You’re Only as “Free to Leave” as You Feel: Police Encounters with Juveniles and the Trouble with Differential Standards for Investigatory Stops under In re I.R.T.

BY Jonathan S. Carter

Casual encounters with police invoke myriad reactions in different types of people, even among the blameless. While some may welcome the presence of law enforcement as an assurance of their safety and security, others feel an immediate sense of intimidation and trepidation by police questioning. In the context of the Fourth Amendment, however, such visceral responses to police presence can take on constitutional significance. If one is naturally inclined to react anxiously to police, one may feel unreasonably compelled to answer an officer’s questions or consent to requests that would otherwise amount to a search or seizure implicating constitutional protections. In determining when a casual police–citizen encounter on the street escalates to an investigatory stop, courts use an objective test: whether under the circumstances a reasonable person would feel “free to leave.” However, a central question lingers: to what extent should an individual’s subjective reaction to encounters with law enforcement affect Fourth Amendment analysis?

In In re I.R.T., the North Carolina Court of Appeals made a subtle yet significant break with precedent by holding that a juvenile’s age is a relevant factor in determining whether a police encounter amounts to a seizure under the Fourth Amendment. The aim of this Recent Development is to examine the consequences of the court’s modification of the “free to leave” test and to argue that considering a defendant’s age, though appropriate in other legal contexts, is inappropriate in the seizure analysis. As effective law enforcement requires a clear, consistent, and predictable measure of when police conduct or questioning will trigger constitutional protections, the standard for determining when an officer’s actions will constitute a seizure of the person must remain objective if it is to provide practical guidance for police behavior in the field and ultimately deter the abuses of police power against which the Fourth Amendment was adopted to protect. By contrast, differential standards for juvenile stops risks subjectifying the seizure inquiry and results in three unintended consequences: 1) transforming almost any police–juvenile encounter into an investigatory stop because age will inevitably prove determinative in the seizure inquiry; 2) fostering uncertainty in police investigation by forcing law enforcement to guess when their conduct will invoke constitutional protections; and 3) establishing a slippery slope precedent that encourages consideration of other variations including race, gender, and economic status that may just as legitimately affect an individual’s emotional reaction to police questioning, but if incorporated into the seizure analysis would render the “free to leave” test meaningless. As a result, the In re I.R.T. court’s modification of the seizure inquiry to account for age is ripe for reconsideration.

DOWNLOAD PDF | 88 N.C. L. Rev. 1389 (2010)