The Wrong Line between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine

58 Pages Posted: 6 Aug 2001 Last revised: 18 Dec 2012

See all articles by Daniel J. Steinbock

Daniel J. Steinbock

University of Toledo - College of Law

Date Written: August 15, 2000

Abstract

This article is a critical examination of the theory and factual assumptions behind the Supreme Court's notion of consensual encounters, unregulated by the Fourth Amendment, between police officers and citizens. It applies social science research to the Court's view of the "reasonable person," the concept on which the Court grounds the consensual encounter doctrine. The article focuses particularly on the incivility and confrontation that are required of the public in order to differentiate a consensual encounter from an actual seizure, using two accounts of individuals who chose to rebuff encounters with the police. Concluding that the line between freedom and restraint is wrongly located, too fuzzily drawn, and inimical to trust between individuals and the police, the article makes several suggestions for reform. These include greater judicial reliance on empirical data about how individuals perceive police approaches; a presumption that an investigative encounter amounts to a seizure, requiring Fourth Amendment oversight; or, at the least, a requirement that police state their business at the outset of any encounter with a member of the public.

Keywords: consensual encounter, fourth amendment, seizure, consent

JEL Classification: K14, K42

Suggested Citation

Steinbock, Daniel J., The Wrong Line between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine (August 15, 2000). San Diego Law Review, Vol. 38, No. 2, Spring 2001. Available at SSRN: https://ssrn.com/abstract=276368

Daniel J. Steinbock (Contact Author)

University of Toledo - College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-4176 (Phone)
419-530-7878 (Fax)

Register to save articles to
your library

Register

Paper statistics

Downloads
306
Abstract Views
1,690
rank
97,377
PlumX Metrics