Free to leave? An empirical look at the Fourth Amendment's seizure standard.

AuthorKessler, David K.

So what do we do if we don't know? I can follow my instinct. My instinct is he would feel he wasn't free because the red light's flashing. That's just one person's instinct. Or I could say, let's look for some studies. They could have asked people about this, and there are none.... What should I do? ... Look for more studies?

--Justice Stephen Breyer (1)

Maybe we can just pass until the studies are done?

--Justice Antonin Scalia (2)


    During recent oral arguments in Brendlin v. California, (3) Justices Breyer and Scalia both noted the lack of empirical evidence informing the application of the Supreme Court's standard for identifying a seizure. That standard mandates that a person interacting with a law enforcement officer is seized only when, "in view of all of the circumstances surrounding the incident," a reasonable person would have felt free "to leave," (4) "to decline the officers' requests," (5) or "otherwise [to] terminate the encounter." (6) In applying its standard, the Court has determined, without empirical evidence, whether reasonable people would in fact feel free to leave or to terminate specific encounters with law enforcement. For instance, the Court has found that people would feel free to leave when approached and questioned by an officer while on a public street or on a Greyhound bus. (7) But would actual people feel free to leave in the situations where the Justices believe that a reasonable person would do so? Although the reasonable person described by the Court and the average person described by empirical data will not be identical, they should be similar. (8) Data about how the actual person feels, therefore, would either support or call into question the Court's application of its seizure standard.

    This Article presents the first set of empirical evidence that addresses whether or not actual people would feel free to terminate simple encounters with law enforcement officers. (9) There are three principal findings. Based on data from a survey administered to 406 randomly selected people in Boston, I conclude that, in two situations in which a person is approached by a police officer, people would not feel free to terminate their encounters with the police. These two situations are similar to situations in which the Court has held that people would feel free to leave. (10) Furthermore, women and people under twenty-five would feel even less free than average. The data showed no statistically significant differences between races or levels of income. Finally, even people who know they have the right not to talk to a police officer would not feel free to terminate such encounters. Others have predicted that people would not feel free to leave (11) and that knowledge of rights would still not make people feel free to leave, (12) but no one has shown that reality with data.

    These findings raise troubling questions about the way the Court has protected the rights guaranteed by the Fourth Amendment. (13) A person who is seized by law enforcement officers may challenge his seizure if it is not supported by probable cause, (14) and evidence obtained as a result of an illegal seizure may be suppressed; (15) in contrast, a person who is not considered seized (or searched) receives no Fourth Amendment protection at all. Since the Court is finding that people would feel free to leave in situations in which people actually would not feel free, the Court is considering too few people to be seized. Those people who should have been considered seized, but are not so considered under the current standard, are thus deprived the protections of the Fourth Amendment.

    To address these questions, the Court should consider changes to its seizure standard. Two possible changes present themselves for consideration. If one believes that the people whom the court is currently identifying as seized should be identified as seized, then a solution would be to change the wording of the test to bring it and its results into harmony. If one believes instead that the courts are finding too few people to be seized, then a solution would be to keep the current test, but to apply it more realistically to the facts of each case. Either of these solutions would improve the current situation in which some people who should be considered seized are not. The data do not, however, support requiring police officers to give a warning before interacting with potential suspects or witnesses.

    This Article proceeds in five Parts. Part II provides background, discussing the development of the Court's seizure doctrine and the existing evidence about the accuracy of that doctrine. Part III provides the methodology for the survey and discusses attempts to mitigate bias. Part IV lays out the results of the survey, and Part V considers some implications of those results, considering changes to the seizure standard.


    This Part examines the current views of the Supreme Court and commentators about when people feel free to leave their encounters with the police. It first discusses the Court's application, over the last thirty years, of its free-to-leave standard for determining whether an individual has been seized. In applying that standard, the Court has required a showing of considerable coercion on the part of police officers before it seems willing to find that a person has been seized. Next, this Part discusses the limited evidence concerning when people actually do feel free to leave during such encounters. Evidence from analyses of data on consent searches resulting from traffic stops and a wide variety of psychological research suggests that, in contrast to the Court's holdings, people rarely, if ever, act freely and voluntarily when interacting with the police. Finally, this Part explores the debate in existing literature about whether knowledge of one's freedom to decline police requests makes one more likely to feel free to decline those requests. There is no clear answer in the existing literature.


      Under the Supreme Court's seizure doctrine, not all encounters with the police constitute seizures. (16) A seizure occurs only when an officer restrains "the liberty of a citizen" either through the use of physical force or by a show of authority. (17) While seizures resulting from use of physical force are relatively easy to identify, (18) the Court created a standard to help it determine when a person was sufficiently coerced by a show of authority to be considered seized. In applying that standard, the Court has set a high bar for the kinds of encounters that qualify as "seizures."

      In Mendenhall in 1980, Justice Stewart introduced the test used today to identify a seizure accomplished by a show of authority (rather than physical force). Stewart declared that such a seizure occurs if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." (19) The standard is an objective one, asking "not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer's words and actions would have conveyed that to a reasonable person." (20) Justice Stewart explained that since the Fourth Amendment's prohibition on seizures exists "to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals," so long as "the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person's liberty or privacy." (21) The standard is meant to avoid imposing "wholly unrealistic restrictions upon a wide variety of legitimate law enforcement practices" by turning every investigation into an unconstitutional seizure. (22)

      Applying the free-to-leave standard to the facts of Mendenhall, the Court determined that a woman approached and questioned by Drug Enforcement Agency agents in the public concourse of an airport was not seized. (23) The Court noted that the agents wore no uniforms, displayed no weapons, "requested" rather than demanded to see the woman's identification, and asked her a few questions. (24) The Court determined that "nothing in the record suggests that the [woman] had any objective reason to believe that she was not free to end the conversation in the concourse and proceed on her way." (25)

      The Court repeatedly used the free-to-leave standard after Mendenhall. (26) For example, the Court in Royer found that a person approached by narcotics agents in an airport had been seized. (27) The seizure did not occur when the officers first approached and questioned Royer, as similar officers had done in Mendenhall, but rather "when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver's license and without indicating in any way that he was free to depart." (28) The Court believed this greater show of authority would have made a reasonable person believe he was not free to leave. (29)

      In contrast, the Court did not find a seizure in Delgado, a case in which Immigration and Naturalization Service (INS) agents searching for illegal workers questioned the entire work forces of two factories. (30) Though INS agents were positioned at the exits to the factories and caused "some disruption," the record indicated that the agents did not prevent workers from moving about the factory. (31) The Court reasoned that "[i]f mere questioning does not constitute a seizure when it occurs inside the factory, it is no more a seizure when it occurs at the exits." (32) Finally, in Michigan v. Chesternut, the Court concluded Chesternut was not seized even though a police car followed him for a short distance and then drove parallel to him as...

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