First & Last Page
Since its inception, the Supreme Court has often struggled to interpret what constitutes a seizure under the Fourth Amendment. While what constitutes a search under the Fourth Amendment has two sturdy foundations in _Katz v. United States_ and _United States v. Jones_, the same cannot be said for seizures, specifically seizures of persons. In 2021, the Court attempted to remedy the situation and craft a workable seizure definition in _Torres v. Madrid_. Instead of building on existing precedent and creating stability in the law, the majority in _Torres_ muddied the seizure waters further when they disregarded more than half a century of case law and officially revived the mere-touch rule from common law. The Court’s new rule will potentially turn thousands of routine, good-faith interactions between police and citizens into seizures that violate the Fourth Amendment. This note will argue that _Torres_ was wrongly decided, explain why the dissent, who argued for keeping the rules found in _Terry v. Ohio_, _Brower v. County of Inyo_, and their progeny, was correct, and highlight the mere-touch rule’s shortcomings, namely its ramifications on police as well as those suing under Section 1983.
Mere Touches with Massive Ramifications: An Analysis of _Torres v. Madrid_ and Its Potential Effects on Police and Section 1983 Plaintiffs,
Lincoln Mem’l U. L. Rev.
Available at: https://digitalcommons.lmunet.edu/lmulrev/vol10/iss2/7