceed on his way. Return to text.

[345] Petition for Writ of Certiorari at 2, Ohio v. Robinette, 117 S. Ct. 417 (1996) (No. 14074). Return to text.

[346] Terry v. Ohio, 392 U.S. 1, 19-20 (1968) (emphasis added). Return to text.

[347] Florida v. Royer, 460 U.S. 491, 500 (1983) (emphasis added). Return to text.

[348] See United States v. Sharpe, 470 U.S. 675, 684 (1984). Return to text.

[349] Schneckloth v. Bustamonte, 412 U.S. 218, 242 (1973). Return to text.

[350] Terry, 392 U.S. at 9 (quoting Union Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891)). Return to text.