The Right To Be Left Alone

A couple of unrelated posts at  Volokh reminded me of my problem with New York’s love of DeBour, 40 NY2d 210 (1976), a Court of Appeals decision that created a quadripartite test for police intrusiveness.  Of particular concern is the bottom of the barrel, known as a level 1 DeBour stop under the “common law right of inquiry.”


Due to the tendency to submit to the badge and our belief that the right to be left alone is “too precious to entrust to the discretion of those whose job is the detection of crime” (McDonald v United States, 335 US 451, 455), a policeman’s right to request information while discharging his law enforcement duties will hinge on the manner and intensity of the interference, the gravity of the crime involved and the circumstances attending the encounter.

All the right words (except for the use of the word “right” as to police, since the State has no “rights”, only authority), but after providing the feel-good rhetoric, the Court goes into its flight of fantasy where police/citizen confrontations are benign because there’s no gun pointed at the citizen’s head.

The same problem arises in the federal context with Miranda issues when the question posed is whether the subject of interrogation is in custody. 

When a police officer turns his or her attention to an ordinary person and says something, does that ordinary person truly believe that he or she has the right to be left alone?  Can he or she simply keep walking, or turn away, or refuse to respond to the officer’s inquiry?  On what planet?

No one, from begger to Senator (which may not be a very broad spectrum), feels this way.  We all feel constrained to submit to the badge.  No one feels sufficiently bold to elect to ignore the officer and continue going about our business.  McDonald says we can make that choice, but no cop I’ve ever known would let that happen.  And no person I’ve ever seen believes it to be true.

The exercise of our right to be left alone, and this is a constitutional right, exists only in judicial decisions.  It’s never existed on the street or in our cars.  When a couple of cops stops a person on the street and demand that a person identify themself, does anyone believe that it is “merely” a request that they have an absolute right to ignore?  Does anyone believe that if they ignored the request and walked away, that would be the end of it?  Anyone?

Why then do courts continue to decide cases that affect the lives of people based upon premises that every senscient being knows is silly?  The law has become so top heavy is legal fantasies and rhetorical explanations substituting for what happens in the real world that it is becoming increasingly difficult to take stop and search decisions seriously.  For most criminal defense lawyers, they are exercises in judicial slight of hand to find some phraseology that pretends to honor the Constitution while invariably upholding the search.

Usually, the decision goes at its foregone conclusion directly, using language that strains reality by calling the police intrusion “minimal” or consensual, as if people with guns (always protruding from their waistband and readily visible, since criminal gun-possessors are too stupid to make any effort to hide them from the cops) or drugs are happy to show police their contraband for the mere asking. 

But when hard evidence precludes a direct decision, a few wiggly words will sufficiently change the clear facts to enable the court to decide in the cops’ favor based upon some utterly baseless factual scenario that no one believes, or ever suggested, happened.  It exists only on paper in court decisions. 

Non-lawyers (and some lawyers as well) view the factual recitation in court opinions with a child-like naiveté that makes them above reproach.  If the court said something happened, then it happened.  It becomes absolute reality.  Now while it does become legal reality, it bears little recognition with the evidence with shocking frequency.  This is where judicial integrity clashes with the less than principled outcome.  Sometimes, courts can’t decide the way they want without fudging the facts a bit.  It’s a practical solution to a thorny problem.  And after they’ve gotten away with it once, the sense of being hemmed in by facts dissipates and it become easy to justify an outcome based on adding in, leaving out, or mischaracterizing, a few details.

Frankly, I cherish my right to be left alone.  I am not prepared to surrender my right to walk down the street without being stopped or questioned by police for some purpose completely unknown to me.  I would be no more rude to a police officer than I would to anyone else (though I’m not sure how much that means), but I want the ability to simply ignore the cop if I chose to do so and continue on my way.  I do not believe that my refusal to respond would play out that way.  I don’t think anyone really does.

So as we discuss stuff here and elsewhere in the blawgosphere, or in court, let us stop pretending that these rights that exist only on paper really happen on the street.  Who are we kidding?

9 thoughts on “The Right To Be Left Alone”

  1. Adam

    I wholeheartedly agree with your main premise that no citizen is truly free to ignore a police officer. However, I am not quite as cynical when it comes to the idea that courts will do their best to uphold a search.
    I have often been disappointed with a court decision that I truly believe was decided against my client. However, I have also encountered judges who do try to follow the law and to hold the police accountable.
    I think part of the problem that we encounter in court is that judges have forgotten why we have a constitution. As you correctly point out the government does not have rights, rather it has authority. The authority to rule is granted to it by the people. The right of the people to be secured from unreasonable search and seizure is a precious right that we the people are too willing to allow to be usurped by the government. After all, most people believe that so long as the bad guy is caught it does not matter if a few rights along the way must be disregarded.
    Of course, each encounter with a police officer can be intimidating. The idea that a person who is stopped for suspicion of DUI is the equivalent to a routine traffic stop is simply ridiculous (at least in Florida it is). Yet, courts have consistently invented the fiction that officer’s are encouraged to check on drivers. This of course raises the question of when is public safety more important than the right to be left alone? I suggest that there is no easy answer and one that is ever changing depending upon the will of the people. Unfortunately, a scared populace is too eager to have law and order at the expense of our liberty. Who knows, perhaps they are correct. The sad aspect of our justice system is that it often times appear that the judiciary is too willing to kneel before the executive and legislative branches of government and it forgets that it is a coequal branch of government. Judges are criticized for exercising their discretion. Judges are condemned when they respect the rights of the citizen and do not carry out the will of the majority. We need more of these types of judges. I pray that our judiciary has the intestinal fortitude to stand up to the executive and legislative branches of government and to be a real force in our system of checks and balances. Too many judges have not read Marbury v. Madison and fail to grasp its significance. Too many people do not believe that judges should read Marbury.
    Our country is a great country, even with all of its faults. Our judiciary is still one of the best in history. I only wish our citizens would remember why we have a constitution in the first place.
    I thank you for your blawg and while I may not reply to every one of your posts, I do enjoy reading them. Who knows, perhaps one day I will find the energy to write my own blawgs.

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