Friday, May 25, 2007

Seizure From A Lay Perspective

There's an interesting thread of discussion going on over at The Volokh Conspiracy over when does a police stop become a seizure. 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.
Followed by Ilya Somin noting 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". I think they're both right on the money: the average citizen doesn't know the bounds of what is permissible and, even when they do, are unlikely to challenge illegal demands. I offer to you the following anecdote:

It was the summer of 2004, and my wife and I were moving from St. Louis to Rochester. We were moving all of our stuff ourselves; I was driving a rented Ryder truck and my wife was following behind me in our car. Out of the blue, while driving through Pennsylvania, I get pulled over by some uniformed person; I don't remember specifically if it was the PD or the Highway Patrol.

So my first reaction in something along the lines of "wtf?", because I'd been careful not to exceed the speed limit etc. etc. etc. Maybe I'd forgotten to signal while changing lanes, or maybe one of my tail lights was out (I suspected it was the latter). But that wasn't it at all. I don't remember exactly how the officer phrased it, but he let me know that I'd been pulled over because law enforcement in the area was conducting random searches of moving vans to protect citizens against the terrorist menace. Then he asked me to step out of the cab and open the back of the truck for him.

I was pretty certain that was an illegitimate request, but really what were my options? I could take a stand for liberty and justice, but that might end up with me sitting in handcuffs on the side of the road. Or I could open up the back of the truck and be on my way with a minimum of hassle. I think maybe if I had been by myself I would have said "no", but if I'd declined the officer's request in that particular instance it would have inconvenienced my wife as well. I didn't have the opportunity to ask her if she wanted to be a martyr, so I acquiesced and did as the officer asked. After performing a perfunctory visual review with the aid of a flashlight he let us on our way.

You have to be extremely dedicated to the concept of personal liberties to be willing to challenge the police. There's very little reward for doing so apart from the feeling that you've helped better society in some small way. The potential downsides, on the other hand, are really pretty much unlimited. If the officer decides to take offense when you decline things could get real ugly very quickly. A quick cost/benefit analysis makes it obvious that the right thing to do is say "sure, officer" and then get on with your life.

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