Race is relevant to whether a person consented to a search (or to waive Miranda rights, or to “confess”). See United States v. Mendenhall, 446 U.S. 544, 558 (1980) (it was not irrelevant to the question of consent that “the respondent, a female and a Negro, may have felt unusually threatened by the officers, who were white males”). See also Beau C. Tremitiere, The Fallacy of A Colorblind Consent Search Doctrine, 112 NW. U. L. REV. 527 (2017). That's because the question of consent when it comes to searches and confessions is subjective: whether this person's consent was voluntary.
But race is not relevant to whether a person consented to a police encounter. United States v. Easley, 911 F.3d 1074, 1080-82 (10th Cir. 2018). That's because the initial seizure question is objective: whether a reasonable person would feel free to leave.
Why the difference? Search me. Better yet, read the majority and concurring opinions in the Eleventh Circuit case United States v. Knights, issued last week after the panel revisited its own previous decision on the issue.
The first time around, the Eleventh Circuit published an 11-page unanimous decision affirming the district court's denial of Mr. Knights's motion to suppress after finding that the law-enforcement "interaction" that Mr. Knights challenged was a consensual encounter. Among other things, Mr. Knights had argued that young African-American men do not feel free to walk away from multiple police officers "without risking arrest or bodily harm." Rejecting this argument, the panel concluded that, "[a]lthough the presence of multiple officers and the age and race of a suspect may be relevant factors . . . the totality of the circumstances establish that this encounter was not coercive."
Mr. Knights moved for rehearing. The panel requested further briefing addressing "whether the race of a suspect may be a relevant factor in deciding whether a seizure has occurred under the Fourth Amendment," citing Easley.
Last week, the panel vacated its first decision but reaffirmed the district court's denial of Mr. Knights's motion to suppress, this time in a 51-page published decision (majority + concurrence). This time, the panel held that race is never a relevant factor when deciding the initial seizure question (following Easley).
Judge Rosenbaum concurred in a lengthy must-read opinion. She sets out all of the ways in which the "free to leave" test "is unworkable and dangerous." She recognizes that policing is itself "difficult and dangerous," but "so is being a citizen trying to exercise his Fourth Amendment right to be free from unreasonable seizures"---an "especially tricky dilemma for Black citizens, who studies indicate historically have disproportionately suffered violence in law-enforcement encounters."
Ultimately, Judge Rosenbaum feels bound by existing law to leave race out of the "free to leave" calculus. But she invites the Supreme Court to adopt a modest bright-line, race-neutral amendment to that calculus: officers must clearly advise a person they wish to question whether the person is free to leave, before any questioning begins. If they don't, the encounter is presumptively a seizure. If they do, the encounter is presumptively consensual. Not a perfect solution, but a decent start.
While we wait for that bright-line rule, take Judge Rosenbaum's opinion as a model for arguing that the lack of a free-to-leave advisory is, if not controlling, at least relevant to the analysis and weighs against a finding of a consensual encounter.