Morais v. Yee

Johnson, J.,

concurring and dissenting. I dissent from Part I of the Court’s opinion, which holds that, on the basis of the facts before the trial court on summary judgment, Denis Moráis was not seized within the meaning of the Fourth Amendment to the United States Constitution. I concur with the Court’s opinion in all other respects.

My disagreement is based upon the United State Supreme Court decision in Brower v. County of Inyo, 489 U.S. 593 (1989). In that case, an individual was killed when the stolen car he was driving at high speed crashed into a police roadblock. His heirs brought a claim under 42 U.S.C. § 1983 , alleging that the roadblock had effected an unreasonable seizure. The roadblock in question consisted of an eighteen-wheel tractor-trailer placed across both lanes of the two-lane highway on which Brower was travelling. The tractor-trailer was concealed by placing it behind a curve. It was not illuminated, and to further conceal its presence, a police car with its headlights on was positioned to face Brower’s oncoming vehicle. Not surprisingly, Brower struck the roadblock, and he was killed. Brower, 489 U.S. at 594 .

*376 The Supreme Court held that Brower’s freedom of movement was so restricted that a seizure had occurred. Id. at 599 . In so holding, the Court rejected the contention that the facts were analogous to a police chase in which a police car is merely in pursuit with flashing lights and in which a suspect unexpectedly loses control of his car and crashes. Id. at 595, 597 .

The Court stated that a seizure results when “there is a governmental termination of freedom of movement through means intentionally applied.” Id. at 597. The intent required is not subjective, but objective. Thus, even if the police in Brower had “earnestly hoped,” id. at 598 , that Brower would stop his vehicle before hitting the roadblock, the telling circumstance was that the design of the roadblock was such as to produce a collision if voluntary compliance did not occur. Id. The Court stated:

In determining whether the means that terminates the freedom of movement is the very means that the government intended we cannot draw too fine a line, or we will be driven to saying that one is not seized who has been stopped by the accidental discharge of a gun with which he was meant only to be bludgeoned, or by a bullet in the heart that was meant only for the leg. We think it enough for a seizure that a person be stopped by the very instrumentality set in motion or put in place in order to achieve that result. It was enough here . . . that. . . Brower was meant to be stopped by the physical obstacle of the roadblock — and that he was so stopped.

Id. at 598-99 (emphasis added).

The Brower decision sought to distinguish between two ends of a spectrum. On one end, the tractor-trailer roadblock unquestionably resulted in a seizure, even though no actual police contact with Brower occurred and even though Brower might have been able to stop his vehicle prior to the collision with the roadblock. On the opposite end, a mere show of authority, such as pursuit with flashing lights, does not effect a seizure under the Fourth Amendment unless there is physical contact, such as a police car coming into contact with a fleeing vehicle.

In the instant case, we have police conduct that is more than a pursuit with flashing lights, and less than a Brower-type roadblock. Plaintiffs term it a “rolling roadblock,” but whatever its proper name, it is police conduct that is significantly more restrictive than a mere display of authority. When Moráis went off the road and crashed into *377 an embankment, there were two police cars in pursuit of him, and a third in front, straddling the center line. It is clear that the effect of this strategy was to give Moráis virtually no room to maneuver, and that its intent was to bring him to a stop. *

It seems obvious to me that the use of police cars in this manner to bring a motorcyclist to a stop constitutes “a governmental termination of . . . movement through means intentionally applied,” id. at 597 , that is, through an “instrumentality set in motion or put in place in order to achieve that result.” Id. at 599 . Thus, the majority’s focus is misplaced. The critical factor in determining whether there was a seizure is not whether the crash was caused by a collision with a police car, but whether, as in Brower , the methods used by the police effectively terminated Moráis’ freedom of movement. Such a restriction of movement may occur, as it did in Brower , without any actual, physical contact by the police. One may agree that the police actions in Brower were more egregious in the setting up of a fixed and blind roadblock, but the facts here just as clearly demonstrate all of the required elements of a seizure.

To the extent that one may harbor any doubt as to this conclusion, the nature of the police actions may be illuminated by asking what the expected outcome of those actions would have been had no crash occurred. Quite clearly, the expected outcome and, from the standpoint of the police, the desired and intended outcome would have been Moráis’ apprehension. Thus, the inevitable result of what the police did here was either a peaceable apprehension or a cataclysmic one. Once such a point has been reached, I do not understand how it can be denied that a seizure has been effected. As the United States Supreme Court said in Brower , it is not possible,

in determining whether there has been a seizure in a case such as this, to distinguish between a roadblock that is designed to give the oncoming driver the option of a voluntary stop (e.g., one at the end of a long straightaway), and a roadblock that is designed precisely to produce a collision (e.g., one located just around a bend).

*378 Id. at 598 . I take the meaning of this statement to be that any roadblock, stationary or “rolling,” that forces its subject to come to a stop, either voluntarily or by collision, necessarily results in a seizure within the meaning of the Fourth Amendment.'

For these reasons, I conclude that a seizure occurred in this case. On remand, I would instruct the court below to determine whether that seizure was reasonable, a question on which I express no opinion at this time.

The fact that Morais had no avenue of escape, except submission to authority, distinguishes this case from the Supreme Court’s later holding in California v. Hodari D., 499 U.S. 621 (1991). In Hodari D., a suspect fleeing on foot was not seized until he was tackled. Therefore, the cocaine he abandoned while running was not the fruit of a seizure. Id. at 629 . Unlike Morais, Hodari D. could have, at least theoretically, outrun the police.