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Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard

38 Pages Posted: 12 May 2008 Last revised: 14 Jun 2010

David K. Kessler

Paul, Weiss, Rifkind, Wharton & Garrison LLP


Whether a person has been "seized" often determines if he or she receives Fourth Amendment protection. The Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt free to leave or otherwise terminate the encounter with law enforcement. In applying that standard, today's courts conduct crucial seizure inquiries relying only on their own beliefs about when a reasonable person would feel free to leave. Both the Court and scholars have noted that, though empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This paper presents the first empirical study of whether people actually would feel free to leave in two situations in which the Court has held that people would: on public sidewalks and on buses. Drawing on a survey of 406 randomly selected Boston residents, this paper concludes that people would not feel free to end their encounters with the police. By the Court's standard, respondents would be seized in both scenarios. The data also show that knowledge of one's legal right to end the encounter with the police would not make people feel free to leave, and that women and people under twenty-five would feel less free to leave than would men and people over twenty-five. This initial empirical evidence suggests the need to rethink the current seizure standard.

Keywords: Criminal law, constitutional law, Fourth Amendment, criminal procedure, seizure, search and seizure, police, empirical analysis, law and economics, Bostick, Drayton, Mendenhall, Brendlin

Suggested Citation

Kessler, David K., Free to Leave? An Empirical Look at the Fourth Amendment's Seizure Standard. Journal of Criminal Law and Criminology, Vol. 99, 2009. Available at SSRN:

David K. Kessler (Contact Author)

Paul, Weiss, Rifkind, Wharton & Garrison LLP ( email )

New York, NY 10019
United States

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