Washington Law Review


Desiree Phair


A person is “seized” by an officer, and thus entitled to Fourth Amendment protections, if a reasonable person would not feel free to leave. Although courts must set a standard for when a person has been seized by an officer, few real-world studies exist regarding when individuals feel truly free to disregard the police. In addition, gathering new data poses challenges. This Comment presents newly produced data sets and then explores adjustments to the current reasonable person standard, arguing the advantages of focusing on officer actions as opposed to the current focus on whether a defendant feels “free to leave.” This Comment begins with an overview of the standards set by the United States Supreme Court and the Supreme Court of Washington regarding when a reasonable person would feel free to terminate a police interaction. Next, the Comment discusses nuances and exceptions seen within other reasonable person standards. The Comment then reviews the psychological and social science research regarding laypersons’ difficulty resisting authority figures. David Kessler’s 2009 study—indicating that most respondents feel uncomfortable refusing to cooperate with police, even during “social” interactions—receives in-depth attention. This Comment next presents an original study that asks two population samples the Kessler questions. Neither result precisely mirrors the Kessler study result. Washington voter survey respondents indicated a higher comfort refusing the police than hypothesized; recovery center survey respondents provided a more bifurcated response pattern to the standard questions and offered qualitative commentary regarding how disabilities may impact an individual’s perceived freedom to leave an officer interaction. Following the data analysis, the Comment discusses whether courts should add more nuance to the existing reasonable person standard by accounting for potential vulnerabilities within the civilian population. If courts follow this path, they would benefit from the ability to review additional studies before finalizing such updates. The Comment ultimately argues, however, that other jurisdictions should follow Washington’s lead and focus on objective officer actions when determining whether a social contact has evolved into a seizure. Focusing on officer choices will provide more predictable and socially just results than delving into the subjective experience of a hypothetical “reasonable” suspect.

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