A RACE-SYMPATHETIC PATH FORWARD: FOURTH AMENDMENT SEIZURE LAW AND THE CIRCUIT SPLIT ON THE RELEVANCE OF RACE
By: Marina Berardino, Volume 107 Staff Member
Despite it being well known that an individual’s race impacts his or her perceptions of and experiences with the police, U.S. Supreme Court jurisprudence remains unclear on the role of race in Fourth Amendment seizure inquiries. Fourth Amendment case law is riddled with confusion, oftentimes through the Supreme Court’s creation of blurry rules subject to different interpretations among the circuit courts.
This is especially true for the test establishing a Fourth Amendment seizure which asks whether, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The Court has considered certain personal characteristics of a subject in other criminal procedure cases. For example, in Miranda cases the Court has found the age of a child relevant in determining whether the custody requirement is satisfied. Yet, the Court remains silent on whether race should be considered within the totality of the circumstances to determine if an encounter constitutes a seizure, despite having the opportunity to do so and evidence that Black Americans tread much more carefully around law enforcement than white peers. The Court is well-positioned to, and should, take a case when another one arises and hold that race is relevant in Fourth Amendment seizure analysis.
I. THE CURRENT CIRCUIT SPLIT ON THE RELEVANCE OF RACE IN DETERMINING THE EXISTENCE OF A SEIZURE
Lower courts, both state and federal, treat the issue of whether race is relevant for the “reasonable person” test establishing the existence of a seizure differently. Currently, circuit courts are split on this issue. In 2019, the D.C. Court of Appeals joined the Ninth Circuit in considering the defendant’s race as a circumstance relevant to the analysis. The D.C. Court of Appeals reasoned that “as is known from well-publicized and documented examples, an African-American man facing armed policemen would reasonably be especially apprehensive.” Because Black Americans are viewed with heightened suspicion by police, they are not as “secure in their persons” and are more afraid of triggering an aggressive reaction during a police encounter. State supreme courts have also found race a relevant factor in the analysis.
The Tenth and Eleventh Circuits reject the idea that race has any relevance in a seizure determination. Concerned with turning an objective test into an inherently subjective one, the Eleventh Circuit reasoned that “most personal characteristics, including race, do not lend themselves to objective conclusions.” The court only considers “a suspect’s personal characteristics in [their] seizure analysis . . . insofar as they have an ‘objectively discernible relationship to a reasonable person’s understanding of his freedom of action.’” Also refusing to consider race, the Tenth Circuit asserted there “is no uniform life experience for persons of color, and there are surely divergent attitudes toward law enforcement officers among members of the population.” Thus, the Tenth and Eleventh Circuits posit that the unique experiences of each individual of a particular race reduce the objective nature of race and its relevance as a factor in determining whether a reasonable person of that race would have felt free to terminate an encounter with law enforcement.
II. THE PATH FORWARD
While opponents of the consideration of race in seizure inquiries emphasize the lack of uniform life experiences among persons of color, this alone “does not justify ignoring race altogether in the determination of when someone has been seized.” The rule for determining the existence of a seizure aims to account for the objective realities of the encounter. However, to fully achieve its purpose, this rule cannot ignore the role that race plays in police encounters. The Supreme Court is well-positioned to resolve the confusion among the lower courts when the question arises again in the lower courts. It should issue a rule that both remains objective while also emphasizing these lived experiences of Black Americans.
First, the Court should grant certiorari and consider the next case that asks it to determine whether race plays any role in the seizure context. Once in this position, the Court can either hold that race is a relevant factor or pursue a more conservative route that will still mitigate the negative impact of race in police encounters. Following Judge Rosenbaum’s recommendation from her Knight concurrence, the Court can introduce a race-neutral warning requirement before law enforcement engages in a consensual interaction where the approached individual is warned “that he or she may decline or end the interaction without penalty.” While this is not a perfect solution, it will clarify Fourth Amendment seizure case law and “[establish] a bright line so both citizens and officers know that any continued interaction is presumed consensual.”
In the meantime, criminal defense attorneys should continue to make the argument that race is relevant and must be considered to ensure that “in view of all the circumstances” a reasonable person would actually believe they are free to leave, in the hope that the Supreme Court will eventually issue a race-sympathetic holding. It is time the Court recognizes the reality of race and lived experiences in America in the context of Fourth Amendment seizure law.
 See, e.g., Ronald Weitzer & Rod K. Brunson, Policing Different Racial Groups in the United States, Cahiers Politie Studies at 130 (2015) (“Many studies have found that blacks and Hispanics in the United States have more negative views of the police than their white counterparts – and they are more likely to believe that they have been racially discriminated against by a police officer.”); United States v. Knights, 989 F.3d 1281 (11th Cir. 2021) (Rosenbaum, J., concurring) (“Black Americans on the whole are 2.5 times more likely to be shot and killed by police officers than white Americans.”).
 Brendlin v. California, 551 U.S. 249, 255 (2007) (quoting United States v. Mendenhall, 446 U.S. 544, 554 (1980)).
 See Miranda v. Arizona, 385 U.S. 436 (1966) (holding that suspects possess particular rights during custodial interrogations).
 See J.D.B. v. North Carolina, 564 U.S. 261 (2011) (reasoning that courts can account for the reality that a reasonable child subject to police questioning will sometimes feel pressured to submit when a reasonable adult will free to go without doing any damage to the objective nature of the custody analysis).
 See Aliza Hochman Bloom, Long Overdue: Confronting Race in the Fourth Amendment’s Freedom-to-Leave Analysis, 65 Howard L.J. 1, 3 (2021); Tracey Maclin, ‘Black and Blue Encounters’ Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 Val. L. Rev. 243, 264 (1991) (stating that while the Court has at times expressed sensitivity to concerns about the mistrust between black people and law enforcement, its rulings have been inadequate to beat back the influence of race). The Court also denied certiorari to determine the question in 2021. See United States v. Knights, 989 F.3d 1281, 1297 (11th Cir. 2021) (Rosenbaum, J., concurring) (calling for some kind of legal response because “Black people often tread more carefully around law enforcement . . . because of the grave awareness that a misstep or discerned disrespectful word may cause the officer to misperceive a threat and escalate an encounter into a physical one.”).
 Note that in United States v. Mendenhall, the Court said that race is “not irrelevant” to the determination of the “voluntariness of a seizure.” 446 U.S. at 544. However, it did not address the relevance of race to the existence of a seizure. Id. at 557-58.
 See United States v. Washington, 490 F.3d 765, 768 (9th Cir. 2007) (holding that a defendant’s race can inform the seizure analysis).
 See Dozier v. United States, 220 A.3d 933, 944 (D.C. 2019).
 Id. (detailing that the fear and pressure felt by persons of color to cooperate with law enforcement is justified due to their higher likelihood of being subjected to hyper-vigilant polices supervision).
 See State v. Jones, 235 A.3d 119, 126 (N.H. 2020) (“race is an appropriate circumstance to consider in conducting the totality of the circumstances seizure analysis”); State v. Summ, 511 P.3d 92, 110 (Wash. 2022) (holding that courts must consider an individual’s race as part of the totality of the circumstances when determining whether that individual has been seized).
 United States v. Easley, 911 F.3d 1074 (10th Cir. 2018).
 United States v. Knights, 989 F.3d 1281 (11th Cir. 2021).
 Id. at 1288.
 Id. (quoting J.D.B. v. North Carolina, 564 U.S. 261, 275 (2011)).
 Easley, 911 F.3d at 1082.
 See, e.g., id; Knights, 989 F.3d at 1288.
 Aliza Hochman Bloom, ‘What Has Always Been True’: The Washington Supreme Court Decides That Seizure Law Must Account for Racial Disparity in Policing, Minn. L. Rev. Headnotes, 107 (2022) https://minnesotalawreview.org/article/what-has-always-been-true-the-washington-supreme-court-decides-that-seizure-law-must-account-for-racial-disparity-in-policing [https://perma.cc/R7WU-GUYC].
 See id. See also Racial Profiling: Constitutional and Statutory Considerations for Congress, Cong. Rsch. Ser., at 3 (referencing a New York police commissioner who admitted to “focus[ing] on young blacks and Hispanics because he wanted to instill fear in them, every time they leave their home, they could be stopped by police”) (quotations omitted).
 United States v. Knights, 989 F.3d at 1299 (Rosenbaum, J., concurring).
 See supra note 2.