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Article Excerpt
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)
I. INTRODUCTION
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.
II. BACKGROUND
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.
A. THE COURT REQUIRES A STRONG SHOWING OF COERCION BEFORE IT WILL FIND A PERSON DID NOT FEEL FREE TO LEAVE
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 he ran. (33) The Court believed the "brief acceleration to catch up" and the "short drive alongside him" were not "so intimidating" that respondent could reasonably believe "he was not free to disregard the police presence and go about his business" as he continued walking. (34)
The Court in Chesternut added a further justification for its free-to-leave test. Because the test focuses on what a reasonable man would believe, it allows for "consistent application from one police encounter to the next, regardless of the particular individual's response to the actions of the police." (35) This consistency allows the police to determine, in advance, whether the contemplated conduct would violate the Fourth Amendment. (36) As such, the Court believed the test had predictive power that was useful to law enforcement.
In 1991, the Court expanded the free-to-leave standard to address situations in which an individual had "no desire to leave" for reasons unrelated to the police officer's action. (37) In Bostick, the Court considered the case of a man who was approached by a police officer while the man was sitting on a Greyhound bus that had stopped in the middle of its journey. (38) Explaining that a passenger in the middle of a trip would not feel free to get up and leave the bus, the Court determined that the passenger was not seized only if "a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." (39) The Court declined to apply its expanded standard to the facts, however, remanding to the trial court to apply the new standard to all the facts of the case. But the Court noted its prior reasoning that merely approaching or questioning a suspect did not constitute a seizure and emphasized that the officers did not point guns at Bostick or otherwise threaten him. (40)
The Court reaffirmed its expanded free-to-leave standard in Drayton, (41) addressing a stop on a bus similar to that in Bostick, and in Brendlin, (42) addressing the police stop of a car and its passengers. Unlike in Bostick, the Drayton Court actually applied the facts to its standard and determined that a seizure had not occurred: the officer did not brandish his weapon, left the aisle free, and spoke in a "polite, quiet" voice, (43) and the Court concluded that "[n]othing [the officer] said would suggest to a reasonable person that he or she was barred from leaving the bus or otherwise terminating the encounter." (44) The Brendlin Court, on the other hand, did find a seizure. It held that not only the driver but also the passengers of a car stopped by the police were seized. (45) The Court explained that everyone in the car would have recognized that "no one in the car was free to depart without police permission." (46)
In using this standard for seizure, the Court has provided numerous examples of situations in which a person is not seized. Although "for the most part per se rules are inappropriate in the Fourth Amendment context," (47) there are certain classes of encounters with the police that the Court seems to believe never to constitute a seizure. A citizen on the street "or in another public place" (48) who is approached by a police officer and asked questions by that officer is not seized. (49) There is also no seizure when officers identify themselves as police officers, (50) ask for a person's identification, or ask to search his baggage. Even when that questioning takes place in a more contained environment, such as on a bus where an officer stands in the doorway, (51) in a factory where officers wait at the exits, (52) or on the street as a police car drives next to a person as he walks, (53) the Court has held that a seizure does not occur without more police action than mere questioning.
To find a seizure based on a "show of authority," the Court requires more evidence of coercion than the mere presence and speech of law enforcement officers. (54) That evidence can include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled." (55) Both the Bostick and Drayton Courts specifically noted that the officers did not brandish their weapons or make threats--the type of coercion that might constitute a seizure. The coercion in Royer came from the police identifying Royer as a suspect and retaining his identification and ticket. Coercion is most clear in Brendlin, as the Court explained, since no person would feel that he could simply drive away from a police stop without being pursued by the officer. (56)
As these cases demonstrate, the Court has consistently applied its seizure standard since first introducing that standard in 1980. The Court has declined to find seizures based on mere interaction with law enforcement without a showing of some degree of outward coercion, such as verbal threats or the presence of weapons. The Court has firmly held that, absent that kind of coercion, a reasonable person would feel free to leave or otherwise terminate his encounters with law enforcement officers.
B. LIMITED EXISTING EVIDENCE SUGGESTS THAT PEOPLE DO NOT FEEL FREE TO LEAVE IN MANY MORE SITUATIONS THAN THE COURT BELIEVES
In developing its standard for determining when a person is seized, the Supreme Court has relied on its own beliefs about how the reasonable person would feel. (57) While determining the knowledge and feelings of the reasonable person is a mainstay of many of the Court's doctrines, (58) both commentators (59) and the Court (60) itself have noted that empirical evidence would be helpful in resolving seizure questions. Almost no empirical...
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