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.