Posted by Orin Kerr:
Pragmatism and Fourth Amendment law
http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml#1180070821
My [1]co-bloggers' [2]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.
References
1. http://volokh.com/posts/1180053817.shtml
2. http://volokh.com/posts/1180059702.shtml
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