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.
Related Posts (on one page):
- Pragmatism and Fourth Amendment Law:
- Of Police Officers and Requests for ID:
- "I Would Like to See Your ID":
We are compelled to conform to the wishes of the cop on the street because we know the courts will support him 99% of the time. Even if the courts eventually side with us, we know the cops can keep us locked up for a while until the judge wakes up or decides to schedule court. Then we have to pay money and transaction costs to get the justice the judges and law professors claim we are all entitled to. And do we have to mention the difference between our rights on weekdays versus our rights on weekends when judges are not working?
It's a lot easier to just give the cop what he wants.
Of course, in most areas of life, we call this "Corruption" (defined as "undermining moral integrity"). Justice is blind, unless you know the secret handshake, right?
This is the kind of thing that makes us 'ordinary citizens' distrustful of the legal system. Justice is far from blind, and there doesn't appear to be anything we can do about it.
I'm applying to be a cop right now because that sort of cop makes me so... angry.
i think you are making a typical error here. it sounds like you are inferring that a person who allows police to conduct searches (and find incriminating evidence) proves somehow that they did not know they could refuse that search.
that is clearly NOT proven. it seems intuitive, and many people make the assumption (wrongly) that a person who has something to hide in the trunk (for example) and knows he can refuse a search - would refuse a search. therefore, if he agrees to a search, he didn't know he had the right to refuse. that's kind of tautological i think, and its also wrong.
sure, SOME people consent to search because they think they have to, but many will consent to search knowing full well they can refuse.
i have worked in jurisdictions (i currently do) where in many searches i must SPECIFICALLY tell people that they have the right to refuse the search AND the right to stop the search at any time.
and many STILL consent.
the reasons have to do with psychology, similar to why many people confess to crimes when it would appear (although it's not necessarily so) that confessing would be against their self-interests.
this is a very common fallacy. people assuming that nobody who knows they can refuse consent would allow a search that could get them in trouble.
PatHMV -- a fairly common mistake you're making there. The fundamental job of the police is not to protect us from crime, it is to catch criminals after a crime has been committed. The ability (and, I would argue, the interest) of the police in preventing crime is exceptionally limited.
The problem is not with the honest police, but rather, IMHO, with those cutting corners. That is a natural human tendancy, and no one should be surprised if there weren't police who did just that. And the stuff were are talking here is not really even white lies, but merely misdirection. I don't like it, but understand its origin.
Based on their opinions, wondering is not necessary.
I remember making much the same point as Elliot123 in criminal procedure, plus some flippant comment like, "well what good is having the right if practically you can't exercise it?"
Bonus flippant comment: I'm still waiting for a satisfactory answer for my original flippant comment.
This notion has one key flaw: it confuses the concept of averageness for reasonableness. Just because an average person would submit to a search in a given situation doesn't mean that a reasonable person would submit to a search in the exact same situation, particularly when that average person is contemplating the effect that such refusal will have on the ultimate outcome of his encounter with the police officer.
To me, the proper definition of a reasonable person is someone who knows his rights, is not afraid to exercise his rights, and does not feel coerced not to exercise his rights because of the potential negative consequences of doing so. Civil and human rights are there to protect us from harm, not to undo harm after it has already been done.
Apparently they were looking for drugs since there were drug deals in the complex. But I wonder, can they really demand a search and ID from everyone coming out of a suspected building? Maybe by law they can't, but unless we want to go through a hassle and maybe some bruises, I guess they can.
I think what frustrates me most is my capitulation. The best way to fight unjust searches and most authoritarian actions, is for us not to go along with them.
Why? Well you may be able to fool the judge, but you can't fool mother nature. So a lying engineer will be found out. A lying cop? Not so much.
Will D... Don't feel guilty about piling on, I'm a big boy and can take care of myself... especially when I'm right and all my critics are wrong. ;) We're talking about the response of the person being questioned in the context of what constitutes a 4th Amendment seizure or search. Thus, if you argue that the average person would feel "seized" by such an inquiry from the police, then in that context you are arguing that the police can not make that inquiry unless they have probable cause to seize the person.
K Parker... I agree that the distinction between asking your name and asking for your ID is a significant one. I might prefer a rule whereby the police cannot ask for your ID without articulable suspicion or some slightly higher standard.
To me, the proper definition of a reasonable person is someone who knows his rights, is not afraid to exercise his rights, and does not feel coerced not to exercise his rights because of the potential negative consequences of doing so.
Cops are taught how to intimidate. The cop has a gun. No matter what the cop does he will get support in court 99% of the time. And you are telling me it is unreasonable to be intimidated?
It would be nice if we brought back the idea of "peace officers". Of course given all the staus crimes we have the police must be enforcers not peace keepers.
The crack house is just the modern version of speakeasy. Breaking the law yes. Committing a crime no.
A lot of the bad policing we get is due to bad laws.
The crack house is a direct function of the laws. Just as the speakeasy was. If cops really wanted to reduce crime they would be speaking out agaist the drug laws. The way some spoke out against the alcohol laws. Law Enforcement Against Prohibition (LEAP) is not growing by leaps and bounds. In fact the Correction Officers Union in Calif. says we need more draconian penalties against drug users and dealers. They know which side of the bread has the butter.
Police are ENFORCERS and act accordingly.
All in all I'd say we are getting exactly the government we are asking for.
BTW police are the enforcers of disorder. Without enforcement there would be no profit in being a drug criminal. Enforcement is exactly what makes drugs so profitable. You would have to be blind not to see that. Of course willful blindness may be a job requirement for enforcers. As they say in the Mafia. It's just business. - Not to be confused with justice.
How about the old fashioned way.
You know. Like evidence of a crime. Or fit the description? Which does not mean "fit the profile". (Like driving too fast. Or driving too slow. Or following the driving laws scrupulously. All of which the courts have allowed as reasonable grounds for suspicion to search a vehicle.)
Fortunately in engineering the standards are not so flexible. Otherwise you would fear to get on an airplane.
this is a very common fallacy. people assuming that nobody who knows they can refuse consent would allow a search that could get them in trouble.
This is quite true. Recently, a gruesome assault and murder in my area was solved when the perpetrator -- who was not particularly a suspect in the crime -- voluntarily gave a DNA sample a year after the murder as part of a "sweep" in which lots of men in the community were asked to give DNA. I remarked how strange that was to a friend who used to be a law enforcement officer, and he reminded me that it happens all the time.
The analogy I'd make is sexual relations between a guardian and a minor - it's never really consensual, no matter what the guardian may claim.
If he refused, maybe he felt the magnifying glass would have been focused on him as being a sole objector and he would have had to submit the sample eventually.
No, I do not think it is unreasonable to feel intimidated in a particular circumstance. My definition of reasonable person is an ideal type as opposed to a real world type.
This goes back to my distinction between an average person and a reasonable person. The courts seem to be enforcing standards of averageness as opposed to standards of reasonableness.
Is it unreasonable for a person to confess to a crime that he didn't commit after being "physically coerced" by the police to do so? I say no, the average person would likely accede to the police officer's demand of an admission of guilt simply to stop the pain.
However, is this the definition of reasonableness that we want our courts to apply when determining if someone's rights have been violated? Again, I say no. The courts must use a definition of reasonableness that assumes no intimidation and/or coercion on the part of law enforcement because, otherwise, a person is not genuinely free to exercise his rights. This exists regardless of whether or not it is reasonable for a person to feel intimidated during an interaction with a police officer. The use of intimidation by the police should be regarded as prima facie evidence that a person's rights have been violated when the police have no probable cause to search someone or their property. And even when probable cause exists, intimidation and/or coercion should only be allowed to the extent that the police believe a person is a danger to others.
You mean, a reasonable person is a person who doesn't exist?
More to the point, why is it not reasonable to contemplate the outcome of refusing to comply with the officer/office's request/order? It's rational cost benefit behavior, fitting the "Governed by or being in accordance with reason or sound thinking" defition for "reasonable" out of the American Heritage Dictionary... and as it's the behavior of an average person, it fits the "being within the bounds of common sense" definition too.
It's hard to respect the "rule of law" that law is the accumulation of hundreds of years of precedent ignoring lay meaning of common words ("search", "seizure") and characterizing common &rational behavior (like doing whatever the badge, the gun, and the handcuffs ask you to) as unreasonable.
You've got to be kidding me. I have a post graduate education, (not a legal professional) with an interest and some reading in civil liberties. Until I read this series of posts I had NO IDEA that you could refuse a request for ID and walk away (not to mention the fact that I'm in agreement with a number of posters that point out that that refusal will probably meet with retaliation so how "real" is the right). In any case you seem to be defining a "reasonable person" as someone who has gone to law school.
This topic interests me, I think I'll take a straw poll and report back. It will be good to know how many of my collegues are "reasonable" by your definition.
I believe a response to your post is provided by my post directly above yours.
BladeDoc:
My contention is that courts should consider it from both sides. As I said in my second post, the use of intimidation by the police should be prima facie evidence that a person's rights have been violated if there is no probable cause to search them. However, if someone willingly provides the police with permission to search them or their property, without intimidation from the police, a court should assume, in most situations, that the person willingly waived his right to refuse.
Of course, inherent in this argument is the question of, can anyone not feel intimidated by the police in present day America, especially if you are a minority or an alien? If you are not a person of position in this country, then the answer to that question is almost definitely no. So, even if the court assumes that someone fully knows his rights, it would still have to declare that his rights were violated because he was not in a position to really exercise his rights and to say no to the police.
If the court says that it is reasonable for someone to buckle under a particular situation and they take that as the standard by which to judge a reasonable person, then that places all of the cards in the hands of the police and the state. As opposed to saying that a reasonable person (i.e. someone who knows his rights and would not hesitate to exercise them) would have refused to co-operate in a given situation.
Perhaps a better term than reasonable person would be something from my economics training: a rational person.
Alkali, are you referencing the Truro [Cape Cod] garbageman? If I remember, that is a very small town, so I think he was hoping for a negative reading or time to slip away. If he refused, maybe he felt the magnifying glass would have been focused on him as being a sole objector and he would have had to submit the sample eventually.
Yes. It surprised me that (1) he didn't find some reason to move out of the area in the year after the murder and (2) he couldn't generate some reason, however farfetched, not to voluntarily take a DNA test that would almsost certainly implicate him in a murder. ("It's against my religion." "I'm scared that the CIA will keep me in a database." "I don't trust DNA.")
bretzky,
You seem to be missing the point. the question is "would a reasonable person feel it is ok to refuse the officer's request for ID or would they feel compelled to give in to the request" If a reasonable person would feel compelled then the police aren't allowed to ask for the ID to begin with because it would be considered a "seizure" under the 4th amendment (I am oversimplifying here but I think I am setting forth the gyst of it). For these purposes "reasonable" and "average" are supposed to mean pretty much the same thing. By overestimating the fortitude of the average citizen in their willingness to stand up to the police, the courts are eroding our 4th amendment rights. The more situations where they determine a reasonable person would have felt free to walk away from the police the less often they will find the police behavior to be an impermissible seizure under the fourth amendment.
I feel that some are approaching this too academically, and forgetting how all of this plays out in the real world. What many here seem to be advocating is that if a cop asks you a question, and you didn't know you could refuse to answer, and you thereby incriminate yourself, you should therefore automatically get off with your crime. Where does this "gotcha" mentality come from? Why do so many here so more readily identify with the criminal than with
those trying to protect us?
I note, too, that the legal standard being discussed applies only to whether an action constitutes a seizure. That, of course, is only half the equation. What the Constitution protects us from is only unreasonable seizures.
I'm not remotely saying that every cop is a good one, or that every police interaction is positive and professional. I'm just kind of surprised and disturbed to see so many so ready to attack law enforcement, and so willing to torture the Constitution to let let the guilty go free -- as long as it means "sticking it to The Man."
I think it's my economics training kicking in. My point seems to be more geared towards a rational person instead of the idea of reasonableness.
In other words, the courts should assume that a person both knows and would exercise his rights to say no to the police. If the person fails to do so, then the court should make a presumption that something caused that person not to do so (e.g. the police officer intimidated him, he was somehow mentally incapable of exercising proper judgment at the time, etc.). In such a case, the onus should be on the state to prove that it did not violate the person's rights, which should necessarily be a very difficult thing to do.
(NOTE: Having re-read my original post, I can certainly see how that was not clearly understood by other posters. Haste makes waste.)
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?
Although, I disagree on the giving the state all the cards, for reasons similar to jallgor's. Also, I look at it as if it's reasonable for an innocent person to submit to a search or seizure absent probable cause, or if complaining that the officer's questions/conduct are intrusive constitutes probable cause, then the search/seizure was, in my mind, prima facie unreasonable. Basically, I don't think the reasonable response to intimidation should have to reach the severity of false confession.
Spoons, it isn't about letting the guilty go free, it's about doing what the 4th Amendment's supposed to do: protect the innocent from investigation, interference, or intimidation by the state.
The preservation of rights necessarily involves the continuous suspicion of government's intentions.
Suppose a cop asks someone standing on the street if he can search his pockets and the cop has no probable cause to suspect the person of having committed a crime. The person, feeling he has no ability to say no for fear of arrest, agrees to the search and the cop finds stolen merchandise on him. Most people would say good, send him to jail.
However, assume the same situation, only the cop plants the evidence on the person. Or, the person the cop planted the evidence on was specifically chosen for the anti-government rhetoric and otherwise lawful protests that he engages in.
Holding the line against the abuse of this type of search and seizure when directed at the guilty provides a stronger barrier against its use against law abiding citizens for whatever reason the state might want to abuse it. And the police are without doubt exercisers of state power.
Our constitutional rights are not likely to be swept away in one fell swoop in America. If they are ever to be undermined, it will be in an incremental fashion that first takes advantage of the most at risk members of society, which includes the actually guilty.
The stop was probably not made in order to issue a ticket (Mr. Somin states that he was stopped for an offense where he didn't think he was doing anything wrong), but rather to see what he could find. Once he realized that Mr. Somin was a "good citizen" he can let him go with a warning and go trolling for someone w/drugs/warrants/suspended license again.
You are looking at it all backwards. The question is whether the cop was constitutionally permitted to conduct a search (by asking for ID) or seizure (by temporarily detaining the citizen) to begin with. The issue is: did the officer violate the citizen's rights simply by walking up and asked for ID. It is not about whether he intimidated the person into not excersizing his right to refuse.
The courts have decided that the definition of a "seizure" is when a reasonable person feels they are not fre to leave. So a cop can do anything he wants and it wont be demed a search or a seizure until he crosses the line where a reasonable person would feel he was no longer free to leave. What is that point? Do you need to be handcuffed before you feel you are not free to leave? In my opinion I never feel that I am free to walk away from police officer when they have approached me.
If the average citizen would feel that they are not free to refuse the cops request for ID then the request itself is unconstitutional (at least under the scenario where there is no cause for asking). By assuming that every reasonable person knows they have the right to refuse the search and is ready to excersize that right you end the debate right there because under your definition the cop can always ask for the ID because he is not "seizing" anyone by doing so. But if you start with the premise that most people would not feel comfortable saying no to the cop then, under the current state of the law, the cop can't ask for the ID to begin with.
Cecil, yes you have the right to walk away or refuse to speak without a lawyer but I think the general theme to this thread is that it's probably a bad idea to take that course of action unless you have a really good reason for doing so.
I suppose I'm looking at it from the judge's point of view and not the person being approached.
As I said, the court should assume that every person would refuse in a given situation to comply with the officer's request. By the person actually complying, the court should force the state to prove that it did not intimidate or coerce (or seize if you will) the person into complying with the request. And yes, the mere action of asking for ID or for permission to search can be construed as intimidation (or seizing) if the person reasonably fears immediate negative consequences for failing to comply.
My point ultimately is that the state should have to prove that it did not do something that violated someone's rights instead of the accused having to prove that the state did.
I'm not sure where you get the idea that the 4th Amendment is supposed to protect the innocent from investigation. I guess it'd be great if the police only investigated the guilty. Of course, if they knew how to do that, then I guess they wouldn't so much need to "investigate" anymore.
The 4th isn't really designed to protect you from "intimidation", either. If a person is intimidated by a cop walking up and speaking to them, I'm not sure that's a problem of constitutional dimension. If the squad car screeches to a halt in front of you and TJ Hooker jumps out and draws his weapon and demands, "Put your wallet on the ground and kick it over here," that's one thing. If the officer walks up to someone and says, "Excuse me. Can I ask you your name and what you're doing here," and you volunteer that I'm Mr. Active Warrant and I'm here to buy crack, that's something else entirely.
Interference? Naw. The 4th prohibits unreasonable searches and seizures. If they don't seize you, or they're not unreasonable, then interference isn't a constitutional issue either.
If you aren't free to walk away without consequences, you've been seized. If they have no probable cause or "articulable suspicion" the search is unreasonable.
Yours, TDP, ml, msl, &pfpp
What people here are trying to tell you is that they may know that the courts say they have the right to refuse, but they don't believe the police will allow them to refuse. They believe that if they do refuse, something bad will happen to them.
It doesn't matter if I'm told, "You have the right to say no." I figure that if I do, the police won't shrug and let me walk away; they will use that as an excuse to escalate the situation and make it take even longer for me to go on my way again.
You want to claim it's "psychology" -- that is, something along the lines of "people consent because they don't want to look guilty." But that's not it at all. It's "People consent because they don't want to be treated as if they're guilty." That's particularly true in automobile stops where (not to sound all Ayn Rand here, but) it's impossible not to have violated the law, since they're written so broadly and vaguely and police have so much discretion. If I say, "No," at best I'll get a ticket for something; at worst I'll get multiple tickets and be detained for a long time.
Dead on.
Got it.