Was he seized? The majority says yes. The dissent says no.

Here are the facts in this criminal case where the police obtained evidence that the defendant claims was unlawfully seized:

In May 2014, a woman pulled her car alongside a police cruiser in Bridgeport, Connecticut to ask about the process for amending a police report.

After Officer Thomas Lattanzio responded, the woman drove away for a few feet, then reversed toward the police car and told Officer Lattanzio that a man named Branden was nearby with a gun. She pointed down the street, but Officer Lattanzio did not see anyone. Without giving her name, the woman drove away.

Officer Lattanzio then drove in the direction the woman pointed, searching for an armed man. He soon saw Huertas standing on a street corner holding a black bag. Officer Lattanzio drove toward Huertas, going the wrong way on the one-way street. As the cruiser approached, Officer Lattanzio turned on the cruiser’s spotlight and illuminated Huertas. Through the car’s window, Officer Lattanzio asked Huertas a few questions, such as “What’s going on?” and “What happened with the girl?” During Officer Lattanzio’s approach and questioning, Huertas stayed in a fixed position and began answering the questions. The encounter lasted between thirty seconds and one minute. As soon as Officer Lattanzio got out of the cruiser, Huertas ran away. Other police officers later found and arrested Huertas. A search of Huertas’s route turned up a bag similar to the one Huertas had been holding. The bag contained a firearm.

The case is US v. Huertas, decided on July 24. If the police "seized" defendant, then the search was illegal and the police cannot use the gun against him. Defendant says he "submitted" to police authority, the equivalent of a seizure under the Fourth Amendment. The Court of Appeals (Jacobs and Winter) disagrees, holding that defendant was evasive, having run away when the police approached him. Had he stayed still, defendant would have quieted suspicion and hoped the officers would have driven away after being satisfied with his answers to their questions. Instead, he ran. The police were not within defendant's reach, and could not have physically restrained him. The totality of the circumstances says defendant was evading police authority, not submitting to it. There was no seizure.

Judge Pooler dissents. She says the majority extends the meaning of "evasion" beyond activity intended to slow down pursuing officers, and that the Court further "embraces the wrong side of a deepening split between the circuits regarding whether a suspect must do more than simply pause briefly in order to be seized within the meaning of the Fourth Amendment.

The majority states that Huertas’s conduct was undertaken to “quiet suspicion and hope that Officer Lattanzio would drive away after being satisfied with answers to his questions,” and that Huertas thereby intended to “evade” the police. The majority thus adopts the view that answering questions to clear one’s name counts as “evasion” just as much as does pretending to submit so that officers put themselves in a worse position for an impending chase.

The consequences of eliding this distinction are far‐reaching. Suppose, for example, that a suspect speaks with the police not for one or two minutes, but for an hour or two, because he thinks he can talk his way out of going to jail. Would we say he had not submitted, since his only hope was that the interview would “quiet suspicion” and that the officer would let him go “after being satisfied with answers to his questions”? I am comfortable asserting that the vast majority of criminal suspects engage with the police only when they think they will avoid incarceration by doing so. Under that assumption, the majority’s position suggests that stopping to speak with the police, even at length, is unlikely to constitute a seizure because it instead will constitute evasion.