When does a consensual police encounter become a seizure under the Fourth Amendment? If a police officer approached you at night and said he "would like to see your ID, just to log that I talked to you," would you feel free to decline his request or leave? (And for the CrimPro guru readers, did you feel that way before learning the law?) What if the police officer asked you for your ID or identifying information, adding that you could "be on your way just as soon as I ID you"?
This issue divided a panel of the U.S. Court of Appeals for the Sixth Circuit today in United States v. Campbell. There was unanimous agreement on the relevant legal standard -- a seizure occurs when "under the totality of the circumstances, a reasonable person would have believed that he or she was not free to walk away" -- but disagreement on its application to the facts. The majority opinion by Judge Gilman (joined by Judge Clay) stresses the officers use of the word "like," denoting a request rather than a command or order. Judge Cole in dissent, on the other hand, stresses that the officer, by his own account, nonetheless conditioned Steven Campbell's ability to go on first providing ID.
Setting aside the particulars of this case (as there are other potentially relevant details I have omitted), this is an area of criminal procedure that has always made me a bit uncomfortable. I have no problem with the idea that a seizure occurs when a reasonable person would believe that he or she is not free to walk away. My problem is that the "reasonable person" some judges imagine seems far too willing to question or challenge police authority. I sincerely doubt that most "reasonable" Americans unschooled in criminal procedure feel free to casually deny police requests, let alone disregard police inquiries entirely and just walk away. This may be how judges interact with police officers, but in this regard I do not believe the average judge adequately represents the reasonable person.
Related Posts (on one page):
- Pragmatism and Fourth Amendment Law:
- Of Police Officers and Requests for ID:
- "I Would Like to See Your ID":
The doctrinal explanation is that the "reasonable person" is a reasonable person who is completely innocent and has nothing to hide. But the functional explanation is that it's just easier to have this test and apply it in a curious way than it is to phrase the test more accurately and apply it more intuitively.
Based on the recent oral argument, though, the Justices of the Supreme Court seem to disagree with the courts in California.
I can't recall a cop ever asking me for ID while walking somewhere, but I most certainly would not think I was free to walk away without providing it, just through my motor vehicle conditioning.
I recently was in a car pulled over in South Carolina. I live in AK, and was on my way to the airport. I'm a criminal defense attorney, and feel myself to be pretty reasonable. But as I was already late to the airport, there was no way I was going to refuse his request to step out of the car and hand him my ID. I knew my rights...and I knew that my life would immediately get a lot worse if I invoked them. There would have been no way I would have made the plane. Unfortunately the S. Ct. has given us a fig leaf of protection.
Just out of curiousity OK, how would you phrase the request to make it more intuitive? And is there any reason for interpreting reasonable person to mean a reasonable person who has nothing to hide? I don't think breaking a law automatically makes you unreasonable.
I actually like the way the test is phrased. My problem is the way it is applied, and I would rather the Supreme Court apply the test they've articulated than come up with a better explanation to explain the caselaw.
I also do not think that the doctrinal explanation helps much, as I do not believe that the "reasonable person who is completely innocent and has nothing to hide" feels completely free to ignore or walk away from a police officer. Perhaps the "reasonable person" is a reasonable person who is completely innocent and has nothing to hide" will readily comply with a police officer's request, but not because he or she feels able to leave.
What am I missing?
JHA
That's my reaction. I'm relieved to encounter police on the street (my car is another matter). Nevertheless, if a cop on the street asks me for my ID, I assume trouble will follow if I refuse. I would show him my ID because I don't want to run the risk of this particular cop being a bad apple and detaining me. Knowing I could get him disciplined for such activity is no comfort.
So my compliance is not because I'm a nice guy, but predominantly because of the officer's power.
iow, if i say "can i see your ID?", take it, write down the relevant info and return it - it's not a seizure.
there is one exception. if i ask a passenger of a MV for ID, or even his NAME - it is a seizure.
different standard for "social contacts" vs. passengers in traffic stops.
i know at least some people do refuse to provide ID, and if it's a social contact (iow, i don't have PC, reasonable suspicion, etc.) that's perfectly fine.
on more than one occasion, i have had somebody say they were not going to show me their ID because they had a warrant.
duh.
which instantly gives me probable cause, which is more than the reasonable suspicion needed to seize them.
sean, i think that's understandable considering his experience, but definitely not the best course of action. many many people who answer questions upon being detained either prove their innocence, or at least allay suspicion by talking to police. i can see an argument that if you are guilty of a crime, don't talk to police, but i have seen all the scores of times where simply providing an explanation is the best course of action. heck, i was stopped on a terry stop once in college, and it was my explanation that allayed suspicion.
The idea that an individual would in practice be free to walk away without further ado after a police officer asks for identification, no matter how polite the request, is laughable. The idea that he would think he is free to walk away is doubly ludicrous.
Note that even the dissenting judge buys into the proposition that a mere police request for identification--"I would like to see your identification"--is not a seizure. What made this particular request a seizure for him was the officer's addition of words indicating the defendant could not leave until after showing his identification.
This judicial ignorance is deliberate. Most judges do know better. They're intentionally propagating false notions of what happens in everyday life and what reasonable people would believe. And they'll get away with it because the victims of this sort of abuse are powerless. It's all part of the War on Drugs, the War on Crime, of helping the police to protect the haves from the have-nots, liberty be damned.
That courts decide cases involving basic civil liberties based on propositions so out of touch with the real world breeds disrespect for both the judiciary and the law.
Heh. This is a great point. People have argued (with no success) that a jury should be impaneled to decide these issues. At the suppression hearing, a jury would conclude whether the person reasonably felt free to leave.
Judges say this is a legal question, and thus not proper for juries to answer. (Which brings us back to an earlier discussion: What is the difference between a legal and a factual question? No one knows, though everyone claims to.)
I mean, does anyone really think that if a police officer comes up and asks for your ID in connection with a burglary investigation, and you tell the officer that you don't feel like showing him ID and start to walk away, the officer is just going to let you go? In anything approaching the majority of cases? I seriously doubt it.
which of course is merely an assertion. i KNOW from literally hundreds of citizen contacts that in numerous observed instances, when people in a social contact refuse to provide ID, they ARE free to walk away AND they do so.
so, what is the basis for your belief that it's "laughable?"
merely opinion? or do you have empirical data that this is the case.
" mean, does anyone really think that if a police officer comes up and asks for your ID in connection with a burglary investigation, and you tell the officer that you don't feel like showing him ID and start to walk away, the officer is just going to let you go?"
what do you mean "in connection with?"
if he is conducting a burg investigation and has articulable suspicion (see: terry v. ohio) he can demand your ID anyways.
like everything else, seizures have to be "reasonable." if an officer has RS of a crime, RS of a civil infraction, or several other factors (believing you are a material witness etc.) he can seize you/freeze the scene, etc.
but if it is a SOCIAL CONTACT, and he asks for ID, you can refuse. again, i am speaking from experience. it seems many here are expressing their OPINION (no basis in actual cases) as to what would happen in that situation.
And they wonder why we don't trust them and believe they are on our side?
Interesting question.
I am not a law person and I do not intend to be flipant with my question but over the past few years it has become apparent, to me, that with the "diversity" (left versus right) of political opinion in the country there may result, a "standoff?" regarding "my rights" as a citizen in a constitutional republic, (my understanding of my rights is a result of my upbringing and education), versus the belief, by some in government, including some in the judiciary, that my rights may be tainted due to a conservative philosophy which may include a belief in God, or not, a belief in my responsibility,(ies), as one who did the deed, whatever it may have been but willing to own up.
The other side of that question is: I have a progressive philosophy and may or may not believe in god and am of the opinion that whatever disingenuine act I committed was the result of my upbringing or some other external element and therefore am not completely liable for my actions.
So the first question becomes: as a follower of the constitutional republic I think that I am not required to surrender my ID for what appears to be no legitimate legal reason.
As a progressive I may feel that governement knows best and am willing to surrender my ID and thus myself for no real legitimate legal reason.
The second question then is: what if, as a conservative, I find myself confronted by a "progressive" officer of the law, policeman or judge?
what if I am a progressive and find myself confronted by a conservative officer of the law, policeman or judge?
It would seem that you run the risk, in either situation, of running afoul of the law due to philosophical diversity.
Easiest example I can give: the Ninth circuit is reversed on its decisions at a very high rate, by the Supreme court. The ninth circuit is considered to be very liberal, the supreme court, not so liberal.
Now I imagine those of you who are in the business of law would say that it is a matter "of the interpretaion of the law" and I would ask, guided by what?
It would seem that under those circumstances that you actually have a 1 in 4 chance of receiving justice as you, I, understand it.
For proof of how easy this is, note how easy it was for NJ law enforcement to track down the person who crashed into John Corzine -- EZ-Pass records, nearby cameras to record the car and license plate (I think), etc.
Personally, I think it's a good thing when government *doesn't* know who and where we are at any given moment.
Thus, what they consider to be an order might sound, at the first iteration, like a question whose answer is completely up to the other person.
Plenty of room for misunderstanding.
Whit - I appreciate that you are straight about this - my experience is that not all officers are.
All,
The reason that the police are so deceptive here is the intentional use of the word "like", etc. That technically turns it into a request instead of an order, though the subjects likely don't catch that distinction. At least it looks like a request on paper and when the officer testifies about it in court.
But my experience is that it typically is phrased in such a way that the subjects are given the impression that it is an order, though it isn't. I have talked to state troopers who admitted over beer being trained to do it this way. Ditto, BTW, for "consensual" searches.
Then why all the nonsense about a "reasonable person?" Why not just admit that a police approach is a seizure?
Except for traffic offenses I've been stopped by the police only one time, while walking. The whole incident was brief and polite and created no problem for me. But with three police cars there I certainly didn't think I could just ignore the nice policeman who wanted to ask me a question or two.
yawn...
like if i am asking for a consent to search, and i say "i believe i have probable cause to APPLY for a search warrant" that's fine
but if i say "i believe i have probable cause to GET a search warrant" that can vitiate the consent.
because many police approaches are NOT seizures. that's what the case law says.
a cop can approach you, say hello, ask for ID, etc. and that in itself does not constitute a seizure.
if you don't like that, fine. but them's the facts.
factors to consider whether it is a seizure is
1) display of force/weapon
2) saying stop
3) blocking movement
etc.
Is it reasonable to consider your personal experience emperical evidence? Would it be reasonable to consider the personal experience of others to also be emperical evidence?
Actually, it depends on the procedural context in which the question arises. Most often, Fourth Amendment questions arise in relation to a pretrial motion to suppress evidence which is alleged to be the fruit of an unlawful search, detention or arrest. Rule 104(a) of the Federal Rules of Evidence specifies that "[p]reliminary questions concerning . . . the admissibility of evidence shall be determined by the court[.]" Thus, on a pretrial suppression motion or motion in limine, the trial court sits as finder of fact, with a presumption of correctness attaching to such factual findings on appeal (although application of law to undisputed facts is a question of law).
If, on the other hand, the lawfulness of a search or seizure is an element of the offense itself (such as where a statute provides that the unlawfulness of a seizure provides a defense to a charge of resisting arrest or evading arrest), then a jury would determine whether the government had or had not proven the lawfulness of the arrest beyond a reasonable doubt.
sure. but i haven't seen that presented. at best, i have seen some n=1 examples, and mostly not even that - just assertion without basis.
i have literally scores of personal experiences with this EXACT question - ID requested in non-seizure situations.
most people responding are saying X would or wouldn't happen purely based on OPINION. go back and read what they wrote.
do you see the difference?
they are not stating it as such.
i've asked people for their ID and/or names literally 1000's of times in all sorts of situations, scores of times being social contacts. probably in the hundreds, frankly. so, i have a baseline of experience as to how people act and what they do when confronted by that request.
so, i am speaking as to what people do. others have not provided evidence that they are doing so. they are merely stating their opinions as somehow factual without providing any basis for their belief.
But... they're not. There are some bad apples, too. So when approached by an officer, unless he's someone we already know, we have no way of knowing what kind of officer we're dealing with; whether a polite refusal to hand over ID will be responded to reasonably or will be taken as a challenge by Mr. Extreme Authoritarian.
By the way, there's a lot of discussion and first-person accounts of just this type of encounter over at the Talk Forum at OpenCarry.org.
Well, whit, I haven't read empirical studies, but I've had lots of experience with the police, and I'd rather rely on what I know firsthand happens in the real world. Here are a couple of recent examples from the many I've seen over the years.
What fits under the euphemism "social contact" in my neighborhood seems to be quite different than what it is in yours. Officers from the local LAPD station at the end of my block have been holding weekly "white T-shirt days" on my street, in which they stop all the young men and boys wearing white T-shirts and demand their ID to run a make on them, which is followed by jacking them up if they don't comply. These "offenders" spend a couple of nights in jail, then get released without charges if nothing turns up. Of course, if the police run across a guy with a yellow T-shirt, it might become yellow T-shirt day. They even announce that is what they are doing as they work their way down our street. The officers laugh about it; they regard it as a joke, but I can assure you the people of my neighborhood don't regard it as funny. Of course I live in South Los Angeles, not in Brentwood, where I'm sure the experience is different, unless your skin is black or brown.
I've been stopped many times for driving while white. On one occasion when the LAPD pulled me over (within a mile of the address where the car I was driving was registered) to ask what I was doing in the area, I told them I'd lived and/or worked in South Los Angeles on and off for more than 35 years and felt I should be free to go where I want. The two officers--one of them doing the speaking, the other not disagreeing--actually told me that I shouldn't drive around there because "as far as these people are concerned, you're just another white guy driving around and they might take a pot shot at you." I told them that the woman I share my life with is "one of these people." Is that what you would call a social contact, giving me friendly advice, so to speak?
One of the problems with fourth amendment jurisprudence is that it has to "fit all." That's where the police, and the courts, run into a problem. The fourth amendment suffers because the police and the courts don't want to treat "these people" the way they would treat others.
As a layperson I agree. I don't know anyone who feels that they can walk away from a cop. (but to be fair i don't personally know any lawyers)
On a somewhat related note, what is the law surrounding rent-a-cops who try to detain you? When I worked at nordstroms i only witnessed two reactions...people either complied or ran away. what would happen if you just refuse to comply and go on shopping?
I've been a lawyer a long time and I don't feel free to refuse to give my identification to LAPD officers who ask for it. That's because I know they will very likely take it as indication I'm guilty of something or as a personal affront or as an affront to their authority, and I'll end up getting hassled with who knows what results, handcuffs and a search of my person and perhaps even a few hours in jail before I'm let loose or bail out.
The one thing I don't do is reveal that I'm a lawyer (unless they ask for my occupation); in my experience, they take gratuitous revelation of that information as an effort to pull rank on them or to question their legal knowledge or authority and it produces hostility.
My basic presumption when dealing with the LAPD on the streets is that they are lawless and will do whatever they want. That presumption is based on my own experiences, and I believe it's by far the safest course to respond to LAPD officers with that presumption in mind. I'm sorry it's so, but that's the way it is. People have gotten shot by the LAPD in the most innocuous encounters, the police later claiming they saw a shiny object they though was a gun in the hapless victim's possession. Best to do what they want. If you want to take them on, do it later in a court.
On the other hand, don't produce your ID unless you're asked for it. Once, almost 40 years ago, I was stopped on Skid Row in downtown LA just after I left a client's home. I was fairly new to the big city and used to the sort of "social contacts" one has with the police in a small town. I made the mistake of getting out of my car and reaching into my inside jacket pocket for my wallet before the police asked me for identification. Although I was driving a new car and was cleancut and dressed in suit and tie, I found myself flattened by a flying tackle. The officers said they thought I was going for a gun. They gave me no apology, but I guess I'm lucky I wasn't shot. I never did find out why they stopped me; after they'd given me that bruising, they just let me go on my way.
Suppose there a crime has been committed down the street from from where I live and the police are investigating. I am walking my dog and the police attempt to stop me to ask me questions. A reasonable response might be to cooperate and provide what ever information you may have. But suppose you are trying to remain under the "radar' for some completely unrelated reason. Rather tahn talk to the police can I just invoke my right not to talk without a lawyer being present?. If I do so can this be considered obstruction? Or probable cause and then get arrested? For what? So what does my lawyer advise?
The surprising thing to me in all this is that the female officer -- one of the show's "good guys" -- was unmistakably threatening to falsely accuse the homeowner of resisting a lawful search if he didn't immediately stop making his verbal protest. It was also clearly assumed that the audience would endorse that conduct.
I'd bet if you ask 100 police officers the same question (presuming they don't know of the court case, and aren't aware of your purpose for asking), they would also say no... which is probably more telling as to whether a seizure has occurred. Seizure is not a "catch and release" sport. =)
Apropos of the original question, some further semi-hypotheticals to muddy the issue. Suppose when asked for ID, you supply your business card? How about a non-governmental picture ID with an alias you frequently use, such as an SCA persona? Or the business card of your SCA persona?
This is only semi-hypothetical, since an SCAdian acquaintance of mine accidentally did this when he realized he had no other ID; just his persona's business cards (with SCA AOA heraldic colors). Fortunately, this was done very close to Pennsic (unrelatedly the only known instance of a king declaring war upon himself and losing), where the cops are used to dealing with polite seasonal weirdos with only a tenuous grasp on reality and no interest whatsoever in what the current year might be. I was told that the cop asked a nearby herald to confirm that this was in fact the proper bearer of the coat of arms, recorded the persona name and arms blazon of each (since the herald also had no contemporary ID), and left... having better cans of worms to open.
Whit, if you think a "reasonable person" in a stressfull situation can tell the difference between those two statements you're nuts. It's morally wrong that that tactic is legal.
The other side of the coin on police stops: I was driving through a very nice section of town when an unmarked car flashed its lights to stop me. A scruffy man got out, flashed a badge and proceeded to tell me that he was letting me off this time but to be careful in the future. He never mentioned what was wrong and I became suspicious. I asked him for his ID and he flashed me his Ford Warantee card. I immediately took off and reported him to the police station at the end of the street.
Later on I found out that he was a police wannabe who had stolen a badge. He was reported to have "frisked" a woman on the same street I was on (Belle Meade Blvd in Nashville for those who know the area) and I testified at his preliminary hearing. If this had been a real cop, I may have had to call in my cousins who were all on the force to help out ;'}
This is the largest problem in this sort of case. The court has just provided a "drafting guide," if you will, for cops in their jursidiction.
The correct way to approach things as a police officer now is to phrase your first request for an ID extremely loosely. Even if your intention is to detain the guy no matter what, ask for his ID with sugar sprinkles on top. "I don't mean to be intrusive, but could you please lend me you identification for just one moment? Pretty please?" You only demand the ID and make an explicit seizure if you get a negative answer.
As a cop, you get a free shot at tricking the other guy into waiving his 4th amendment protections in every single encounter.
I'd like to see an addendum to the court's test: If an officer's conduct makes a reasonable person feel as though he or she could walk away, and he or she begins to do so, the officer cannot change course and make an explicit seizure. This would force the cops to commit to a seizure which will be subject to a test of reasonableness from the get-go, rather than being able to play fast and loose with the public.
I would not feel free to leave if an officer asked me politely to see my ID while I was walking.
Your argument that in your line of duty many people have failed to give you id is interesting but no more determinative than the fact that of the people on this blog only one person (who admits he's not reasonale) has stated that they would feel free to refuse. In fact, if I understand your comments correclty, your empirical data seems to show the opposite of what you are arguing. You said you have asked maybe a 1000 people for ID and "scores" have refused. By "scores" I assume you mean multiples of 20 but less than 100. Honestly, this number surprises me but if 900 people did as you asked and 80 refused to give you ID how is that proof that a reasonable person felt they could refuse your request. Seems to me like most people you approached felt exaclty like me and the rest of this thread. But maybe I misread your comment. Are you saying that most people you stop refuse togive you id or that it happens sometimes?
Whit, you sound like one of the good guys. I know lots of them and have even been treated very well in all but 2 traffic stops. The problem is that the expected value of asserting your rights with a normal cop is minimally positive, while it is maximally negative when dealing with a bad apple. I've had an officer lie in court and in statements about the conduct of a stop, but none of the conduct was recorded, so he said, he said, cop wins. I was also hassled for accidentally making a right turn on a red against a sign. It was 7am on a Sunday morning, the streets were abandoned, but he still did the full ticket and stop. It's a pointless sign, and a reasonable person would have just let me go, but he didn't. I'm now familiar with the area and the sign is useful during weekdays, but not having hour limits is not only pointless but is unique in the area for turn restrictions.
Police should have all conversations and interactions recorder at all times, via cameras integrated into their uniforms just like with most patrol cars. Eliminate the situation where all you have is an officer's testimony or notes. It is too easy and temptng to create crimes (especially federal ones) when there is no recording of an interview. That the FBI still does not record interviews is exceptionally disturbing, given the willingness of Federal Prosecutors to prosecute any mis-statement or short term misdirection of the FBI when the rest of their case goes away.
unlike the other poster, I understood your comments to mean that you have had thousands of contacts as a police officer with citizens and scores (or perhaps hundreds) have been "social contacts."
If this is your meaning, a few questions. Did you decide prior to contacting the citizens whether it was a "social contact" or a Terry stop? If so did you tell that to the citizen? If your answer to the first question is no, then that implies you are stopping citizens, and then only if they refuse you, deciding whether you have cause to "seize" them. If your answer to the first question is yes, and your answer to the second question is no, then clearly an RP should NOT feel free to walk away. Why? Because they don't know which contacts you believe you have cause for and which are just "social contacts."
On the other hand, if you comments meant that you have had thousands of "social contacts" with citizens and in only scores (or hundreds) have people refused you, that does say quite a bit about whether a reasonable person would feel free to refuse you.
The solution is simple, and I'm not the first one to suggest it: require the policeman to determine whether or not this is going to be a "seizure" beforehand, and then phrase the first thing they say as either clearly an order or clearly a request. Then make them stick to it. (Short of truly spontaneous self-incrimination; I don't want to make them release the idiot that pops out, "I've got to get these drugs delivered in five minutes.") And require sound and video recording for all such contacts, with the legal presumption that it's the contactee, not the cop, who is telling the truth about the encounter if somehow the recording is fouled up. Whit, sorry, but I've seen too many cops lie straight-faced to give their unsupported word much credence. Criminals lie even more - but if it's the government screwup that left it without confirmation, it should weigh against the government.