Ninth Circuit Notes Split Re Continuing Seizure Approach

Per Torres v. City of Madera, 524 F.3d 1053 (9th Cir. May 5, 2008):

However, the Ninth Circuit employs a “continuing seizure” rule, which provides that “once a seizure has occurred, it continues throughout the time the arrestee is in the custody of the arresting officers.” Robins, 773 F.2d at 1010. See also Fontana v. Haskin, 262 F.3d 871, 879-880 (9th Cir.2001) (“[T]he Fourth Amendment prohibition against unreasonable search and seizure continues to apply after an arrestee is in the custody of the arresting officers.”). Because Everardo was handcuffed and placed in the back of the patrol car, where he remained when Officer Noriega fired, Everardo remained “in the custody of the arresting officers,” and the officers' conduct continued to be governed by the Fourth Amendment.FN3

FN3. The circuits are split on this issue. Compare Wilson v. Spain, 209 F.3d 713, 715-16 (8th Cir.2000) (adopting continuing seizure approach); United States v. Johnstone, 107 F.3d 200, 206-07 (3d Cir.1997) (same); Frohmader v. Wayne, 958 F.2d 1024, 1026 (10th Cir.1992) (same); Powell v. Gardner, 891 F.2d 1039, 1044 (2d Cir.1989) (same); McDowell v. Rogers, 863 F.2d 1302, 1306 (6th Cir.1988), with Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir.1997) (rejecting “continuing seizure” approach), and Wiley v. City of Chicago, 361 F.3d 994, 998 (7th Cir.2004) (same).


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