Free to leave? An empirical look at the Fourth Amendment's seizure standard.

So what do we do if we don't know? I can follow my instinct. My instinct is he would feel he wasn't free because the red light's flashing. That's just one person's instinct. Or I could say, let's look for some studies. They could have asked people about this, and there are none.... What should I do? ... Look for more studies?

--Justice Stephen Breyer (1)

Maybe we can just pass until the studies are done?

--Justice Antonin Scalia (2)

I. INTRODUCTION

During recent oral arguments in Brendlin v. California, (3) Justices Breyer and Scalia both noted the lack of empirical evidence informing the application of the Supreme Court's standard for identifying a seizure. That standard mandates that a person interacting with a law enforcement officer is seized only when, "in view of all of the circumstances surrounding the incident," a reasonable person would have felt free "to leave," (4) "to decline the officers' requests," (5) or "otherwise [to] terminate the encounter." (6) In applying its standard, the Court has determined, without empirical evidence, whether reasonable people would in fact feel free to leave or to terminate specific encounters with law enforcement. For instance, the Court has found that people would feel free to leave when approached and questioned by an officer while on a public street or on a Greyhound bus. (7) But would actual people feel free to leave in the situations where the Justices believe that a reasonable person would do so? Although the reasonable person described by the Court and the average person described by empirical data will not be identical, they should be similar. (8) Data about how the actual person feels, therefore, would either support or call into question the Court's application of its seizure standard.

This Article presents the first set of empirical evidence that addresses whether or not actual people would feel free to terminate simple encounters with law enforcement officers. (9) There are three principal findings. Based on data from a survey administered to 406 randomly selected people in Boston, I conclude that, in two situations in which a person is approached by a police officer, people would not feel free to terminate their encounters with the police. These two situations are similar to situations in which the Court has held that people would feel free to leave. (10) Furthermore, women and people under twenty-five would feel even less free than average. The data showed no statistically significant differences between races or levels of income. Finally, even people who know they have the right not to talk to a police officer would not feel free to terminate such encounters. Others have predicted that people would not feel free to leave (11) and that knowledge of rights would still not make people feel free to leave, (12) but no one has shown that reality with data.