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

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