Court-Martial Trial Practice Blog
Here is an article brought to our attention by FourthAmendment.com.
A thoughtful article about the Supreme Court’s "seizure" doctrine, so much a part of the all encompassing reasonable suspicion standard, by David K. Kessler is Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51 (2009).
Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The U.S. 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 to terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only upon their own beliefs about when a reasonable person would feel free to leave. But both the Court and scholars have noted that although empirical evidence about whether people actually feel free to leave would help guide the seizure inquiry, no such evidence presently exists. This Article presents the first empirical study of whether people would actually 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 Article concludes that people would not feel free to end their encounters with the police. Under the Court’s current standard, respondents would be seized within the meaning of the Fourth Amendment 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.
When the Shirt or First Sergeant or supervisor tells you that you have to come with them to CID/OSI/NCIS, is that not a seizure? What junior enlisted person is going to say no or feel that they can just not go? And yet I hear that argued quite frequently in military situations.