Indiana Law Review


A Nation Divided: By What Standard Should Fourth
Amendment Seizure Findings Be Reviewed on Appeal?

Brent E. Kidwell*

Introduction

The scene is familiar in federal district courts in the United States. 1

A criminal defendant, charged with a possessory offense, argues that
he was illegally seized by law enforcement officers. The defendant asserts

that the evidence discovered during the search following this illegal

"seizure" is inadmissable to prove his guilt. The defendant argues that

the exclusionary rule prevents the use of evidence discovered during an

illegal search or seizure to prove the guilt of an accused.2

No single issue of a criminal trial is more important than the
admissibility of evidence seized from a defendant if a defendant is charged

with a possessory offense. If the evidence is inadmissable, the prosecution

is generally unable to prove the elements of the charged crime. Conversely,

the admission of evidence discovered during a police encounter with the

defendant is often sufficient to convict the accused.3 In criminal pro-

secutions, various constitutional and statutory provisions control the

admissibility of evidence. The interaction between law enforcement and
citizens is generally regulated by the Fourth Amendment.4 The exclu-

* J.D. Candidate, 1993, Indiana University School of Law—Indianapolis; A.B.,
1990, Indiana University—Bloomington.

1. The scene is equally familiar in every state court. However, this Note is confined

to an analysis of the standard of review applied by United States courts of appeal of

federal district court determinations that a criminal defendant was "seized" within the

meaning of the Fourth Amendment. Generally, state law is applied by state courts to

determine the degree of deference afforded to lower court findings. It is important to

note, however, that state court standards of review could be affected if the Supreme Court

were to hold that the constitution guarantees a certain standard of review of Fourth

Amendment determinations.
2. See Weeks v. United States, 232 U.S. 383 (1914). See also infra text accom-

panying note 22.

3. This is especially true if the charged crime is a possessory offense which includes

actual possession of the item as an element of the crime. See, e.g., 18 U.S.C. § 474

(1988) (possession of plates for purpose of counterfeiting obligations or securities); 18

U.S.C. § 1708 (1988) (possession of stolen mail); 21 U.S.C. § 841(a)(1) (1988) (possession

of controlled substance with intent to distribute).

4. The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported by Oath of af-

firmation, and particularly describing the place to be searched, and the person

or things to be seized.

U.S Const, amend. IV.



118 INDIANA LAW REVIEW [Vol. 26:117

sionary rule, a judicially created remedy for violations of the Fourth

Amendment,5 prohibits evidence seized in violation of the Fourth Amend-
ment from being used to prove a defendant's guilt.6 Thus, establishing

a defendant's innocence or guilt often depends on whether the law

enforcement officers complied with the Fourth Amendment.
Criminal defendants frequently assert they were unlawfully "seized"

during an encounter with law enforcement officers. 7 In evaluating this

contention, the court must determine if a seizure occurred, and, if so,

whether the seizure satisfied the requirements of the Fourth Amendment.
If the police acted outside the scope of the Fourth Amendment, the
defendant was illegally seized. Any evidence discovered during the search
following this illegal seizure may not be used to prove the defendant's
guilt.

8 These issues and arguments are generally raised in a pre-trial

motion to suppress.

If a defendant loses the suppression motion and is ultimately con-

victed, the defendant may, on appeal, allege that the trial court's evi-
dentiary ruling was erroneous. Often, the defendant will argue that the

finding on the legality of the seizure was incorrect. The argument, on

appeal, may focus on the correctness of the trial court's decision that
the defendant was or was not "seized" during the encounter with law

enforcement and, ultimately, whether that "seizure" was lawful.

At this point, a question arises. The appeals court must decide the

applicable standard for reviewing the trial court's seizure findings. Some
courts of appeal review the determination de novo; accordingly, the

court independently evaluates the record and draws its own inferences
from the facts without deferring to the trial court's findings. Other

courts defer to the trial court's findings and will reverse those findings

only if clearly erroneous. This division among the circuits exists, in large
part, because the United States Supreme Court has failed to decide

which standard is correct. A uniform standard of review does not exist
for federal appeals courts to use to determine if a trial court correctly

applied a vital guarantee of the Bill of Rights.

This inconsistency in federal criminal procedure prejudices both the

accused and the government.9 If an appeal of a trial court's seizure

5. See generally Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment § 1.1 (2d ed. 1987).

6. See infra text accompanying note 22.

7. See infra text accompanying note 13.

8. Most likely this is a search incident to the arrest. See Chimel v. California,

395 U.S. 752 (1969).

9. As indicated above, this inconsistency is also prevalent in the state judicial

systems. The standards of review applied by state appellate courts when reviewing trial
court seizure determinations varies. See, e.g., People v. Williams, 756 P.2d 221 (Cal.



1992] SEIZURE REVIEW STANDARD 119

determination occurs in a circuit which reviews those determinations de

novo, the appealing party will, in practical terms, receive a new hearing
on the suppression motion. However, if that same trial court finding

is appealed in a circuit which defers to the trial court's decision, that

determination is practically irreversible because it is only altered if clearly

erroneous. This variable treatment of parties to a criminal action is

unpalatable in the federal judicial system. 10

This Note first reviews Fourth Amendment law to provide a back-
ground for further discussion of the seizure issue. After considering the

procedural posture in which a Fourth Amendment claim is raised, the
relationship of the exclusionary rule to the Fourth Amendment is re-
viewed. This Note analyzes the seizure determination in light of the

policy considerations which determine the appropriate standard of review.

The distinction between law, fact, and ultimate fact is applied to the
seizure issue to determine if a test exists from which an appropriate

standard of review can be discerned. Further, the doctrine of consti-

tutional fact will be explored as it relates to the Fourth Amendment
considerations at issue in a seizure determination. The tests which evolve
from these doctrines will be synthesized to create a framework for

analyzing the seizure determination. Inherent in each analysis are con-

siderations of judicial economy, efficiency, and fairness. Ultimately, this

framework demonstrates that a trial court's seizure determination should

receive limited review on appeal and only be disturbed if clear error

exists.

I. Fourth Amendment Doctrine

A. "Seizure" Defined

Unreasonable searches and seizures of citizens are prohibited by the

Fourth Amendment. 11 However, not all contacts between law enforcement

1988) (de novo review); People v. Erskin, 285 N.W.2d 396 (Mich. Ct. App. 1979) (clearly
erroneous); State v. Storvick, 428 N.W.2d 55 (Minn. 1988) (de novo review).

10. These variations are practically unable to encourage forum shopping in federal

criminal actions. The general venue provision for criminal proceedings requires that "the

prosecution shall be had in a district in which the offense was committed." Fed. R.

Crim. P. 18. The defendant may move to transfer the proceeding to another district to
avoid prejudice, Fed. R. Crim. P. 21(a), or for purposes of convenience pursuant to

Fed. R. Crim. P. 21(b). The defendant is thus quite limited in selecting alternative forums,

except, of course, the forum in which to initially commit the crime.

11. "We have long understood that the Fourth Amendment's protection against
'unreasonable . . . seizures' includes seizure of the person." California v. Hodari D., Ill

S. Ct. 1547, 1549 (1991) (quoting Henry v. United States, 361 U.S. 98, 100 (1959)).

For a general but thorough discussion of the Fourth Amendment, see Nelson B.
Lasson, The History and Development of the Fourth Amendment to the United
States Constitution (1970).



120 INDIANA LAW REVIEW [Vol. 26:117

officers and citizens are "seizures'' which invoke the protection of the

Fourth Amendment. 12 If a seizure occurs, the Fourth Amendment requires
that it be reasonable. 13 In Terry v. Ohio 14 the Supreme Court held that

a person is "seized" and the protections of the Fourth Amendment
apply if "a police officer accosts an individual and restrains his freedom

to walk away . . . ." 15 The Court later reaffirmed this standard and

formulated an objective test in United States v. Mendenhall™ in which

it held that "a person has been 'seized' within the meaning of the

Fourth Amendment only if, in view of all of the circumstances sur-
rounding the incident, a reasonable person would have believed that he

was not free to leave." 17 This test remains the yardstick against which

police encounters with citizens are measured to determine if a seizure

occurred and the Fourth Amendment applies. 18

12. Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968) ("Obviously, not all personal

intercourse between policemen and citizens involves 'seizures' of persons. Only when an

officer, by means of physical force or show of authority, has in some way restrained the

liberty of a citizen may we conclude that a 'seizure' has occurred.").
13. United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975).

14. 392 U.S. 1 (1968). The facts of Terry, now famous, are instructive of the
factors which the Supreme Court considers in determining that a defendant is seized. A
police officer approached the defendant and two other men after observing their actions
for some time. Upon approaching the men, the officer asked for identification. One
suspect responded with a mumble, causing the officer to physically grab Terry, spin him

around, and pat-down the outside of his clothing. The Court stated, "In this case there

can be no question, then, that Officer McFadden 'seized' petitioner . . . when he took

hold of him and patted down the outer surfaces of his clothing." Id. at 19.
15. Id. at 16.

16. 446 U.S. 544 (1980). This case involved an airport stop of a person who
matched a "drug courier profile." Such profiles are used by many law enforcement
narcotics units to identify likely drug couriers. Here, federal drug agents approached the

defendant in an airport concourse, identified themselves and asked to see the defendant's

identification. The facts in this case indicated to the Court that the defendant was not

"seized" during the encounter with law enforcement officers. The Court stated that:

The respondent was not seized simply by reason of the fact that the agents

approached her, asked her if she would show them her ticket and identification,

and posed to her a few questions. Nor was it enough to establish a seizure that

the person asking the questions was a law enforcement official.

Id. at 555.

17. Id. at 554 (footnote omitted). The general use of "reasonableness" tests is

heavily criticized. See Nadine Strossen, The Fourth Amendment in the Balance: Accurately
Setting the Scales Through the Least Intrusive Alternative Analysis, 63 N.Y.U. L. Rev.

1173 (1988) (criticizing the Supreme Court for foregoing categorical rules and objective

tests and resorting instead to "reasonableness" and "balancing" tests).

18. This standard was announced in the plurality opinion of Mendenhall, written

by Justice Stewart, in which only one other Justice joined. However, in the subsequent

case of Florida v. Royer, 460 U.S. 491 (1983), a majority of the court adopted this

reasonable person test (plurality of four justices and Justice Blackmun's dissent). For cases



1992] SEIZURE REVIEW STANDARD 121

Under this test, a court must analyze the factual circumstances of

the encounter with law enforcement. In Mendenhall, the Supreme Court

listed several facts which support the finding that a seizure occurred:

the presence of several police officers, the display of weapons by the

officers, physical touching of the suspect, and the use of language or

a tone of voice by law enforcement which indicates the suspect may
not leave. 19 These factors substantiate the inference that a reasonable

person would not have felt free to leave. Subsequent cases have identified

other police actions which support a finding that a citizen was seized. 20

However, the Court repeatedly emphasizes that the facts of each en-

counter must be independently scrutinized when the objective Mendenhall
test is applied. 21

B. The Exclusionary Rule

Evidence procured by the police as a result of an unlawful search

of a suspect is inadmissable to prove the guilt of the suspect in a later

trial.
22 This rule is not constitutionally required, but rather is a judicially

created remedy for violation of a defendant's constitutional rights. 23

Evidence seized during a search following an illegal seizure violates the

Fourth Amendment and falls within the scope of the exclusionary rule's

following Mendenhall which applied this reasonable person standard, see generally California

v. Hodari D., Ill S. Ct. 1541, 1550-51 (1991); Michigan v. Chesternut, 486 U.S. 567,

573 (1988) ("The Court has since embraced [the Mendenhall] test."); INS v. Delgado,

466 U.S. 210, 215 (1984).

19. Mendenhall, 446 U.S. at 554.

20. See Florida v. Royer, 460 U.S. 491 (1983) (seizure occurred when police stopped

defendant in an airport, identified themselves as narcotics agents, asked for, examined,

and retained airline ticket, and asked defendant to follow them to police room without

indicating he was free to leave.); Michigan v. Summers, 452 U.S. 692 (1981) (police

stopping defendant as leaving house for which search warrant issued and requiring defendant

to return to house while search conducted was seizure); Brown v. Texas, 443 U.S. 47

(1979) (police officer exiting his vehicle and detaining defendant to identify defendant and

explain defendant's reason for being in location was a seizure).

21. See Michigan v. Chesternut, 486 U.S. 567, 573-74 (1988).

22. Weeks v. United States, 232 U.S. 383, 393 (1914). ("If letters and private

documents can thus be seized and held and used in evidence against a citizen accused of

an offense, the protection of the Fourth Amendment ... is of no value. . . ."). Accord
Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) (extending exclusionary

rule to indirect as well as direct products of illegal invasions of privacy). For a general

discussion of the exclusionary rule and its many permutations, see generally LaFave, supra
note 5, § 1.1.

23. United States v. Leon, 468 U.S. 897, 906 (1984) (quoting United States v.

Calandra, 414 U.S. 338, 348 (1974)).



122 INDIANA LAW REVIEW [Vol. 26:117

remedy.24 If the evidence is a fruit of an illegal seizure, the evidence

may not be used by the prosecution to prove the defendant's guilt of
the crime charged. 25

C. Procedural Exclusion of Evidence

Criminal procedure in the federal courts is governed by the Federal

Rules of Criminal Procedure.26 Under these rules, "[a] motion to suppress

evidence may be made in the court of the district of trial."27 A motion
to suppress evidence must be raised prior to trial. 28 Failure to raise the

issue before trial is considered a waiver and prevents the issue from

being raised at a later time.29 If a search or seizure was conducted

pursuant to a warrant, the defendant has the burden to prove the warrant

24. See Wong Sun v. United States, 371 U.S. 471 (1963), in which the question
was stated as "whether, granting establishment of the primary illegality, the evidence to

which instant objection is made has been come at by exploitation of that illegality or

instead by means sufficiently distinguishable to be purged of the primary taint." Id. at

488 (quoting from James Magutre, Evidence of Guilt 221 (1959)).

Several exceptions to the exclusionary rule exist, including the doctrines of attenuated

fruits, the good faith exception, and purged taint. See generally LaFave, supra note 5,

§§ 1.3, 11.4.

25. Though not considered here, a party who claims that his Fourth Amendment
rights were violated must also have standing to bring such a claim. See Jones v. United

States, 362 U.S. 257 (1960). For the purposes of this discussion, whether a defendant

who seeks to suppress evidence which he possessed either on his person or in his effects
has standing to raise Fourth Amendment issues is assumed. See Rawlings v. Kentucky,
448 U.S. 98 (1980) (standing exists when defendant has a reasonable expectation of privacy

in the intruded area and such is invaded); Rakas v. Illinois, 439 U.S. 128 (1978). See

generally LaFave, supra note 5, § 11.3.

26. Fed. R. Crim. P. 1.

27. Fed. R. Crim. P. 41(f). A Motion for Return of Property, Fed. R. Crim. P.
41(e), works similarly to a motion to suppress, to petition the court to prevent evidence

from being admitted at trial. The difference between the two motions is that the former

applies to all evidence, even contraband, while the latter only applies to evidence which

the person "is entitled to lawful possession of." Id.

28. Fed. R. Crim. P. 12(b)(3). The motion is required before trial to eliminate

issues of police conduct, not related to the guilt or innocence of the defendant, from the

main trial. Fed. R. Crim. P. 12 advisory committee's notes to 1974 Amendment.

29. See generally LaFave, supra note 5, § 11.1. The exception to this rule arises

when matters appear during trial which indicate that an unconstitutional seizure occurred

and that the pre-trial ruling may have been erroneous. See Gouled v. United States, 255
U.S. 298 (1921). The language in Gouled has been interpreted to impose a duty on the

trial court judge to reconsider the ruling on suppression motion if "matters appearing at

trial may cast reasonable doubt on the pretrial ruling." Rouse v. United States, 359 F.2d
1014, 1016 (D.C. Cir. 1966) (footnote omitted). See also United States v. Raddatz, 447

U.S. 667, 678 n.6 (1980).



1992] SEIZURE REVIEW STANDARD 123

or the execution of the warrant was defective. 30 If the police act without

a warrant, the government has the burden to prove the search comported

with the Fourth Amendment. 31 To determine if the evidence should be
suppressed, the parties call witnesses, submit evidence, and engage in

oral argument before the court.32 In the federal courts, the judge may
hear the motion or refer such to a federal magistrate.33

The defendant may not appeal an adverse ruling on the motion to
suppress until a final judgement is rendered on the charges. 34 If convicted,

the defendant may assert on appeal that the trial court erred in denying
the motion to suppress and incorrectly admitted the challenged evidence.

If the appeals court finds that the trial court did err, and that this error

was not harmless and affected the verdict, the conviction may be re-
versed. 35 The prosecution, pursuant to statutory authorization, 36 may

30. Franks v. Delaware, 438 U.S. 154, 171 (1978) ("There is, of course, a pre-

sumption of validity with respect to the affidavit supporting the search warrant."). See

generally Stephen A. Saltzburg, Standards of Proof and Preliminary Questions of Fact,

27 Stan. L. Rev. 271 (1975).

31. United States v. Matlock, 415 U.S. 164 (1974); See generally LaFave, supra

note 5, § 10.3; Saltzburg, supra note 30.

32. The Federal Rules of Evidence control the presentation of evidence at a

suppression hearing. These rules are not necessarily as precisely or inflexibly applied during

this hearing as during a trial to prove guilt. Matlock, 415 U.S. at 173-74.

33. Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(A) (1988). The system of review

established for judicial oversight of the magistrate's determination is relevant to the standard

of review issue. This Act requires that the magistrate's findings be reviewed de novo by

the district judge upon a party's objection to those findings. 28 U.S.C. §636(b)(l) (1988).

Thus, a magistrate's determination of the seizure question receives a de novo review by

the federal judge.

34. DiBella v. United States, 369 U.S. 121 (1962). The Court found that the motion

to suppress was not severable from the primary criminal trial and was not interlocutory

in nature. Id. Allowing interlocutory appeal of such an order, stated the court, would

"entail serious disruption to the conduct of a criminal trial." Id. at 129 (footnote omitted).

This rule rests upon the broader doctrine of collateral orders. See generally 3 Charles

A. Wright & Arthur R. Miller, Federal Practice and Procedure § 678 (1982).
35. Fed. R. Crim. P. 52(a), which states that "[A]ny error, defect, irregularity or

variance which does not affect substantial rights shall be disregarded." Even if the error

is not harmless, the appeals court is not required to reverse the verdict. If the error

concerns the admission of evidence, the court must decide if that evidence had a sufficient

bearing upon the total evidentiary picture to require reversal. Wayne R. LaFave & Jerold
H. Israel, Criminal Procedure § 26.6 (1985).

36. 18 U.S.C. § 3731 (1988). This statute states, in relevant portion:

An appeal by the United States shall lie to a court of appeals from a decision
or order of a district courts suppressing or excluding evidence . . . not made
after the defendant has been put in jeopardy and before the verdict or finding

on an indictment or information, if the United States attorney certifies to the

district court that the appeal is not taken for purpose of delay and that the

evidence is a substantial proof of a fact material in the proceeding.

Id.



124 INDIANA LAW REVIEW [Vol. 26:117

immediately appeal an order granting the suppression motion and ex-

cluding evidence. 37

In a criminal proceeding, at least one basis of appeal usually concerns

an evidentiary issue. Often the error is based on the trial court's denial

of a motion to suppress. If the inadmissability of the evidence is pred-

icated on a search incident to an illegal seizure, the appeals court must
review the trial court's findings of whether the defendant was "seized"

within the meaning of the Fourth Amendment. To begin the analysis,
the appeals court must first decide what standard of review should be

applied to determine if the trial court's finding that the defendant was

"seized" is correct.

II. Current Standards of Review

The United States courts of appeal are divided on the appropriate

standard of review to apply when reviewing a trial court's determination
that a defendant was "seized." Two circuits review the determination
de novo; other circuits defer to the trial court finding and only reverse

if the decision is clearly erroneous. 38

A. "De Novo" Review

A de novo review39 of the trial court's seizure finding is applied by
at least two appeals courts.40 Use of this standard is usually supported

by reference to the constitutional issues which a trial court is required

to address. Accordingly, the Court of Appeals for the District of Co-

lumbia Circuit held that:

[T]he soundest of jurisprudential considerations compel appellate

courts not to shirk their responsibility independently to apply

37. If an interlocutory appeal of an adverse suppression order was not available

to the prosecution, they would be required, as is the defendant, to wait until an adverse

judgment, i.e. an acquittal, was delivered before appealing the suppression decision. The

Fifth Amendment prohibits placing a defendant in double jeopardy and prevents the
government from appealing an acquittal. United States v. Scott, 437 U.S. 82 (1978).

Therefore, without an interlocutory appeal, the government would be unable to ever seek

review of an adverse decision on a suppression motion. See generally LaFave, supra note

5, § 11.7(b).

38. Three courts of appeals have not unequivocally spoken as to the proper standard.

These include the United States court of appeals for the Third, Tenth, and Eleventh

Circuits.

39. A de novo review requires no deference to the lower court and allows a wholly
independent and complete finding by an appeals court. See Jack H. Friedenthal et al.,

Civil Procedure § 13.4 at 600-01 (1985).
40. See United States v. Montilla, 928 F.2d 583 (2d Cir. 1991); United States v.

Maragh, 894 F.2d 415 (D.C. Cir. 1990).



1992] SEIZURE REVIEW STANDARD 125

important constitutional standards. In the Fourth Amendment
context, as in the First Amendment setting, appellate judges have
'a constitutional responsibility that cannot be delegated to the

trier of fact.'. . . De Novo review helps to ensure 'consistent
application.'41

This rationale assumes that the seizure issue is a question of law which

is traditionally afforded no deference upon appeal.42 However, it seems

that the D.C. Circuit extends this argument in finding that the seizure

question is not only a question of law, but a question of constitutional

law, making a de novo review even more important.43

Although the injection of the constitutional issue affects the dis-

cussion, the de novo standard could stand as easily upon the premise
that the seizure issue is simply a question of law. Under traditional

jurisprudence, a de novo review is conducted whenever a question of

law, constitutional or otherwise, is reviewed on appeal. 44 The Second

Circuit avoids the constitutional issue while still finding that the seizure

question is one of law.45 After reviewing MendenhalVs "reasonable per-

son* ' standard for determining whether a defendant is seized, the court

stated that, "[s]uch an objective inquiry pointedly eschews consideration

of intent and involves an essentially legal assessment of whether the

particular circumstances would warrant the belief that a person has been

detained."46 With only an "essentially legal assessment" to conduct, the

Second Circuit finds no factual determinations by the district court which

require deference. Thus, a de novo review is completely appropriate.

B. "Clearly Erroneous"

Seven courts of appeals47 reverse the trial court's decision that a

defendant was or was not "seized" only if that decision was clearly

41. Maragh
y
894 F.2d at 418 (quoting Bose Corp. v. Consumers Union, Inc., 466

U.S. 485, 501 (1984)).

42. Id. As in the circuits that follow the clearly erroneous standard, the dissent
in Maragh argued that the seizure question is one of fact and should be afforded deference

on appeal. Id. at 420-21 (Mikva, J., dissenting).

43. Id. at 418.

44. See infra text accompanying note 99.

45. United States v. Montilla, 928 F.2d 583, 587-88 (2d Cir. 1991).

46. Id. The court continued by observing that "the Supreme Court's own practice
suggests strongly that it views the seizure issue as a legal question." Id. at 588. Compare
with this statement the conclusion of the Eighth Circuit, after extensive analysis of Supreme

Court opinions, that the Court has not stated or applied a consistent standard of review.

United States v. McKines, 933 F.2d 1412, 1419-20 (8th Cir. 1991).

47. See United States v. McKines, 933 F.2d 1412 (8th Cir. 1991); United States

v. Valdiosera-Godinez, 932 F.2d 1093 (5th Cir. 1991); United States v. Rodriguez-Morales,

929 F.2d 780 (1st Cir. 1991); United States v. Gordon, 895 F.2d 932 (4th Cir. 1990);

United States v. Collis, 699 F.2d 832 (6th Cir. 1983); United States v. Black, 675 F.2d

129 (7th Cir. 1982); United States v. Patino, 649 F.2d 724 (9th Cir. 1981).



126 INDIANA LAW REVIEW [Vol. 26:117

erroneous. 48 The use of this standard is traditionally supported by the
rationale expressed by the Ninth Circuit:

The determination of when [a contact between a citizen and the
police] constitutes a seizure within the meaning of the fourth

amendment depends upon the facts and circumstances of each
case. Proper deference must be given to the district judge who
heard the testimony of the officer, his tone of voice and in-

flection, and who observed the officers conduct on the stand,
his appearance and mannerisms. The district judge also observed
the defendant in the courtroom. He is in the best position to
evaluate the impression the defendant had when approached by
the officers .... We cannot say that the finding of the district
judge . . . was clearly erroneous.49

This can be restated as a simple syllogism: Major premise—whether a
person was seized is a question of fact; minor premise—a trial court's
factual determinations are deferred to on appeal; conclusion—the trial
court's seizure determination should be deferred to on appeal. This logic,

however, begs the question of the soundness of the major premise of

whether the seizure issue is truly a factual determination. 50

C. Supreme Court Hints

Two observations are apparent following a close analysis of the
decisions of the courts of appeals. First, the Supreme Court has not

unequivocally indicated which standard of review should be applied.51

Second, advocates of each standard believe that the Supreme Court has

48. A trial court's finding is clearly erroneous when "although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948). For a detailed analysis of this standard of review, see text accom-

panying note 93 infra.

49. Patino, 649 F.2d at 728. See also McKines, 933 F.2d at 1419-21, in which,

after a thoughtful and thorough discussion of the policies and precedent underlying the

issue, the Eighth Circuit held that the seizure issue was a question of fact and was

reviewed for clear error on appeal.

50. Dissenting opinions in appeals courts which adopted this deferential standard

often argue this exact point. See, e.g., Blacky 675 F.2d at 138-39 (Swygert, J., dissenting)

("The factual findings ... are not in dispute. The only issue is whether these facts

constitute a Fourth Amendment seizure. This is a question of law and the standard of
review, therefore, is not clearly erroneous.").

51. See McKines, 933 F.2d at 1419 ("This sort of inquiry is simply not fruitful,

for it does not appear that the Supreme Court has decided the question."); Montilla,

F.2d at 588 ("Although the Supreme Court has not spoken unequivocally on this sub-

ject. . . .").



1992] SEIZURE REVIEW STANDARD 127

adopted or would adopt their position and can find language supporting

their view in Supreme Court decisions. 52 These two observations provide

little help in determining the appropriate standard of review. In fact,

they serve only to return us to our starting point, to analyze the competing

standards in light of policy considerations and precedent and to make
an independent determination based on merit.

However, an analysis of the Supreme Court opinions which have

reviewed lower court determinations that a seizure did or did not occur

is instructive. The values which the Court articulates in each review,

explicitly or implicitly, assist in establishing an analytical framework to

evaluate the standard of review. After Terry v. Ohio, the Court reviewed

several lower court seizure determinations. In each decision, the Court

seemingly deferred to the trial court's finding.53 However, the Terry

holding is not the primary test now used to determine whether a citizen
was seized. Rather, the Mendenhall objective test is applied by the courts.

Thus, Mendenhall and its progeny are more indicative of the current

considerations regarding any standard of review.

Since the Mendenhall decision in 1980, the Supreme Court has

reviewed at least five lower court seizure determinations.54 In each case,

the Court commented indirectly as to the scope of review applied. In
Mendenhall, the plurality opinion stated that "the correctness of the

legal characterization of the facts appearing in the record is a matter

for this Court to determine. ,,5S This comment seems to suggest that the
seizure standard is one of mixed law and fact and is to be reviewed de

novo. 56 Similarly, after explaining the holding of the lower court on the

"seizure* ' issue, the Court stated in Florida v. Royer51 that "[t]he question

before us is whether the record warrants that conclusion." 58 Several

52. See McKines, 933 F.2d at 1418.

53. See, e.g., Brown v. Texas, 443 U.S. 47, 49 (1979) (where defendant was

convicted for failing to identify self as required by state statute after being "lawfully

stopped," court accepted without review that "the County Court necessarily found as a

matter of fact that the officers 'lawfully stopped' appellant."). See also United States v.

Brignoni-Ponce, 422 U.S. 873 (1975); Sibron v. New York, 392 U.S. 40 (1968) (decided
the same day as Terry).

54. See Florida v. Bostick, 111 S. Ct. 2382 (1991); California v. Hodari D., Ill

S. Ct. 1547 (1991); Michigan v. Chesternut, 486 U.S. 567 (1988); INS v. Delgado, 466

U.S. 210 (1984); Florida v. Royer, 460 U.S. 491 (1983).

55. Mendenhall, 446 U.S. at 551 n.5. (Stewart, J., concurring). This opinion was

joined only by Justice Rehnquist (now Chief Justice).

56. Justice White's dissent in Mendenhall chastises the plurality for even considering

whether a seizure had occurred because such a determination is "a fact-bound question

with a totality-of-circumstances assessment that is best left in the first instance to the

trial court. . . ." Mendenhall, 446 U.S. at 569-70.

57. 460 U.S. 491 (1983).

58. Id. at 501. This ambiguous phrase could indicate a clearly erroneous standard



128 INDIANA LAW REVIEW [Vol. 26:117

years later, in Michigan v. Chesternut™ the Court refused to adopt a

bright-line test to indicate when a seizure occurs, deciding instead to
"adhere to our traditional contextual approach, and determine only that,

in this particular case, the police conduct in question did not amount
to a seizure."60 This statement suggests that the issue is a factual one,

traditionally receiving a deferential standard of review. The Court con-
tinued the post- Terry trend of expounding their ability to review de novo

the findings of a lower court. In each case, the Court does not explicitly

indicate that any degree of deference will be given to the trial court's

findings. Instead, the Court implicitly indicates that a de novo review

will occur.

Even more instructive than the Court's explicit statements regarding

the scope of its review is the extent of the review in which it actually

engaged. In each post-Mendenhall case, the Court carefully examined

the facts contained in the record, ostensibly to draw its own, independent

factual inferences to which to apply the Mendenhall test. 61 In Michigan

v. Chesternut62 the Court determined that no seizure occurred because:

"The record does not reflect that the police activated a siren or flashers;
or that they commanded respondent to halt, or displayed any weapons;
or that they operated the car in an aggressive manner to block respon-

dent's course or otherwise control the direction or speed of his move-

ment."63 The Chesternut language suggests that the presence of these

facts would have persuaded the Court that a seizure had occurred.64 In

of review especially given the deference inherent in a review of a trial record to determine

if such "warrants" the trial court's decision.

59. 486 U.S. 567 (1988).

60. Id. at 573. After restating the Mendenhall "reasonable person" test, the Court

held that "[after] [a]pplying the Court's test to the facts of this case, we conclude that

respondent was not seized . . . ." Id. at 574. Conspicuously absent from the Court's

discussion is any mention of the findings of the trial court or their impact upon the

scope of review.

61. See Florida v. Royer, 460 U.S. at 501 (After carefully reviewing the facts of

the defendant's contact with the law enforcement officers, the court found that "[tjhese

circumstances surely amount to a show of official authority such that 'a reasonable person

would have believed that he was not free to leave.'") (citations omitted). See also INS

v. Delgado, 466 U.S. 210, 218-19 (1983).

62. 486 U.S. 567 (1988).

63. Id. at 575.

64. In this case, the Court reviewed a Michigan Court of Appeal's holding which

applied a clearly erroneous standard of review to the trial court. Michigan v. Chesternut,

403 N.W.2d 74, 75 (Mich. Ct. App. 1986). If the Supreme Court was itself using such

a standard, the detailed review of the facts would be unnecessary to justify their reversal

of the state court. Rather than engage in supposing hypothetical facts which would indicate

a seizure occurred, the Court, in deferring to the trial court, would simply review the

record to determine whether the facts present in the record supported the trial court's



1992] SEIZURE REVIEW STANDARD 129

the two most recent decisions reviewing lower court seizure determi-

nations, the Court continued to emphasize the controlling nature of its

independent inferences from the facts. In California v. Hodari Z>., 65 the

Court reversed a state appeals court ruling which found that a seizure

had occurred because of the absence of a single fact during the police

encounter. 66 In Florida v. Bostickf1 the Court refused to address the

issue of whether the defendant was seized when insufficient facts existed
for the Supreme Court to review the decision. Instead, the Court re-

manded the cases to the state court to determine the facts and to apply
those facts to the standard which the Supreme Court devised.68

Combining the explicit statements of the Court with its close scrutiny

of the record, it seems that the Supreme Court considers a seizure

determination a question of fact, but reviews the trial court's factual

findings de novo. If such a conclusion is accepted, an incongruity emerges

which merits further investigation and explanation.69 Regardless, the only

consistent, clear, and articulated conclusion to be drawn from Supreme

Court decisions is that the applicable standard of review has yet to be

determined.

finding. If insufficient support existed, the Court could find the lower court's holding

clearly erroneous and reverse. See United States v. U.S. Gypsum Co., 333 U.S. 364 (1948).
Here, however, the Court analyzed in reverse and found the facts which would allow it

to find a seizure occurred were absent, thus indicating a de novo review.

65. Ill S. Ct. 1547 (1991).

66. Id. at 1552. The single fact absent from the record was the defendant's

submission to the police order: "In sum . . . since [the defendant] did not comply with

that injunction he was not seized until he was tackled." Id. The court based this holding

on the decision in Brower v. Inyo County, 489 U.S. 593 (1989), in which the Court found

no seizure occurred during a vehicle chase because the defendant failed to stop. Thus,

the singular fact of not succumbing to the order of the police was dispositive in both

cases as to the seizure determination.

67. Ill S. Ct. 2382 (1991).

68. Id. at 1552. At least two inferences are possible from this action. First, because

the Court had available the record of the proceedings below on which they relied for

factual information concerning the police encounter, it would seem the Court could have

reviewed the record de novo to draw its own inferences on which to base a seizure
determination. The Court instead chose to remand the case. This action suggests that the

Court does rely upon and defer to the trial court's factual findings. Second, and alter-

natively, the Supreme Court might have remanded the case to allow the state courts to

apply the new legal standard, a standard different than the one on which the lower courts

based their holding, to the factual situation presented in the case. Accordingly, it is very

likely that the Court implies nothing from the remand except its own sense of judicial
economy and fairness.

69. The incongruity is the de novo review of a trial court's factual determination.

The traditional rule has always been, except for a limited number of exceptions, that an

appeals court defers to a trial court's factual findings and reverses only if clear error is

present. See Anderson v. Bessemer City, 470 U.S. 564 (1985).



130 INDIANA LAW REVIEW [Vol. 26:117

III. The Law-Fact Distinction and Standards of Review

The division of labor in the federal judicial system is determined,
in large part, by a conclusory labelling of issues as factual or legal in

nature.70 The applicable standard of review is a statement by an appellate
court indicating which level of the judicial system is granted primary

authority to resolve the issue. 71 The scope of decisionary power exercised

by each level of the system over any given legal dispute is determined

by this labelling practice. 72 Thus, the determination that the seizure issue

is one of fact or law depends upon considerations of policy. These
policy factors are often dispositive of the scope of review regardless of

the factual or legal nature of the issue. However, limited exceptions to

the fact/law labels have been created in the area of constitutional rights.

A. Law v. Fact

In general, American courts adhere to a well-defined pattern of

jurisprudence. 73 First, the pertinent facts are determined; second, the

law relevant to the dispute is established; and, last, the law is applied

to the facts to result in a legal determination of the rights of the parties. 74

These steps in the process are not necessarily as independent of each

other as first appears. For example, to determine which facts are relevant,

the applicable law must be ascertained, while the applicable law depends

on which facts are found to exist.75 This process of circular reasoning

demonstrates that the distinction between law and fact is not as clear

as suggested.

The exact delineation of what portions of the legal process are
"fact" and which portions are questions of "law" is often confusing. 76

A "fact," as used in the judicial process, has been defined in a number
of ways. 77 Perhaps the clearest definition is that a fact tends to answer

70. See Robert L. Stern, Review of Findings of Administrators, Judges and Juries:

A Comparative Analysis, 58 Harv. L. Rev. 70, 93 (1944).
71. Id.

72. Id.

73. Henry M. Hart, Jr. & Albert M. Sacks, The Legal Process: Basic Problems
in the Making and Application of Law 374 (tent. ed. 1958).

74. Id. at 374-75.

75. Hart & Sacks, supra note 73, at 375. "[TJhis three-fold process is [not] a
simple step-one, step-two, step-three process. . . . [T]he law determines what facts are

relevant while at the same time the facts determine what law is relevant." Id.

76. See generally Stephen A. Weiner, The Civil Non Jury Trial and the Law-Fact
Distinction, 55 Cal. L. Rev. 1020 (1967).

77. Facts have been defined as the "determination and statement of the relevant

characteristics of the particular matter before the judge." Hart & Sacks, supra note 73,
at 375. "A thing done; an action performed or an incident transpiring; an event or
circumstance; an actual occurrence; an actual happening in time or space or an event

mental or physical; that which has taken place." Black's Law Dictionary 591 (6th ed.
1990).



1992] SEIZURE REVIEW STANDARD 131

the questions of who did what, when, where, how, why, or with what
intent.

78 Conversely, determinations of "law" have been defined as "fact-

free general principles that are applicable to all, or at least to many,

disputes and not simply to the one sub judice." 19 The final step in the

adjudicative process, that of applying the law to the facts, results in a

finding of "ultimate fact."80 An ultimate fact, often labelled an issue
of mixed fact and law,81 is not merely a distinguishable category of fact,

but rather a third category requiring a different analysis to discern the

applicable standard of review.82

The Supreme Court has struggled to clearly establish the difference
between law and fact on several occasions, but without much success. 83

The Court avoids establishing a bright-line definition. Instead, it dictates

on a case-by-case basis which parts of a cause of action are fact and

78. See Henry P. Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229,

235 (1985).

79. Martin B. Louis, Allocating Adjudicative Decision Making Authority Between

the Trial and Appellate Levels: A Unified View of the Scope of Review, the Judge/Jury
Question, and Procedural Discretion, 64 N.C. L. Rev. 993 n.3 (1986).

The Supreme Court has defined facts "in the sense of a recital of external events

and the credibility of their narrators. . . .*' Townsend v. Sain, 372 U.S. 293, 309 n.6

(1963) (quoting Brown v. Allen, 344 U.S. 443, 506 (1953) (opinion of Frankfurter, J.)).

In determining law, the judge is "formulating a proposition which affects not only

the case before him but all others that fall within its terms." Hart & Sacks, supra note
74, at 374-75. "Law is a principle . . . Law is conceived . . . Law is a rule of duty. ..."

Black's Law Dictionary 592 (6th Ed. 1990).
80. See Stern, supra note 70 at 93 (discussion of interaction of facts, law and

ultimate facts). Yet another category of "fact" exists, that of "constitutional fact." These

are facts crucial to determining whether a certain constitutional right is implicated. See

infra text accompanying note 94.

81. A mixed question of law and fact is one in which:
[Tine historical facts are admitted or established, the rule of law is undisputed,

and the issue is whether the facts satisfy-the [relevant] statutory [or constitutional]

standard, or to put it another way, whether the rule of law as applied to the

established facts is or is not violated.

Pullman-Standard v. Swint, 456 U.S. 273, 289 n.19 (1982).

82. Fed. R. Crv. P. 52(a) "does not divide facts into categories; in particular, it

does not divide findings of fact into those that deal with 'ultimate' and those that deal

with 'subsidiary' facts." Pullman-Standard, 456 U.S. at 286. Cf Louis, supra note 79.
Professor Louis believes that ultimate facts are not a separate category but rather are

facts which are reviewed de novo or for clear error depending upon their tendency to be

more like law or more like facts.

83. In Pullman-Standard v. Swint, 456 U.S. 273 (1982), the Supreme Court "noted

the vexing nature of the distinction between questions of fact and questions of law." Id.

at 288. See also Anderson v. Bessemer City, 470 U.S. 564 (1985); Bose Corp. v. Consumers

Union of United States, Inc., 466 U.S. 485 (1984); New York Times Co. v. Sullivan, 376
U.S. 254 (1964).



132 INDIANA LAW REVIEW [Vol. 26:117

which are law. 84 As yet, no distinction expounded by the Court serves
as an absolute guide to lower courts in the struggle to divide facts from

law.85

B. Standards of Review and Policy Considerations

On appeal, a party will allege that an error occurred in the lower
court requiring an alteration of the lower court's judgment. The intensity

and extent of review in which the appellate court may engage depends
upon the nature of the alleged error. 86 Generally, an appellate court

may reverse a trial court's factual findings only if those findings are
clearly erroneous. 87 An error of law, however, allows the appellate court
to substitute its judgement for the decision of the trial court via a de

novo review.88 If a mixed question of law and fact exists, a different

analysis, requiring a balancing of policy considerations, is applied to

determine the scope of review. 89 These well-established rules define the

scope of appellate review based on whether the alleged trial court error

was one of "fact" or "law."90

A crucial point must be made at this juncture. Identifying a trial
court decision as one of fact, law, or both is not a mechanical process

ultimately compelling a standard of review. Behind these distinctions lie

a large body of policy considerations supporting each corresponding

84. See, e.g., Pullman-Standard, 456 U.S. at 287-88 (issue of intentional discrim-

ination is a pure question of fact). The Supreme Court has framed the law-fact distinction

as a matter of common sense, holding that the clearly erroneous standard should apply
whenever the finding in question is based on the "fact-finding tribunal's experience with

the mainsprings of human conduct . . . ." Commissioner v. Duberstein, 363 U.S. 278,
289 (1960).

85. As one appellate court judge warns: "*[l]aw' and 'fact' do not in legal discourse

denote pre-existing things; they express policy-grounded legal conclusions." Weidner v.

Thieret, 866 F.2d 958, 961 (7th Cir. 1989) (Posner, J.).

86. Friedenthal et al., supra note 39, § 13.4.

87. See United States v. Mississippi Valley Generating Co., 364 U.S. 520 (1961).

See generally 9 Charles A. Wright & Arthur R. Miller, Federal Practice and
Procedure § 2585 (1971).

88. Mississippi Valley Generating Co., 364 U.S. at 526. See generally Wright &
Miller, supra note 87, § 2588.

89. Pierce v. Underwood, 487 U.S. 552, 559-60 (1988).

90. These rules are more than common law precepts of judicial procedure. It has
been held that Fed. R. Crv. P. 52(a) will be applied to the findings of a judge in criminal

cases on issues other than the guilt of the defendant. Campbell v. United States, 373

U.S. 487 (1963). This rule states that "[flindings of fact shall not be set aside unless

clearly erroneous . . . ." Fed. R. Crv. P. 52(a). Undoubtedly, this rule has established a

principle which affects all aspects of the appellate process. See generally Wright & Miller,
supra note 87, § 2573.



1992] SEIZURE REVIEW STANDARD 133

review standard. 91 These considerations are the forces that propel the

labelling of an issue as fact or law and which results in the application

of a standard of review.92

1. Pure Facts and Reviewing for Clear Error.—Requiring the pres-
ence of clear error before reversing a trial court finding severely limits

the scope of appellate review.93 This limit is justifiedly applied to factual

findings for several reasons.94 The most persuasive rationale for applying

this limited review is the special expertise which the trial court has in

judging the credibility of the witnesses, analyzing the demeanor of the

parties, and weighing the evidence.95 A second reason for this deference
is a consideration of judicial economy and the proper role of the trial
courts vis-a-vis appeals courts.

Federal courts are faced with an ever increasing work load, causing

the efficiency of the system to become an important concern. This concern

is often manifested in judicial policy determinations allocating labor

between the trial and appellate courts.96 Thus, appellate courts are more
willing to grant trial courts greater discretion in judicial decisions re-

garding facts. This results in a limited appellate review of trial court

91. As stated by the Supreme Court, determinations of standards of review "reflect

an accommodation of the respective institutional advantages of trial and appellate courts."

Salve Regina College v. Russell, 111 S. Ct. 1217, 1222 (1991).

92. At least one court of appeals agrees fully with this statement. In United States

v. McConney, 728 F.2d 1195 (9th Cir. 1984), the United States Court of Appeals for the

Ninth Circuit, sitting en banc, stated:

The appropriate standard of review for a district judge's application of

law to fact may be determined ... by reference to the sound principles which
underlie the settled rules of appellate review. ... If the concerns of judicial

administration—efficiency, accuracy, and precedential weight—make it more ap-
propriate for a district judge to determine whether the established facts fall

within the relevant legal definition, we should subject his determination to

deferential, clearly erroneous review. If, on the other hand, the concerns of

judicial administration favor the appellate court, we should subject the district

judge's finding to de novo review. Thus, in each case, the pivotal question is

do the concerns of judicial administration favor the district court or do they

favor the appellate court.

Id. at 1202 (emphasis added).

93. As stated by the Supreme Court, "review of factual findings under the clearly-
erroneous standard—with its deference to the trier of fact—is the rule, not the exception."
Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).

94. See generally Charles Alan Wright, The Doubtful Omniscience of Appellate

Courts, 41 Minn. L. Rev. 751 (1957).
95. See Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982); Zenith Radio

Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 123 (1969). See generally Wright &
Miller, supra note 87, § 2586.

96. See Louis, supra note 79.



134 INDIANA LAW REVIEW [Vol. 26:117

determinations. 97 One method of achieving this limit is to classify a trial
court finding as one of fact and to apply the clearly erroneous standard

of review.98

2. Pure Law and Reviewing De Novo.—Determinations of law are
reviewed de novo on appeal.99 The legal conclusions of the trial court
receive no deference from an appeals court conducting a de novo review. 100

This broad reassessment of the lower court decision results from the

stated role of an appeals court to determine the law. 101 Unlike questions

of fact, the appeals court is in as good of position as the trial court

to determine the applicable law. 102 Further, de novo review of legal

questions promotes consistency and predictability in application of correct

legal principles to similar factual conditions. 103 In this respect, the appeals

courts exert supervisory power over the application of law by the lower

courts.

3. Mixed Questions of Law and Fact.—Unlike questions of pure
fact or law, the presence of a mixed question of law and fact does not

automatically and consistently dictate a standard of review on appeal.

In fact, the Supreme Court has determined that mixed questions require

an extensive analysis to determine the applicable standard:

We recently observed, with regard to the problem of determining
whether mixed questions of law and fact are to be treated as

97. This concern for efficiency is evident in recent opinions. In Anderson v. Bessemer

City, 470 U.S. 564 (1985), the Supreme Court reversed an appeals court decision to review

de novo a factual finding of the trial court which did not involve a credibility determination.

Finding that the appeals court misinterpreted Fed. R. Crv. P. 52(a), and should have

reviewed for clear error, the Court stated: "Duplication of the trial judge's efforts in the

court of appeals would very likely contribute only negligibly to the accuracy of the fact

determination at a huge cost in diversion of judicial resources." 470 U.S. at 574.

98. However, even if a finding is classified as fact, there are exceptions to the

clearly erroneous review requirement. The doctrine of constitutional fact is one example.

See infra text accompanying notes 137-38.

99. See United States v. Mississippi Valley Generating Co., 364 U.S. 520, 526

(1961).

100. Id. at 524.

101. Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485,

510-11 (1983).

102. This equality of review of questions of law should be contrasted with review

of factual determinations, where the Supreme Court has found:

It seems entirely reasonable to expect, therefore, that appellate judges will continue

to defer to the judgment of trial judges who are "on the scene". . . and that
they will not inexorably reach the same conclusion on a cold record at the

appellate stage that they might if any one of them had been sitting as a trial

judge.

Oregon v. Kennedy, 456 U.S. 667, 676 n.7 (1982) (quoting Gori v. United States, 367

U.S. 364, 368 (1961)).

103. See Friedenthal et al., supra note 39, § 13.4 at 601.



1992] SEIZURE REVIEW STANDARD 135

questions of law or of fact for purposes of appellate review,

that sometimes the decision "has turned on a determination that,

as a matter of the sound administration of justice, one judicial

actor is better positioned than another to decide the issue in

question." 104

When confronted with a mixed question of law and fact, an appeals
court should defer to the trial court's findings "when it appears that
the district court is better positioned than the appellate court to decide

the issue in question or that probing appellate scrutiny will not contribute

to the clarity of legal doctrine. ,M05 Once a given issue is identified as
a mixed question of law and fact, the appellate court must evaluate the

policy concerns which underlie the different standards of review; the

standard which best serves the underlying policy consideration is applied.

This is the analysis required to determine the proper standard to review

a seizure finding.

C. Application to "Seizure" Determinations

The law-fact distinction assists in determining which standard to
apply when reviewing a trial court's finding that a criminal defendant
was "seized" during an encounter with law enforcement officers. A two-
step analysis determines if the law-fact distinction applies to dictate the

standard of review for a particular issue. First, it must be decided into

which category, law, fact, or mixed law and fact, a trial court's "seizure"

determination falls. Second, the underlying policies which support the

standard of review applied to the particular category are analyzed to

see if they are appropriate and applicable to the seizure issue.

Although this discussion may imply that the factors are, or should
be, considered in this order, no such implication is intended. Rather,

as the discussion above fairly indicates, identifying an issue as one of

fact or law is a result-oriented process. In fact, the category of mixed

fact and law is most likely a result of judicial unhappiness with any

categorization process that requires the application of rigid standards of

review. Accordingly, the middle category honestly depicts the actual

reasoning and analysis used to determine the standard of review: a

weighing of competing policy considerations.

1. Characteristics of a Seizure Determination.—The Mendenhall test
is applied by a court to determine whether a person was seized for

purposes of the Fourth Amendment. 106 The test is objective and requires

104. Pierce v. Underwood, 487 U.S. 552, 559-60 (1985) (quoting Miller v. Fenton,

474 U.S. 104, 114 (1985)).

105. Salve Regina College v. Russell, 111 S. Ct. 1217, 1222 (1991).

106. See supra text accompanying note 16.



136 INDIANA LAW REVIEW [Vol. 26:117

a court to determine if a reasonable person, in similar circumstances as

the defendant, would have felt free to leave the presence of the law

enforcement officers. 107 The analysis involved in applying this test, as
well as the similarity of the Mendenhall standard to other objective tests

employed by courts, assists to determine whether the seizure finding is

one of fact, law, or mixed law and fact.

A three-step analysis is applied to determine if a seizure occurred.
The initial step is to establish the legal principle which guides the analysis.
This is the traditional pure determination of law. Little doubt exists

that an appeals court would review de novo a trial court's attempt to

alter the seizure test or to apply a standard inconsistent with the Men-
denhall test. Second, the circumstances which existed during the defen-

dant's encounter with the police are ascertained. These findings of who,

what, when, where, and why are the typical findings of fact by the trial
court. These findings, being devoid of any legal principle, are reviewed

under the clearly erroneous standard. Finally, these facts, after being

entered into the Mendenhall equation, are evaluated to determine whether

a reasonable person would have felt free to leave under the circumstances

confronting the defendant. This application of the law to the facts is

a finding of ultimate fact, or mixed law and fact. The key to establishing
the applicable standard of review is to determine which of these steps

is crucial to a seizure finding. The character of that step indicates the
characterization of the seizure finding as one of law, fact, or a mixed

question of law and fact.

During a motion to suppress evidence, the trial court will usually

conduct a hearing where witnesses testify, evidence is introduced, and

affidavits are presented. 108 The court evaluates this evidence and finds
the facts existing at trie time of the encounter. However, no seizure

finding occurs until the trial court applies the Mendenhall test to these

facts. If the trial court finds the facts satisfy the test, a seizure occurred.

But for the application of the law to the facts, no seizure occurred.

Thus, this critical step in the seizure determination is the application of

the law to the facts. This conclusion is supported by the concurring

107. United States v. Mendenhall, 446 U.S. 554, 554 (1980). A more recent case
reinforces the objective nature of the seizure test: "Mendenhall establishes that the test

for existence of a 'show of authority' is an objective one: not whether the citizen perceived

that he was being ordered to restrict his movement, but whether the officer's words and

actions would have conveyed that to a reasonable person." California v. Hodari D., Ill

S. Ct. 1547, 1551 (1991).

108. When reviewing a trial court's suppression decision, an appeals court will
usually consider not only the testimony received during the pre-trial motion, but will also

consider relevant testimony and evidence which arose at trial. Carroll v. United States,

267 U.S. 132, 162 (1925).



1992] SEIZURE REVIEW STANDARD 137

opinion of Justice Powell in INS v. Delgado, 109 in which he stated that
determining whether a defendant was seized "turns on a difficult char-

acterization of fact and law. . . ." no

The characterization of this critical step of the Mendenhall test

determines the overall nature and characterization of the seizure finding.

The application of law to fact is considered a mixed question of law

and fact. Accordingly, under this analysis, the seizure determination is

one of mixed law and fact and subscribes to neither of the established

principles of review for pure fact or pure law. Instead, the correct

standard of review depends upon a balancing of the underlying policy
considerations of each standard vis-a-vis the seizure issue.

2. Policy Considerations and the Seizure Determination .—The pol-
icies supporting the application of both a clearly erroneous and de novo

standard of review are present in a seizure determination. 111 However,

the issue is whether the policy considerations supporting one standard

outweigh those supporting the application of the alternative standard. 112

Essentially, the question resolves into one of fairness, efficiency, and

judicial economy.

The Supreme Court and lower courts continually characterize the

seizure determination as fact intensive. 113 In INS v. Delgado, the Court
restated the Mendenhall test: "A person has been 'seized* within the
meaning of the Fourth Amendment only if, in view of all the circum-
stances surrounding the incident, a reasonable person would have believed

that he was not free to leave." 114 Thus, the duty of the trial court is

to determine the facts by closely analyzing the citizen-police encounter

and the surrounding circumstances. The objective test is then applied

to these facts. This analysis is normally conducted in a pre-trial hearing

on a motion to suppress. 115 The assessment of witness credibility is a
task peculiarly suited for a trial court judge, who is able to observe the
demeanor, reactions, and conduct of the witness. 116 The appellate court,

able only to review the trial court proceedings from a written record,

109. 466 U.S. 210, 221 (1984).

110. Id. at 221.

111. If both sets of policy considerations were not present, it is doubtful that a

dispute would exist among the circuits over which standard to apply.
112. This is essentially the balancing test indicated by Salve Regina College v.

Russell, 111 S. Ct. 1217, 1222 (1991).

113. "Given that the one consistent, dominant theme in each of the Supreme Court's

cases applying the Mendenhall test is the Court's emphasis on the fact-intensive nature

of the inquiry. . . ." United States v. McKines, 933 F.2d 1412, 1420 (8th Cir. 1991).

114. 466 U.S. at 215.

115. See supra text accompanying note 25.

116. See Anderson v. Bessemer City, 470 U.S. 564, 575 (1985).



138 INDIANA LAW REVIEW [Vol. 26:117

is deprived of this advantage in assessing credibility. 117 Because of this

handicap, a large amount of judicial time and resources is wasted when
an appeals court attempts to review credibility and fact issues de novo.

Further, the process of assessing facts from a cold written record is

unfair to the litigants. Accordingly, judicial economy and fairness require
the deferential principles underlying a clearly erroneous standard of

review. 118

Two arguments generally support the application of a de novo review,
one based on fairness and the other based on judicial efficiency. 119 First

is the necessity of an accurate and consistent application of the Men-
denhall test to ensure fairness to litigants. This goal is only achieved

with broad appellate court scrutiny. 120 The second argument, judicial

efficiency, turns on the notion that appellate courts cannot "shirk their

responsibility independently to apply important constitutional stan-

dards." 121 Because an important function of an appeals court is to

determine what the law is, and because a seizure finding is inherently

fact-sensitive, it is presumed that those courts are better and more efficient

in applying Fourth Amendment law to relevant factual situations. 122

Further, the appeals court traditionally supervises application of correct

legal principles by trial courts. These arguments indicate a broad review

of the trial court seizure finding is warranted. The principles which

support de novo review protect the application of a vital legal principle

to factual findings.

The principles which support de novo review and those that support

a clearly erroneous review are both indicated by the seizure issue. How-
ever, the salient issue to determine is which principles are most relevant

to the seizure issue. The persuasiveness of these principles is weighed

against the opposing values to determine which standard of review to

apply.

117. Id. at 574-75.

118. See Cooter & Gell v. Hartmarx Corp., 110 S. Ct. 2447 (1990), in which the
Court, in discussing sanctions under Fed. R. Civ. P. 11 stated: "Familiar with the issues

and litigants, the district court is better situated than the court of appeals to marshall

the pertinent facts and apply the fact-dependant legal standard. . . ." 110 S. Ct. at 2459.

119. See generally United States v. McKines, 933 F.2d at 1422. Although stating

only one reason exists supporting de novo review, the discussion in which the court engages

is logically more clear if considered as two separate policy grounds.

120. Limited appellate review could allow moderate deviations in the application of

the Mendenhall test to particular facts. These deviations, if not extreme, may not rise to
the level of clear error and allow appellate court reversal.

121. United States v. Maragh, 894 F.2d 415, 418 (D.C. Cir. 1990) (analysis of the

District of Columbia Circuit upon adopting a de novo review of a trial court's seizure

determination).

122. This principle, especially as applied to constitutional rights, is discussed sep-

arately and more fully infra at text accompanying note 132.



1992] SEIZURE REVIEW STANDARD 139

3. Other Objective Tests and Relevant Characteristics.—Another
analytical tool which assists in determining the standard of review to

apply to a seizure finding is analogous objective tests developed to

scrutinize the action and interaction of persons in our society. The

standards of review applied to these other objective tests are instructive

in determining the proper review of the objective seizure test.

The most prevalent objective test employed by the judicial system
is that used to determine negligence. 123 This test requires a court to

determine if a person alleged to be negligent acted as a reasonable person

would under similar circumstances. 124 As in a seizure determination, a
finding of negligence is a mixed question of law and fact. 125 The legal

question is whether a duty exists, and if so, what the content of that

duty is; the factual issue is whether the defendant breached that duty. 126

When the facts are applied to this legal duty, a mixed question of law
and fact is answered. A finding of negligence is subject to deferential
review for clear error. 127

Even more closely related to the seizure determination is the question
of when property is considered abandoned for purposes of the Fourth
Amendment. 128 If property is abandoned, all privacy interests in the
property are lost and the Fourth Amendment does not apply to a search
or seizure thereof. 129 To determine if the property was abandoned, the
trial court must ascertain the intent of the person who abandoned the
property by examining the objective manifestations of that intent. 130 A

123. The objective nature of the negligence test and its relevance to the standard

of review applicable to a seizure determination was discussed by the Eighth Circuit in

United States v. McKines, 933 F.2d at 1421.

124. See Restatement (Second) of Torts § 291 (1965):

Where an act is one which a reasonable man would recognize as involving a
risk of harm to another, the risk is unreasonable and the act is negligent if the
risk is of such magnitude as to outweigh what the law regards as the utility of

the act or of the particular manner in which it is done.

Id.

125. See McAllister v. United States, 348 U.S. 19 (1954).

126. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts §
35 (5th ed. 1984).

127. McAllister, 348 U.S. at 20.

128. The objective nature of the abandonment test was discussed by Judge Mikva

in dissenting from the District of Columbia Circuit's decision to adopt a de novo standard

of review for the seizure issue. United States v. Maragh, 894 F.2d 415, 423 (D.C. Cir.

1990) (Mikva, J., dissenting).

129. See Abel v. United States, 362 U.S. 217 (1960). See also Katz v. United States,

389 U.S. 347 (1967) (scope of Fourth Amendment protection extends only where legitimate
expectation of privacy by individual exists).

130. Abel, 362 U.S. at 240-41.



140 INDIANA LAW REVIEW [Vol. 26:117

trial court's finding on the abandoned property issue is reviewed for

clear error by the appeals court. 131

Other objective tests applied by trial courts, in both criminal and
civil areas, are reviewed deferentially on appeal. 132 These analogies are

illustrative, but not dispositive. These questions of mixed law and fact

are afforded certain standards of review based upon an analysis of the

competing policy considerations. The fact that they are objective tests

does not logically require the conclusion that all objective tests be reviewed

deferentially. Rather, policy considerations must be analyzed and applied

to the specific legal issue to determine whether the "district court is
4

better positioned' than the appellate court to decide the issue in question

or that probing appellate scrutiny will not contribute to the clarity of

legal doctrine. ,M33 Regardless, the standards applied to these legal issues

by courts are illustrative of the underlying values the courts find present

in objective rules and assist in analyzing the standard applicable to the

Mendenhall rule.

IV. Constitutional Fact

A. Doctrine

In Bose Corp. v. Consumers Union of United States, //ic., 134 the

Supreme Court defined and applied the doctrine of constitutional fact

as related to First Amendment rights. In Bose Corp., the Court found
that a determination of "actual malice* ' in a defamation action was

indeed a question of fact but that an appellate court nonetheless had

a duty to review the trial court's determination de novo. 135 Because such

a finding of fact depends upon a sound construction of constitutional

131. United States v. Kendall, 655 F.2d 199, 203 (9th Cir. 1981), cert, denied sub

nom., Akers v. United States, 455 U.S. 941 (1982).

132. Another area in which the courts have adopted an objective test is the deter-

mination of whether a criminal defendant's confession was voluntary or the product of

coercion under the Due Process Clause of the Fifth or Fourteenth Amendment. See
Culombe v. Connecticut, 367 U.S. 568 (1961). However, most appellate courts review the

trial court's determination on this issue de novo. See Green v. Scully, 850 F.2d 894, 901

(2d Cir. 1988); Miller v. Fenton 796 F.2d 598, 601 (3d Cir. 1986). For a criticism of

standards that advocate a clearly erroneous review for the voluntariness of confessions,

see generally Note, Voluntariness of Confessions in Habeas Corpus Proceedings: The

Proper Standard for Appellate Review, 57 U. Chi. L. Rev. 141 (1990).

133. Salve Regina College v. Russell, 111 S. Ct. 1217, 1222 (1991) (quoting Miller

v. Fenton, 474 U.S. 104, 114 (1985)).

134. 466 U.S. 485 (1984).

135. Id. at 510-11 ("The question whether the evidence in the record in a defamation

case is of the convincing clarity required to strip the utterance of First Amendment
protection is not merely a question for the trier of fact.").



1992] SEIZURE REVIEW STANDARD 141

principles, no deference is given to the trial court's factual determina-

tions.
136 If this doctrine extends beyond the First Amendment and affects

the application of other Bill of Rights guarantees, the standard of review

for a Fourth Amendment seizure determination may also be altered.
I. Constitutional Duty.—The Supreme Court has indicated that

appeals courts have a constitutional duty to review de novo a lower

court factual determination if that fact is appropriately a "constitutional

fact". 137 In Bose Corp., the Court stated:

The requirement of independent appellate review reiterated in

New York Times Co. v. Sullivan is a rule of federal constitutional
law. It emerged from the exigency of deciding concrete cases;

it is law in its purest form under our common-law heritage. It
reflects a deeply held conviction that judges—and particularly
Members of this Court—must exercise such review in order to
preserve the precious liberties established and ordained by the

Constitution. 138

Once a factual determination is found to invoke the constitutional fact
doctrine, an appellate court loses discretion to defer to the trial court.

However, this duty only attaches if a constitutional fact is being ad-

judicated. Thus, the initial query is whether the relevant fact determi-

nations are of a constitutional nature sufficient to invoke application

of the doctrine.

136. Id. at 509-10. See also Time, Inc. v. Pape, 401 U.S. 279 (1971). In Time, the

Court stated that constitutional inquiries "are familiar under the settled principle that

'[ijn cases in which there is a claim of denial of rights under the Federal Constitution,

this Court is not bound by the conclusions of lower courts, but will re-examine the

evidentiary basis on which those conclusions are founded.'" Id. at 284 (quoting Niernotko

v. Maryland, 340 U.S. 268, 271 (1951)).

137. Bose Corp., 466 U.S. at 501. In Roth v. United States, 354 U.S. 476 (1957),

the Court discussed a lower court finding that a particular matter was obscene. Justice

Harlan, for the majority, stated:

Since [obscenity] standards do not readily lend themselves to generalized defi-

nitions, the constitutional problem in the last analysis becomes one of partic-

ularized judgments which appellate courts must make for themselves. / do not
think that reviewing courts can escape this responsibility by saying that the trier

of the facts . . . has labeled the questioned matter as 'obscene, ' for . . . the

question . . . involves not really an issue of fact but a question of constitutional

judgment of the most sensitive and delicate kind."

Id. at 497-98 (first emphasis added).

See also Strong, Dilemmic Aspects of the Doctrine of "Constitutional Fact," 47

N.C. L. Rev. 311, 323-24 (1969) (supporting the existence of a constitutional duty to

review de novo constitutional facts). But see Monaghan, supra note 78, at 264-71 (stating

that the question of which standard of review to apply to a constitutional fact issue is

a matter of judicial discretion).

138. Bose Corp., 466 U.S. at 510-11.



142 INDIANA LAW REVIEW [Vol. 26:117

2. Constitutional Fact Defined.—The Supreme Court has not ar-
ticulated an extremely clear definition of a constitutional fact. Instead,

the Court reviews de novo the factual findings in "cases in which there

is a claim of denial of rights under the Federal Constitution." 139 Under

this analysis, the nature of the substantive law or principle in question,

not the facts, determines whether the doctrine applies. 140 In Bose Corp.,

the Court was again confronted with defining a test to determine when
an appellate court must engage in de novo review of lower court factual

findings. The Court discussed the application of the doctrine to First
Amendment issues and found "[w]hen the standard governing the decision
of a particular case is provided by the Constitution, this Court's role

in marking out the limits of the standard through the process of case-

by-case adjudication is of special importance. ,M41 Broadly read, this

holding requires de novo review of any action based upon an interpre-
tation of a constitutional principle.

Thus, a constitutional fact is any fact which is a predicate finding

to the application of a constitutional principle. Under the rule of Bose

Corp. a trial court's role as fact-finder is jeopardized because of the

multiple constitutional issues to which the doctrine would apply. This

broad application is not, however, evident in the Court's review of every

constitutional right. Instead, the Court has been selective in applying

the doctrine to only particular constitutional principles.

3. Scope of Application.—The Bose Corp. holding concerned First
Amendment rights. However, the Court has applied a de novo review
to trial court ultimate factual determinations when other constitutional
rights are in issue. 142 Among the rights afforded broad review are the

139. Id. at 509 (quoting Time, Inc. v. Pape, 401 U.S. 279, 284 (1971)).

140. The substantive law underlying a case often determines whether a particular

finding is one of fact or one of law. See Bose Corp., 466 U.S. at 501 n.17 (indicating

that at some point a particular finding becomes one of law rather than fact and "[wjhere

that line is drawn varies according to the nature of the substantive law at issue."). It

seems quite logical that whether a factual determination requires application of the con-

stitutional fact doctrine depends upon a similar characture of the underlying legal principles.

141. Bose Corp., 466 U.S. at 503.

142. In Baumgartner v. United States, 322 U.S. 665 (1944), the Court gave a broad

indication of the type of constitutional issue which may merit a non-deferential review
of the facts:

Thus, the conclusion that may appropriately be drawn from the whole mass of
evidence is not always the ascertainment of the kind of 'fact' that precludes

consideration by this Court. Particularly is this so where a decision here for

review cannot escape broadly social judgments—judgments lying close to opinion
regarding the whole nature of our Government and the duties and immunities

of citizenship.

Id. at 671.



1992] SEIZURE REVIEW STANDARD 143

voluntariness of a confession under the Fifth Amendment143 and equal
protection clause claims. 144 Thus, a trial court's determination of a varied

group of constitutional rights receives no deference on appellate review.

Though many rights require de novo appellate review, not every principle
of the Constitution requires such exhaustive appellate scrutiny. Instead,

the courts selectively determine which rights require the close appellate

supervision afforded by the constitutional fact doctrine. 145 Factual findings

related to constitutional rights which do not require de novo review

include a magistrate's finding that probable cause to issue a search

warrant exists, 146 the decision that an object is obscene, 147 and, in some

instances, interpretations of the Fourteenth Amendment's Equal Pro-

tection Clause. 148 These examples indicate that courts classify constitu-

tional rights as constitutional facts sometimes, but not others. 149 Thus,

before this doctrine can be applied to a Fourth Amendment seizure
determination, a rule of analysis must be distilled that determines when
an appellate court may undertake a full review of the trial court's
actions.

4. Policy Basis.—Crucial to applying the constitutional fact doctrine
is an understanding of the policies supporting its use. Although the

doctrine is greatly criticized, 150 certain judicial policies are favorably

143. See Payne v. Arkansas, 356 U.S. 560, 562 (1958) ("[W]here the claim is that

the prisoner's confession is the product of coercion we are bound to make our own
examination of the record to determine whether the claim is meritorious.").

144. See Baker v. Carr, 369 U.S. 186 (1962); Brown v. Board of Educ, 347 U.S.
483 (1954) (These cases "opened up vast areas of substantive constitutional fact litigation.").

Louis, supra note 79, at 1031 n.287. But see Dayton Bd. of Educ. v. Brinkman, 443

U.S. 526 (1979) (clearly erroneous review applied to equal protection challenge of public

school segregation).

145. Although not necessarily a constitutional right, the Supreme Court has deter-

mined that causes of action which challenge activity under the commerce clause, U.S.

Const, art. I, § 8, receive a limited review for clear error. Container Corp. of Am. v.
Franchise Tax Bd., 463 U.S. 159 (1983).

146. See Illinois v. Gates, 462 U.S. 213 (1983) (reviewing court must uphold mag-

istrate's probable cause determination if "substantial basis" exists for that conclusion).

147. See Miller v. California, 413 U.S. 15, 24-25 (1973) (the determination that an

object is obscene is reviewed deferentially on appeal).

148. See Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 534-37 (1979) (application

of equal protection clause to challenge segregation of public schools reviewed for clear

error).

149. It is also apparent that a rational rule indicating when the constitutional fact

doctrine applies to a particular right has yet to be announced. See Monaghan, supra note

78, at 264-71.

150. See, e.g., Bose Corp. v. Consumers Union of the United States, Inc., 466

U.S. 485, 520 (1984) (Rehnquist, J., dissenting) ("I cannot join the majority's sanctioning

of factual second-guessing by appellate courts."). See generally Monaghan, supra note

78, at 264-76.



144 INDIANA LAW REVIEW [Vol. 26:117

served by its application. Among those policies served are the consistent
application of constitutional law, 151 the protection of vital constitutional

values, 152 and the special duty of the appellate courts to supervise a trial

court's application of constitutional principles to the facts. 153 The factors
weighing against the application of the constitutional fact doctrine are

also numerous and persuasive. These include the necessity of maintaining

a proper balance of judicial power between the trial and appellate courts,

overburdening the appellate courts by requiring frequent de novo reviews,

and the trial court's expertise in making findings of facts. If these values

are collected, applied, and measured against the particular constitutional

right at issue, a framework for analyzing and determining whether to

apply the doctrine emerges.

5. When Applied.—A leading scholar argues that the constitutional
fact doctrine should apply, and a de novo review be conducted, in two

situations. 154 First, a trial court's factual findings should not receive

deference if possible judicial systemic bias threatens the litigant. 155 Second,

an appeals court may review a trial court's factual findings de novo if
there exists a "perceived need for case-by-case development of consti-

tutional norms." 156 The second application of the doctrine is supported

by the Supreme Court's opinion in Bose Corp. 151 Professor Monaghan's

test simplifies the otherwise complex doctrine of constitutional fact.

However, such simplicity disregards the multiple policy factors which

should be considered whenever the balance of power between trial courts

and appeals courts is subject to such a monumental shift as occurs when

the constitutional fact doctrine is applied to an issue. While the test is

useful in the evaluation, it is not dispositive in determining when to

151. See Roth v. United States, 354 U.S. 476, 497-98 (1957) ("Since those [con-

stitutional] standards do not readily lend themselves to generalized definitions, the con-

stitutional problem in the last analysis becomes one of particularized judgments which

the appellate courts must make for themselves.").

152. Bose Corp., 466 U.S. at 502. ("[Tine constitutional values protected by the

[constitutional fact doctrine] make it imperative that judges—and in some cases judges
of this Court—make sure that it is correctly applied.").

153. See New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964) ("This court's
duty is not limited to the elaboration of constitutional principles; we must also in proper

cases review the evidence to make certain that those principles have been constitutionally

applied.").

154. Monaghan, supra note 78, at 271.

155. Id. at 272.

156. Id. at 273. This rule is most closely associated with the values of the consti-

tutional fact doctrine articulated above. See supra text accompanying note 133. However,

it should be noted that, in general, Professor Monaghan disfavors the constitutional fact

doctrine and believes that both of the situations mentioned are protected by traditional

standard of review doctrine. See Monaghan, supra note 78, at 264-71.

157. 466 U.S. 485, 508-11 (1984).



1992] SEIZURE REVIEW STANDARD 145

apply the doctrine. The Monaghan test gives sufficient weight to one
policy consideration that supports the application of the doctrine, but

fails to consider the competing considerations.

As mentioned above, the Supreme Court has not stated a rule which

dictates when the doctrine is applied. The absence of such a clear rule
might indicate that the Court does not desire to establish a bright line

to guide the lower courts. Instead, the prudential concerns relevant to

an application of a deferential standard of review to factual findings

should be evaluated. This analysis seems more consistent with precedent. 158

Thus, if a constitutional rule is in question, and that rule requires

close appellate scrutiny in its development and application, a presumption

in favor of applying the constitutional fact doctrine is created. However,

this finding does not end the analysis. Each other policy rationale, both

supporting and denying application of the constitutional fact doctrine,

should be analyzed and weighed. If the policies which compel an appeals

court to retain power and control over the constitutional issue outweigh

the systemic concerns of the judiciary, the doctrine is applied. 159 Ac-

cordingly, trial court factual 160 determinations which directly implicate,

invoke, or require the application of the constitutional principle receive

no deference when reviewed by an appellate court. 161

B. Application to "Seizure" Determinations

The similarity between the policies which determine the application
of the constitutional fact doctrine and those which divide issues of law

from issue of fact are not necessarily coincidental or surprising. 162 Also

158. Arguably, Bose Corp. was an example of the Court weighing the requirements

of Fed. R. Crv. P. 52(a) and its clearly erroneous standard of review with the grave

constitutional ramifications of a trial court's factual findings in defamation actions. See

Bose Corp., 466 U.S. 500-01. In Bose Corp., the Court stated:

One might therefore assume that the cases in which the appellate courts have

a duty to exercise independent review are merely those in which the presumption

that the trial court's ruling is correct is particularly weak. The difference between

the two rules, however, is much more than a mere matter of degree.
Id. (emphasis added).

159. Here, "systemic concerns" refers to those considerations discussed supra which

militate against applying the doctrine of constitutional fact. Among them, the concepts
of judicial efficiency, economy, and fairness to the parties are crucial.

160. Of course the legal determinations, i.e. what the actual constitutional rule is,
certainly receives no deference due to the long established role of the appeals court to

review de novo the legal findings of the trial court.

161. Thus, if the constitutional fact doctrine is applied to an issue, all facets of

the determination receive a de novo review. The legal determinations, the factual findings,

and the application of the facts to the law would all fall within the realm of a full

appellate review.

162. See supra text accompanying note 93.



146 INDIANA LAW REVIEW [Vol. 26:117

unsurprising is that those policies which favor application of the doctrine

also favor treating a mixed question of law and fact as a question of

law to be reviewed de novo by an appeals court. 163 As a result, the
balancing which determines if the doctrine of constitutional fact applies

to a seizure determination is similar to the analysis that determines the

standard of review applied to a mixed question of law and fact. 164

1. Doctrinal Inefficiency and Seizure Findings.—The most com-
pelling factor supporting application of the constitutional fact doctrine

is the consistency and fairness derived from continuing appellate scrutiny,

resulting in consistent application of a certain constitutional norm. 165

Weighed against this value is the cost to the judicial system, in terms

of efficiency and economy, of shifting power away from the trial courts
in favor of the appellate level. Further, any resulting unfairness to the

litigants by having an appeals court determine the facts from the record

rather than live proceedings militates against the application of the

doctrine. 166

The seizure determination has consistently been labelled a fact in-

tensive inquiry by the courts. 167 The absence or presence of a single fact
often determines if a Fourth Amendment seizure occurred. 168 Further,
at this late date in the development of the role of the trial court, it is

presumed that these front-line tribunals are more capable of accurately
determining the facts than appellate courts. Any shifting of fact-finding
duties away from the trial court, especially if the legal issue is fact

sensitive, creates inefficiency in the administration of the judicial system.

Such a power shift disturbs the traditional role of the trial courts vis-

a-vis appellate courts and thrusts the duty of fact-finding on the level

of the judiciary most inappropriately designed to determine facts.

2. Prejudice, Unfairness, and Constitutional Facts.—Another crit-

ical consideration is the close relationship between a finding of guilt or

163. This statement is not exactly correct. The weighing process does not decide

that a mixed question of law and fact is to be treated as one or the other in the application

of a standard of review. As stated supra, mixed questions are a category among themselves
and require the application of a distinct, separate analysis to determine the applicable

standard of review. See supra text accompanying note 92.

164. See supra text accompanying note 92.

165. Inherent in this statement are the considerations of consistent application of

constitutional law, protection of vital constitutional values, and the special duty of the

appellate courts to supervise lower court application of constitutional principles.

166. See supra text accompanying notes 136-39.

167. See, e.g., Michigan v. Chesternut, 486 U.S. 567, 573 (1988) ("[WJhat 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.").

168. See, e.g., California v. Hodari D., Ill S. Ct. 1547 (1991).



1992] SEIZURE REVIEW STANDARD 147

innocence of a criminal defendant and the admissibility of evidence. The

admissibility of evidence often depends upon the legality of the encounter

between the defendant and law enforcement. Under such circumstances,

the Fourth Amendment may determine, in practical terms, the guilt or
innocence of the defendant. Assuming the correctness of this premise,

that trial courts are the most capable fact-finders in the judicial system,

and, given that the seizure determination is fact intensive, fairness requires

that the duty of determining the facts, and thus "seizures,' ' remain in

the trial court. If trial courts are more capable of accurately determining

the facts than appellate courts, it necessarily follows that the probability

an appellate court will make incorrect findings is higher than the pos-
sibility of error in the trial court. Thus, with de novo review both parties

to a criminal action are forced to rely on the level of the judicial system

most likely to err in factual analysis. These facts determine, probably,

the issue which decides the guilt or innocence of the criminal defendant.

Especially in criminal actions, fairness to the defendant requires that

the level of the judicial system most likely to correctly determine an

issue be given that responsibility.

3. Counterweight: Consistent Constitutional Judications.—The com-
peting value of consistent and correct application of constitutional prin-

ciples must be weighed against these considerations of efficiency, economy,

and fairness. A citizen is seized by the police if a reasonable person,
in view of all the circumstances, would have believed he was not free

to leave. If the seizure occurred, and probable cause to "seize" the

person was absent, the Fourth Amendment was violated. Whether a
seizure occurred and the legality of the seizure are the constitutional

principles applied in the seizure issue. It may be assumed that de novo
review of these principles increases the likelihood of their consistent and

correct application. 169 However, the true issue is whether the marginal

benefits derived from this increase in consistency outweigh the costs to

both the litigants and judicial system in terms of lost economy, efficiency,

and fairness resulting from a de novo review of factual findings.

The objective test used to determine whether a seizure occurred has

existed, in essentially identical form, since Mendenhall was decided in

1980. In the twelve years since this decision, numerous trial courts have

applied this test to determine if a citizen's encounter with law enforcement

officers resulted in a Fourth Amendment seizure. At this point, it seems
unlikely that the marginal benefits of continued de novo review by the

169. But see Cooter & Gell v. Hartmarx Corp., 110 S. Ct. 2447, 2460 (1990) (stating
that "some variation in the application of a standard based on reasonableness is inevitable.

'Fact-bound resolutions cannot be made uniform through appellate review, de novo or
otherwise.'").



148 INDIANA LAW REVIEW [Vol. 26:117

appeals courts outweigh the costs incurred by the judicial system and

the litigants. 170 Also, considering the increasing caseload of both the

appellate and trial courts, every opportunity should be taken to more
efficiently allocate work between the levels of the judicial system.

4. A Balancing Act.—Efficiency alone does not allow the courts
to compromise the application of vital constitutional rights. However,

these rights seem to be adequately protected by the traditional allocation

of labor between trial and appellate courts resulting from the application

of traditional standards of review. Under this approach, an appeals court
still reviews de novo the legal determinations of the trial court to ensure

the correct principles of law are applied. More importantly, the appeals
court retains the ability to review the seizure determination for clear

error. The risk of a marginal loss of consistency in the application of
constitutional principles, which might result from limiting review of the

seizure issue to clear error, does not outweigh the prudential concerns

of the judiciary or the risk of prejudice to the litigants if a de novo

review is allowed.

V. Conclusion

A. Policy Considerations Dispositive

This discussion stressed the relative unimportance of attempting to

conclusory label the seizure issue to assist in determining what standard

of review should be applied upon appeal. Whether the issue is called

a factual finding, a legal determination, or a constitutional fact, the

only principled analysis in which the courts may engage is one that
carefully considers the policy values sought to be protected under the

Fourth Amendment. The result of this analysis indicates that the litigants,

the judicial system, and the Fourth Amendment are best served by
limiting the scope of appellate review of a trial court's seizure deter-

mination to one of clear error.

B. An Unnecessary Distinction

Although the law-fact distinction and the doctrine of constitutional

fact were discussed separately, it is arguable whether a separate and

distinct analysis is advised or whether the doctrine of constitutional fact

is merely a sub-category, or a consideration, when determining the

170. This may be evidenced by a majority of the courts of appeals adopting a
clearly erroneous standard of review for the seizure issue. Though counting the circuits

on each side of a question never determines the wisest judicial policy, the numbers are

indicative of a trend in jurisprudential thought.



1992] SEIZURE REVIEW STANDARD 149

standard of review to apply to a mixed question of law and fact. As

noted, those same prudential concerns which indicate that a mixed

question should receive de novo review also support the application of

the doctrine and accordingly the application of the de novo review. The

better analysis, possibly, is to consider that a Constitutional principle

is being determined as a factor which may indicate that a mixed question
should receive de novo review. Considering the voluminous criticism of

the constitutional fact doctrine which exists, along with the complexities

involved in separately analyzing a given issue under this doctrine, it may
be most efficient and wise for the courts to collapse the doctrine into

the mixed question standard of review framework. If a mixed question

requires the adjudication of a vital constitutional principle which the

appeals courts are unwilling to relinquish to the trial courts, the scales

would be tilted greatly towards a de novo review of the mixed question.

C. Fairness, Efficiency, and Economy

Regardless of how the standard of review is discerned, the most
important concern is that the fundamental considerations of fairness,

efficiency, and economy are the underlying values which dictate the

result. When a trial court's determination that a defendant was, or was
not * 'seized* ' in terms of the Fourth Amendment is reviewed on appeal,
these concerns compel a review limited to clear error.