California v. Hodari D.

The Hodari verdict went well beyond the Mendenhall-Royer test. This decision along with others in 1991, such as Florida v. Bostick, consistently overturned lower court rulings applying Fourth Amendment protections and substantially narrowed those protective boundaries. To some, the Court decisions reflected current public opinion in which anyone expressing concerns about constitutional safeguards were labeled "soft" on crime.

The Hodari ruling partially reversed previous findings, such as Terry, by establishing that a restraint must be a successful one to invoke constitutional protections. That is, either the citizen the officer is seeking to restrain must submit to the restraint, or the officer must use physical force in order for a seizure to have occurred. An officer could pursue a citizen even without a reasonable suspicion that the citizen had committed a crime. Despite the absence of any apparent wrongdoing, the government could assume the citizen had violated the law and take measures to confirm that assumption. Following Hodari, citizens had to trust the government to use its intrusion power wisely rather than the police trusting the citizens as guided by the Constitution regarding assumption of innocence until proven guilty.

Justice Scalia quoted the biblical proverb, "the wicked flee when no man pursueth" to assert that avoidance of police indicates guilt. This perspective directly conflicted with what the Supreme Court recognized long ago in 1896. In Alberty v. United States (1896), the Court stated it is "a matter of common knowledge that men who are entirely innocent do sometimes fly from the scene of a crime through fear of being apprehended as the guilty parties, or from an unwillingness to appear as witnesses." Giving police officials unlimited discretion to initiate chases hardly seemed likely to reduce the occasions on which individuals might seek to elude the police or increase the willingness of members of the public in responding to police commands. The Hodari ruling allowed police officers to assume guilt on the part of the fleeing person, and give chase without the Fourth Amendment coming into play.

Civil rights activists among others were alarmed by the Hodari decision. The Court seemed oblivious to the tensions between police and minority communities, especially regarding street encounters. Scalia's proverb was not considered applicable to young black men who may have many reasons to fear police contact. Studies ignored by the Court had shown that black youths were subjected more frequently to warrantless search and seizures and aggressive police behavior. The case demonstrated clearly that race is not relevant to the Court in considering the circumstances surrounding an incident, which is contrary to reality in dealing with black and white encounters.