DE: Formulates definition for seizure

Defendant was ordered outside of a house to talk to the police, and that was a seizure under the totality of the circumstances. He dropped drugs and was arrested for that. His discarding the drugs was a product of the illegal detention. Jones v. State, 2011 Del. LEXIS 482 (September 2, 2011): Case law from other jurisdictions also is instructive. Given the "necessarily imprecise" standard for determining whether an individual has been seized,11 other courts have developed factors to consider when evaluating whether a police encounter amounts to a seizure. For example, in United States v. Mendenhall, the United States Supreme Court explained that four circumstances might indicate a seizure: (1) "the threatening presence of several officers," (2) "the display of a weapon by an officer," (3) "some physical touching of the person of the citizen," or (4) "the use of language or tone of voice indicating that compliance with the officer's request might be compelled."12 11 See Michigan v. Chesternut, 486 U.S. 567, 573, 108 S. Ct. 1975, 100 L. Ed. 2d 565 (1988). 12 United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980) (citing Terry, 392 U.S. at 19 n.16). In United States v. Scheets, the Seventh Circuit considered the following six factors in its totality-of-the-circumstances analysis: (1) "whether the encounter occurred in a public or private place," (2) "whether the suspect was informed that he was not under arrest and free to leave," (3) "whether the suspect consented or refused to talk to the investigating officers," (4) "whether the investigating officers removed the suspect to another area," (5) "whether there was physical touching, display of weapons, or other threatening conduct," and (6) "whether the suspect eventually departed the area without hindrance."13 13 United States v. Scheets, 188 F.3d 829, 836-37 (7th Cir. 1999) (citing United States v. McCarthur, 6 F.3d 1270, 1276 (7th Cir. 1993)). See also United States v. Withers, 972 F.2d 837, 842 (7th Cir. 1992) ("The factors we consider in determining whether, in the totality of the circumstances, a reasonable person would believe she were free to leave include: whether the encounter occurred in a public or private place; whether the suspect consented or refused to talk to the police; whether the police informed the suspect that she was not under arrest and was free to leave; whether the police removed the suspect to another area; whether the suspect felt capable of refusing to consent to the search; and whether the suspect eventually departs the area without hindrance."); State v. McGinnis, 290 Kan. 547, 233 P.3d 246, 252 (Kan. 2010) (considering a similar set of factors). We adopt the Scheets factors here to channel the unavoidable discretion that is part and parcel of our totality of the circumstances inquiry. …

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