The Real Definition of "Seizure"
Simple Justice:
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…