Co-blogger Jonathan Adler writes:

I have no problem with the idea that a seizure [under the Fourth Amendment] 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.

I think that this is exactly right. When I clerked on the US Court of Appeals for the Fifth Circuit , I saw numerous cases where citizens allowed police to conduct searches (and find incriminating evidence!) in situations where legal precedent allowed them to refuse. Moreover, if my own experience is at all typical, even some employees of the legal system are reluctant to "casually deny police requests."

Back in 2001, when I was clerking for the Fifth Circuit in Houston, I was pulled over by a police officer for a minor traffic violation (I thought I wasn't doing anything wrong, but the officer had a different view, and perhaps he was right). He asked me to show him my license, which I did. Unfortunately, since I was only living in Texas temporarily, I was still using my Massachusetts license. This wasn't good enough for the officer. "Son," he said, "you have to show me a Texas ID."

I suspected that it was not legal for him to require a Texas ID. After all, what happens if he stops a driver from another state who was just passing through? Would he be required to have a Texas ID as well? Nonetheless, I was VERY reluctant to get into an argument with a cop; after all, if I pissed him off, he could saddle me with a more expensive ticket, or worse. Instead, I showed him the closest thing I had to a Texas ID: my ID from the Fifth Circuit. "You work for the Court of Appeals?" the officer asked skeptically. Such a suspicious-looking character couldn't possibly be an employee of the criminal justice system! "Tell me the address of the federal court house," he demanded. After I told the officer the correct address, it dawned on him that I really was a court employee, and not a devious impostor trying to get away with traffic violations. Right away, the tone of the conversation changed, and I was let off with a mild warning (whereas before it seemed fairly clear that he was going to write me a ticket).

The episode shows the favoritism that police sometimes extend to fellow law enforcement employees. Although it had not occurred to me that I could use my exalted status as a law clerk to get out of a ticket, I later learned from other court employees that this kind of police behavior is far from unusual.

But the incident also suggests that even lawyers and others better acquainted with the law than the average person might be reluctant to challenge police demands - whether those demands are legal or not.