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If a police officer approaches you, whether you are in a vehicle or on foot, do you have the right to leave? This answer primarily hinges on whether a seizure is occurring. If one is, then you are likely not free to leave and vice versa.[1] The bedrock of the Fourth Amendment protects against unreasonable searches and seizures. To benefit from its protection, a seizure must occur first.

What is a Seizure?

In criminal law, a seizure occurs when an intentional detention, through physical restraint or show of authority, impedes a person’s freedom of movement. Simply put, when you have the feeling that you cannot leave a situation, or you physically cannot leave it, you were seized in the legal sense. Importantly, this is analyzed using a reasonableness standard. Anyone cannot just testify they did not feel free to leave to establish a seizure. If a reasonable person would not feel free to leave, then a seizure occurred.

Who Cares Whether a Seizure Occurred?

You may wonder why does it matter whether a seizure occurred? Legally, if a cop does “seize” you, then they must have reasonable suspicion of criminal activity to do so and you can challenge your case on that basis. If they do not seize you, then it does not matter whether the officer had reasonable suspicion; and your legal challenge likely goes out the window. That is why the threshold question of whether a seizure occurred is paramount.

Did a Seizure Occur?

Determining whether a reasonable person would feel free to leave (seizure) is analyzed under the totality of the circumstances. The following factors play a big role in the analysis: time of day, location, body language, number of officers, and displays of authority. ​

People may not believe that they have been seized when a police officer merely approaches them in public place and begins to ask questions. However, in State v. Cripps, a seizure occurred when an officer in uniform, armed, and openly displaying their badge approached them in a bar and started asking questions. You may consider this to mean that the more “police-like” the officer is acting, the more likely you are to be experiencing a seizure by the police.

When you are in a vehicle, and an officer approaches you, it may never feel like you are free to leave. The routine traffic stop where a cop activates their emergency lights and pulls behind you is a classic example of a seizure. A reasonable person would not feel free to leave at the outset of such a situation. The analysis often differs when someone is in a parked car and an officer approaches them. Courts will analyze whether the cop’s lights were on, did they block the defendant’s vehicle from leaving, and how many officers were there.[2]

Are You Free to Leave?

With all this information in mind, you may still be confused about whether you can leave if an officer approaches you. As a general rule of thumb, you may very simply ask the officer “may I leave?” If this answer is no, you should stay and ask why in a calm manner. In most cases the officer will need probable cause or a reasonable suspicion to stop and ask you questions. But if you ask why you are being stopped, and they lack such suspicion, they may tell you that you are free to leave. Every situation analyzing whether a lawful seizure occurred is extremely fact dependent. If the facts are on your side, you may benefit from Fourth Amendment protection.

Alec Rolain is a law clerk with Ambrose Law Firm, PLLC in Minneapolis. He is a second-year law student at Mitchell Hamline School of Law in St. Paul. Prior to law school, Alec attended St. Mary’s University of Minnesota in Winona where he played baseball and made the MIAC all-sportsmanship team. Criminal Defense Attorney St. Paul; Drug Crimes Attorney St. Paul MN; and Criminal Lawyer St. Paul MN

[1] For an analysis of how long the cops can detain you without probable cause, read our blog post here: http://ambroselaw247.com/how-long-can-the-police-detain-me/

[2] See State v. Sanger, 420 N.W.2d 241 (Minn. Ct. App. 1988).

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