MICHIGAN v. CHESTERNUT

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ORAL ARGUMENT OF ANDREA L. SOLAK, ESQ. ON BEHALF OF THE PETITIONER

Chief Justice William H. Rehnquist: We will hear argument now in Number 86-1824, Michigan against Michael Chesternut.

Ms. Solak, you may proceed whenever you are ready.

Mr. Solak: Mr. Chief Justice, and may it please the Court, on December 19th, 1984, at approximately 12:30 p.m., four plainclothes officers were on a routine patrol in the City of Detroit in a standard police car, black in color with markings at the side door.

At a preliminary examination one officer testified that he observed a car pull to the curb and a man alite from the car and address the respondent standing on the corner.

The police car continued its westward path, approaching the corner, at which time the respondent looked in the direction of the police car, turned and began to run down the street.

Unidentified Justice: This was in the city of Detroit?

Mr. Solak: It was, Your Honor.

Yes.

The police car pulled around the corner and drove parallel to the running man.

There were no lights, sirens, or verbal communications directed to respondent.

During this time, the respondent tossed a number of packets from his right hand pocket, proceeded about five feet further, and stopped.

The officer then got out of his car and retrieved the packets and found pills.

Based on his experience, he believed them to contain suspected narcotics.

Unidentified Justice: Where were they, on the ground?

Mr. Solak: They had been tossed to the sidewalk.

Yes, Your Honor.

Unidentified Justice: The respondent was seen to toss them, did you say?

Mr. Solak: Yes, he was observed to have tossed them from his righthand pocket.

The officer then arrested the respondent for possession of narcotics.

The prosecutor at a motion to bind over for trial argued that there was nothing illegal in pursuing a citizen down the street.

The examining magistrate rejoined, "want to bet", and we are here today to settle that bet.

In 1968 in Terry v. Ohio this Court faced the question of whether an actual physical restraint of a person for purposes other than a probable cause based arrest implicates the Fourth Amendment, and if so, when, if ever, is that seizure reasonable.

This Court, of course, concluded that such seizures do come within the Fourth Amendment and are reasonable and justified by articulable facts demonstrating a reasonable suspicion to believe that criminal activity is afoot.

This Court observed in Terry that prior to the point of the actual physical restraint it need only to have assumed there was no intrusion upon constitutionally protected rights.

Unidentified Justice: Ms. Solak, is it your position then that a police chase never implicates the Fourth Amendment until the person being chased is actually stopped or seized?

Mr. Solak: That is my position, and that seizure, of course, could take place by actual physical restraint by the officer.

Unidentified Justice: You mean even if the red lights were flashing and the siren was blazing and the guns were drawn?

Mr. Solak: That is correct, even if there were perhaps that show of authority, unless and until the capture, if you will, takes place, there is no seizure.

Unidentified Justice: You wouldn't say the same thing if you were riding in a car, would you, and a policeman came up behind you and turned on his red lights and his siren?

You usually pull over then.

Mr. Solak: Most citizens do usually acquiesce, and under my standard if the citizen did pull over and it was in response to an official show of authority, that would be a seizure.

Unidentified Justice: Well, how about an official show of authority like red lights and a siren?

Mr. Solak: And if the citizen were to have acquiesced to those red lights and a siren, I believe a seizure would have taken place.

If the citizen did not acquiesce and engaged in a pursuit it would be our position that is not in fact a seizure under the Fourth Amendment.

Unidentified Justice: Well, this citizen in this case, he understood that the police were chasing... she understood the police were chasing here, I guess.

Mr. Solak: Yes--

Unidentified Justice: She stopped, anyway, didn't she?

Mr. Solak: --He did ultimately stop.

Unidentified Justice: Is that a he or a she?

Mr. Solak: It was a he, Michael.

Unidentified Justice: All right.

Mr. Solak: Yes, he did ultimately stop.

Unidentified Justice: He knew he was about to be seized, didn't he?

Mr. Solak: He knew... the court believed that he had reason to anticipate a capture, but he did not in fact stop.

Unidentified Justice: He knew he was about to be seized.

So this was a second or so before the seizure.

Mr. Solak: This was seconds before the seizure.

Exactly, Your Honor.

In cases such as United States versus--

Unidentified Justice: Counsel, do you take the position that he knew he was about to be seized?

Do you concede that?

Mr. Solak: --No, I do not.

Thank you for bringing that point to the fore.

Unidentified Justice: If you don't, why did he throw the stuff away?

Mr. Solak: The defendant's conduct in abandoning may not have been an intelligent decision, but I would argue that--

Unidentified Justice: Did he have any other reason to throw it away?

Mr. Solak: --Other than the presence of the police?

Unidentified Justice: Yes.

Mr. Solak: No, he did not.

In response to Justice Kennedy's point, we do not concede that the instant case was in fact an attempted seizure.

Rather, what we would suggest is that there was absolutely no entree or attempted communication by the police officer other than his mere presence on the scene and in the absence of a show of authority or an exercise of force it is improper and factually illogical to assume that the defendant would in fact have been seized.

Unidentified Justice: Well, Ms. Solak, what if the police had a chance to speak to the person and say stop, we want to talk to you, and he then takes off and they pursue?

Mr. Solak: This Court has recognized that police-citizen encounters of the sort that you might have described are appropriate on some occasion.

An officer may make an... of a citizen.

Unidentified Justice: Can that be a seizure under the Fourth Amenmdent?

Mr. Solak: I don't believe in Mendenhall versus Royer that merely the entre by an officer, I would like to speak to you, would constitute a seizure.

Unidentified Justice: He says stop.

Mr. Solak: Saying stop and asserting perhaps police presence would certainly add a factor into an assessment of a show of authority.

Unidentified Justice: Well, is a show of authority enough to implicate the Fourth Amendment then?

Mr. Solak: No, I do not believe that it is enough to implicate the Fourth Amendment.

There must also be the response in response to a show of authority.

Basically the test that is proffered before this Court by the petitioner has a cause and effect analysis.

If the police undertake by a show of authority or exercise of force to cause the restraint of the petitioner and they effect that restraint, then there will be a seizure under the Fourth Amendment, so you therefore have the show of authority and either the actual capture or the acquiescence which is reasonably responsive to that show of authority.

In a survey of the cases that have been handled by this Court, most of the cases involve... in fact all of the cases involve either an actual physical restraint or a citizen's acquiescence to a show of authority.

This Court has never held nor intimated that a citizen who in fact goes on his way has been seized.

In a related area at least two circuits, the Sixth and the Ninth, have refused to find a Fourth Amendment violation so as to support a 42 USC 1983 cause of action in instances where a plaintiff ran or drove away from a police officer clearly attempting to achieve a seizure.

The pursuit which ensued in those cases was not held to be a restraint on a liberty by official show of authority so as to constitute a seizure under the Fourth Amendment.

Unidentified Justice: There was a seizure here, wasn't there?

Mr. Solak: In this case?

Unidentified Justice: Yes.

Mr. Solak: In this case there was ultimately a probable cause seizure.

Unidentified Justice: No, no, no, there was a seizure of the effects.

Mr. Solak: The people would not... the petitioner would not concede that in fact there was a seizure, just as we suggested--

Unidentified Justice: Well, the officer picked up the packets.

They seized the packets that were thrown away.

Mr. Solak: --The officer did pick up the--

Unidentified Justice: What justified that?

Mr. Solak: --Pardon me?

Unidentified Justice: What justified that?

Mr. Solak: There was an abandonment of the packet.

The respondent in fact relinquished any expectations of privacy that he may well have had.

Just as we submit that a seizure is a seizure when it occurs, we believe the Court of Appeals erred in finding that the abandonment was in anticipation of a potentially unlawful search.

Unidentified Justice: What was held was that the abandonment was the fruit of an unlawful seizure, I guess.

Mr. Solak: I believe the Court of Appeals held, the Michigan Court of Appeals held that the abandonment was the fruit of an unlawful seizure of the person by virtue of the pursuit.

They did not differentiate between a search of the person from which the evidence may have been derived and a seizure of the citizen.

Given the myriad of police-citizen encounters that this Court has recognized, it is simply illogical to assume that an encounter by the police and the citizen will necessarily result in an illegal detention or seizure and further an illegal search.

Unidentified Justice: The decision was based on the Shabaz case, wasn't it?

Mr. Solak: Yes, it was.

Unidentified Justice: Which is not a federal case.

Mr. Solak: No, it is indeed a Michigan case.

By way of information, Shabaz had cert granted by this Court, and the respondent in that case met an untimely death and the case was dismissed as being moot.

The Ninth Circuit in holding that a pursuit is not a seizure stated that flight is an act of autonomy whose purpose is to avoid restraint, and I believe these two circuits teach that a seizure is a seizure and an attempted seizure is not a seizure.

The Court of Appeals for the District of Columbia did recently conclude that a person is seized when a pursuit begins.

The Court concluded that the person pursued assumes that the object of the chase is a capture.

Thus when the chase commences the stop begins.

This rationale tracks the rationale employed by the Michigan courts.

However, I believe it runs afoul of the teachings of INS versus Delgado.

In Delgado there was a factory survey wherein Immigration officers were clearly identifiable, armed, and stationed at the doors of the private factory.

This Court stated, though a person may have been questioned if they had attempted to leave this did not create a reasonable apprehension of a detention, and further, that if the person may have been detained if they attempted to leave, in fact in that case the people did not attempt to leave.

The seizure question was simply thus not litigable on that ground as it had not occurred.

This Court stated that one may only litigate that which actually occurred to him.

Similarly in the instant case the fact that the respondent may have been questioned had he chosen to remain does not create a reasonable apprehension of enforceable detention nor the possibility that had he attempted to leave he would have been detained means that he was detained.

In fact, he was free to go about his way and he did so.

He was not detained by the police.

There is nothing in the record to support an objective finding that a detention was contemplated or attempted.

Again, there was no sirens, verbal commands, or lights that were employed by the police.

The trial court admitted that he didn't know what would have happened, and the police officer stated he simply pursued the respondent to see where he was going.

Therefore, it was the defendant... the respondent's flight from the mere presence of the police officer which prevented any kind of encounter, consensual or otherwise, from occurring.

It is also important to note that the police officers did not immediately approach the respondent.

They did not leave their cars until such time as the narcotics were thrown to the sidewalk, and then only after having inspected the pills and finding them to contain narcotics did they then approach the respondent.

Unidentified Justice: But in any event you say that there was reason enough to... seizure of the packets was legal wholly aside from any seizure of the person?

Mr. Solak: I do indeed say that, Your Honor, that the seizure was legal.

Unidentified Justice: Because they were abandoned, or because he had given up any privacy?

Mr. Solak: He had given up any privacy rights as well, yes.

Unidentified Justice: And the officers could not only seize them but open them?

Mr. Solak: He inspected the pills, yes, and found them to be suspected narcotics.

Unidentified Justice: But he had to open the packets to see the pills?

Mr. Solak: He did open the packets, yes.

Unidentified Justice: I don't understand what happened here.

He dropped the packets and then stopped five feet away from them?

Mr. Solak: Yes, he ran approximately five feet further and simply stopped.

Unidentified Justice: That is very strange.

Is there any explanation for why?

Mr. Solak: There is no explanation.

The record is scant.

It was a preliminary examination.

The case never did go to trial.

Unidentified Justice: Does the record show that one police officer was detaining him while the other was inspecting the packets?

Mr. Solak: No, in fact, I believe the record indicates that the officer who testified was the only one to have gotten out of the car, inspected the packets, and then arrested the defendant.

Unidentified Justice: And the defendant just stands there while all this is happening?

Mr. Solak: That's correct.

That's the reflection of the record.

Unidentified Justice: --supposed to stay there, or he wouldn't have, but he just was mistaken, I guess.

Mr. Solak: He was mistaken and perhaps his conduct in retrospect was not wise.

It was not, however, in response to a show of authority by the police.

Assuming arguendo that the pursuit of the respondent was a seizure and that his abandonment was a search, the petitioner submits that the minimal intrusion upon the individual may be justified by circumstances which would lead a reasonable person to believe that criminal activity was afoot.

The reaction of the police in this case to the unprecipitated flight by the respondent is exactly the type of swift, on the pot reaction that this Court has anticipated in Terry and which is necessary to maintain the status quo.

The cause of the flight in this case was not wholly ambiguous.

Rather, it was in direct response to the presence of identifiable... the police.

The alternative of the police in this case which respondent proposes is that the police should simply shrug their shoulders and allow either a crime to occur or a criminal to escape.

Such conduct in and of itself would be a dereliction of duty and unreasonable by the police officer.

Respondent submits that the flight from an identifiable police officer provides reasonable suspicion to believe that criminal activity is afoot and justifies the minimum intrusion and brief temporary detention.

Unidentified Justice: But if he had not dropped the packets on the sidewalk would the police have detained him at all?

Mr. Solak: In this case, of course, the act of dropping the packets--

Unidentified Justice: But I say, if that had not happened.

Mr. Solak: --Under our position, the police could have engaged in some kind of consensual encounter.

We have no way of knowing exactly what they did do.

They could well have engaged in a consensual encounter, simply asking the individual, why are you running, where are you going, is something amiss?

Unidentified Justice: You think just running away justified a Terry stop, a forceful Terry stop?

Mr. Solak: I do believe that running from the site of a police officer--

Unidentified Justice: That issue isn't here, right?

Mr. Solak: --No, actually, that issue is not factually presented, because in fact the respondent ran from an encounter on the corner with another individual, and that flight was precipitated then by the observation of the police.

Unidentified Justice: You make that argument, don't you?

That is your second argument, that there was sufficient and reasonable suspicion to justify a Terry stop.

Mr. Solak: That is our second argument, yes.

Unidentified Justice: So you would also argue they could have pulled him over and stopped him and frisked him--

Mr. Solak: Yes, that is my argument.

I did not make the argument relative to the frisk.

If in fact that is developed that would have led the officer to believe that the respondent was armed, he may then have gone forth with a frisk, but certainly he could have pulled him over as to a brief temporary Terry stop.

Unidentified Justice: --I thought a Terry stop gave you authority to make a frisk for weapons.

You don't take that position?

Mr. Solak: I do not take the position that in and of itself he would have been subject to a frisk.

No, I don't.

Unidentified Justice: But he would have been just subject to questioning.

Mr. Solak: At best, brief questioning.

Unidentified Justice: What if he had said, I am sorry, I'd rather not talk to you?

Mr. Solak: At that point in time it is fish or cut bait.

The officer would have had the opportunity to investigate the nature of the suspicious conduct, the flight.

If he had looked about him and seen nothing discarded in the flight path of the individual, and no other reason to believe that criminal activity had gone forth, he would then have to really see the defendant, the respondent.

Unidentified Justice: The flight itself would not justify it?

Mr. Solak: No, what would have then found is that there was no further reason for the definition.

The flight in fact justified the brief investigative detention, but prolonged or further detention at that point would no longer be justified and he would have to release the individual.

In sum, the petitioner submits that the respondent in this case was neither seized nor searched under the Fourth Amendment and cannot litigate the reasonableness of that which did not occur.

Moreover, if the pursuit and the abandonment of the narcotics are viewed as a seizure and a search, that seizure should be viewed as justified by a reasonable suspicion that criminal activity is afoot.

Thank you.

Chief Justice William H. Rehnquist: Thank you, Ms. Solak.

We will hear now from you, Ms. Stanyar.

ORAL ARGUMENT OF CAROLE M. STANYAR, ESQ. ON BEHALF OF THE RESPONDENT

Mr. Stanyar: Mr. Chief Justice, and may it please the Court, this case concerns the parameters of Fourth Amendment protection where an individual's invocation of the right to go on his way is met by a police chase by four officers in a marked police cruiser.

My argument will be divided into three parts.

First of all, we contend that this chase would have led a reasonable person to believe that he was not free to leave.

That is the seizure question.

Secondly, that this intrusion was not justified by a reasonable suspicion of criminal activity.

And thirdly, this was an unreasonable seizure in terms of its method and scope.

Briefly as to the facts relevant to the show of authority seizure question, these officers were driving in a black marked Detroit police cruiser.

It had markings on the side door.

According to the officer, "Everybody knows what it is".

Counsel has suggested that all four officers were in plain clothes.

I believe the record only indicates the dress of the officer who testified, and he was in plain clothes.

In terms of whether or not the officers activated their lights or sirens, the officer was never asked whether or not he activated his sirens, nor was he asked whether or not his vehicle had that type of equipment.

When Mr. Chesternut ran from the corner, these officers pursued him around the corner, chased him down the street--

Unidentified Justice: Ms. Stanyar, you use the word "pursue".

Is that any different than followed--

Mr. Stanyar: --Well, Your Honor, is perused any different than following?

Unidentified Justice: --Yes, are you using it in any different sense than followed?

The reason I ask is, some of our cases the Knotts case and the Caro case, say that the police can follow you all day on a public street and there is no Fourth Amendment issue.

Mr. Stanyar: Your Honor, I am using the term "pursue" as being synonymous with following and as distinct from chasing.

What occurred next was the chase.

They chased him down the street and they overtook him, and instead of simply continuing on down the block, these officers had to slow down the cruiser in order to run it parallel with Mr. Chesternut.

In that position, Mr. Chesternut was alone.

He was isolated from assistance.

He was pitted between the apartment structure and a police cruiser.

In that spot he could certainly see that there were four police officers here, and this in fact was a police cruiser.

His next actions occurred almost simultaneously He dropped the packets, and within five feet, one running stride, he stopped.

In terms of whether or not the officers all got out or all stayed in the car, the record only reflects what officer Peltier did, and after the dropping of the packets and stopping, Officer Peltier then got out and opened up the packets.

We submit that under these circumstances a reasonable person would feel that he was not free to leave, and that the objective characteristics of this police case meet the standards that this Court has set forth to define a seizure by show of authority.

This police chase was a seizure because at the very least it indicated to Mr. Chesternut that these officers were going to detain him immediately.

Unidentified Justice: At what point did it become a seizure?

Mr. Stanyar: At the very latest, Your Honor, respondent contends that this became a seizure after these officers had chased him and overtaken him and were running the cruiser parallel with him, because at that point you have conveyance, or the officers convey a message to Mr. Chesternut that, Number One, they are going to stop him immediately, that he has done something wrong to warrant being stopped.

We contend that this police chase was a seizure because it implicated every basic interest under the Fourth Amendment, his right to be secure in his person, his right to privacy, his right to be left alone by government, and his right to go on his way.

This Court decided in United States--

Unidentified Justice: Ms. Stanyar, can I ask some more about the circumstances before you get any further?

You said that there was nothing in the records, that the lights weren't on or that the car didn't have lights.

Was there anything that they were?

Mr. Stanyar: --No.

Unidentified Justice: We have to take this case on the assumption that there were no sirens going, no lights flashing, because there is no indication that there were.

Mr. Stanyar: There is no record reference to it either way.

Unidentified Justice: You say the car had to slow down.

I don't know how you can call it a case if it slows down... that is a queer sort of a chase, if you understand what I mean.

Mr. Stanyar: Your Honor, once they caught him, they slowed down.

It is our position that in order to... what happened was, they had to gain ground on him by accelerating, and in order not to continue on past him they had to slow down.

That was my only point.

Unidentified Justice: And they were cruising next to him for some--

Mr. Stanyar: The record doesn't indicate how long they would have been cruising next to him, but the officer indicated... the term he used was, they were "running parallel with him".

It doesn't indicate how long.

Unidentified Justice: --And again, we don't know that they said anything to him, that they said stop or--

Mr. Stanyar: The record doesn't indicate either way.

Unidentified Justice: --So we assume for purposes of the case that they didn't.

Mr. Stanyar: Correct.

Unidentified Justice: Ms. Stanyar, what if I am driving my automobile on the public highway and a police car marked as such and containing four officers gets behind me and follows me on the highway, or perhaps catches up with me and drives alongside me along the highway, and I don't like it.

It makes me nervous.

Have I been seized?

Mr. Stanyar: I don't know necessarily, Justice O'Connor, that that would be a seizure.

It strikes me--

Unidentified Justice: How would it differ from your case do you think?

Mr. Stanyar: --It strikes me as being less intimidating because you have two vehicles that are already traveling along the highway.

You have the person in the vehicle being at least a little more protected than a person who is running on foot.

And it seems as though you just have a person, you just have the--

Unidentified Justice: It intimidates me to have a police car following me and going alongside me on the highway.

Mr. Stanyar: --In order for your example to be a seizure under the Fourth Amendment, your feelings of being intimated must be reasonable, objectively.

Unidentified Justice: And you think that is not objectively reasonable?

Mr. Stanyar: I don't think it is as intimidating as a chase by a police cruiser after a pedestrian.

Unidentified Justice: But if I were jogging along the parkway and the police cruiser comes up along side and keeps up with me, that would be different?

Mr. Stanyar: In terms of your use of the phrase keeps up with you, I think that is different than what we have here, because we have an individual who is unequivocally running away from a police officer.

That is what the lower courts held.

And these officers chase after him.

There is an admission in the lower court record that this was a chase.

The officer was asked by defense counsel, did you pursue the defendant on foot, and in the course of his answer he corrects her by saying, no, Officer Keller "chased him with the car".

He is later asked by the judge, is that what you said, you chased him with the car?

His answer, right.

Unidentified Justice: How did he know he was being chased?

Mr. Stanyar: How did he know he was being chased?

Unidentified Justice: Yes.

Mr. Stanyar: According to the record, Mr. Chesternut had looked in the direction of the police cruiser before beginning to run.

He then goes down the side street, and I think the critical fact here is that the police cruiser accelerated to catch up with him, and then it was running parallel with him, so I think it is clear that--

Unidentified Justice: It didn't have its siren on, according to you.

Mr. Stanyar: --Well, Your Honor, I think that--

Unidentified Justice: How did he know it was chasing him and not me?

Mr. Stanyar: --Well, Your Honor, he was the only one on the side street that day.

He was alone, and the officer said--

Unidentified Justice: The car might have just been going down the same way.

Mr. Stanyar: --Well, the record reflects--

Unidentified Justice: Suppose it was going to get a pizza.

0 [Generallaughter.]

Mr. Stanyar: --The officer or Mr. Chsternut--

Unidentified Justice: The officer.

0 [Generallaughter.]

Mr. Stanyar: --Okay.

I think--

Unidentified Justice: They do at times.

Mr. Stanyar: --They do, Your Honor.

I think the way this chase evolved here--

Unidentified Justice: Could it be he had a guilty conscience?

Mr. Stanyar: --My client?

Unidentified Justice: Yes.

Mr. Stanyar: Whether or not he believes... whether or not his subjective feelings make him believe he is nervous or whatever, Your Honor, I think that the critical factor here is the objective circumstances as viewed by the individual, and the objective circumstances here are that Mr. Chesternut ran and these officers chased after him, overtook him, and then proceeded to run parallel with him, and I think that conveys to him that, Number One, that this is the man that we are after.

Unidentified Justice: Would you be worried if a cruiser went beside you walking down the street?

Mr. Stanyar: If I had run from them.

Unidentified Justice: I didn't add anything to it.

Mr. Stanyar: Okay, if I were walking down the street and a cruiser came--

Unidentified Justice: On your way to church.

Mr. Stanyar: --No, I don't think I would be--

Unidentified Justice: You wouldn't be worried at all, would you?

Mr. Stanyar: --No, I wouldn't.

Unidentified Justice: Aren't there some situations in which you might be mighty glad to see the cruiser come up alongside you?

Mr. Stanyar: Yes, Your Honor.

Unidentified Justice: And you might be running at the time, too.

Mr. Stanyar: Yes, Your Honor.

Unidentified Justice: Yes.

Mr. Stanyar: I think those would present a different fact situation.

This Court decided--

Unidentified Justice: May I ask a question?

This doesn't go to whether there was a seizure, but to the other justification alleged here, that if there was it was a proper one, and I don't know what things are like in Detroit, but I know in my neighborhood if there is a police car patrolling and this police car sees someone observe the car, do a double-take, and start running, I would like that police car to follow that person.

And what you are saying here is that there have to be instructions issued to police cars that if you see somebody who sees the car, his eyes bug out, and he starts running, don't pursue that person.

That is essentially the instructions you want our police officers to have.

Mr. Stanyar: --No, Your Honor.

Our position in this case--

Unidentified Justice: Well, why is this any different?

Mr. Stanyar: --All right.

Our position in this case is that if the officer's true purpose was to see where Mr. Chesternut was going or to see where the individual in your example was going, if that is their true purpose here, they can do that--

Unidentified Justice: No, the purpose I want them to chase them is to ask them, what are you running from us for?

Or, you know, this is something suspicious, it seems to me.

A fellow sees a police car and immediately starts running.

Don't you think that sound law enforcement would say, you know, you don't have to frisk the guy necessarily, but at least, you know, cruise along a little and see what is up.

What is bad about that?

Mr. Stanyar: --I think that if all the officers were going to do in your example was to cruise along and see what is up by seeing where he was going, they could have done that in a number of less intrusive ways.

I think they could have, in our case here, they could have simply continued along and watched the man.

They could have followed a little bit behind.

They could have gone past him and stopped.

Remember that they had a police cruiser, and they had four officers here, and I think that gives them a number of options in this case.

They could have dropped officers off and circled the block.

I think they could have done a number of things to continue surveillance to follow, to continue to observe Mr. Chesternut.

I think what they should not be doing, it would be our position where the line should be drawn is, they should not be acting in a manner which intimidates the individual and which leads him to believe that he is going to be detained imminently, and that is our position, that what occurred here was not an attempted seizure, it was the functional equivalent of a seizure, because clearly if these officers had jumped from the cruiser, and had searched Mr. Chesternut in order to find these packets, there would be no question.

How is it any less offensive to the Fourth Amendment for them to force him to do himself what they are expressly prohibited from doing?

Unidentified Justice: Well, suppose in the hypothetical I gave you this police car in my neighborhood just cruises alongside the person running and rolls down the window and says, is something the matter, I saw you, you know, lighting out, what is going on?

Is there anything wrong with that?

Mr. Stanyar: That strikes me as somewhat less intimidating than the case that we have here because you have some sort of reassurance to the individual, but I still believe that you have the same problem in terms of the individual is exercising his right to go on his way, and these officers are not allowing him to do that.

Unidentified Justice: Well, we don't know what would have happened here.

And that is your opponent's point.

We really don't know what might have happened if your client hadn't dropped the packet and stopped.

Had he continued running, the police officers, for all we know, might have rolled down the window and say, what seems to be the trouble, you know, I saw you taking off like that.

That would be proper if they had done that, wouldn't it?

Mr. Stanyar: I don't believe that it would be, and secondly, Your Honor--

Unidentified Justice: Just in my neighborhood it is okay, but not in this neighborhood?

Mr. Stanyar: --Well, Your Honor, I think that the chase which occurred in this case, the way the aggressive and confrontational action the police officers took in this case belie any reasonable inference that their only purpose was to question Mr. Chesternut.

Unidentified Justice: Why?

The only thing that might belie that is his knowledge that he had these packets in his pocket, and you have told us we shouldn't take that into account.

Mr. Stanyar: Correct, and I think that--

Unidentified Justice: We should assume that he is on the way to church, as Justice Marshall said.

Mr. Stanyar: --Your Honor, I believe that the correct standard is to take the objective circumstances as they appear to a reasonable individual, and I think that the way this occurred, we have a four on one situation.

We have a police cruiser chasing after a pedestrian.

These officers have overtaken him and have slowed down for the purpose of confronting him.

These officers... it is clear that... well, Mr. Chesternut would know that he was not armed.

If I can just briefly go for a moment and--

Unidentified Justice: Let me ask you a question, Ms. Stanyar, about one of your responses to Justice Scalia's question.

You say that the police were forcing him to do what he did.

Are you saying that the presence of the cruiser and its "pursuit" of the defendant forced him to dispose of those packets?

Mr. Stanyar: --Our position is that what occurred here was more than their mere presence on the street.

Their approach to the intersection would have been comparable--

Unidentified Justice: Okay, whatever the police did, that that not only ultimately resulted in a seizure of the defendant, but that just before that it forced him to get rid of those packets.

Mr. Stanyar: --Right.

Unidentified Justice: Why do you say it forced him to?

Mr. Stanyar: As a factual matter, Your Honor, I think those two questions merge for the individual, the question of whether or not these officers are going to stop him and whether or not they are going to search him, because a detention is really a euphemism for what the individual really thinks is going to happen to him out there.

I think that--

Unidentified Justice: Well, it isn't a totally subjective thing at all.

None of our cases that that detention is just a euphemism for what the individual things is going to happen to him.

Mr. Stanyar: --What this Court, I believe, has said is that the objective standard of what a reasonable person would believe that is going to happen.

My point in terms of the two issues coming together is that if an individual has been chased by four officers in a police car, I think it would be reasonable for him to assume that when they catch him, they are going to see what he has on his person.

They have a reason for catching him.

And so detention in this situation I think in terms of... in real terms means that these officers are going to put him up against the car when they do catch him and are going to search him.

In terms of the legal analysis here--

Unidentified Justice: And find the dope.

That doesn't to my mind make this any less of an abandonment on his part.

He has voluntarily parted with the stuff.

Mr. Stanyar: --All right.

In terms of the legal analysis on the abandonment question, our primary position is that because this was an aggressive and confrontational admitted police chase it violated the Fourth Amendment, and that unless there is some evidence to indicate that Mr. Chesternut's discarding of the packets was an act of free will, under Brown versus Illinois, under Wong Sun versus United States, unless there are some intervening circumstances, some time delay which would suggest that his abandonment was an act of free will, there is still an involuntary abandonment.

Unidentified Justice: Have we ever applied the Brown versus Illinois or Wong Sun standards to abandonments?

Mr. Stanyar: I don't know... that you have, Your Honor.

The Michigan courts have understood that analysis to apply.

If I could just briefly... this Court decided in United States versus Mendenhall and Florida versus Royer that mere questioning was not constitutionally intrusive because the individual retained two choices.

He could either remain and cooperate with the police officer, or he could go on his way, and it is that choice that separates a first tier questioning encounter from a second tier Terry type seizure.

It is that choice which is the sole reason for excusing a police officer from a requirement of reasonable suspicion.

In this case, the Court has asked for the for the first time to enforce the right it defined in Mendenhall and to reaffirm that the individual still has two viable choices.

Michael Chesternut asserted his right to choose, and he chose to go on his way, and unless this Court protects his right to make that choice, the central premise which justified the first tier questioning encounter in the first place would be destroyed.

Petitioner is asking this Court to exclude all but a literal detention from the parameters of the Fourth Amendment, and by literal detention they define either a forceable physical restraint or in essence a surrender to a show of authority.

That approach would exclude a huge category of police-citizen confrontations from this Court's scrutiny, and that approach presumes that this Court's scrutiny is not necessary because police officers will not overreach and will not abuse their discretion when they confront individuals on the street, and in fact petitioner considers that possibility as, and I quote, "beyond serious consideration".

For 20 years since Terry versus Ohio this Court has disagreed.

Since Terry, this Court has recognized that while a police officer needs a flexible response on the street, there must be some limits on his actions.

The Court recognized then that the reality of what occurs on the street between a police officer and an individual requires some constitutional protection.

Unidentified Justice: What would the normal police officer in your mind do if he drove up beside a man and the man all of a sudden looked and saw the police car, and took off?

Mr. Stanyar: What could he do under those circumstances?

Unidentified Justice: What do you think he should do?

Mr. Stanyar: I think he could continue to investigate, Your Honor.

Unidentified Justice: Should what?

Mr. Stanyar: He could continue to investigate in a variety of--

Unidentified Justice: By doing what?

Mr. Stanyar: --He could follow the man.

He could watch him.

He could watch to see where he is going.

Unidentified Justice: That is what they did here.

Mr. Stanyar: The officer admitted in this case, and I think it is critical that the officer describes this as a chase, and I think... I am asking the Court to credit that characterization because it probably--

Unidentified Justice: Does it become a chase because of what the officers did or what he did?

Mr. Stanyar: --Well, I think that--

Unidentified Justice: Who started the movement?

Mr. Stanyar: --That's correct, we don't claim that Mr. Chesternut's running in the first instance was preceded by any police illegality.

What we claim here is that when these officers chose an escalated response--

Unidentified Justice: Well, when somebody in the street starts running, shouldn't an officer be interested in why he is running?

Mr. Stanyar: --Yes.

And I think that is a legitimate purpose, Your Honor.

What happened in this--

Unidentified Justice: That's what happened here.

Mr. Stanyar: --What happened in this case was, I think that they may have had a legitimate purpose in terms of to see where he was going, but when they chose to chase him, aggressively confronting him to find out--

Unidentified Justice: What is the difference between seeing where he is going and chasing him?

Mr. Stanyar: --I think the act of following... the act of seeing where he is going is inherently different than the act of chasing.

Following is investigation by observation.

It precedes direct action.

Unidentified Justice: Ms. Solak, I really don't care where he is going.

I want to know where he is coming from.

Do you really think they are chasing him to see where he is going?

They want to know where he lives?

Mr. Stanyar: No, I don't believe that was their purpose.

Unidentified Justice: They are chasing him because they think he has done something, and what they want to catch up with him for is to ask him, what are you running from?

Isn't that what an intelligent police officer would do, at least, at least that, if not do a Terry stop?

Mr. Stanyar: If Your Honor were... if the Court were to take that position the Court would then have to say that chasing... excuse me, that flight in and of itself, standing alone, constitutes--

Unidentified Justice: Invites pursuit.

Yes, I would--

Mr. Stanyar: --constitutes a reasonable suspicion of criminal activity.

I believe that this Court has said at least implicitly on two occasions that flight simply is not enough.

The Court suggested in United States versus Sharpe where the Court looked at number of factors in that case which came together to justify the stop of a marijuana truck.

Flight was among those factors, and this Court said in a footnote,

"Perhaps none of these factors standing alone would give rise to reasonable suspicion. "

and earlier in Wong Sun versus United States this Court acknowledged that flight just as a general proposition is not a reliable indicator of criminal activity.

People run from police for a variety of reasons, and virtually every court that has addressed this issue below has found that people run from police for a variety of reasons they may be past victims of brutality or harassment.

They may have been stopped and searched in the past for no reason.

They may not want to be arrested as a guilty party falsely.

They may not want to be a witness in a case.

They may not like police officers.

They may feel, for whatever reason, that they simply cannot hold their own--

Unidentified Justice: --Flight alone is not enough for what, for probable cause to arrest, or for a reasonable articulable suspicion to make a Terry stop?

Mr. Stanyar: --The latter, Your Honor.

If flight is deemed to constitute reasonable suspicion, then every police chase would be deemed a reasonable seizure, because every police chase involves someone running away.

Furthermore, a rule allowing a second tier seizure, a Terry type seizure on flight alone in effect punishes the individual for exercising his right to go on his way.

Unidentified Justice: Excuse me.

Every police chase does not involve somebody running away in the sense that occurred here, that is, someone who only starts running after he sees the policeman.

I mean, this isn't the police picking on somebody and saying let's chase that fellow for some reason.

This is the fellow, the policemen observed him run only after he saw them.

That is not every chase.

Mr. Stanyar: I agree, Your Honor.

My point is that if flight, let's call it flight from a police officer, flight from an identifiable police officer.

Still you have a situation where if that constitutes reasonable suspicion, then every chase is a reasonable seizure in terms of no other suspicion is necessary, no other sort of suspicious gestures, furtive actions, nothing else would be required, and I think that that at least would be a retreat from this Court's suggestion in those cases that flight is not enough.

In terms of the other point, I believe that that holding would in effect punish the individual for exercising the right that this Court defined in Mendenhall.

The individual has two choices.

He can remain and cooperate with the police officer, or he can go on his way.

In this case we had an emphatic expression of the individuals' right to go on his way.

Reasonableness under the Fourth Amendment also requires a balancing of societal interests, and in this context the government must show what legitimate law enforcement interest is served by allowing a police officer to chase after an individual in this way and under these circumstances.

In the decisions of Martinez, Fuerte, INS versus Delgado, Florida versus Royer, this Court has called upon government in the first instance to articulate the specifics of the crime problem that is being addressed.

Secondly, it has required that the means used to achieve a crime solution be carefully tailored to the underlying justification.

And thirdly, it is required that the investigative methods employed should be the least intrusive means reasonably available to accomplish that end.

We submit simply that the chase which occurred in this case failed under this analysis.

In terms of the precise objective that was offered here by this officer, the officer explained that he saw Mr. Chesternut run, and he wanted to see where he was going, but instead of simply following him, instead of simply observing him, which would have accomplished his objective, these officers chased after him with a police cruiser.

Unidentified Justice: Ms. Stanyar, are you going to abandon the point or do you just don't recognize the point that the court decided this on state grounds and not federal grounds?

Mr. Stanyar: Your Honor, in my reading... no, I haven't abandoned it.

It is just that it is my reading of the opinions below that although the courts decided all on state cases, the origin of the doctrine in Michigan came from Terry versus Ohio, so--

Unidentified Justice: Are you abandoning it?

Mr. Stanyar: --No, I don't abandon it.

Defense counsel below--

Unidentified Justice: Have you abandoned it or not?

Mr. Stanyar: --I don't abandon it, Your Honor.

Unidentified Justice: You just leave it.

Mr. Stanyar: Your Honor--

Unidentified Justice: Unsupported.

Mr. Stanyar: --Well--

Unidentified Justice: It is all right with me.

It is not my case.

Mr. Stanyar: --I understood the lower court's decision as resting totally on an interpretation of the federal Constitution.

David Crump, who pursued the case below, did raise a state constitutional ground but the decision was decided purely on federal constitutional grounds.

Unidentified Justice: I regret I brought it up.

Mr. Stanyar: By defining a seizure exclusively as a detention, petitioner is offering the Court another litmus paper test that bears no reasonable relation to the issue to be decided or to the realities of the situation.

What we should be looking at here is whether this chase was an intimidating and unreasonable show of authority, because if it was, then it offended the basic principle under the Fourth Amendment.

I think we ought to consider the possible ramifications in the extreme of counsel's position.

In this case... excuse me.

Police officers could conceivably rush up or chase up to a stationary crowd, and if an individual seeing police then ran, police officers could then chase after that person and use deadly force, fire shorts after that person, and unless the bullet takes effect under petitioner's approach there would be no Fourth Amendment intrusion.

That is precisely where petitioner's approach has taken the Sixth Circuit, and I would hope that this Court would agree that that is an outrageous result, and one that simply cannot be countenanced under the Court's decisions either in United States versus Mendenhall or Tennessee versus Gardner or the Fourth Amendment.

Chases on less than a reasonable suspicion are going to affect a percentage of innocent people.

The more prevalent this activity becomes, the more tension it generates in the community.

The police chase instantly escalates, the police-citizen confrontation, and in terms of a final cost to society, as a matter of public safety the police chase is dangerous.

It poses a hazard to the police, to the individual, and to innocent bystanders as well, as I have indicated in my brief, as I have documented in my brief.

In conclusion, we have never suggested here that a police officer has to sit by, has to shrug his shoulders and do nothing.

We have asked only that when he chooses to act and when he chooses to confront the individual on the street, that he must stand ready to explain why, and that he must choose a measured response.

These officers failed to do that here.

By chasing Michael Chesternut they deprived him in a very real way of his right to--

Unidentified Justice: xxx if they hadn't pulled up alongside of him, if they had just stayed 25 yards behind him?

Mr. Stanyar: --I think it would have been.

I think it would have been different, Your Honor.

I think that the finale, if you will, of confronting him and of running the cruiser parallel--

Unidentified Justice: If they had to stay 25 yards behind him and then he had thrown away the packets and then stopped just like he did here, thinking that the police were really after him, that would have been a different case?

Mr. Stanyar: --I believe that it would be.

I think at some point their following him even from a distance behind could be intimidating.

I just don't think under your example it seems as intimidating as their confronting him and running parallel with him.

I guess that is my answer.

Unidentified Justice: How much of a chase was it?

How far did he run before he stopped?

Mr. Stanyar: In terms of his running, I think the record reflects that it is somewhere abound a half a block.

In terms of their chasing him, they had to go down the first block and halfway up the second block.

So in terms of time, I would guess, although the record doesn't--

Unidentified Justice: But he only ran a half a block--

Mr. Stanyar: --That's correct, Your Honor.

Unidentified Justice: --before he threw away the packets and stopped?

Mr. Stanyar: Yes, Your Honor.

It is our position that at that point it had already... it had instantly become clear to him--

Unidentified Justice: Not much of a chase.

Mr. Stanyar: --Well, Your Honor, I think that it was enough of a chase to convey to Mr. Chesternut that these officers were going to detain him immediately.

I think that we are not relying on a prolonged confrontation in support of our seizure argument.

What we are relying on here are other factors, the factor that this was an aggressive and confrontational situation, a four on one, a police cruiser, chase of a pedestrian.

I think that by doing that these officers conveyed to him that he was not going to be allowed to leave.

These officers failed to explain why they proceeded in this case and they have failed to choose a measured response.

By chasing they deprived Michael Chesternut in a very real way of his right to feel secure and of his right to go on his way, and for those reasons we would ask that this Court affirm the judgment of the Michigan Court of Appeals.

Chief Justice William H. Rehnquist: Thank you, Ms. Stanyar.

Ms. Solak, you have eleven minutes remaining.

Mr. Solak: I thank the Court.

I have no further comments.

Chief Justice William H. Rehnquist: Very well, the case is submitted.