For the purpose of invoking rights under the Fourth Amendment, the definition of “seizure” is critical. Since Florida v. Bostick, 501 U.S. 429 (1991), seizure occurs when “a reasonable person would feel free” to leave, to disregard police, to turn their back and walk away. This, of course, is one of those ridiculous legal fictions that only a court could indulge.
Orin Kerr notes the decision by 10th Circuit Judge Michael McConnell in United States v. Thompson, wherein Judge McConnell let’s the cat out of the appellate bag by admitting that the test, repeated in every decision of its sort, is essentially meaningless.
According to formal legal doctrine, an encounter between an individual and the police is consensual when “a reasonable person would feel free ‘to disregard the police and go about his business.’” Florida v. Bostick, 501 U.S. 429, 434 (1991) (quoting California v. Hodari D., 499 U.S. 621, 628 (1991). In addressing this question, however, we must be guided by the Court’s decisions in similar cases rather than our own experience regarding how reasonable people actually respond to police investigations.[Fn1]
[FN1: It might bring greater clarity to this area of the law if the test were framed in terms of whether the officer’s behavior is coercive rather than whether, under the circumstances, the reasonable person would feel “free to disregard the police,” which we suspect is unrealistic.]
That this test continues to frame the discussion is a product of the slavish adherence to precedent, particularly when the Supreme Court comes up with a test it really likes regardless of whether it has any real-life validity.
Why is this test nonsense? Let’s turn to the two basic players in the scenario, the person stopped and the person doing the stopping. No one, but no one, thinks that a police officer’s utterance of the word “halt” is a friendly request. No one, innocent of any wrongdoing or not, can possibly know whether disregard of that word will result in a chase, a bullet in the back or nothing. Human experience suggests that an outcome of “nothing” rarely happens, if for no other reason then the fact that police officers really hate being ignored.
So does any reasonable person, even an innocent person, believe that he is free to ignore a police officer’s question, command, admonition, whatever? Never.
Let’s turn to the other half of the equation, the police officer. Perhaps you want to stop someone walking quietly down the street to ask where they got those really cool looking Nike sneakers, and say the word “Hey!” as they pass. They disregard your “hey” and keep on trucking. What happens next? The alarm goes off in your head that something is awry or the person would have stopped, turned, smiled and inquired, “Hello, officer. Can I help you?” Anything else suggests that you’ve stumbled onto something, and thus compels you to make further, more intrusive, inquiry. And I’m being kind by saying it this way.
Yet the law persists in testing whether a reasonable person is “seized” by virtue of this utterly ridiculous test, leaving both citizens and criminal defense lawyers in the awkward position of addressing street reality in the face of legal pseudo-reality. It might be helpful to consider that a person is seized when the gun is drawn and pointed, or when the police have a person firmly in their grasp and control, but even that doesn’t quite fit with the caselaw since Terry stops enjoy a degree of malleability that surpasses any ability to be limited by consistent doctrine.
Consider the cop who receives the radio call of a black man in jeans and a hoodie with a gun. He’s going to stop everyone fitting the description, which could well be 70% of the people on the street in a given neighborhood, by physical force and with gun drawn. Yet none are seized, under the law, since the seizure is somehow forgiven by the officer’s need to protect himself, which simply doesn’t fit in with the rest of the test. When that happens, we just pretend the test doesn’t exist and override it with police necessity. He isn’t seizing anyone, just safely inquiring.
This is where Judge McConnell’s footnote comes into play. Rather than pretend that there is any meaningful use of the reasonable person test, or that any court actually applies it, an objective test based upon the officer’s actions would seem a far better way to determine whether a seizure has occurred. It would still be far from perfect, since every command by a police officer is inherently coercive, and truth be told, most people feel that they must submit to the shield if they want to avoid a plethora of unpleasant risks.
My test wouldn’t work, of course, because it would require the application of 4th Amendment protections to almost all police/citizen encounters, and that would create an unwieldy situation for police who want to do their job without any constitutional-thingy interfering. It’s unfathomable that any court would apply the 4th Amendment so routinely; convicting people would become a nightmare.
Orin’s view is that the courts, as a matter of practice, spout the language of Hodari D., but engage in a more pragmatic approach by determining seizure via analogy to previously decided cases.
The Supreme Court has tried to address this problem a bit by clarifying that the standard is of a reasonable innocent person, apparently on the theory that a reasonable innocent person has no reason to fear the police. But again, that’s unrealistic: most people don’t feel free to walk away even if they feel they’re totally innocent. I end up advising my students along the lines of what Judge McConnell suggests: Apply the test based on analogy to decided cases applying it rather than by relying on the natural meaning of its words.
It’s unclear whether Orin thinks this is a good idea or just the way it works. I don’t think it’s a good idea at all. Initially, any rule dependent on analogy to other cases is subject to the facile descriptions of conduct by appellate courts. If they want to suppress, they describe the conduct in terms designed to make it appear clearly over the line of seizure. if not, they trivialize it. The problem is that it can be the exact same conduct, subject only to the rhetorical skills of the author relative to the desired outcome. We end up with a result-oriented jurisprudence that offers no guidance whatsoever. Just a lot of words that tell us nothing useful.
Further, the limitations of the written word, its ability to capture the feelings, sensations, timing and atmosphere of an interaction between police and citizens, make law by analogy inadequate. When you consider that our right to be left alone, to be free from search and compelled questioning, depends on how expressive, detailed or sympathetic a judge, the integrity of our constitutional protections hangs on a very thin thread.
So why are there so many issues surrounding a concept that most normal people would find easily answered? Why is it so difficult for such smart people as Supreme Court justices to come up with a test to determine when a person is seized that can be readily and realistically applied? Because doing so would mean that we would have to apply the full panoply of 4th Amendment rights to almost every interaction between citizens and police.
And wouldn’t that be horrible.
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I don’t know about there; hereabouts, yelling, “halt!” is almost unknown. (I’m weaseling; I think it is unknown, but I’m not willing to say so; I’m such a coward.) In most cases (at least, when there’s no guns involved; we can save the gun exception for awhile) it’s something like, “How are you doing today?”
Which makes it worse, not better; other than Minnesota Nice, a real reasonable person would feel free to say, “Fine, and how are you?” without waiting for an answer while walking on . . . unless the person asking is a: badged, and b: using tonality and/or body language to indicate that they really mean “halt.”
… and that’s the gun issue aside, no matter who has it. (Hereabouts, by statute, possession of a firearm is not PC that a person has committed a crime. I believe that PDs reconcile that by using it as PC when investigating a PERGUN report by ignoring it; it’s the Stoplight Clause.)
Not to pull rank, but this is a federal rather than state definitional problem. States define things differently. As to what a police officer is likely to say, consider whether the officer is likely to use the same words with you as he would with a young, black male in jeans and a hoodie.
There are many variables, but none really change the equation. If the officer said “good morning” to you, you would stop. That’s your sensibility. In other neighborhoods, language gets a little rougher and more direct. But the message is the same no matter who you are or where you live. When a cop talks to you, you disregard him at your peril.
I’m no expert on police training, but I would be willing to bet there is a course dedicated on how to project authority to detain someone; and that police use that same process of tone, body language and actual words whether they are detaining you to ask about Scott’s hypothetical “really cool looking Nike sneakers” or to question you about something criminal. And we, of course, are trained by parents and school to respond to authority.
I don’t remember it being like this at all when I was a young man. I was taught, and believed, that the Police were your friend. And they actually were. As a somewhat wild teenager, I was let off with a warning more than once. Today, I suspect that more than one of those relatively innocent encounters would have led to at least a hook up and ride to the station for further questioning.
It’s gotten so bad that we need to train our teenagers that the Police are NOT their friends.
I’m ex-military and pre-disposed to respect, admire and support police officers. For 30 years I responded to every police-related fund-raiser. After a personal and very wrong encounter with a bad cop, I’ve come to a very different view. Police today are not trained to “Protect and Serve”, but have become a very real threat to our constitutional rights and to our freedom.
Attribute it to the War on Drugs. Maybe enhanced with the wholesale use of Special Weapons and Tactics. And accelerated by the War on Terror. Whatever the cause, police today revel in tactical clothing and armaments. What does that say about mindset?
Personally, I know I am “seized” from the first word spoken to me by a police officer, and my behavior reflects that. I am squarely in Grits for Breakfast camp based on his encounter while walking with his grandchild.
I don’t agree that we need to teach children that the police are not our friends, but we do need to teach them how to react to police and how to respond appropriately. There is a tendency to see cops in black and white, either they’re all good or all bad. Sometimes a cop stops a person to challenge them for walking with a toddler. Sometimes, it’s to tell you that a $20 just fell out of your back pocket. You don’t know which until after you’ve stopped.
Cops are not inherently evil and it would be very counterproductive to breed that idea in our youth. A more nuanced approach on our part, and a heightened sensitivity on theirs, might eliminate many ordinary concerns. Mind you, this has nothing to do with the subject of this post, which is a legal issue and not an anti-cop issue.
This “not to pull rank,” is that kinda like “with all due respect”? 🙂 We’re cool, honest.
Not disagreeing with the core of what you’re saying, but I in fact have felt free to say, “good morning,” and continue on my way. And seen young black men do it. In both sorts of situations, the essence of what was going on was a cop saying and meaning, “good morning,” rather than saying, “good morning,” and meaning, “stop right now.”
From my limited reading of decisions, it seems that courts do a lousy job, by and large, of distinguishing between text and subtext. People on a streetcorner often seem to do better.
Which is why I think that all decisions on this sort of stuff ought to be passed on by a text/subtext professional, the writer said, tongue only partly in cheek.
LQTM. But this text/subtext is how we ended up in the dilemma to begin with. The officer tells the court, “I only said hello.” The defense says, “Yeah, with your hand on your gun and a snarl on your face and 3 backups surrounding the defendant.” Was the defendant free to go? Sure he was, since all the cop did was say “hello”.
Any examination of whether a seizure occurred is a factual inquiry and, as courts are fond of reminding us, there is no bright line, but if it is established that the officer had his hand on his gun and a snarl on his face, that is relevant to the inquiry.
My experience with this comes from the perspective of a smart assed young public defender, so my last encounter went something like this:
[Me, peeing in an alley behind the bar I had just left. Already done with the act and now zipping up and returning to the street when a flashlight hits my eyes from the street.]
Cop: Hey!
[Ignoring cop and walking along.]
Cop: Hey! I’m talking to you.
Me: Thank you for clarifying. Good evening, officer.
Cop: You were just peeing in the alley.
[Walking off down the street in the opposite direction of the officer]
Cop: Stop.
Me: Am I being detained?
Cop: No, I want to talk to you.
Me: The feeling is not mutual. Good evening, officer.
Cop: Ok. Stop and place your palms together behind your back.
Me: I take it that I’m being detained at this point, so let me just make it unequivocal that I object to this detention as unfounded and you have no consent from me for this contact or any search of my person you’re planning on conducting.
[Cop pats me down and searches my pockets.]
Me: You know this is illegal, right?
Cop: What’s your problem?
Me: I’m a public defender and I don’t like [the city I was in] police.
Cop: You’re a public defender? Don’t you know better than to walk away from an officer who is talking to you.
Me: Quite the opposite. You’re familiar with the 4th Amendement?
At some point around the time when he started searching me several people had started to gather around.
Cop: You were peeing in the alley, I have every right to detain you.
Me: At this point I’m invoking my right to remain silent, I’m requesting the presence of an attorney if you have any more questions for me.
Cop: You’re an asshole, get out of here.
Me: Good evening, officer. See you in court.
*I don’t recommend any of my clients act this way, particularly my minority clients, but I just can’t resist.
but if it is established that the officer had his hand on his gun and a snarl on his face, that is relevant to the inquiry.
And what, based on your experiece, is the likelihood of that? Unless the officer admits it, slim to none.
As for your experience, it’s always a funnier story when someone gets to walk away. As you note, it’s not recommended for minority clients. The story often has a different ending.
Good news: in the age of Youtube and cell phones with video capability, those chances are much higher than they used to be.
Bad news: in the age of Youtube and cell phones with video capability, even with those chances are much higher than they used to be, the chance of that making any difference in that sort of case are minimal. Far as I can tell, from this remove, the effect of 4th Amendment protections only applies, when it does, in cases where the citizen is arrested for and convicted of crimes, not in cases of somebody simply wishes to go about his/her business/life.
To paraphrase an often wise and sometimes prickly guy
From my limited reading of decisions, it seems that courts do a lousy job, by and large, of distinguishing between text and subtext. People on a streetcorner often seem to do better.
Which is why I think that all decisions on this sort of stuff ought to be submitted to a jury. Whether a reasonable person would believe he was being seized is a question of fact, and we’re supposed to use juries to decide the facts.
…not that those crackpots on the Supreme Court would see the clear wisdom of my proposal…
Actually, my experience is that it is not usually that difficult to establish a seizure. Even the very conservative judges in my county exhibit ample skepticism about purported consensual encounters. The bullshit more often begins to smell when they find reasonable suspicion to justify the detention. “Well, your client is brown. And he was walking down the street. And he looked at the cop (or looked away, depending on the testimony) and I think the officer had every right to stop and make some inquiries.”
Incidentally, I think the officer did have RS to detain me in this circumstance, I just wanted to hold him to that burden and force him to make the call.