Hastings Constitutional Law Quarterly


This article analyzes Torres v. Madrid, in which the Supreme Court ruled an officer seized a person when he shot her, even though the suspect temporarily eluded capture after the shooting. This work examines the logical implications of Torres’s reasoning. Torres equated a Fourth Amendment seizure of the person with a common law arrest and defined an arrest to include an officer’s slightest touching of a person, even with only a finger. This article asserts that the force of Torres’s logic has elevated the Terry stop and frisk to a full arrest because Terry’s intrusion involves official touching and control beyond Torres’s common law minimum. Since Terry allowed officers to perform a stop and frisk on reasonable suspicion, a level of certainty below the probable cause needed for an arrest, logical consistency would require the Court to either disapprove Terry stops and frisks based on reasonable suspicion or forgo the strict application of common law to the Fourth Amendment. Finally, this article suggests that, with the dramatic changes in policing and society occurring since the common law era, true fealty to Fourth Amendment values requires that the Court broaden its approach while respecting the precedent of the last fifty years.