The decision to publish this opinion definitely got me thinking.
The question in many of these cases -- including this one -- is when a reasonable person would no longer feel "free to leave" when confronted by the police. That's a toughie. Most of the time, we don't leave a police encounter, even if it's unwanted (as it often is), because we don't want to be rude or because we're not sure we're allowed. From a risk/reward perspective, it's not usually too big of a pain to converse with the police, whereas if you attempt to flee the encounter, rightly or wrongly, you may end up getting arrested. Or worse.
So from a practical point of view, the realities of the situation almost always "coerce" you to interact with the police.
But Fourth Amendment doctrine obviously can't say that you're detained whenever the police talk to you. If only because, as a factual matter, you are, in fact, free to leave in a variety of situations. As a result, we've to to distinguish between when there's an actual Fourth Amendment seizure -- a set of facts that requires probable cause, or reasonable suspicion, or something like that -- and when there's not.
No easy task. Which is amply revealed by the diversity of cases that deal with the subject, which are by no means subject to facile catalog.
Today's opinion is yet another of these fact-intensive cases. But the facts are fairly straightforward. An officer sees a couple of guys sitting in a car in a residential area during the "wee hours of the morning" with their fog lights on. That's definitely not reasonable suspicion of a crime, but at the same time, not exactly something usual, either. So we want -- or at least, I want -- the officers to investigate. Which they do.
The police make a u-turn in their car, park 10 feet behind the suspicious/interesting vehicle, shine their floodlight on the car, and approach the thing at a fairly brisk pace to talk to the occupants. No red lights, no guns drawn. But, still, a couple of floodlights from a police car ten feet behind you.
Would you feel free to leave?
My personal answer is: No. Which is what the Court of Appeal says as well. Holding that since it was thus a detention, there had to be reasonable suspicion of a crime. Which there wasn't. Hence we suppress the guns, drugs and pills the officers subsequently find.
But it's a messed up inquiry. Because I wouldn't feel free -- most reasonable people wouldn't feel free -- to leave with a lot less. Even just cops coming up to you in your car at 2:00 a.m., no floodlights or anything. Are you really going to just drive away? No way. Because I suspect that virtually all of us would think that if we did, they're going to definitely come after us. Which means we wouldn't feel free to leave. Yet those facts are the very definition of a "consensual" police encounter to which the Fourth Amendment doesn't apply.
Making the Fourth Amendment test depend on whether a reasonable person would feel free to leave just seems silly. Because no one seems free to leave. Even when, in fact, they are.
Plus, the only ones who actually "know" whether they're free to leave are likely to be limited to lawyers, law professors, or (other) hardened criminals. So it seems incredibly artificial to decide whether there's a seizure based upon what a totally uninformed person would perceive based upon a set of facts in which the practical realities almost always militate in favor of sitting tight once the police approach you.
I'm thinking that maybe the right approach would be a Miranda-type thing. Maybe what we want to say is that a ton of police encounters are presumptively detentions -- something that reflects the actual reality of what most people feel -- unless the police proactively say something like "You're free to leave if you'd like, but [if you want to talk to me, blah blah blah] . . . ." There'd be a lot of upside to such a rule. That way you'd know whether you were, in fact, free to leave. And could actualize your desires if you'd like. It'd also avoid the dangers -- life-risking, in some circumstances -- of someone thinking that they're free to leave when the police take a different perspective. We'll basically just assume that in most police encounters, other than the most obviously benign, someone is not free to leave unless the police tell 'em otherwise. (Now, if they leave anyway, and there's no reasonable suspicion, that's fine, we can't validly arrest 'em. But letting them know the scoop in advance seems like a valuable -- and easily obtainable -- objective.)
The people here seem to me like they were, in fact, free to leave, and had they left, I'd have been fine with that. Maybe a brighter-line rule would both make cases like this easier to adjudicate as well as have substantial real-world advantages to boot.
