Pragmatism and Fourth Amendment Law:
My co-bloggers' posts about the Fourth Amendment test for when a person is "seized" brings up some really interesting questions about the nature of Fourth Amendment law and criminal procedure more generally. In particular, I think provides a helpful demonstration of the pragmatic nature of Fourth Amendment doctrine.
As my co-bloggers point out, Fourth Amendment doctrine teaches that a person is "seized" by a police officer when a reasonable person in his situation wouldn't feel free to leave. But the courts always apply this test in a very weird way: the reasonable person is assumed to be innocent person who has no fear or even anxiety about interacting with the police. As a result, the courts say someone is not "seized" even when we all know that a reasonable person in their situation would not feel free to leave. In the cases, a reasonable person would only feel they can't leave if they are stopped, or the officer tells them they can't go, the officer threatens to use force, or something like that. What gives?
I think the explanation for the odd test is consequentialist, and reveals a lot about the pragmatic nature of criminal procedure law. The background legal rule is that the police can only conduct a "seizure" with some kind of cause, such as reasonable suspicion or probable cause: if the police seize something without cause, the fruits of the seizure are suppressed. With that background test in mind, let's try to come up with a test for when a person is "seized."
A textualist approach might be to say that a person is seized when he is physically grabbed, such as by arresting him. But is you take that narrow definition, you run into a problem: it means that the police can do anything to stop someone's movement short of actually grabbing them without triggering any legal oversight. No seizure would occur, so the police could do it whenever they wanted. That gives the police too much power, right? In particular, it doesn't account for all the times that a person is functionally stopped by a reasonable fear of police action: If officer A points a gun at suspect B and yells "freeze!," a person might reasonably feel like they are "grabbed" even though no force has been used against them. Does that mean they weren't actually "seized" at that point? Seems weird to say so.
So what other test could be used other than an "actual grabbing" rule? Well, you could look at things from the standpoint of a reasonable person, and ask whether that reasonable person would feel free to leave. That covers the "freeze" case, but it also presents a problem: by its terms, it probably covers nearly all police-citizen interactions. Most people feel like they have to do what a police officer says; most feel that if a police officer walks up to them and starts asking them questions, they're not allowed to just walk away. Sure, it would be crystal clear if the officer pulled out his gun and yelled "freeze!", but for most people the mere fact that the person is a uniformed officer is enough to get them to feel they need to comply.
Why is that a problem? It's a problem because it would make it unconstitutional for the police to just walk up to people on the street and start asking them questions. Most people feel they can't leave in such situations, so they would be constitutionally "seized" without a warrant; asking questions of someone without at least reasonable suspicion would be an unlawful seizure. But that's a bad rule, because we want the police to be able to ask questions to try to solve crimes; it's an essential technique, and although you might want to limit it (as in Miranda) you wouldn't want to end it outright.
So what to do? One approach would be to articulate a very specific test that encompasses the desired results. For example, you could say that a person is seized when an officer "physically impedes the person's motion, shows a weapon or otherwise threatens force, or verbally indicates to an individual that they cannot leave." In other words, you could actually catalog the set of circumstances in which you think Constitutional protection should apply, and cause should be required. But this gets messy pretty quickly. The facts of cases are endless diverse, and the list of circumstances would have to be really long to be remotely complete. It's not so easy to write that out as a constitutional rule.
Again, what to do? The Supreme Court's solution to this problem was to take the simplicity of the "reasonable person" approach and tweak it to get the desired results. Formally speaking, the the test is whether a reasonable person would feel free to leave. But then the Justices invented an odd sort of imaginary "reasonable person." Formally speaking, the Court's way of getting to this result is to say that "the reasonable person test presupposes an innocent person," Florida v. Bostick, 501 U.S. 429 (1991), but of course the test does more than that: This imaginary reasonable person generally feels free to leave unless the police show force, tell him to leave, or physically get in his way. Who is this reasonable person? Cynically speaking — although not inaccurately, I think — he's the person who needed to be imagined to create a useful set of legal rules governing police conduct.
These sort of dynamics explain why just as there are no atheists in foxholes, there are no constitutional theorists in criminal procedure.** For the most part, the doctrine is not arising out of text, or history, or natural law, or First Principles of Immutable Justice. Rather, it's arising out of a need to impose a set of reasonable limits on police practices given a few basic guideposts of doctrine and the common facts of police investigations. This dynamic occasionally leads to doctrinal tests that sound like they should work one way but actually work quite differently in practice.
** To be clear, there are in fact both atheists in foxholes and theorists in criminal procedure. My point is that experience with the law in this area tends to make it hard to be a theorist, not that it's impossible.
As my co-bloggers point out, Fourth Amendment doctrine teaches that a person is "seized" by a police officer when a reasonable person in his situation wouldn't feel free to leave. But the courts always apply this test in a very weird way: the reasonable person is assumed to be innocent person who has no fear or even anxiety about interacting with the police. As a result, the courts say someone is not "seized" even when we all know that a reasonable person in their situation would not feel free to leave. In the cases, a reasonable person would only feel they can't leave if they are stopped, or the officer tells them they can't go, the officer threatens to use force, or something like that. What gives?
I think the explanation for the odd test is consequentialist, and reveals a lot about the pragmatic nature of criminal procedure law. The background legal rule is that the police can only conduct a "seizure" with some kind of cause, such as reasonable suspicion or probable cause: if the police seize something without cause, the fruits of the seizure are suppressed. With that background test in mind, let's try to come up with a test for when a person is "seized."
A textualist approach might be to say that a person is seized when he is physically grabbed, such as by arresting him. But is you take that narrow definition, you run into a problem: it means that the police can do anything to stop someone's movement short of actually grabbing them without triggering any legal oversight. No seizure would occur, so the police could do it whenever they wanted. That gives the police too much power, right? In particular, it doesn't account for all the times that a person is functionally stopped by a reasonable fear of police action: If officer A points a gun at suspect B and yells "freeze!," a person might reasonably feel like they are "grabbed" even though no force has been used against them. Does that mean they weren't actually "seized" at that point? Seems weird to say so.
So what other test could be used other than an "actual grabbing" rule? Well, you could look at things from the standpoint of a reasonable person, and ask whether that reasonable person would feel free to leave. That covers the "freeze" case, but it also presents a problem: by its terms, it probably covers nearly all police-citizen interactions. Most people feel like they have to do what a police officer says; most feel that if a police officer walks up to them and starts asking them questions, they're not allowed to just walk away. Sure, it would be crystal clear if the officer pulled out his gun and yelled "freeze!", but for most people the mere fact that the person is a uniformed officer is enough to get them to feel they need to comply.
Why is that a problem? It's a problem because it would make it unconstitutional for the police to just walk up to people on the street and start asking them questions. Most people feel they can't leave in such situations, so they would be constitutionally "seized" without a warrant; asking questions of someone without at least reasonable suspicion would be an unlawful seizure. But that's a bad rule, because we want the police to be able to ask questions to try to solve crimes; it's an essential technique, and although you might want to limit it (as in Miranda) you wouldn't want to end it outright.
So what to do? One approach would be to articulate a very specific test that encompasses the desired results. For example, you could say that a person is seized when an officer "physically impedes the person's motion, shows a weapon or otherwise threatens force, or verbally indicates to an individual that they cannot leave." In other words, you could actually catalog the set of circumstances in which you think Constitutional protection should apply, and cause should be required. But this gets messy pretty quickly. The facts of cases are endless diverse, and the list of circumstances would have to be really long to be remotely complete. It's not so easy to write that out as a constitutional rule.
Again, what to do? The Supreme Court's solution to this problem was to take the simplicity of the "reasonable person" approach and tweak it to get the desired results. Formally speaking, the the test is whether a reasonable person would feel free to leave. But then the Justices invented an odd sort of imaginary "reasonable person." Formally speaking, the Court's way of getting to this result is to say that "the reasonable person test presupposes an innocent person," Florida v. Bostick, 501 U.S. 429 (1991), but of course the test does more than that: This imaginary reasonable person generally feels free to leave unless the police show force, tell him to leave, or physically get in his way. Who is this reasonable person? Cynically speaking — although not inaccurately, I think — he's the person who needed to be imagined to create a useful set of legal rules governing police conduct.
These sort of dynamics explain why just as there are no atheists in foxholes, there are no constitutional theorists in criminal procedure.** For the most part, the doctrine is not arising out of text, or history, or natural law, or First Principles of Immutable Justice. Rather, it's arising out of a need to impose a set of reasonable limits on police practices given a few basic guideposts of doctrine and the common facts of police investigations. This dynamic occasionally leads to doctrinal tests that sound like they should work one way but actually work quite differently in practice.
** To be clear, there are in fact both atheists in foxholes and theorists in criminal procedure. My point is that experience with the law in this area tends to make it hard to be a theorist, not that it's impossible.
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 question arises. Is there any empirical research that goes to what percentage of people are like the "reasonable person" used by the 4th Amendment?
You're absolutely right that the courts are twisting the traditional notion of a "reasonable person" to get the right results here, but I think you've got the order of operations wrong. Specifically, you note that "The background legal rule is that the police can only conduct a 'seizure' with some kind of cause, such as reasonable suspicion or probable cause," and your analysis presumes that that legal background is fundamentally sound.
But it isn't. The Fourth Amendment only protects against "unreasonable ... seizures," not all seizures without "some kind of cause." So there seems to me no reason why a police officer should not be able to "seize" someone, without suspicion, for a *brief* conversation (rather than a prolonged confrontation). And the standard could then comport with the traditional reasonable person analysis---would a reasonable person think the seizure unduly long or combative given the cause for seizure? Isn't that just a better approach then twisting the language?
LEO [flagging down a person on the street]: Pardon me, sir. I'm conducting an investigation into a recent crime, and I'd like to talk to you for a few minutes. You're not required to, but can you help me out?
...or somesuch friendly banter (you catch more flies with honey, etc.).
Such a spiel would make clear that the person didn't have to stop and talk and that they were never "seized." Then the courts could apply a standard more like what laymen think when they hear "reasonable person." I.e., people would then be presumptively seized when stopped without such a "warning." Exigent circumstances and other exceptions already built into the search aspects of the 4th Amendment would provide similar exceptions in these cases.
Note that I'm not agitating for a required Miranda-style warning but, rather, a policy of notification. This is much like the consent search forms that many jurisdictions are now using to guarantee that people understand that when the police ask if they can search you or your property that that are, in fact, asking and not requiring compliance. It seems to me that a stricter application of the reasonable person standard would have prompted this mode of operation to arise on its own just like the ambiguities about whether the consent was informed and voluntarily given has in the case of searches.
Maybe police do actually do this already but mostly only in the cases where they want a person to come with them to another location and have a chat. That's the way it's often portrayed on TV and in the movies, but I certainly have no experience to inform me about what happens in the real world (whit? any comments?). It seems that adding this to on-the-street conversations where there's even the glimmer of thought in an officer's mind that the person might become a suspect or, via identification, incriminate himself would immunize the police from any worry about whether the person was "seized." And besides, dumb people and the innocent will still mostly consent to stay and talk, so what's two extra sentences of introduction?
It seems like the best way to make a reasonable person would be to NOT tweak the standard to get the results you like, and let the chips fall where they may. What? The police might have to change the entire way they do police work? Oh, well surely hell and brimstone would follow, and the entire country would be plunged into chaos, just like happened after the adoption of Miranda warnings, the case that guaranteed counsel for indigent defendants etc. Oh, that's right, hell and brimstone didn't follow after those cases, despite the dire predictions of law enforcement types and DAs.
And neither would hell and brimstone follow the adoption of a true reasonable person test. What would happen is if officers didn't have a reason to detain, they would start the questioning by telling a person they were free to leave (what happens in my jurisdicition when they interview at the police station). They would be careful to mention this as the first thing on the recording. They would also mention that the door was open (if the interview happened in a building or a cop car). Or that they were free to walk off if the interview happened in the street. And life would continue much as it does, with the exception that a right would be recognized more than in name only.
Orin, why can't this be the rule, which would then place the burden on the police to tell the person upfront they can leave?
Thing is, when you have a situation of "Fourth Amendment doctrine teaches that a person is "seized" by a police officer when a reasonable person in his situation wouldn't feel free to leave. But the courts always apply this test in a very weird way: the reasonable person is assumed to be innocent person who has no fear or even anxiety about interacting with the police. As a result, the courts say someone is not "seized" even when we all know that a reasonable person in their situation would not feel free to leave." it's hard as a layperson to think the law's all that legitimate. Especially since a similar not really-accurate treatment of "reasonable" shows up in other areas, like violation of privacy torts. Does anyone really think the Video Voyeurism Prevent Act would've been needed if there weren't so many publicized cases of violation-of-privacy lawsuits getting tossed with a duckspeaking of "reasonable people have no expectation of any sort of privacy in public"?
And this isn't the only delegitimizing aspect of 4th Amendment law, at least if you go with a lay definition of "search". That cases like [i]United States v. Place[/i] or [i]United States v. Knotts[/i] can say a deliberate act with the intent and effect of gaining information about a person doesn't constitute a "search"... hard to respect that. Or if you think that when you give information about yourself to a specific person or organization for a specific purpose, that information should go nowhere else and do nothing else, it's hard to respect the Third-Party Doctrine as legitimate.
Yes, Professor Kerr, 4th Amendment law is all pragmatic. Downside's that a lot of times it doesn't seem particularly well-grounded in real people's experiences, in logic, or in a strong desire to protect innocent citizens from the state.
A "reasonable person" is one who's presumed to know that he can always ask, "'Yes' or 'no,' please -- Am I free to leave?" If the answer is "Yes," then he's not under arrest. If the answer is ambiguous, he can attempt to leave until resisted, in which case he then knows that he is indeed under arrest.
I agree that most people don't know this. I agree that even many people who do, don't behave accordingly. But almost anyone can understand it. And there's no reason it shouldn't be taught as part of high school civics. And in practice, it does produce clear answers: You either get to leave, or you don't (meaning you were under arrest).
It is just replacing one legal fiction with another one.
To ameliorate some of the inevitable caterwauling about imposing another rigid Miranda-like warning requirement that sets criminals free, billb's approach above could help:No doubt some robhers as well as some cops would try some clever legal end runs to game the rule in practice. But That's true for any rule, no matter how reasonable.
... and is not late for an important meeting.
I generally know what my rights are, and if I have been seized or not. I also know that in any human interaction, not just in a police-citizen interaction, things go on unexpected directions depending on very subtle visual, auditory, even olfactory inputs. When stopped by a policeman, I invariably assume that I have the freedom to leave, and also invariably choose to remain and courteusly cooperate. This approach has served me well with police forces ranging from Franco's Spain to Communist China to Democratic but rules-driven Germany and even the Bronx.
What I find interesting about this series of posts is to see legal types trying to define a very simple concept which is, unfortunately, indefinable. We have reached the limits of the Law, and if we try to go any further (like the poster that wants to come up with a Miranda-like wording for each police-citizen interaction) we'll only screw things up even worse than they are.
Orin. That strikes me as a straw man. As you know the mechanism of 4th amendment protection is the exclusionary rule. It is by no means obvious that if the police question person A leading to information material to the prosecution of B that B should necessarily be able to invoke the exclusionary rule against A's conversation with the police.
A's conversation with the police might be probable cause, but nonetheless in a prosecution, A will have to testify. In which case there has been no seizure of 'A' that's relevant to the case at hand.
On the other hand a prosecution of A should raise questions regarding the admissibility of the conversation.
I favor a statement 'you are free to..'. This would improve matters. Nothing will work everytime.
The authority of the police varies with the situation. At times an officer has almost no right to ask that anyone do anything. At other times disobeying may be criminal.
The 'reasonable civilian' had better know which applies. Usually it is clear but sometimes the police know and the civilian does not. And sometimes the police think they know but do not.
e.g. Orders by police at a drunken party scene or fight.
Police directing traffic at the scene of wrecks or constuction or spills, etc. They can tell motorists to drive the wrong way on a one-way street or ignore that no left turn sign. Better not park along that green curb when told otherwise. Pedestrians may be ordered not cross the street or be ordered to cross it.
Most people will grasp what law applies. Only the oddest will claim a right to ignore police in every situation.
But when face to face with an officer even the legally adept may be unsure of what is - as they say on TV 'going down'.
Take, for example, a DUI stop. The officer doesn't yet have enough probable cause to effect an arrest, and in order to possibly generate it, he asks the driver to get out of the car and perform a roadside sobriety test. The driver does so, fails, and the officer arrests him based on the failed test as probable cause.
But, what happens if the driver is not allowed to leave unless he takes the roadside sobriety test? He is then under arrest, and is due his Miranda rights. Anything that he says or does until given them is suppressable. And there goes the probable cause for the arrest.
The way that this is often finessed by the police is to ask the driver to exit his car. This may be done in a tone of voice that would normally be attributed to an order instead of a request, but if the conversation isn't being taped, BFD. When the driver then gets out of his car, it is then consensual, there is no arrest (yet), and Miranda isn't applicable.
My point here is that what is most important here is the admissability of the evidence gathered during the quasi-contact. The delimma is how to gather this information without triggering an "arrest" and all that entails. If no evidence is gathered that could be used against the interviewee during an interview, then this whole discussion is moot.
But maybe what Orin is trying to get at is that if you assume that the reasonable person is innocent, then he would likely be willing to help the police when approached. So, they wouldn't likely take a request for information or to take a roadside sobriety test as an order, but as a request.
But that presupposes that the civilian interacting with the police trusts them. That is decidedly not the case in some minority neighborhoods, regardless of guilt or innocence. I would also suggest that it isn't the case for many, if not most, late teen and 20 something males. Rather, it is the attitude of the average middle aged or older member of the upper middle class, which is coincidentally, the demographic of the Supreme Court.
i disagree. not only i do not "know" this, i believe the exact opposite.
everybody on this seems to believe that if a cop walks up and talks to you (or some member of the lumpen proletariat street people (tm)) that this is inherently intimidating and this person would not feel free to leave.
the tradition of the footpatrolling beat cop etc. is to TALK to people. fortunately, the courts REALIZE this and do not view every "social contact" by law enforcement as some sort of seizure.
cops, including myself, use this type of language FREQUENTLY. while i don't think, nor does federal case law, that it should be REQUIRED to establish a social contact vs. a terry stop, there are situations where this extra caution is a good idea by the cop.
case example: i had a case where i had just served a protection order on a guy i suspected might have committed a series of arsons. i certainly had no probable cause or reasonable suspicion to detain him. i told him that i would like to talk to him about it, told him he was not under arrest, free to leave, etc. and the guy agreed to follow me in his own car to the PD for an interview. he eventually confessed to several arsons, burglaries, etc.
in cases like THAT - clearly, cops want to go the extra mile to ensure that the interview or interrogation is non-custodial (also, for the purposes of not having to mirandize). other factors are having the guy sit near the door and you sit on the other side, so he doesn't have to walk past you to leave the room, providing him with food and water (mcdonald's in this case), etc. etc. etc.
similarly, i used to work in Hawaii, where it was REQUIRED in 'walk and talks' at the airport that before you did one - you had to tell the person specifically that he was free to leave and free not to talk to you. that's fine, since the case law was based on the HI state constitution etc.
but the idea that the federal constitution somehow should require cops to tell everybody they want to have a conversation with that they are free to leave, etc. is neither constitutionally required nor (imo) good policy.
conversation =/= seizure regardless of what people here think
no driver is free to leave in ANY traffic stop. an officer can (AND DOES) detain the driver in any stop - whether DUI related or not.
if a person refuses to take the FST's that is entirely within their rights. in fact, in my jurisdiction, we MUST inform people that the tests are "voluntary" and they are free to refuse them.
most still take them.
but a person's refusal to take the sobriety test CAN add to the totality of circumstances that establish probable cause for arrest.
assuming other indicia of impairment, the fact that a person refuses the FST's can be taken as an element of probable cause. he is certainly NOT required to take the tests, but his decision to refuse can add to the factors that establish probable cause.
also, generally speaking (it varies by jurisdiction), whether or not one is a custodial arrest situation (where miranda applies) or a mere detention (where it doesn't), miranda is not required prior to FST's since FST's are not 'testimonial" evidence.
if a person is under custodial arrest, and you ask them how much did they have to drink - that's a miranda issue. since that's testimonial. FST's are not
Given that these posts started with the fact that the talk involved requesting ID, a fair assumption is that the officers are not discussing the weather or performing community outreach.
Anytime a officer is asking for something that I would not typically give to any passerby, I'm not going to think I am free to wander off.
fwiw, i generally prefer (on a social contact) to ask for the person's NAME vs. asking for their id, although the latter is permissible (with a few exceptions) as long as you give it back quickly.
often, when asking for a person's name, somebody will give you their ID without prompting fwiw.
but it is definitely a step below asking for actual ID - merely saying "what's your name" and often the latter will accomplish the same result.
Is that based on a sense of federalism, states' rights, federal requirement would be too rigid or screwy for some states, or what?
as i am sure you know, any state constitution can recognize additional or more extensive rights than the federal one does. no state can restrict a right guaranteed under the fed. constitution of course - although as a practical matter i see this happen all the time - see chicago and NYC handgun laws for instance.
for example... my state (WA) specifically says that citizens have a right to privacy. the federal constition does not. the 4th amendment says no unreasonable searches and seizures, etc. but our constitution goes much further. and that's fine. that's a state's rights issue. because of this, WA state LEO's are more restricted in search and seizure than federal ones - or those of most states.
another example is that my state is much more explicit in the right to bear arms aspect (personally, i think the 2nd confers an individual right, but our constitution makes it much more explicitly clear). btw, i think the VAWA causes blatant federal encroachment of states rights as well as the constitutions right to keep and bear arms, but i digress
any legislature can pass laws to restrict police, and any state can also pass constitutional amendments to recognize more expansive rights.
i strongly disagree with INVENTING rights or restrictions of police procedure based upon what we wish our constitution said.
i see nothing in the constitution to require any social contact by police to have warnings like "you are free to go" etc.
for the reasons given.
If the answer is ``no,'' then the courts say you can walk away.
2. "i see nothing in the constitution to require any social contact by police to have warnings like "you are free to go" etc. " I think the points being made were (1) it's good policing, quite cuts off the argument that the person was really under arrest at the time and (2) it would give something of a demarcation as to when a person was under arrest.
In many a situation you have things steadily escalating. The officer starts out without probable cause (a traffic stop), becomes suspicious (odor of alcohol), suspicions grow (unsteady when getting out of car, bloodshot eyes), and are capped (flunks field sobriety tests). At some point in that chain the officer has decided that the person is not free to leave (i.e., if he refuses FST, there is going to be a formal arrest anyway), and it's probably somewhere before the officer verbally announces he is under arrest.
I'm not sure, in that situation anyway, that starting with a statement the person is free to leave is going to clarify just where the arrest occurred, except that it didn't exist at the outset.
"In many a situation you have things steadily escalating. The officer starts out without probable cause (a traffic stop),"
does not need pc for a traffic stop. needs reasonable suspicion - of an infraction or crime.
"becomes suspicious (odor of alcohol), suspicions grow (unsteady when getting out of car, bloodshot eyes), and are capped (flunks field sobriety tests). At some point in that chain the officer has decided that the person is not free to leave"
wrong. upon making the traffic stop, the subject is not free to leave. that is the very essence of a traffic STOP - it is a stop, a seizure.
what you MEAN to say is that when and if a officer establishes probable cause of a crime he can extend the detention as far as a 'custodial arrest'
i have seen people make this mistake over and over (in other threads as well)
let me clarify for you that there are essentially three levels
1) SOCIAL CONTACT - no PC or RS needed. subject is free to leave
2) stop/seizure - somebody is not free to leave, but this is not met the standard of a custodial arrest - either by time extent, actions, or words. people can be (briefly) detained for a host of reasons that fall short of probable cause of a crime
3) formal/custodial arrest. officers need PC of a crime.
don;t confuse them :)
assuming the traffic stop was for something simple - like a burnt out taillight, the initial stop was STILL a seizure, and the person was still NOT free to leave. that is not a arrest, not a custodial/formal one that requires PC. it is a seizure though.
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?
As famously pointed out in Pulp Fiction, Dutch law says exactly what US law doesn't want to: the police can't "seize" you in any way unless they have cause to. The one exception is that they can stop you and ask you for your name. But even though it is now compulsory to carry an ID at all times (and needless to say this is a wildly unpopular law), they can only force you to show it once they've caught you breaking the law somehow, which means in practice that you get a double fine: one for whatever it is that you did, and one for not having ID.
Point is, the only time the police can do anything more than ask your name is if they suspect you of a crime, or in special ID-zones, which can be established for limited periods of time in limited areas when they're worried about public disturbances.
Whit, we're aware of that legal distinction. At least one of us thinks that's a legal fiction with no basis in reality, since when an officer is uniformed and acting in an official capacity, nobody speaks to the person wearing the uniform, they speak to the badge,gun, and handcuffs, and that renders social contact impossible.
I've never understood why so much fourth amendment jurisprudence turns on weird definitions of search/seizure to deny that a particular seizure is actually a seizure rather than focusing on the reasonableness part of the constitutional provision.
-- Courtesy of the National Commission for the Preservation of Politically Incorrect Law School Jokes.
As for being siezed by cops, I just ask, "Am I free to go?". That resolves the ambiguity.
I think the most plausible reason is that a reasonableness standard is too malleable to be enforced with the exclusionary rule. Fourth Amendment cases generally involve bad people trying to get evidence of their crimes thrown out so they can go free: If a judge can apply a mushy reasonableness test to distinguish reasonable from unreasonable seizures, then courts are likely to end up watering down the scope of Fourth Amendment protection over time to make sure bad people go to jail. That's harder to do when the issue is whether a search or seizure occurred; it's easier to formalize that and make it rule-based than is a general reasonableness inquiry.
Which is all well and good. Unless he's pushing the lawnmower over his wife.
rubbish. only people who have a preformed adversarial me vs. him attitude think this way. have you ever heard of community policing, of basic conversation, etc?
social contact has been (and hopefully always will be) part of what cops do. whether it's talkin' to the latte girl at starbux, the local ruffians on the street corner, or the person out walking their dog, there is no way that conversation with a cop = seizure. that's both commonsense AND case law.
An officer of the peace pulled us over, said there were problems with mail theft and made us show him a) every piece of mail and b) a representative sampling of the papers to confirm we were not in fact stealing mail.
His cause for pulling us over was that at the angle he was at following us down, he'd noticed we had a lot of papers in the back seat.
I was a person who a) was 100% sure of his innocence and b) had a relatively wide comfort zone with police from growing up in a small town. I also and definitely felt seized. The officer did not search our car: he made us empty it for him so he could inspect its contents singly.
We were also late to work because of the stop.
This was not a traffic stop, per se - no moving violation, missing tail lights, etc. This was a case of an officer having flashing lights on his car, a badge on his shirt pocket and a lot more free time that morning than we did.
Did we have the right to politely decline? Did we have the right to leave at any time? This was not the impression given, and if we had the right, I feel the impression was deliberately not given.
My sympathy for the police has greatly declined since that day and my attempts to look unhelpful or unaware if the police seem to be busy in my vicinity have greatly increased. I feel much less like a free citizen in a free society when the police are present thanks to that morning.
I grew up around a law office (my mother was a legal secretary for the prosecutor) and local law enforcement officers (my dad was on the town council, the mayor lived across the street and I knew the Chief of Police as Mr. Phil). Nonetheless, as a generally legally savvy ordinary citizen, never mind a mere reasonable person, I had no idea what my legal rights or status were that morning. Reading this thread, I'm not sure the finest legal minds around could agree on whether this was a seizure, though I unmistakably felt I was not free to leave. If the Supreme Court thinks things are acceptable as they stand, it's not just the law that's an ass.
When police are on official business, they should identify themselves as such and state where the citizen they're talking to stands. Short of this, they may gain a little bit by ambiguity in dealing with some possible suspects, but they also give the paranoid plenty of grounds for feeling we're on the way to a police state.
All the chitchat in the courts about the exclusionary rule, evidence gathering, etc, is nice. But how about a little consideration for free citizens who would like to be able to go about their daily lives without having to directly challenge an officer of the law to find out if it's really necessary that they be late for work so that somebody with a badge can satisfy his curiosity? And who only fear arrest if an overzealous officer decides they're being difficult, not for any actual crimes?