11.3Existence of a Search or Seizure

“The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures.” People v Lyons, ___ Mich App ___, ___ (2025) (quotation marks and citation omitted). “As one might surmise, there is an important distinction between a search and a seizure.” People v Evans, ___ Mich App ___, ___ (2025). “A search compromises the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.” Id. at ___. “The lawfulness of a search or seizure depends on its reasonableness.” Id. at ___ (quotation marks and citation omitted). “Even when based on probable cause, . . . a warrantless search or seizure inside a suspect’s home is presumptively unreasonable.” People v Hammerlund, 504 Mich 442, 452 (2019) (emphasis added). “[T]he Fourth Amendment has drawn a firm line at the entrance of the house, which absent exigent circumstances may not be reasonably crossed without a warrant.”¹ Id. at 452 (cleaned up). However, “[w]arrantless arrests that take place in public upon probable cause do not violate the Fourth Amendment.”² Id. at 452.

A.Searches and Reasonable Expectation of Privacy

Police conduct constitutes a search subject to Fourth Amendment restrictions when it (1) “violate[s] a person’s ‘reasonable expectation of privacy,’” United States v Jones, 565 US 400, 406 (2012), quoting Katz v United States, 389 US 347, 360 (1967) (Harlan, J., concurring); (2) involves a physical trespass or intrusion in an attempt to find something or obtain information, Jones, 565 US at 406-407; or (3) obtains by sense-enhancing technology any information about the interior of the home that could not otherwise have been obtained without a physical intrusion, at least where the technology in question is not in general public use, Kyllo v United States, 533 US 27, 34-35, 40 (2001). See Jones, 565 US at 407-408 (noting that Justice Harlan’s concept of “reasonable expectation of privacy” as discussed in Katz, 389 US at 360-361, and its progeny “did not narrow the Fourth Amendment’s scope” or otherwise “erode the principle ‘that, when the Government . . . engage[s] in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment,’” irrespective of any inquiry into a person’s reasonable expectation of privacy) (citation omitted; emphasis added); Florida v Jardines, 569 US 1, 11 (2013) (noting that “[t]he Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas”) (quoting Jones, 565 US at 409); Kyllo, 533 US at 29-30, 34-35, 40 (noting that even if no significant invasion of privacy occurred through the use of a thermal-imaging device to detect relative amounts of heat radiating from a house, “‘[t]he Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted,’” and the conclusion that the use of thermal-imaging technology constituted a search was necessary for the “preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted”) (citation omitted).

Establishing that a governmental intrusion violated a person’s reasonable expectation of privacy for Fourth Amendment purposes requires both “that a person ha[s] exhibited an actual (subjective) expectation of privacy,” and “that the expectation [is] one that society is prepared to recognize as ‘reasonable.’” Katz, 389 US at 361 (Harlan, J., concurring). When police conduct does not affect a defendant’s legitimate interest in privacy, the conduct cannot be characterized as a search, and the conduct therefore does not merit Fourth Amendment analysis. Illinois v Caballes, 543 US 405, 408 (2005), citing Jacobsen, 466 US at 123.

“[T]he Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process[;]” “[t]he Fourth Amendment prohibits government officials from detaining a person in the absence of probable cause[, which] . . . can happen when the police hold someone without any reason before the formal onset of a criminal proceeding[, or] . . . when legal process itself goes wrong—when, for example, a judge’s probable-cause determination is predicated solely on a police officer’s false statements.” Manuel v City of Joliet, Illinois, 580 US 357, ___ (2017) (holding that where the petitioner was arrested without probable cause and was detained for several weeks after a judicial finding of probable cause that was based on fabrications in the criminal complaint, he “stated a Fourth Amendment claim when he sought relief not merely for his (pre-legal-process) arrest, but also for his (post-legal-process) pretrial detention[]”). “If the complaint is that a form of legal process resulted in pretrial detention unsupported by probable cause, then the right allegedly infringed lies in the Fourth Amendment.” Id. at ___.

Under the open view doctrine, a Fourth Amendment search does not occur “where a law enforcement officer observes incriminating evidence or unlawful activity from a non-intrusive vantage point.” People v Barbee, 325 Mich App 1, 7 (2018) (quotation marks and citation omitted).

Cell phone and contents. “[C]ell phones and their contents are subject to the protections of the Fourth Amendment.” People v Evans, ___ Mich App ___, ___ (2025). “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” Id. at ___ (quotation marks and citation omitted). Indeed, “because cell phones have such large storage capacities, they are essentially mini computers containing a plethora of data and information about a person, from financial information to personal data.” Id. at ___. “The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” Id. at ___ (quotation marks and citation omitted). “They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Id. at ___ (quotation marks and citation omitted). In Evans, “the police did not search the contents of defendant’s cell phone until after obtaining a warrant to do so, causing no harm to defendant’s privacy interests.” Id. at ___ (noting that “the heightened protection [given to] privacy interests is simply not implicated where a seizure of premises, not a search, is at issue”).

There is a legitimate expectation of privacy in the record of physical movements captured through cell site location information (CSLI), and the fact that the information is obtained from a third party does not overcome Fourth Amendment protections. Carpenter v United States, 585 US ___, ___ (2018). Therefore, the government’s acquisition of CSLI constitutes a search within the meaning of the Fourth Amendment. Id. at ___ (obtaining a court order for CSLI records pursuant to the Stored Communications Act³ was insufficient to justify a search since the required showing under the Act—reasonable grounds to believe the records are relevant and material to an ongoing investigation⁴—falls short of the probable cause standard required to obtain a search warrant). While such records are generated for commercial purposes and shared with a third-party (the service provider), the Carpenter Court declined to extend the third party doctrine set forth in Smith, 442 US at 735 and Miller, 425 US at 435 (discussed above) to CSLI, holding such information is more akin to GPS information as in Jones, 565 US at 400.⁵

Curtilage and open fields. “The curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept.” Dow Chemical Co v United States, 476 US 227, 235 (1986). However, neither outdoor areas of private property outside the curtilage of the home, Oliver v United States, 466 US 170, 176-179 (1984), nor outdoor areas of business property, Dow Chemical Co, 476 US at 238-239, are protected spaces within the meaning of the Fourth Amendment. Thus, physically trespassing on open fields outside the curtilage is not a search; nor is using advanced photographic technology to view an outdoor industrial complex from the air. Dow Chemical Co, 476 US at 239; Oliver, 466 US at 179. See Section 11.7(A) for more information on curtilage searches.

Fingerprinting. “Fingerprinting an individual without probable cause, a warrant, or an applicable warrant exception violates an individual’s Fourth Amendment rights.” Johnson v Vanderkooi, 509 Mich 524, 529-530 (2022). In Johnson, the Court held that the “fingerprinting of each of the plaintiffs in these cases constituted a physical trespass onto a person’s body, a constitutionally protected area.” Id. at 537.

Information generally available to or conveyed to third parties. There is no reasonable expectation of privacy in information disclosed or conveyed to third parties, including the interior of a greenhouse open to the sky and the flying public, Florida v Riley, 488 US 445, 450-451 (1989) (plurality opinion); garbage put out on the curb for collection, California v Greenwood, 486 US 35, 39-41 (1988); phone numbers conveyed to the phone company in the act of dialing, Smith v Maryland, 442 US 735, 742-745 (1979); financial transactions conveyed to a bank, United States v Miller, 425 US 435, 442-443 (1976); or statements made to an undercover informant, United States v White, 401 US 745, 751-753 (1971) (plurality opinion).

Testing of bodily fluids. Urine, breath, and blood tests are searches within the meaning of the Fourth Amendment. Birchfield v North Dakota, 579 US 438, 455, 447 n 1 (2016); People v Chowdhury, 285 Mich App 509, 523-525 (2009). Breath tests are so minimally intrusive, however, that they may be done without a warrant incident to a valid drunk driving arrest. Birchfield, 579 US at 474. Blood tests, on the other hand, require a warrant absent exigent circumstances, and the natural dissipation of alcohol from the blood does not automatically establish exigent circumstances. Missouri v McNeely, 569 US 141, 147 (2013).⁶

Testing of clothing obtained in relation to lawful arrest. “One of the narrow, specific exceptions to the warrant requirement is searches incident to arrest”— “[f]undamental to the search incident to arrest exception is the requirement that there must be a lawful arrest in order to establish the authority to search.” People v Serges, ___ Mich App ___, ___ (2024) (quotation marks and citations omitted). The police do not meaningfully interfere with a defendant’s possessory interest or violate a defendant’s expectation of privacy in their clothing once clothing is collected after a lawful arrest. Id. at ___. (concluding that “[d]efendant had no reasonable or justifiable expectation of privacy in [his pants and other clothing and belongings] after taken by the jail”). In Serges, “a neighbor found the victim dead in her home,” and “[t]he police began investigating defendant as a murder suspect shortly after the medical examiner determined the victim’s death a homicide caused by blunt force trauma to her head and face.” Id. at ___. “[T]he police searched for defendant and arrested him in relation to the victim’s murder,” “[t]ransported [him] to jail where the jail took his clothing pursuant to jail policy,” and “collected his clothing as evidence in the murder investigation the next day.” Id. at ___. While the defendant remained in jail on unrelated charges, “the police sent defendant’s clothes to the Michigan State Police laboratory where they were inspected and tested, solely related to the victim’s murder.” Id. at ___. On appeal, the defendant argued “that taking his pants to the laboratory and subjecting them to bodily fluid identification and DNA testing constituted a new seizure and search of the pants for which the police had no warrant.” Id. at ___. However, “because defendant was in custody at the time his pants were sent to the laboratory for testing, even though such occurred more than one month after his arrest, no second seizure of them occurred[.]” Id. at ___. Accordingly, the “police could take, examine, and preserve defendant’s clothing for use as evidence, just as they are normally permitted to seize evidence of a crime when it is lawfully encountered.” Id. at ___ (holding that “the pants were appropriately seized at the place of detention and later subjected to laboratory analysis and the test results were admissible at trial”).

Use of drug-sniffing dogs. There is no reasonable expectation of privacy in the smell of contraband narcotics, and the use of a drug-detection dog is therefore generally not a search subject to Fourth Amendment restrictions. United States v Place, 462 US 696, 697-698, 706-707 (1983). However, the entry of the curtilage of the home to allow the dog to sniff the home is a search subject to the Fourth Amendment’s restrictions, Jardines, 569 US at 11-12, and prolonging a traffic stop to enable a dog to be brought to the scene may be a seizure subject to the Fourth Amendment if the stop is prolonged beyond the time reasonably required to complete the stop, Rodriguez v United States, 575 US 348, 350 (2015).

Use of flashlight. The use of a flashlight or other form of illumination to see an area that is obscured by darkness does not in and of itself constitute a constitutionally-protected search. United States v Dunn, 480 US 294, 305 (1987); Texas v Brown, 460 US 730, 739-740 (1983) (plurality opinion); United States v Lee, 274 US 559, 563 (1927); People v Barbee, 325 Mich App 1, 11 (2018).

Use of GPS tracking device. “[T]he attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search . . . within the meaning of the Fourth Amendment.” Jones, 565 US at 402, 404-406 (noting the Court’s obligation to “‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted[,]’” and holding that when “[t]he Government physically occupied private property for the purpose of obtaining information[,]” it conducted a search in violation of the Fourth Amendment’s warrant requirement) (citation omitted).

Vehicle parked on public street. There is no reasonable expectation of privacy relative to movements in a vehicle parked on a public street. Thus, there is no trespass by police when they observe an occupant’s movement therein. Barbee, 325 Mich App at 10.

B.Seizures 

“[A] seizure may be of a person, a thing, or even a place.” Bailey v United States, 568 US 186, 189 (2013).

Seizure of property. A seizure of property within the context of the Fourth Amendment “occurs when there is some meaningful interference with an individual’s possessory interests in that property.” United States v Jacobsen, 466 US 109, 113 (1984); see also United States v Place, 462 US 696, 707-708 (1983) (holding that the temporary detention of luggage for purposes of a dog sniff is a seizure within the meaning of the Fourth Amendment).

“A seizure of a person’s papers or effects is per se unreasonable within the meaning of the Fourth Amendment unless it is accomplished pursuant to a judicial warrant issued upon probable cause and particularly describing the items to be seized.” People v Evans, ___ Mich App ___, ___ (2025) (quotation marks and citation omitted). “But where law enforcement authorities have probable cause to believe that a container holds contraband or evidence of a crime, but have not secured a warrant, the [Fourth Amendment permits] seizure of the property, pending issuance of a warrant to examine its contents, if the exigencies of the circumstances demand it or some other recognized exception to the warrant requirement is present.” Id. at ____ (also noting that “securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents”) (quotation marks and citation omitted). However, “there are certain warrantless seizures that can be supported by a lesser showing of reasonable suspicion.” Id. at ___ n 6. Indeed, “the United States Supreme Court has approved the temporary seizures of property under reasonable suspicion . . . [.]” Id. at ___ (quotation marks and citation omitted). “For example, in Place the Court held reasonable a warrantless seizure of luggage in an airport (essentially a ‘Terry^[7] stop’ of the luggage to allow a narcotics detection dog to smell the luggage), because the brief detention was based on a reasonable and articulable suspicion that an item may disappear.” Evans, ___ Mich App at ___.

“In the context of a removal or destruction of evidence case, if the police have not actually observed an attempted destruction of evidence, they may conduct a warrantless seizure if they present facts indicating more than a mere possibility that there is a risk of the immediate destruction or removal of evidence.” Id. at ___ (quotation marks and citation omitted). “[B]ecause of cell phone technology and the ability to quickly delete information from them, it can be reasonable for officers to seize cell phones to prevent the destruction of evidence while seeking a warrant.” Id. at ___. Accordingly, “when police have (1) probable cause to believe evidence of a crime is contained in a cell phone and (2) a legitimate concern that the information could be deleted from that cell phone, police act reasonably in seizing the phone pending the diligent seeking of a search warrant.” Id. at ___. In Evans, “even before [a Michigan State Police Trooper] first arrived at defendant’s home, defendant was aware that he had inappropriate photo(s) of the female on his phone, and that she was claiming to be a minor.” Id. at ___. “Once [the state police trooper] was apprised of this information, it would have been reasonable for [him] to seize the phone pending an investigation into the female’s age and the seeking of a search warrant, if necessary.” Id. at ___. “But, instead, he allowed defendant to retain it, with defendant now knowing that [the state trooper] was going to investigate whether the female was in fact a minor.” Id. at ___. The state police trooper’s “divulgence to defendant later that day that the female was a minor, and defendant’s initial resistance/refusal to turn the phone over to [him], cemented the reasonableness of confiscating the cell phone to preserve evidence (which defendant admitted existed) pending the seeking of a search warrant.” Id. at ___. “To be clear, it’s not that a cell phone itself creates an exigent circumstance.” Id. at ___ (quotation marks and citation omitted). “Instead, it is the combination (‘totality of the circumstances’) of the ability to quickly delete evidence from these phones, the admitted evidence of a crime on the phone, defendant’s awareness of the potential crime and the police investigation, and his initial reluctance to turn it over, which together created a sufficient basis for [the state police trooper] to reasonably believe that the evidence could be destroyed if the phone was not immediately seized pending obtainment of a search warrant.” Id. at ___.

Although “the best evidence of an imminent destruction of evidence [is] the actual destruction or attempted destruction of the evidence,” it is not required. Id. at ___. “[I]n those cases where that type of compelling evidence is not present, the prosecution must show more than just a mere possibility that the evidence would be destroyed.” Id. at ___ (noting that “police must produce facts supporting a reasonable and objective belief that a suspect may imminently destroy evidence”). The Evans Court held that “it was objectively reasonable for [the state trooper] to conclude that, because of defendant’s knowledge that his phone contained potential criminal evidence, and that police were actively investigating the circumstances of the crime, coupled with the ease of deleting evidence from cell phones, there was an imminent risk of the destruction of evidence from defendant’s phone.” Id. at ___ (observing that “the prosecution was not required as a matter of law to present evidence showing defendant’s actual intent to delete information before [the state trooper] could seize the cell phone”). Id. at ___.

“A permissible warrantless seizure, however, may still be unreasonable if police fail to obtain a warrant within a reasonable period of time.” Id. at ___ (stating that “a seizure must last no longer than reasonably necessary for the police, acting with diligence, to obtain the warrant”) (quotation marks and citation omitted). “This holds true because a seizure reasonable at its inception because based on probable cause may become unreasonable as a result of its duration[.]” Id. at ___. Id. at ___ (cleaned up). “There is no bright-line rule for determining when a delay becomes unreasonable.” Id. at ___. “Instead, courts assess the reasonableness of a seizure by weighing the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Id. at ___ (quotation marks and citation omitted).

Courts must “balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable[.]” Id. at ___ (quotation marks and citation omitted). “When conducting this balancing, courts consider factors like the brevity of the seizure, the strength of the State’s basis for the seizure, the degree and significance of the interference with the defendant’s property, and whether the police diligently pursued their investigation.” Id. at ___ (cleaned up). The Evans Court pointed to several factors in determining that the state trooper “acted reasonably in pursuing the search warrant.” Id. at ___. “First, [the state trooper] had probable cause to believe the phone contained evidence of a crime, providing the state with a higher interest in preserving the phone to avoid destruction of evidence.” Id. at ___. “Second, this was only a possessory seizure, not a search, which is a consideration in determining the reasonableness of the time police take to seek a search warrant.” Id. at ___ (Because “a seizure affects only possessory interests, not privacy interests . . . [,] the heightened protection [provided to] privacy interests is simply not implicated where a seizure of premises, not a search, is at issue.”) (quotation marks and citation omitted). “After all, the police did not search the contents of defendant’s cell phone until after obtaining a warrant to do so, causing no harm to defendant’s privacy interests.” Id. at ___. “That both [the state trooper] had probable cause to believe defendant’s cell phone contained evidence of a crime, and defendant was only temporarily deprived of his possessory interest in the cell phone, play a significant role in evaluating the reasonableness of the time to obtain a search warrant.” Id. at ___. “The delay here comprised two weekend days and three work days, and defendant never sought return of his phone until the [day] that the search warrant was obtained.” Id. at ___. “Because of the possessory interest at issue, seizures of this length and longer have been upheld as reasonable.” Id. at ___. “Though in hindsight there may have been speedier ways for [the state trooper] to have ensured a warrant was sought before then, his actions to secure the phone in a Faraday bag and seek a warrant upon his return to work were not unreasonable.” Id. at ___.

Finally, the state trooper did not create “the exigency when he returned to defendant’s house and informed him of his findings.” Id. at ___ (“the very notion that a police officer unlawfully creates the exigency by providing information to the suspect that could raise the concern that the suspect could destroy evidence” has been dispelled). “[T]he exigent circumstances exception applies so long as the police did not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment[.]” Id. at ___ (quotation marks and citation omitted). The state trooper “was upfront in his dealings with defendant and never engaged in nor threatened conduct that could violate the Fourth Amendment.” Id. at ___. The state trooper “went back to inform defendant about his findings, and to retrieve the phone, and did so in an ordinary and professional manner.” Id. at ___. “Although he informed defendant that he would have to seek a warrant if defendant did not turn over his phone, that is simply a matter of fact.” Id. at ___. “Under these facts, [he] did not unlawfully create the exigency.” Id. at ___. Indeed, “nothing prohibited [the state trooper] from continuing the investigation after the first interview, and returning to defendant’s house even if he already determined that he had probable cause, as law enforcement officers are under no constitutional duty to call a halt to criminal investigation the moment they have the minimum evidence to establish probable cause.” Id. at ___ (cleaned up). “Faulting the police for failing to apply for a search warrant at the earliest possible time after obtaining probable cause imposes a duty that is nowhere to be found in the Constitution.” Id. at ___ (quotation marks and citation omitted).

“The plain-view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item’s incriminating character is immediately apparent.” People v Armstrong, ___ Mich ___, ___(2025) (quotation marks and citation omitted). “A fundamental characteristic of the doctrine is that it is exclusively a seizure rationale.” Id. at ___ (quotation marks and citation omitted). “No searching, no matter how minimal, may be done under the auspices of the plain view doctrine.” Id. at ___ (quotation marks and citation omitted). “Probable cause is the level of suspicion required in the plain view context.” Id. at ___ (cleaned up). “[I]t is important to distinguish ‘plain view’ justifying a seizure of an object from an officer’s observation of an item left in plain or open sight, the latter of which does not involve a Fourth Amendment search.” People v Barbee, 325 Mich App 1, 7-8 (2018) (quotation marks and citation omitted) (explaining that “the plain view doctrine addresses the validity of warrantless seizures, not searches”). Indeed, under the open view doctrine, a Fourth Amendment search does not occur “where a law enforcement officer observes incriminating evidence or unlawful activity from a non-intrusive vantage point.” Barbee, 325 Mich App at 7.

Seizure of a person. In determining whether a seizure has occurred, a court must apply the totality-of-the-circumstances test, which “is an objective standard that is focused on a reasonable person’s interpretation of police conduct.” People v Duff, ___ Mich ___, ___ (2024) (“clarify[ing] that bright-line rules are necessarily at odds with Fourth Amendment analysis given that the reasonable-person standard is an imprecise test”). “The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation.” Id. at ___ (quotation marks and citation omitted). “Accordingly, what constitutes a restraint on liberty prompting a person to conclude that he is not free to leave will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.” Id. at ___ (quotation marks and citation omitted). “In situations where a person might not wish to leave because of reasons independent of police actions, a more precise statement of the test asks whether a reasonable person would have felt free to decline an officer’s requests or to otherwise terminate the police encounter.” Id. at ___.

“The ‘seizure’ of a ‘person’ plainly refers to an arrest,” and “‘the arrest of a person is quintessentially a seizure.’” Torres v Madrid, 592 US ___, ___ (2021), quoting Payton v New York, 445 US 573, 585 (1980).

A person is seized for purposes of the Fourth Amendment when there is an application of physical touching or force, or a nonphysical show of authority to which the person submits. California v Hodari D, 499 US 621, 626 (1991). Police conduct is not a seizure of the person subject to Fourth Amendment restrictions unless a reasonable person would not feel free to leave or decline an officer’s request, or otherwise terminate the encounter. See Brendlin v California, 551 US 249, 255 (2007); Florida v Bostick, 501 US 429, 437-438 (1991) (stating that “a seizure does not occur simply because a police officer approaches an individual and asks a few questions”). For example, “using a marked police vehicle to block a civilian vehicle’s ability to exit a single-lane driveway to facilitate questioning or an investigation is a show of force on behalf of the police that can give rise to a seizure within the meaning of the Fourth Amendment.” People v Lucynski (Lucynski I), 509 Mich 618, 643 (2022).⁸ The Lucynski Court held that “[u]nder the circumstances of this case, including the rural setting, the way the encounter was initiated by the officer swiftly following defendant down a private driveway, and the fact that the officer’s police vehicle blocked defendant’s car in the driveway, a reasonable person would not have felt free to leave the scene, even though the police officer did not activate emergency lights or a siren.” Id. at 643. “The same facts would cause a reasonable person to feel compelled to answer questions posed by the officer who had followed him and blocked his path of egress from the driveway of a home he did not own.” Id. at 643.

“Because the applicable standard is an objective one that measures what a reasonable person would do under the totality of the circumstances, the extent to which a defendant is physically blocked in by the police is but one factor to consider.” People v Duff, ___ Mich ___, ___ (2024) (reversing People v Anthony, 327 Mich App 24 (2019), “to the extent that the opinion held that a defendant is only seized when the police have completely blocked in a parked vehicle”). In Duff, the Michigan Supreme Court held that the “defendant was seized, triggering Fourth Amendment scrutiny, because he would not have felt free to leave or otherwise terminate the police encounter under the totality of the circumstances when [a police officer] pulled behind defendant’s vehicle at a 45-degree angle, obstructing defendant’s egress, while also shining a spotlight and headlight at defendant’s vehicle, and when he and another police officer immediately approached defendant’s car from both sides while at least one of the officers was shining his flashlight into the vehicle.” Duff, ___ Mich at ___. Unlike Lucynski, the “defendant was not completely blocked in because there was a means of egress available to him.” Id. at ___. While the defendant “could have turned his steering wheel while backing up and driven over empty parking spaces to move his vehicle away from the police encounter,” he “could not back straight out of his parking spot without striking the patrol vehicle . . . .” Id. at ___ (observing that “defendant would have had to either drive onto the grass to avoid police contact or carefully maneuver around the police car and drive over the painted spaces of the parking lot to leave”). However, “[t]he Fourth Amendment does not turn on a measuring tape or the existence of some demanding but conceivable means of departure; the question is not whether leaving was physically possible but whether a reasonable person would believe he was free to leave.” Id. at ___ (quotation marks and citation omitted).

“[C]ompletely blocking a person’s means of egress in a vehicle could be a sufficient condition to find that a seizure occurred, [but] it is not a necessary condition because the seizure test requires consideration of all the facts and circumstances.” Id. at ___ (“Fourth Amendment jurisprudence . . . focuses not only on the technical ability of a driver to maneuver out of a certain position, but on whether a reasonable person would have felt free to leave the scene under the totality of the circumstances.”). “While driving over the painted spaces of a parking lot might not have resulted in a misdemeanor or a traffic infraction, a reasonable driver would likely assume that driving over them is either explicitly prohibited or at least frowned upon, especially while driving under direct police surveillance.” Id. at ___ n 5 (“This social expectation is relevant because the touchstone of Fourth Amendment analysis is always reasonableness.”). “When the police have impeded a vehicle’s path of egress by placing obstacles in it, even if egress is not entirely blocked, this remains a factor that a reasonable person would take into consideration when deciding whether they were free to leave the scene or otherwise decline to interact with the police.” Id. at ___. Notably, “this encounter took place at 10:00 p.m. on a Sunday in an empty parking lot where, as in Lucynski, it would have been clear that the police were there solely to make contact with defendant.” Id. at ___ (“A reasonable person is less likely to feel free to leave when they are the sole focus of law enforcement attention in an isolated area after dark.”).

“Another relevant consideration is that the police officers . . . exited their patrol vehicle and approached defendant’s car on either side, with at least one officer shining his flashlight into the vehicle.” Id. at ___. “While there are valid safety reasons for police officers to approach a vehicle that they are investigating from multiple sides and to use flashlights in dim light, such actions also limit the available paths of egress for a reasonable driver.” Id. at ___(stating that “when police officers are in close proximity to a vehicle they are investigating, any attempt at maneuvering the vehicle to leave the scene could put the officers’ safety at risk”). “While the facts are not the same as in Lucynski, under the circumstances of this case, a reasonable person would not have felt free to leave the scene, even though the police officer did not activate emergency lights or a siren.” Id. at ___ (cleaned up).

“[W]hen a police officer makes a traffic stop, ‘a passenger is seized as well’ as the driver within the meaning of the Fourth Amendment.” People v Lyons, ___ Mich App ___, ___ (2025), quoting Brendlin v California, 551 US 249, 251 (2007).⁹

“[A]n officer seizes a person when he uses force to apprehend her,” including “when an officer shoots someone who temporarily eludes capture after the shooting.” Torres, 592 US at ___ (2021). “The application of physical force to the body of a person with intent to restrain is a seizure, even if the force does not succeed in subduing the person.” Id. at ___. “A seizure requires the use of force with intent to restrain. Accidental force will not qualify. Nor will force intentionally applied for some other purpose satisfy this rule.” Id. at ___ (citation omitted; noting it only considered force used to apprehend in its decision). “[T]he appropriate inquiry is whether the challenged conduct objectively manifests an intent to restrain[.]” Id. at ___. “While a mere touch can be enough for a seizure, the amount of force remains pertinent in assessing the objective intent to restrain. A tap on the shoulder to get one’s attention will rarely exhibit such an intent. Nor does the seizure depend on the subjective perception of the seized person.” Id. at ___ (citation omitted). In Torres, the officers’ action of “ordering Torres to stop and then shooting to restrain her movement,” satisfied “the objective test for a seizure, regardless of whether [she] comprehended the governmental character of [the officers’] actions.” Id. at ___. The Torres Court noted that its ruling is “narrow,” and that “[i]n addition to the requirement of intent to restrain, a seizure by force–absent submission–lasts only as long as the application of force.” Id. at ___ (concluding “that the officers seized Torres for the instant that the bullets struck her”). “[T]he Fourth Amendment does not recognize any continuing arrest during the period of fugitivity.” Id. at ___ (quotation marks and citation omitted).

“A person is seized under the Fourth Amendment if, in view of the circumstances surrounding the incident, a reasonable person would not believe they are free to leave or to terminate the encounter with law enforcement.” People v Hicks, ___ Mich ___, ___ (2024) (considering “whether evidence of defendant being in possession of an unlawfully concealed weapon was obtained as the result of an unlawful seizure”). In Hicks, “three police officers ran from the police vehicle, immediately surrounded the minivan and the rear passenger door where defendant was seated, and blocked the defendant’s only reasonable means of egress from the parked vehicle he occupied.” Id. at ___. “In addition to the three officers who surrounded defendant, this event involved a police raid van and two additional patrol vehicles that appear to have blockaded the road and several additional officers [three of them in tactical body armor] who had fanned out to pursue the individuals who were observed drinking alcohol on the public street.” Id. at ___. “The record reveal[ed] no evidence, at this stage of the interaction, to provide reasonable suspicion that defendant was engaged in criminal activity while sitting with his feet on the ground on the edge of a lawfully parked minivan near two children while talking with other individuals who were not seen drinking in the street.”

The Hicks Court concluded that “a reasonable person in defendant’s position would not have believed they were free to leave or to terminate this police encounter.” Id. at ___. “A police officer may approach and temporarily detain a person for the purpose of investigating possible criminal behavior, even if there is no probable cause to support an arrest.” Id. at ___, citing Terry v Ohio, 392 US 1, 20-22 (1968). However, “justification for a Terry stop must be present before the police may detain the person.” Hicks, ___ Mich at ___ (quotation marks and citation omitted). “Therefore, defendant was seized without reasonable suspicion of criminal activity because the police officers did not possess reasonable suspicion that defendant was armed until after he was seized for purposes of the Fourth Amendment.” Id. at ___ (holding that “all evidence gathered as a result of this unlawful seizure was correctly suppressed by the circuit court, and the court correctly dismissed without prejudice the case against defendant”).

“Law enforcement officers do not violate the Fourth Amendment’s prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are willing to listen.” Drayton v United States, 536 US 194, 200 (2002). For this reason, the Fourth Amendment permits police officers to randomly approach individuals in airports, on buses, and in other public places “to ask questions and to request their consent to searches, provided a reasonable person would understand that he or she is free to refuse,” even if the officers do not advise the individuals that they have the right not to cooperate. Drayton, 536 US at 197-199, 203-204 (holding that where officers boarded a bus, told passengers that they were looking for drugs and weapons, and obtained the respondents’ consent to pat them down, resulting in the discovery of cocaine and other evidence, the respondents were not seized for Fourth Amendment purposes where “[t]he officers gave the passengers no reason to believe that they were required to answer the officers’ questions”); see also Bostick, 501 US at 431, 433-437; Florida v Rodriguez, 469 US 1, 4-6 (1984).

“[T]he police may briefly seize a person to investigate possible criminal behavior even though they lack the requisite probable cause to arrest, so long as the police possess a reasonable and particularized suspicion of criminal activity.” People v Armstrong, ___ Mich ___, ___ (2025) (noting that “reasonable suspicion requires a lesser showing than probable cause, [but] it still entails something more than an inchoate or unparticularized suspicion or hunch”) (quotation marks and citation omitted). “Like the probable-cause determination, when determining whether reasonable suspicion of criminal activity exists, courts must look at the totality of all the facts and circumstances in a particular case.” Id. at ___ n 14 (quotation marks and citation omitted). “Once the police make a valid investigative stop, the insistence by the police that the occupants remove themselves from the vehicle is not a serious intrusion upon the sanctity of the person[.]” Id. at ___ n 15 (quotation marks and citation omitted). In Armstrong, “defendant was seized when the vehicle he was seated in was surrounded [on all sides and front and back] by several police officers and that, at the moment he was seized, the justification for the seizure was only the smell of burnt marijuana.” Id. at ___ (holding that “the lower courts erred by failing to consider whether the police officers had reasonable suspicion of criminal activity that justified an investigatory Terry stop”). However, “assuming that the police officers possessed reasonable suspicion to detain and investigate defendant based on the smell of marijuana, the trial court did not clearly err when it held that the gun was discovered during a search based on the smell of burnt marijuana, not because it was seized while in plain view.” Id. at ___ (declining to address whether “a Terry stop is only constitutionally reasonable if it is based on reasonable suspicion of criminal activity [so that] reasonable suspicion of a civil infraction is insufficient to support a Terry stop”). Because the gun was discovered during a search, “it cannot have been found in plain view.” Id. at ___ (“The plain-view doctrine is exclusively a seizure rationale.”) (quotation marks and citation omitted).

“Even the most cursory warrantless seizure must be justified by an objectively reasonable particularized suspicion of criminal activity.” People v Prude, ___ Mich ___, ___ (2024). In Prude, the defendant “was parked in an apartment-complex parking lot known for frequent criminal activity, and when police officers attempted to detain him to investigate whether he was trespassing, he sped away from the officers in his vehicle.” Id. at ___. The defendant “was charged and eventually convicted by a jury of second-degree fleeing and eluding, MCL 257.602a(4), and assaulting, resisting, or obstructing a police officer, MCL 750.81d(1).” Prude, ___ Mich at ___. “Both offenses required the prosecution to prove beyond a reasonable doubt that the police acted lawfully.” Id. at ___. “[W]hen the lawfulness of police action is an element of a criminal offense, a court reviewing a challenge to the sufficiency of the evidence supporting a conviction must view the facts in the light most favorable to the prosecution and then determine whether, as a matter of law, an officer’s actions were ‘lawful’ in light of those facts.” Id. at ___ (“clarify[ing] that while the jury—rather than the trial court—acts as the finder of fact when lawfulness is an element of a criminal offense, the court remains the ultimate arbiter of whether, under a particular set of facts, police actions were lawful”). “Under this test, a conviction will be overturned only when an officer’s conduct cannot be reasonably perceived as lawful when viewed under a lens sufficiently deferential to that conduct.” Id. at ___.

“Without more, there is nothing suspicious about a citizen sitting in a parked car in an apartment-complex parking lot while visiting a resident of that complex.” Id. at ___. Indeed, “a citizen’s mere presence in an area of frequent criminal activity does not provide particularized suspicion that they were engaged in any criminal activity, and an officer may not detain a citizen simply because they decline a request to identify themselves.” Id. at ___. “Even viewed together, these facts did not provide the officers in this case an objectively reasonable particularized basis for suspecting that defendant was trespassing.” Id. at ___ (stating that “refusal to cooperate [with police], without more, does not furnish the minimal level of objective justification needed for a detention or seizure”) (citation omitted). “That defendant was in an area where other nonresidents had frequently committed crimes did not provide reasonable suspicion that he was engaged in criminal activity when the officers approached him.” Id. at ___. “While presence in a high-crime area may support the existence of reasonable suspicion, this is so only if a suspect engages in suspicious behavior.” Id. at ___. “But there is nothing suspicious about being parked in an apartment-complex parking lot in the early evening.” Id. at ___ (“This is especially true here given that there was still daylight and the officers admitted that they did not know how long defendant had been parked there.”). “If such innocuous behavior provided reasonable suspicion for a Terry stop simply because it occurred in a high-crime area, there would essentially be an exception to the Fourth Amendment for all people living in or passing through certain neighborhoods.” Id. at ___ (quotation marks and citation omitted). “Finding reasonable suspicion under these circumstances would effectively mean that any person who is approached by an officer in a high-crime area must fully cooperate with that officer or else be subject to a Terry seizure.” Id. at ___ (“Ironically, the compliance that would be required to avoid a seizure would essentially amount to a seizure.”).

The Prude Court recognized that “in some circumstances, individual factors that would be insufficient on their own to justify a Terry stop can, in the aggregate, provide reasonable suspicion under the totality of the circumstances.” Id. at ___. “However, this is only so if the individual factors collectively are greater than the sum of their parts, and build to form the requisite objective basis for the particularized suspicion that criminal wrongdoing is afoot.” Id. at ___ (cleaned up). “[T]he assessment of all the circumstances must yield a particularized suspicion that the specific individual being stopped is engaged in wrongdoing.” Id. at ___ (quotation marks and citation omitted; alteration in original). However, there was no evidence “that defendant engaged in any suspicious behavior to provide a particularized basis for a seizure.” Id. at ___. “That he was in a high-crime area and declined to identify himself is simply not enough.” Id. at ___.

The police officers had “every right to seek a consensual encounter with defendant in the parking lot to determine whether he was engaged in any criminal activity and to advise him of any trespass policy the complex may have had.” Id. at ___. “They also may have had the authority to ask defendant to leave the premises if he was violating the apartment’s trespass policy and, if he declined to leave, arrest him for trespassing.” Id. at ___. “In order to detain him lawfully, the officers were required to have an objectively reasonable particularized suspicion that defendant was trespassing.” Id. at ___. “And there was nothing suspicious about defendant’s innocent explanation for his presence in the parking lot that created the reasonable suspicion that was lacking before he provided that explanation.” Id. at ___. “Because there was insufficient evidence that the officers acted lawfully on the basis of reasonable suspicion of criminal activity,” the Prude Court reversed the Court of Appeals’ decision and defendant’s convictions and sentences and remanded the matter to the trial court to enter judgments of acquittal as to both charges. Id. at ___.

C.Constructive Entry

“[A]bsent exigent circumstances, the police may not enter a home to effect an arrest unless armed with a warrant.” People v Trapp, 335 Mich App 141, 157 (2020). “[W]hen the police coerce the residents of a home to leave so that they are readily subject to arrest” they constructively enter the home in violation of the Fourth Amendment. Id. (adopting the constructive entry doctrine). “The constructive-entry doctrine hinges on the notion that the security promised by the Fourth Amendment is destroyed not only by a physical invasion of government actors, but also by official conduct calculated to compel the occupants of a home to submit to their own extraction.” Id. at 162.

In Trapp, 335 Mich App at 144, officers responded to a call from a trailer park manager reporting a man with a gun on the premises. “When the police arrived at the trailer park, there were no signs of . . . unrest. It was after 10:30 p.m. and the park appeared dark and quiet.” Id. at 168. After being informed by the manager that the man with the gun was inside a nearby trailer, officers knocked on the trailer door, and told the woman who answered the door to step out. Id. at 146-148. The officers then instructed the woman to tell the two males in the trailer to step out one at a time with their hands where the officers could see them. Id. at 147. Defendant complied and within minutes of exiting the trailer was spun around and handcuffed. Id. at 148-149. “Because they had no warrant and no exceptions to the warrant requirement appl[ied], the officers could not have entered [the] trailer . . . to seize any of its occupants for questioning, or to search for a weapon.” Id. at 154. “Because the police lacked any reasonable suspicion that the woman had committed or was about to commit a crime, they had no authority to seize her by telling her to ‘step outside.’” Id. at 155. Defendant’s “exit pursuant to the officer’s direction, filtered through the woman, [cannot be characterized] as ‘voluntary,’” where “[a]t least four armed uniformed officers had surrounded the trailer at night, extracted the woman who lived there, and ordered the men to present themselves outside with their hands visible.” Id. at 156. “[C]ombined with the language and tone of the involved officer’s voice, a reasonable person in [defendant’s] position would not have felt free to ignore the officer’s instruction and simply close the door.” Id. at 156-157 (concluding the facts of the case fell within the constructive entry doctrine).