California v. Hodari D.

In a dissent joined by Justice Marshall, Justice Stevens experienced strong misgivings about the Court's ruling. It seemingly adopted a new definition of "seizure" inconsistent with a long line of Fourth Amendment cases. The Court traditionally had adopted a broad view of the Fourth Amendment protection. The decision in this case clearly narrowed the view of those protections, essentially decreasing citizens' rights to protection from seizures by the government. The previous decisions in Katz and Terry rejected the notion that the common law of arrest defined the limits of the term "seizure" in the Fourth Amendment. Stevens wrote:

In Katz, the Court abandoned the narrow view that would have limited a seizure to a material object, and instead, held that the Fourth Amendment extended to the recording of oral statements. And in Terry, the Court abandoned its traditional view that a seizure under the Fourth Amendment required probable cause, and instead, expanded the definition of a seizure to include an investigative stop made on less than probable cause. Thus, the major premise underpinning the majority's entire analysis today--that the common law of arrest should define the term "seizure" for Fourth Amendment purposes--is seriously flawed. The Court mistakenly hearkens back to common law, while ignoring the expansive approach that the Court has taken in the Fourth Amendment analysis since Katz and Terry.

The dissenters continued by arguing that the way a citizen responds should not determine the constitutionality of the officer's conduct. Further, they expressed concern that the majority's decision would encourage unlawful displays of force that will frighten innocent citizens into surrendering privacy rights to which they are entitled under the Fourth Amendment.