Commonwealth v. Carroll , 427 Pa. Super. 1 ( 1993 )

CIRILLO, Judge.

This is an appeal by the Commonwealth from a pre-trial order of the Court of Common Pleas of Philadelphia County suppressing the introduction of 47 packets of narcotics at the trial of Richard Carroll.¹ We reverse.

Carroll was arrested, without a warrant, on November 22, 1989, and charged with possession of a controlled substance and possession of a controlled substance with the intent to deliver.

At 11:21 a.m. on November 22, two uniformed police officers, Joseph Milligan and John Reinecker, while on routine patrol in a marked police vehicle, saw two men standing on the sidewalk of Olive Street, Philadelphia. Officer Reinecker told Officer Milligan he wanted to investigate one of the men, and gave no reason.

Both officers left the patrol car and Officer Reinecker spoke to the man he had suggested investigating. The second man, Carroll, stood with his hands in the pockets of his jacket. Officer Milligan, with his hand over his gun, approached Carroll and started to ask him to take his hands out of his pockets,

Carroll turned and fled into an alley on the west side of Olive Street, slipped and fell in the debris. Officer Milligan followed Carroll and at a distance of a 10 to 15 feet saw two brown tinted, heat-sealed packets containing a white substance fall from Carroll’s pocket into the debris in the alley.

Officer Milligan approached Carroll who was still face down in the debris in the alley, drew his gun, and told Carroll to stay on the ground with his hands behind his back. Officer Milligan put handcuffs on the still prone Carroll, arrested him, and searched his coat pockets, finding 45 additional brown tinted packets. Officer Milligan patted Carroll down a second time in a search for weapons and then retrieved the two dropped brown tinted packets from the debris. After Carroll was taken to the police station, a custodial search revealed $404.00 in cash.

The Commonwealth disputes several of the suppression court’s findings. The Commonwealth argues Officer Milligan did not have his hand on his gun, that he did not pursue Carroll, and that he did not approach Carroll until after he had fallen and dropped the drugs.

When we review a suppression ruling, we are bound by the reasonable factual findings of the suppression court, Commonwealth v. Hamlin, 503 Pa. 210, 469 A.2d 137 (1983), unless we find an abuse of discretion or an error of law. Commonwealth v. Cortez, 507 Pa. 529, 491 A.2d 111 (1985). Credibility determinations may not be disturbed on appeal. Commonwealth v. Whitney, 511 Pa. 232, 512 A.2d 1152 (1986). We are, therefore, despite the Commonwealth’s vigorous argument to the contrary, bound to accept the reasonable factual findings of the suppression court. Hamlin, supra; Whitney, supra.

Under questioning by the assistant district attorney at the suppression hearing Officer Milligan testified that he had his hand on his gun when he approached Carroll.

Q: [A]t what point in what happened did you draw your gun specifically in relationship to where you saw the packets go to the ground?

A: Well, when he started to run, actually I had my hand on the gun because he had his hands in his pockets. But, it happened so fast and I drew my gun as he was laying on the ground and after the packets were on the ground.

When we look at the testimony we are persuaded that the suppression court’s finding of fact that Officer Milligan had his hand on his holstered gun when he chased Carroll is reasonable. Hamlin, supra; Whitney, supra.

The question before this court is whether the police officer’s pursuit of Carroll was a seizure. If it was not a seizure then the drugs were lawfully found and finding the drugs in these circumstances gave rise to the probable cause to arrest and search Carroll. If the pursuit was a seizure, then when Carroll dropped or discarded the drug packets the abandonment was impermissibly coerced. If the drugs were abandoned after seizure, then the officer must demonstrate that he had either probable cause to make the seizure reasonable or a reasonable suspicion for a Terry stop and frisk.

This case raises the question of whether Pennsylvania will follow the federal constitutional definition of seizure recently adopted in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), or will continue to follow a line of Pennsylvania cases which afford a suspect a greater degree of protection under the state constitution.² Seizure under the Fourth Amendment to the U.S. Constitution

Seizure was defined by Justice Stewart in United States v. Mendenhall, 446 U.S. 544,100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (plurality opinion) and adopted by the U.S. Supreme Court in Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988): “A person has been seized within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” This has become known as the Mendenhall reasonable person test for when a seizure occurs.

The definition adopted in Chesternut followed from the formulation in Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), that a seizure occurs “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”

In Hodari D., supra, the Supreme Court held that pursuing a fleeing suspect is not a seizure for Fourth Amendment purposes; therefore, a rock of cocaine discarded during the pursuit was not the fruit of an illegal seizure and need not be suppressed as evidence at trial.

The more narrow question in Hodari D. was whether a “show of authority” without more is a seizure. The court held that it was not. An arrest requires either physical force or submission to the assertion of authority. Id. 499 U.S. at-, 111 S.Ct. at 1551. There is no seizure based on show of authority unless it is complied with. Id, citing Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989). No search or seizure occurs when a police officer examines abandoned materials, even if the act of abandonment occurs during a police chase. Hodari D., citing Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).

In Hodari D., when the officers began their pursuit they did not have a lawful basis for either stopping or arresting the suspects.' Hodari D. holds that a show of authority alone is not seizure; only if the subject submits to the show of authority or if the police officer makes contact with the subject is there a seizure. Id 499 U.S. at-, 111 S.Ct. at 1548.

Thus, Hodari D. modifies the Mendenhall reasonable person test, a person is seized when he reasonably believes he is not free to leave, to hold that seizure is not effected until an officer has used physical restraint or the citizen has submitted to a show of authority. Since Hodari D., for Fourth Amendment purposes, a show of authority alone is not a seizure.

In the case at hand, under the criteria of Hodari D. there was no seizure at the time the packets of cocaine fell out of Carroll’s pockets. There was a “show of authority” without the requisite submission to create a seizure. Hodari D., supra.

Seizure under Art. I, Section 8 of the Pennsylvania Constitution

Finding as we do that the pursuit of Carroll was not a seizure in terms of the Fourth Amendment, Hodari D., supra, we turn now to the question of whether Carroll or the drugs were seized in violation of the Pennsylvania Constitution. The Pennsylvania Constitution may afford greater protections than the U.S. Constitution. Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 (1991) (declining to the adopt the “good faith” exception to the exclusionary rule). It is “important and necessary to undertake an independent analysis of the Pennsylvania Constitution each time a provision of that fundamental document is implicated.” Id. at 389, 586 A.2d at 894-95.

The Edmunds court outlined the steps to an independent analysis of state constitutional grounds which are: an examination of the text of the constitutional article, the history of its application, the jurisprudence of the question in other states, and the policy considerations behind the constitutional provision. Id.

Article I, section 8 of the Pennsylvania Constitution provides:

Security from Searches and Seizures

Section 8. The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or thing shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.

Const. Art. I, § 8.

One of the first Pennsylvania cases to consider the exclusionary rule after Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) made it applicable to the states was Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). In Bosurgi, the Pennsylvania Supreme Court adopted Mapp which prohibits use of evidence which is the product of an unreasonable search or seizure. Id. 411 Pa. at 65,190 A.2d at 309. The Bosurgi court read Mapp as allowing each state to make an . independent assessment of what was a “reasonable search and seizure.” Id. 411 Pa. at 65,190 A.2d at 309. The issue in Bosurgi was whether a warrantless search based on a vague description was reasonable. The court found that it was because the subject acquiesced or submitted to the search. Bosurgi suggests that the state jurisprudence of search and seizure has been co-extensive with the jurisprudence of the Fourth Amendment; but Bosurgi reserved to the state the right to define what is a reasonable search or seizure.

Pennsylvania courts have not hesitated to articulate separate state constitutional grounds for their holdings. See Edmunds, supra; see also Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) (death penalty jurisprudence coextensive); Commonwealth v. Henderson, 496 Pa. 349, 437 A.2d 387 (1981) (interested-adult rule protecting minors from self-incrimination has its foundation in state law); Commonwealth v. Triplett, 462 Pa. 244, 341 A.2d 62 (1975) (separate Pennsylvania constitutional grounds for Miranda). When confronted with a federal precedent which appears, to alter state precedent, the state court must re-examine the source of the Pennsylvania precedent. Edmunds, supra.

The Pennsylvania Supreme Court considered the question of whether police pursuit created forced or coerced abandonment in Commonwealth v. Jeffries, 454 Pa. 320, 311 A.2d 914 (1973). Jeffries “quickened his pace” walking on the sidewalk when a police car pulled along side. Police observation quickly turned to pursuit when Jeffries ran. He discarded a jacket during the chase which, it was found, had foil packets of heroin in the pocket. Id. at 322, 311 A.2d at 916. The court held that flight alone is neither probable cause for arrest, nor is it alone reasonable suspicion to justify a Terry stop and frisk. Id. 454 Pa. at 325, 311 A.2d at 917. The court held without probable cause or articulable suspicion, the police have unlawfully coerced the abandonment of the incriminating property. Id. at 326, 311 A.2d at 918.

The Pennsylvania Supreme Court found in Commonwealth v. Jones, 474 Pa. 364, 378 A.2d 835 (1977), that when the police order a citizen to stop a seizure has occurred. Id. at 371, 378 A.2d at 839. The court found that seizure is judged in the totality of the circumstances, including the demeanor and the words of the police officer and the location of the encounter. Id. The standard is objective: would a reasonable person, innocent of any crime, believe he was being restrained. Id. at 372-73, 378 A.2d at 839-40; see also Commonwealth v. Williams, 287 Pa.Super. 19, 429 A.2d 698 (1981). In Commonwealth v. Barnett, 484 Pa. 211, 398 A.2d 1019 (1979), the court distinguished between approaching a suspect, which is not a seizure, and attempting to stop him, which is. The court held that when the officers pursued a fleeing suspect, they coerced the abandonment of the contraband. Id. at 215-16, 398 A.2d at 1021.

Each of the Pennsylvania cases in the Jeffries line, which Carroll argues establishes a greater and distinguishable protection under the Pennsylvania constitution, defines the right protected in terms of the Fourth Amendment. The holding in Jeffries, for instance, is that “it is clear the police had no right to ‘arrest’ or ‘seize’ Jeffries and the action of the police in chasing him and subsequently arresting him a was violation of his Fourth Amendment right.” Id. 454 Pa. at 325-26, 311 A.2d at 917. Likewise in Jones, “the initial confrontation of Jones ... constituted a seizure within the purview of the fourth amendment.” 474 Pa. at 374, 378 A.2d at 840. Consequently, while Pennsylvania has read Mapp v. Ohio as commanding that the states establish their own definitions of what is a reasonable and what is an unreasonable search or seizure, Bosurgi, supra, Pennsylvania has relied on the jurisprudence of the Fourth Amendment to inform the state’s definition of seizure. Jeffries, supra; Jones, supra. As a result, Pennsylvania jurisprudence of search and seizure closely parallels that of the Fourth Amendment. Hodari D. may represent a departure from traditional Fourth Amendment jurisprudence, as Justice Stevens characterized it in his dissent to Hodari D. and Judge Ford Elliott characterized it in her dissent to Peterfield, supra, but there is nothing in Pennsylvania law which prevents us from following its logic.

The fourth prong of the Edmunds test to determine if we should find greater protections for the individual under Pennsylvania’s constitution than those afforded under the U.S. Constitution requires that we look at the jurisprudence of the question in other states. Twenty-three states have found the reasoning of Hodari D. applicable.³ Five states have found that their constitutions afford greater protection than does the Fourth Amendment following Hodari D.⁴

The final prong of the Edmunds test is public policy. Two public policy considerations guide our thinking: the first and most fundamental is the right of a citizen to be free of unwarranted privacy invasions by the police. The second and less compelling argument, although it is one advanced in Hodari D., is the public benefit in curtailing the number of police chases.

A violation of the constitutional right to be free from unreasonable searches and seizures occurs at the moment of search, not at the moment that any contraband found in an unreasonable search is admitted at trial. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Mapp, supra; Bosurgi, supra. Therefore, public policy demands that our rule of law be designed to reduce the number of impermissible searches; suppression of the “fruit of the poisonous tree” is a remedy, not an end in itself. Mapp, supra; Commonwealth v. Rodriguez, 532 Pa. 62, 614 A.2d 1378 (1992). If we are to reduce the number of impermissible searches, we can best accomplish that by giving police and citizens alike clear guidance to govern their interactions. Chesternut, supra. And, we must reserve to the citizen the control over any encounter with authority which is not based on probable cause or reasonable suspicion. Commonwealth v. Metz, 412 Pa.Super. 100, 117-118, 602 A.2d 1328, 1337 (1991), appeal granted, 531 Pa. 652, 613 A.2d 558 (1992), (Kelly, J., concurring).

If a police officer approaches a citizen without probable cause to arrest, Commonwealth v. Duncan, 514 Pa. 395, 525 A.2d 1177 (1987), or reasonable suspicion to detain and interrogate, Terry v. Ohio, supra; Commonwealth v. Hicks, 434 Pa. 153, 253 A.2d 276 (1969), then that citizen is not seized unless he or she is physically restrained or submits to the assertion of authority. Hodari D., supra. A citizen may demonstrate his or her objectively reasonable belief that he is free to leave, Mendenhall, supra, by leaving, as did both Hodari D. and, in the case at hand, Carroll. Flight alone cannot create either probable cause to arrest nor reasonable suspicion to detain. In the Interest of Barry W., 423 Pa.Super. 549, 621 A.2d 669 (1993). Under the reasoning of Hodari D., it is only the actions of the citizen, the act of discarding contraband or exposing it to view, not the action of the police officer in pursuit, which can give rise to probable cause or reasonable suspicion. Carroll always had his own legal protections in his own hands, and so long as he carefully exercised his right to privacy, that is did not throw away or drop contraband within sight of a police officer, he would not have created the probable cause necessary to justify his arrest.

When we follow the reasoning of Hodari D., we have not changed the equation of police/citizen encounters, we have only made clearer the standard by which we evaluate the permissibility of the police intrusion. Not every encounter between police and the citizenry is a seizure. Terry, supra. Police may approach a citizen to give or get information. Mendenhall, supra, 446 U.S. at 553, 100 S.Ct. at 1876. If the citizen chooses to end or avoid an encounter with a police officer, he is free to do so. See Mete, supra (“[t]he free citizen in a free country such as ours of course retains the discretion to run, walk, crawl or stop at that moment ... ”) (Kelly, J., concurring). If the officer chooses to pursue the retreating or fleeing suspect, in a slowly moving car, Jeffries, supra, by chasing, Jones, supra, or as here, chasing with a hand on a holstered gun, the action of the officer cannot transform the encounter from one without probable cause or reasonable suspicion to one with probable cause or reasonable suspicion. Only the actions of the citizen can change the nature of the encounter, or, more accurately, create a new encounter. The choice to provide probable cause for an arrest or reasonable suspicion for a detention lies with the citizen, not with the officer. Only when a citizen exposes contraband to the officer’s view will the nature of the encounter between the two change. If the citizen provides an officer with probable cause or reasonable suspicion, then seizure is reasonable. Therefore, control over the fundamental right to be secure in our persons resides where it constitutionally belongs, in the hands of the citizen.

Following the reasoning of Hodari D. should result in fewer rather than more police chases of otherwise not suspected citizens. Since flight alone cannot create reasonable suspicion or probable cause, Barry W., supra, only the additional actions of a citizen, i.e., dropping contraband in front of an officer, can create the requisite probable cause or reasonable suspicion for seizure. This is a clearer and brighter line than is the jurisprudence of coerced abandonment because the nature of an encounter between a police officer and a citizen is measured at the time of the approach. Under Hodari D. a police officer no longer has to make a curbside evaluation of just how far he can go without creating coerced abandonment. Both the officer and citizen now know that only the citizen can create probable cause or reasonable suspicion by abandoning contraband and that the police officer no longer has a grey area of conduct before his pursuit becomes a seizure. Under Hodari D., seizure is either physical restraint or the submission to the assertion of authority. If a citizen exercises his right to end an encounter with a police officer, he is free to do so and remains free to do so unless he, the citizen, gives the officer probable cause or reasonable suspicion to arrest him. Flight alone does not do that. Barry W., supra

Using the concept of coerced abandonment to describe a situation of quasi-seizure is a slippery slope on which neither the police officer nor the citizen has clear guidance. What is coercion? Following in the car? Chasing at a walk? Chasing at a run? Chasing with a hand on a holstered gun? The gradation of possibility between an officer and a retreating citizen left an officer unclear at what time his or her actions crossed the line from approach to pursuit. Following the reasoning of Hodari D. removes that calculation from the equation which delineates permissible from impermissible police contacts. An officer may approach a citizen, may question a citizen, may even detain a citizen, but an officer may not search or seize a citizen unless he or she has probable cause or reasonable suspicion. Terry, supra. Thus, an officer will know at all times during an interaction with a citizen whether he or she has the right to seize that citizen. The answer will always be no unless the officer has probable cause or reasonable suspicion.

Contrary to Carroll’s argument and that of the dissent in Hodari D., the holding of Hodari D. does not shield a wide range of police conduct from constitutional scrutiny. Indeed, Hodari D. places greater emphasis on the constitutional permissibility of the original encounter by returning to the citizen the control over his own constitutional rights. A citizen approached by a police officer who is arguendo without probable cause or reasonable suspicion may choose to converse with, comply with and submit to all that the police officer asks. Any search which ensues is an impermissible invasion of Fourth Amendment expectations of privacy and any fruit of the poisonous tree will be suppressed as such because we have a show of authority and submission as required by Hodari D. If the citizen chooses to end the encounter with the police officer, he or she is free to go without arousing reasonable suspicion or probable cause. Barry W. And, he or she may go in any fashion which suits him or her, walking, running, crawling. Whether or not the police officer follows, the encounter will not be infused with probable cause or reasonable suspicion unless the citizen chooses to so infuse it. When and only when the citizen exposes something private, i.e. contraband, to the view of the officer would the nature of the encounter change. At all times, the citizen has the control over the encounter; this is all the state and federal constitutions demand. Katz, supra; Rodriguez, supra All of the choices are those of the citizen and all of the control lies in the hands of the citizen.

Thus, when we examine the source of Pennsylvania’s law of search and seizure as we must under Edmunds, supra, to decide whether to follow state or federal precedent regarding the moment at which seizure occurs, we find that the history of the state jurisprudence is couched in terms of the federal decisions, Jeffries, supra; Jones, supra; Barnett, supra. Only five states have found greater protections in their state constitutions than that afforded by the Fourth Amendment after Hodari D. and twenty-three states have not distinguished their constitutional protections from those afforded by the Fourth Amendment after Hodari D. And, finally, the public policy considerations of preventing unreasonable searches and seizures and limiting police chases, are better served by a bright line test in which the citizen controls the nature of an encounter with the police. Nor is there any overriding state public policy command which would justify a departure from federal jurisprudence.

Therefore, when we apply the reasoning of Hodari D. to the case at hand, we find that when the officer approached Carroll there was no seizure because Carroll was neither physically restrained nor did he submit to the officer’s assertion of authority. When the pursuing officer saw the dropped or discarded drugs, he then had the requisite probable cause to arrest and search Carroll. Since neither the officer’s approach to or pursuit of Carroll was a seizure, the cocaine packets dropped in the alley are not “fruit of the poisonous tree” and should not have been suppressed.

Order reversed.

WIEAND, TAMILIA and HUDOCK, JJ., join. CAVANAUGH, J., files a CONCURRING OPINION, in which TAMILIA and HUDOCK, JJ., join. JOHNSON, J., files a DISSENTING OPINION, in which McEWEN, DEL SOLE and BECK, JJ., join.

1 . The Commonwealth has certified that the suppression substantially handicaps the prosecution. Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985).

2 . Two Pennsylvania cases decided since the Hodari D. decision have not created a straight line pointing to a decision. In Commonwealth v. Peterfield, 415 Pa.Super. 313, 609 A.2d 540, appeal denied 533 Pa. 609, 618 A.2d 400 (1992), over the "vehement” dissent of Judge Ford Elliott, Judge Kelly reasoned that Hodari D. compelled the finding that there was no seizure. The third panel member concurred in the result. In Peterfield a passerby alerted a police officer that someone was "acting suspiciously," the officer approached and with a show of authority ordered the actor to "stand fast.” Peterfield fled, leaving behind an unregistered, loaded .25 caliber automatic handgun. The dissent argued in Peterfield, as does the dissent in this case, that Pennsylvania constitutional jurisprudence afford citizens greater protections of privacy than does the Fourth Amendment.

The recent decision of a panel of this court in Commonwealth v. Harper, 416 Pa.Super. 608, 611 A.2d 1211 (1992), although raising the same factual issues, was decided in conformity with Hodari D. solely on federal constitutional grounds without considering the question of a divergence of state and federal constitutional protections.

3 . See Finch v. Arkansas, 1992 WL 383701, 1992 Ark.App. Lexis 783 (cocaine discarded by fleeing suspect abandoned not seized, relying on Hodari D.); California v. Johnson, 231 Cal.App.3d 1, 282 Cal.Rptr. 114 (1991) (a person reasonably believing he is not free to leave is nevertheless not detained for Fourth Amendment purposes until he either submits to that show of authority or is physically seized by the officer, relying on Hodari D,); Allison v. U.S., 623 A.2d 590 (D.C. Court of Appeals, 1993) (suspect not seized until after he threw away a gun, the gun was therefore abandoned property and should not be suppressed, relying on Hodari D.); Robertson v. Delaware, 596 A.2d 1345 (Del.1991) (definition of seizure from Hodari D.); Florida v. Jenkins, 616 So.2d 173 (Fla.App.1993) (arrest requires either physical force or submission to the assertion of authority, relying on Hodari D.); Hunt v. Georgia, 205 Ga.App. 344, 422 S.E.2d 75 (1992) (suspect in fleeing car who discarded cocaine had not submitted to a show of authority, relying on Hodari D.); Idaho v. Rawlings, 121 Idaho 930, 829 P.2d 520 (1992) (suspect seized within the meaning of the Fourth Amendment when he submitted to an officer’s authority, citing Hodari D.); Illinois v. Ramirez, 244 Ill.App.3d 136, 184 Ill.Dec. 524, 613 N.E.2d 1116 (1993) (applying the rationale of Hodari D., court found no Fourth Amendment violation); Williams v. Indiana, 611 N.E.2d 649 (Ind.App.1993) (if a reasonable person would feel free to go, fourth amendment protections are not triggered, citing Hodari D.); Iowa v. Johnson-Hugi, 484 N.W.2d 599 (Iowa 1992) (principles of Hodari D. applied to case); Louisiana v. Harris, 613 So.2d 807 (La.App.1993) (Hodari D. controlling, but strong dissent argues that state supreme court has not adopted Hodari D. and that state law would afford greater protection); Henderson v. Maryland, 89 Md.App. 19, 597 A.2d 486 (1991) ("we hold that Article 26 of the Md. Declaration of Rights does not afford appellant any greater protection than that of the Fourth Amendment to the United States Constitution,” adopting Hodari D); Massachusetts v. Laureano, 411 Mass. 708, 584 N.E.2d 1132 (1992) (specifically did not reach the question of whether the state constitution afforded greater protection than does the Fourth Amendment after Hodari D); Michigan v. Hawkins, 439 Mich. 933, 479 N.W.2d 705 (1992) (defendant abandoned drugs before he was seized, following Hodari D); In the matter of the Welfare of E.D.J., 492 N.W.2d 829 (Minn.App.1992) (no historical basis to depart from Hodari D); Missouri v. Nicholson, 839 S.W.2d 593 (Mo.App.1992) (arrest defined as physical restraint or submission assertion of authority, relying on Hodari D); Nebraska v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993) (suspect is not seized when an officer with a drawn gun tells him to freeze and the suspect runs, relying on Hodari D.); New Mexico v. Esguerra, 113 N.M. 310, 825 P.2d 243 (App.1991) (fleeing suspect is not seized, relying on Hodari D.); North Carolina v. McDaniels, 103 N.C.App. 175, 405 S.E.2d 358 (1991) (seizure definition from Hodari D.); North Dakota v. Ritter, 472 N.W.2d 444 (North Dakota 1991) (principles of Hodari D. guide analysis); Ohio v. Barnwell, 1993 WL 135796, 1993 Ohio App. Lexis 2293 (Ohio App., April 29, 1993) (suspect voluntarily discarded contraband in a case governed by Hodari D.); Texas v. Rose, 844 S.W.2d 911 (Tex.App.1992) (holding of Hodari D. governs under both state and federal constitutions); Utah v. Higgins, 837 P.2d 9 (Utah App. 1992) (seizure defined in Hodari D.); Vermont v. Sutphin, 614 A.2d 792 (Vermont 1992) (seizure from Hodari D.); Woodson v. Virginia, 245 Va. 401, 429 S.E.2d 27 (1993) (suspect arming himself in response to a police approach is similar to flight in that there is no submission to an assertion of authority, relying on Hodari D.).

4 . In Hawaii v. Quino, 74 Haw. 161, 840 P.2d 358 (1992), the state's supreme court held "we decline to adopt the definition of seizure employed ... in Hodari D. and, instead, choose to afford greater protection to our citizens by maintaining the Mendenhall standard.” Connecticut, too, remained with the Mendenhall standard in Connecticut v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (1992), holding that a person is seized for state constitutional purposes under circumstances in which a reasonable person would not feel free to leave. Oregon adopted a similar standard under its constitution, that a person is seized when he or she has an objectively reasonable belief that he or she is not free to leave. Oregon v. Holmes, 311 Or. 400, 813 P.2d 28 (1991). And, New Jersey held that pursuit is seizure in New Jersey v. Doss, 254 N.J.Super. 122, 603 A.2d 102 (App.1992), under state law.