There is overwhelming evidence that an individual’s race affects how police treat them during a police encounter, and that Black Americans have substantial cause to worry about the consequences of ignoring or walking away from law enforcement. Accordingly, when courts determine whether a “reasonable person” feels free to decline, leave, or end an interaction with police, race is a relevant consideration. When applying the “reasonable person” standard in criminal procedure, however, courts pledge adherence to objectivity, avoiding any consideration of subjective factors such as an individual’s characteristics, motivations, or experiences. In three related criminal procedure contexts, the adherence to traditional objectivity—which declines to consider race of the “reasonable person”—varies significantly, without a principled justification for the differing approaches.
Consent searches, seizure analysis, and custody for the purpose of Miranda are different criminal procedure doctrines; yet each address a common underlying question about the coerciveness of police-citizen interactions. Since finding forty years ago that race is relevant to the voluntariness of an individual’s consent to search, the Supreme Court has not reiterated that conclusion. For the determination of whether a reasonable person is in custody, the Court has permitted the consideration of age, but not other demographic factors such as race in several decades. And in December 2021, the Court declined the opportunity to address circuit conflict over whether race may ever inform when a reasonable person has been seized by police pursuant to the Fourth Amendment.
The Court’s approach to considering race for the “reasonable person” of these three criminal procedure doctrines is inconsistent and flawed, particularly when it denies the relevance of race to the coerciveness of a police-citizen encounter. Race does not fit neatly into the traditional objective/subjective framework for the reasonable person, but it should be a relevant consideration within the totality of circumstances for each of these analyses.