Económico.

A review of the circumstances Robinette found himself in prompted the following from the Ohio Supreme Court:

This case demonstrates the need for this court to draw a bright line between the conclusion of a valid seizure and the beginning of a consensual exchange . . . . The transition between detention and a consensual exchange can be so seamless that the untrained eye may not notice that it has occurred. The undetectability of that transition may be used by police officers to coerce citizens into . . . allow[ing] a search of a vehicle that they are not legally obligated to allow.335

Contrary to Chief Justice Rehnquist’s protestations in Robinette, such a rule would be consistent with much of the Supreme Court’s Fourth Amendment doctrine.336 _{The Fourth Amendment rules de-}

signed to regulate police in their daily activities “ought to be ex- pressed in terms that are readily applicable by the police in the con- text of the law enforcement activities in which they are necessarily engaged.”337 _{A bright-line rule determining the end point of a seizure}

would benefit not only police in the field, but judges on the bench, and ultimately individuals throughout the nation.

After all, the Court has invested decades in crafting rules identi- fying the starting point of a seizure of the person, and in fact, in the case of Hodari, has even established a bright-line rule as a defini- tion. Consistency would seem to mandate at least some attention be given to determining the other boundary of a seizure, its termina- tion.

Since Hodari established with simple clarity that a seizure occurs with either the application of official force or with the showing of authority along with the individual’s submission to that show of authority, this same rule could operate in the reverse to undo a sei- zure. Under such an analysis, if the government could demonstrate that at the relevant time period (here, the requesting of consent), the

335. Id.

336. See discussion supra Part II.C.

officer no longer restrained the citizen by either the “physical force” or “submission to show of authority” prongs of the rule, then the in- dividual would be deemed to no longer be seized. As for proving a

termination of the show of authority, the same kind of factual analysis exercised to determine the start of a seizure could be used to identify its end. Officers show authority by communicating in some fashion that the individual must “Stop, in the name of the law!”338

Likewise, the end of a seizure would require a similar kind of com- munication. If the Court can envision police communicating with individuals to start a seizure, the same kind of conduct could not be seen as too onerous to end a seizure. Indeed, this communication oc- curs between police and citizens every day, when officers advise in- dividuals that they are “free to go” or to “proceed on the highway.”

Rather than being an unfair burden upon officers, such a test ac- tually strengthens law enforcement’s ability to control their encoun- ters with individuals. Without a clear test, citizens may receive a signal from the Robinette decision that once an officer takes a breath, they can walk away. Officers might fear allowing themselves even a moment of pause, for any hesitation could be a pretext for a motorist to head for the car. Instead, compliance with lawful police orders should be encouraged.339 _{This proposed test of the end point of a sei-}

zure, based as it is on overt communication, clarifies the encounter for the individual, thus allowing officers to maintain better control.

This test might incorrectly be construed as a version of the very “warning” requirement for valid consent rejected by Chief Justice Rehnquist in Robinette.340 _{However, rather than being a requirement}

for obtaining lawful consent, as presented in Robinette, this rule would simply determine the end point of a seizure. Contrary to what was envisioned in Robinette with its proposed per se requirement, police could still obtain voluntary consent without providing any warning. This is because police are able to obtain valid consent from individuals every day, whether or not the persons are currently being seized. After all, the key is not whether individuals who provide con- sent are seized, but whether they are lawfully seized. Thus, police could obtain valid consent from seized individuals, so long as these citizens voluntarily consented to the search. Additionally, police could obtain consent from people who are simply not seized.

Thus, the Court’s entire concern about unnecessarily creating a “warning requirement”341 _{for consent was a red herring. The crucial}

issue missed in Robinette dealt not with the resulting consent, but

338. California v. Hodari D., 499 U.S. 621, 626 (1991).

339. “Street pursuits always place the public at some risk, and compliance with police orders to stop should therefore be encouraged.” Id. at 627.

340. See Ohio v. Robinette, 117 S. Ct. 417, 421 (1996). 341. Seesupra text accompanying notes 251-58.

with the continuing seizure. By failing to target the correct question, the Court missed the opportunity to clarify an area of the law suffer- ing from uncertainty. The clear rule proposed here, based as it is on empowering officers to define the boundaries of their seizures by simply communicating with the citizens, could end much of this con- fusion.

B. A Proposed Rule for Determining the Legality of a Continuing