Posted by Orin Kerr:
Unintentional Seizures under the Fourth Amendment:
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234406813
Last week, the Ninth Circuit handed down an amended opinion in
[1]United States v. Al Nasser that raises a fascinating and rather
difficult Fourth Amendment question: Is a person "seized" for Fourth
Amendment purposes if he reasonably thinks an officer is trying to
stop him, and he stops in response, but the officer is actually trying
to stop someone else? In the case, officers had pulled over some other
cars for violations, and had their lights on, and the driver of a car
apparently thought he was being pulled over, too, even though he
wasn't. Here's the question: Assuming, for the sake of argument, that
the driver reasonably thought that he was being stopped, and that he
stopped as a result of it, was the stop a seizure if no officer
actually intended to stop that car?
The Ninth Circuit concludes, in an opinion by Judge Kleinfeld
(joined by Trott and R. Smith), that no seizure occurs in such a
situation. I tend to think that is correct, under [2]Brower v. City of
Inyo, but it's actually a pretty difficult question. Unfortunately, I
don't have time to blog all the complexities, but I did want to flag
the opinion for readers interested in such a fun Fourth Amendment
issue.
Thanks to Lee Rudofsky for the tip.
References
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/02/04/0510466.pdf
2.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=489&invol=593
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