Copyright (c) 2001 San Diego Law Review Association
San Diego Law Review
ARTICLE: THE WRONG LINE BETWEEN FREEDOM AND RESTRAINT: THE UNREALITY, OBSCURITY, AND INCIVILITY OF THE FOURTH AMENDMENT CONSENSUAL ENCOUNTER DOCTRINE
38 San Diego L. Rev. 507
DANIEL J. STEINBOCK*
In the world of legal classification, the line between freedom and restraint is clearly one of the most important, and one the law should be most anxious to get right. On the one side lies freedom to move around physically - the essence of what most people mean by "liberty." While not explicitly defined in the Constitution, this liberty is protected by several of its provisions: the due process clauses of the Fifth and Fourteenth Amendments, 1 the right to habeas corpus, the Thirteenth Amendment's ban on slavery, and the Fourth Amendment's protection against unreasonable seizures. Together they ensure against interference with personal freedom of movement in the form of bondage, incarceration, civil confinement, arrest, or police detention short of arrest. Freedom is thus the constitutional state of nature.
On the other side of this legal line is governmental interference with physical freedom. With the exception of slavery, which is prohibited outright, the Constitution generally requires valid individual grounds, determined in accordance with procedural fairness, before personal liberty may be restricted. For the most part, the constitutional provision governing initial restraints on liberty is the Fourth Amendment's prohibition on unreasonable seizures. 2 A seizure may reasonably be conducted if there is some objective indication of past, present, or future criminality. For an arrest, the prototypical seizure, there must be probable cause to believe a crime has been committed and that the person to be arrested committed it. For a brief investigative ...
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