dissenting.
The plurality devotes precious little of its attention to the real issue in this cause, concluding almost in passing that we will follow Fourth Amendment precedent in construing our own constitutional protection against unreasonable search and seizure. The plurality opinion reflects almost no understanding of the complexity and' difficulty of the specific question before us. The only reason the plurality gives for adopting Supreme Court precedent is shallow and, ultimately, indefensible. No attempt is made to examine alternative views of scholarly commentators or opinions of appellate courts in other jurisdictions that have squarely faced the difficult but momentous question of how best to interpret their own Fourth Amendment analogs. Today the Court all but abdicates its role— its only role as a discretionary review court— as “the caretaker of Texas law[.]” Arcila v. State, 834 S.W.2d 357, 360 (Tex.Cr.App.1992). I dissent.
*238 I.
The issue in this cause is the meaning and scope of a “seizure,” which, if it is “unreasonable,” will violate Article I, § 9 of the Texas Constitution. In short, was appellant “seized” in contemplation of our state constitutional provision? It has been decided below, and we have not granted review of the question, that appellant was not “seized” for purposes of the Fourth Amendment to the United States Constitution — at least as that provision was authoritatively construed by the United States Supreme Court in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991). When it comes to our interpretation of Article I, § 9, decisions of the Supreme Court construing the Fourth Amendment are certainly persuasive, but just as certainly not binding, authority. Heitman v. State, 815 S.W.2d 681, 690, n. 22 (Tex.Cr.App.1991); Richardson v. State, 865 S.W.2d 944, 948 (Tex.Cr.App.1993). It is only fitting that we should consult the decision in Hodari D. for guidance. That we are in no wise constrained to follow any Fourth Amendment precedent in construing our own state constitutional analog, however, bears no rehearsal. At least since Heitman, it is a truism.
Nevertheless, today the plurality expends the greater part of its effort in a misguided discourse about whether and under what circumstances this Court should “diverg[e] from the path chosen by the Supreme Court” in issues of search and seizure. Op. at 233. The plurality seems to think that when Heit-man recognized our obligation independently to construe Article I, § 9, it meant we are obligated to find a construction of that provision that differs from the Fourth Amendment analog. Op. at 233, n. 6. Our recent opinion in Crittenden v. State, 899 S.W.2d 668 (Tex.Cr.App.1995) should have established beyond peradventure that this Court “will not read Article I, § 9 differently than the Fourth Amendment in a particular context simply because we can.” Id., at 673, n. 8. But no one on the Court should doubt by now that we can. Indeed, we are duty bound to interpret our state constitution independently from Supreme Court interpretation of federal analogs. We have no choice. The Supreme Court has no authority to interpret the Texas Constitution for us. Even if we find the federal example persuasive, and adopt it as our own, it is still this Court that construes Article I, § 9. Moreover, we do not “diverge” from Supreme Court precedent on those occasions when we choose not to follow its interpretation of the Fourth Amendment in construing our own Article I, § 9. We simply “follow our own lights,” as is our exclusive prerogative. Eisenhauer v. State, 754 S.W.2d 159, 167 (Tex.Cr.App.1988) (Clinton, J., dissenting), citing Olson v. State, 484 S.W.2d 756, 762 (Tex.Cr.App.1969) (Opinion on rehearing). Whether we interpret it differently or not, we cannot avoid independently construing Article I, § 9.
When the plurality finally does come to decide whether we should construe “seizure” under Article I, § 9 in the same way the Supreme Court did for purposes of the Fourth Amendment in Hodari D., it devotes less than two pages to the analysis. In the end the plurality decides in fact that we should adopt the Supreme Court’s interpretation of “seizure.” That is to say, we should hold that it takes both a show of authority and a submission to that show of authority before it can be said that a seizure has occurred. The reason is singular and simple, viz: that we have a public policy in Texas, as evidenced by V.T.C.A. Penal Code, § 38.04, to encourage submission to police authority. Interpreting Article I, § 9 in line with the holding in Hodari D. will facilitate that public policy.
There are at least three significant problems with this reasoning. First, it is not at all clear that Texas has a policy to encourage submission to unlawful police authority, at least not if § 38.04 is the only indication. It is an offense under § 38.04 for a person to flee from a peace officer whom he knows is trying to arrest or detain him. Subsection (b) of that provision makes it an exception to the offense that the police authority purporting to make the arrest or detention has no lawful basis to do so. In her opinion for the court of appeals, Justice Lagarde noted this exception (unlike today’s plurality), but explained that § 38.04 nevertheless “supports a policy of yielding to a police show of authority, whether or not lawful, and challenging the *239lawfulness of the seizure in court.” Johnson v. State, 864 S.W.2d 708, 723 (Tex.App.—Dallas 1993). She did not explain, however, how a suspect on the street who chooses to submit to unlawful police authority will be able to challenge the lawfulness of that authority, since presumably, having submitted, he will not be charged with evading arrest or detention under the statute at all! Indeed, if anything, the exception to § 38.04 would seem to encourage a suspect to resist an unlawful show of authority. This is true because, if the show of authority is unlawful, the suspect may be confident he can either: 1) successfully escape; or 2) in the event he should try to escape but fail, successfully challenge the seizure later in a court of law; or even 3) both successfully escape and, should he later be apprehended and charged with evading arrest or detention, successfully defend that charge in court. If indeed Texas has a policy to encourage submission to unlawful authority, § 38.04 is no proof.
Second, even if Texas has such a public policy, it strikes me as highly unlikely that interpreting “seizure” under Article I, § 9 to require a submission to a police show of authority will serve that policy. In Hodari D. itself, the Supreme Court observed that “policemen do not command ‘Stop!’ expecting to be ignored, or give chase hoping to be outrun[.]” 499 U.S. at 627, 111 S.Ct. at 1551, 113 L.Ed.2d at 698. Similarly I should think that a suspect who is bold enough to flee from a police show of authority, whether lawful or not, does not expect — certainly does not hope — to be caught. Since he does not expect to be “seized” by any definition, it is unlikely that our circumscribing the constitutional meaning of the word, even assuming he knew about it, would have any bearing on his decision whether to run. As Professor LaFave has observed: “Conferring upon the police unfettered discretion to commence chases hardly seems likely to reduce the willingness of or the • occasions on which members of the public would seek to elude the police.” 3 W. LaFave, Search and Seizure § 9.2A(d) (Supple.1995) at 143.
Finally, it is odd that the plurality would choose to interpret a constitutional provision manifestly designed to protect the individual from undue encroachment by the state according to the dictates of a so-called public policy that unequivocally elevates the exigencies of the state over the interests of the individual. Not even the Supreme Court really did this, in Hodari D.. It would be more accurate to say that the Supreme Court observed that as an incidental by-product of its construction of the word “seizure,” “compliance with police orders to stop [would] be encouraged.” 499 U.S. at 627, 111 S.Ct. at 1551, 113 L.Ed.2d at 698. Their construction of the word did not turn on the fact that they believed it would have this incidental effect. Nevertheless, to encourage uncritical submission to police authority is the sole reason today’s plurality gives to prefer the Hodari D. construction. Thus the plurality draws the boundary of an imperative individual right exclusively according to a “public policy” that serves only the collective from which the individual requires protection in the first place. It does not even attempt to perform the ubiquitous “balancing” of the interests of the individual against those of the collective. This is a stunningly new, downright Orwellian, theory of constitutional interpretation!
II.
In Hodari D. the Supreme Court held for the first time that, absent an actual physical restraint of the person, an individual is not “seized” for purposes of the Fourth Amendment by a police show of authority unless he actually submits. In other words, a fleeing suspect is not a “seized” suspect, and any contraband he discards during flight is not deemed the fruit of police illegality, subject to the Fourth Amendment exclusionary rule. The issue in this cause is whether “seizure” under Article I, § 9 also requires submission to a police show of authority. If so, then contraband discarded by a fleeing suspect will not be subject to our statutory exclusionary rule embodied in Article 38.23, V.A.C.C.P. Students of the Fourth Amendment almost invariably consider Hodari D. to represent a radical departure from the trend of Supreme Court jurisprudence defining the scope of a “seizure.” In independently construing Article I, § 9, we must decide whether to emulate the Hodari D. departure, or to stay the course of earlier Supreme Court *240eases, which we have shown every indication of following up until now. In reaching a decision, we should scrutinize the methodology and reasoning of the Supreme Court in Hodari D. itself, review the critical response of legal scholars, ascertain what judges in other jurisdictions have said when called upon to adopt or reject the Hodari D. example, and then, ultimately, “follow our own lights.” See Richardson v. State, supra, at 948-951. To that endeavor I now turn.
Hodari D.
The issue presented in Hodari D. was basically whether police pursuit of a suspect who flees upon their mere approach represents a “seizure” under the Fourth Amendment. It was apparently anticipated that the Supreme Court would decide whether such pursuit met the then-extant objective test for determining whether an individual has been seized for Fourth Amendment purposes that was first articulated in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (Plurality Opinion). There the Supreme Court “conclude[d] that a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id., 446 U.S. at 554, 100 S.Ct. at 1877, 64 L.Ed.2d at 509. The Mendenhall test was later adopted by a majority of the Supreme Court, and was by all appearances the apotheosis of Fourth Amendment “seizure” analysis. See Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (Plurality Opinion); I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984); Michigan v. Chesternut, 486 U.S. 567, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).
Appearances can be deceiving. Instead of applying a straightforward Mendenhall approach, the Supreme Court added another layer to the analysis. In essence the Court held that, in the absence of actual physical contact, it is not enough to effectuate a Fourth Amendment “seizure” that police have made a show of authority such that “a reasonable person would have believed that he was not free to leave.” There must also be a submission to that show of authority before it may be said that a “seizure” has occurred. In short, there is no “seizure,” in Justice Scalia’s words, if “the subject does not yield.” Hodari D., supra, 499 U.S. at 626, 111 S.Ct. at 1550, 113 L.Ed.2d at 697.
Justice Scalia based his holding on the meaning of “seizure” in the common law, noting that by that understanding, a person or thing was not “seized” until “actually [brought] within physical control.” Id., 499 U.S. at 624, 111 S.Ct. at 1550, 113 L.Ed.2d at 696. He was unperturbed by the fact that an attempted seizure was also unlawful at common law, since common law “made many things unlawful, very few of which were elevated to constitutional proscriptions.” Id., 499 U.S. at 626, n. 2, 111 S.Ct. at 1550, n. 2, 113 L.Ed.2d at 697, n. 2. He then turned to the plain meaning of the word “seizure,” concluding that “[i]t does not remotely apply ... to the prospect of a policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee. That is no seizure.” To the dissenter’s charge that this literal approach ignored the fact that the concept of “seizure” in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) and Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), was not grounded in the common-law, Scalia had a ready response. Katz unquestionably expanded upon the common law concept of the “seizure” of things, or res, holding as it did that a telephone conversation could be illegally “seized” under the Fourth Amendment. But it did not purport to reject the common law concept of “seizure” of the person. Id., 499 U.S. at 627, n. 3, 111 S.Ct. at 1551, n. 3, 113 L.Ed.2d at 698, n. 3. Terry factually involved a submission to a show of authority, and was therefore in all things consistent with a literal constitutional interpretation of “seizure” of the person. Id. To Hodari D.’s argument that this new formulation of “seizure” was at odds with the Mendenhall articulation, Scalia replied:
“In seeking to rely upon that test here, respondent fails to read it carefully. It says that a person has been seized ‘only if,’ not that he has been seized ‘whenever’; it states a necessary, but not a sufficient, condition for seizure — or more precisely, *241for a seizure effected through a ‘show of authority.’ ”
Id., 499 U.S. at 628, 111 S.Ct. at 1551, 113 L.Ed.2d at 698. Finally, Justice Scalia remarked that his approach was at least consistent with two prior Supreme Court opinions, one early and one late, viz: Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), and Brower v. Inyo County, 489 U.S. 593, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989), respectively. Id., 499 U.S. at 628-29, 111 S.Ct. at 1552, 113 L.Ed.2d at 699. Because Hodari D. had not complied with the police show of authority, the Supreme Court held he had not been illegally “seized” under the Fourth Amendment.
In dissent, Justice Stevens graphically illustrated the disturbing ramifications of the majority’s holding when he observed “that a police officer may now fire his weapon at an innocent citizen and not implicate the Fourth Amendment—as long as he misses his target.” Id., 499 U.S. at 630, 111 S.Ct. at 1552, 113 L.Ed.2d at 699-700. This seeming anomaly he attributed to the majority’s overly-parsing method of Fourth Amendment interpretation, a method once embraced by the Court in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), but since flat-rejected in cases such as Katz and Terry. Id., 499 U.S. at 632-637, 111 S.Ct. at 1554-1556, 113 L.Ed.2d at 701-704. He argued that Mendenhall adequately framed a complete test for determining “seizure,” at least as that word had come to be understood since Katz and Terry, viz: that a “seizure” has occurred whenever it may objectively be said (Mendenhall’s “only if’ formulation notwithstanding) “that [a citizen’s] liberty is being restrained in a significant way.” Id., 499 U.S. at 640, 111 S.Ct. at 1558, 113 L.Ed.2d at 706. The advantage of the Mendenhall test is its objectivity. It “allows the police to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Id., 499 U.S. at 643-644, 111 S.Ct. at 1560, 113 L.Ed.2d at 708-709, citing Michigan v. Chesternut, 486 U.S. 567, 574, 108 S.Ct. 1975, 1980, 100 L.Ed.2d 565, 572 (1988). Under the majority’s view, an officer must gauge whether he has “seized” an individual, not by his own conduct in approaching him, but by the individual’s reaction to it. But “the scope of the Fourth Amendment [should] not vary with the state of mind of the particular individual being approached.” Michigan v. Chesternut, supra, 486 U.S. at 574, 108 S.Ct. at 1980, 100 L.Ed.2d at 572. The focus should be, rather, on the conduct of the officer. Otherwise, a lot of “coercive and intimidating” police behavior will “go unchecked.” Hodari D., supra, 499 U.S. at 645, 111 S.Ct. at 1561, 113 L.Ed.2d at 710. This runs contrary to the “[t]he deterrent purposes of the exclusionary rule” to “dis-eourag[e] improper behavior” on the part of the police. Id., 499 U.S. at 646, 111 S.Ct. at 1561, 113 L.Ed.2d at 710. Indeed, the majority’s new rule may positively encourage police to engage in “unlawful displays of force that will frighten countless innocent citizens into surrendering whatever privacy rights they may still have.” Id. Justice Stevens concluded: “A court more sensitive to the purposes of the Fourth Amendment would insist on greater rewards to society before decreeing the sacrifice it makes today.” Id. 499 U.S. at 648, 111 S.Ct. at 1562, 113 L.Ed.2d at 711.
The Critical and Judicial Response
The critical response to the Supreme Court’s opinion in Hodari D. has been one of varying shades of condemnation. For the most part the scholars have echoed and amplified Justice Stevens’ concerns. Perhaps the most adamant in his criticism is Professor LaFave. See LaFave, supra, at 139-145. LaFave argues forcefully that the majority opinion in Hodari D. erred- to split hairs between the common-law offenses of battery (a “seizure”) and assault (not a “seizure”), agreeing with Justice Stevens that “this is not a dichotomy which ‘should take on constitutional dimensions.’” Id., at 141, quoting 499 U.S. at 631, 111 S.Ct. at 1553, 113 L.Ed.2d at 700 (Stevens, J., dissenting). To consult the common-law at all to define “seizure” is inconsistent with the Supreme Court’s approach in Katz v. United States, supra. Id. LaFave accuses the Hodari D. majority of misrepresenting the true significance of case authority it cites as supportive (viz: Brower and Hester), id., at 141-142, and of ignoring those cases cited by the *242dissent for their broader descriptions of the Fourth Amendment protection against unreasonable “seizure” in terms of “liberty,” “freedom of movement,” and “personal security.” Id., at 142.
LaFave also maintains that the Court is unrealistic to believe that requiring submission to authority will reduce the danger to the public inherent in police pursuits. Grounding the definition of “seizure” on the reaction of the citizen instead of the conduct of police is likely to encourage police to try to provoke him to flee, in the hope of generating evidence during the chase. To this extent the Court’s ruling in Hodari D. actually enhances the risk that flight imposes upon the public. Id., at 143-144. Finally, under Hodari D. it becomes less and less clear to the citizen that he really does have a right to walk away from a police encounter that is not supported by either probable cause or reasonable suspicion. This is so because as long as a citizen does not “submit,” a police officer may follow him and continue to badger him until the citizen “consents” to do his will, without ever enjoying the protection of the Fourth Amendment, since arguably no “seizure” has occurred. Id., at 145. LaFave believes that all of these anomalies stem from an excessively “literal-minded,” common-law bound construction of the word “seizure.”
Other commentators have raised similar concerns. See, e.g., T. Clancy, The Future of Fourth Amendment Seizure Analysis after Hodari D. and Bostick, 28 Am.Crim.L.Rev. 799 (1991) (Hodari D. is inconsistent with prior caselaw defining “seizure,” misdirects focus upon citizen reaction rather than police conduct, and encourages police misconduct); Note, Fourth Amendment—Protection Against Unreasonable Seizure of the Person: The New(?) Common Law Arrest Test For Seizure, 82 J.Crim.L. & Criminology 747 (1992) (Hodari D. will encourage police misconduct); Note, A Conservative Court Says “Goodbye to All That” and Forges a New Order in the Law of Seizure—California v. Hodari D., 52 La.L.Rev. 1821 (1992) (Hodari D. misplaces focus upon citizen reaction rather than police conduct); The Supreme Court—Leading Cases, 105 Harv.L.Rev. 177, 297 (1991) (Hodari D. confuses citizen regarding his right to avoid unwarranted police encounters); Note, Precedent for Hodari in Modern Supreme Court Cases—Does It Exist? An Analysis of California v. Hodari, 17 T.Marshall L.Rev. 171 (1991) (noting the anomaly of affording a more expansive constitutional definition of “seizure” to res, under Katz, than to carpus, under Hodari D.). Indeed, reasonably diligent research failed to uncover a single commentator who seemed to approve of the Hodari D. construction. In all fairness, it should be noted that several of the above commentators believed Hodari D. to be inconsistent, not so much with the language of the Fourth Amendment itself, as with the deterrent policy of the exclusionary rule by which Fourth Amendment rights are vouchsafed. See A Conservative Court Says “Goodbye to All That”, supra, at 1342-43; Precedent For Hodari in Modern Supreme Court Cases, supra, at 182. See also California v. Hodari D., supra, 499 U.S. at 646, 111 S.Ct. at 1561, 113 L.Ed.2d at 710 (Stevens, J., dissenting). We do well to remember that whether rights protected by the Fourth Amendment have been violated is distinct from the question whether the federal exclusionary rule ought to apply. United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677, 688 (1984).
The judicial response has been no warmer. It appears that so far every state court of last resort to address whether to embrace Hodari D. for purposes of its own state constitutional analog has declined to do so. See State v. Oquendo, 223 Conn. 635, 613 A.2d 1300 (Conn.1992); State v. Quino, 74 Haw. 161, 840 P.2d 358 (1992); Matter of Welfare of E.D.J., 502 N.W.2d 779 (Minn. 1993); State v. Tucker, 626 So.2d 707 (La. 1993). Cf. People v. Holmes, 81 N.Y.2d 1056, 601 N.Y.S.2d 459, 619 N.E.2d 396 (N.Y.1993) (holding that police pursuit must be predicated upon reasonable suspicion, apparently as a matter of state law, without reference to Hodari D.). It cannot be said that any of these opinions provides a particularly extended exegesis of the merits or demerits of the Supreme Court’s “seizure” analysis. It is at least clear, however, that our sister states are in relative harmony in believing that the Fourth Amendment construction is insufficiently broad to protect the rights of their citizens to be “left alone.” See State v. Tuck*243er, supra, at 711. The weight of authority is squarely against Hodari D..
“Our Own Lights”
Given this background, how should we go about our independent obligation to construe “seizure” under Article I, § 9? Perhaps it is best to begin with a disclaimer. It will not do to say that we should interpret “seizure” broadly under Article I, § 9 because such a construction is in keeping with the deterrent policy of the exclusionary rule, as some have suggested. See ante at 242. Whether a “seizure” has occurred, and whether resulting evidence should be excluded if it has, are separate questions. United States v. Leon, supra. We cannot rightly decide that police conduct constitutes a “seizure” just because it seems egregious enough that we think any evidence obtained thereby ought to be excluded. That would allow the exclusionary tail to wag the “seizure” dog. In any event, we do not have a constitutional exclusionary rule in Texas. See Brown v. State, 657 S.W.2d 797, 803-804 (Tex.Cr.App.1983) (Clinton, J., concurring, on remand from United States Supreme Court), citing and quoting Welchek v. State, 93 Tex.Cr.R. 271, 247 S.W. 524 (1922). Whether or not we agree with the Supreme Court that, absent physical contact, a “seizure” requires submission to a show of authority must be gleaned from the text of Article I, § 9 itself.
Ultimately the issue boils down to choosing a methodology of constitutional interpretation. Shall we follow the Supreme Court’s newly-revived literal-minded approach in construing our own search and seizure provision? Or shall we retain the former, more expansive Mendenhall approach, with which we were perfectly satisfied, at least as a matter of Fourth Amendment law, right up until Hodari D. was decided? E.g., Daniels v. State, 718 S.W.2d 702 (Tex.Cr.App.1986); Holladay v. State, 805 S.W.2d 464 (Tex.Cr. App.1991). In my view the latter methodology is preferable. As it currently stands, the Supreme Court has adopted a narrow (and dubious) understanding of “seizure” of the person, tethered to the common-law. At the same time it continues to entertain an understanding of “seizure” in other contexts that is not tied to the common-law at all. Katz v. United States, supra. Why would this Court want to give “more protection to people’s interest in their items than to people’s interest in their persons?” Precedent For Hodari in Modem Supreme Court Cases, supra, at 178. And yet, surely this Court is not prepared to abandon the methodology of Katz! Having stayed the course of a reasonably liberal construction of Article I, § 9 so far—a course that is at least as solicitous of the inviolability of the individual as it is of the exigencies of the state—we should not deviate from it now.
Once we opt for a reasonably liberal construction of Article I, § 9, the criticisms of the Hodari D — tractors seem compelling enough. First, to require submission to a show of police authority before it may be said a “seizure” has occurred shifts the scrutiny from the conduct of the police — the state’s representative — to the reflex of the individual, whom Article I, § 9 is supposed to be protecting in the first place. It thus fails to make inquiry into the character of state-sponsored conduct. The Mendenhall test, by contrast, is a measure of the level of pressure the police bring to bear, and thus focuses on police behavior. If a reasonable person would not feel free to leave under the circumstances, then even the suspect who runs is under a weight of mental, if not actual physical, coercion. And if a communication can be “seized,” under Katz v. United States, supra, can we really say that a “seizure” cannot be communicated? Second, notwithstanding Justice Scalia’s naive optimism, delaying the moment of “seizure” until actual submission to a show of authority occurs will likely encourage police to provoke flight as a way of producing evidence. This only promotes police intimidation, without any countervailing reduction of risk to the public. Thus the “public policy” espoused by Hodari D., and eagerly, albeit uncritically, endorsed by a majority of this Court today, is a sham.
For these reasons we should adhere to the Mendenhall test for determining under Article I, § 9 whether, absent physical restraint, a “seizure” has taken place. We should do so, not because exclusionary policy seems to call for it — we have no constitutional exclusionary policy under Article I, § 9. We should do so because to construe “seizure” in this way strikes an appropriate balance between the individual’s right to be free of *244unwarranted governmental intrusion and the state’s often-legitimate need to intrude in order to prevent or vindicate crime and thereby protect its citizenry.
III.
I agree, of course, with Justice Lagarde’s observation below that we should not interpret Article I, § 9 more protectively than the Fourth Amendment just because we can. Johnson v. State, supra, at 718. See Crittenden v. State, supra. In this instance, however, as in Richardson v. State, supra, I believe we should construe Article I, § 9 more protectively.* I would hold that an individual is “seized” under Article I, § 9 whenever a reasonable person in his circumstances would not feel free to leave, whether he tries to leave anyway or not. I would then remand the cause to the court of appeals for further proceedings not inconsistent with that holding.
Because the Court does not, I dissent.
In his motion for rehearing, which we have denied this day, appellant complains that our original opinion, which we withdraw this day, devoted unjustifiable attention to collateral matters, including “the individual judges' opinions of each other." In an effort to tone down the rhetoric, we have issued these substitute opinions today. I can only hope the effort succeeds. The concurring opinion continues to insist, however, that my position in the present cause is "diametrically opposed to" the opinion I wrote for the Court in Crittenden v. State, 899 S.W.2d 668 (Tex.Cr.App.1995). In the further interest of collegiality, I will forbear response any more than simply to refer the reader to the explanatory text and footnote in Crittenden, supra, at 673 & n. 8.