Free to leave? Maryland courts should rethink how they determine whether a car’s occupants are seized under the Fourth Amendment

By Sam Cowin and Eleanor Erney
Guest Contributors[1]

Suppose you’re sitting in a parked car, waiting for a friend on the street outside her house, when a uniformed police officer suddenly parks behind you, approaches your car on foot, and starts to question you. If you’re like us, your heart would be in your stomach before the police officer even reached your car, and you certainly wouldn’t think that driving away from the scene in the middle of the questioning was an option. The empirical evidence suggests we are not alone: In a 2009 survey, for example, most people (regardless of gender, age, or race) responded that they would not feel free to leave if they were approached and questioned by a police officer on the street.[2] Tellingly, a number of survey respondents who knew they had a right to leave a police encounter nevertheless reported that they would not feel free to exercise that right.[3]

Yet in determining whether the police seized a person in her parked car (therefore entitling that person to Fourth Amendment protection), the Maryland courts continue to operate in a fictional world in which people ordinarily feel free to drive away when a uniformed police officer unexpectedly approaches and questions them. Under current law, the person isn’t seized within the meaning of the Fourth Amendment unless she can show additional indicia of police authority, such as the officer activating his cruiser’s emergency lights or positioning his cruiser in a way that prevents the defendant from driving away. We think a faithful application of the Fourth Amendment in this context requires courts to recalibrate their analyses to take into account the realities of how average citizens feel during encounters with police.[4]

The Maryland appellate courts, and appellate courts around the country, have been called on several times over the last few years to decide whether occupants of parked cars were seized for Fourth Amendment purposes when they were approached by uniformed police officers.[5] (These cases are different from traditional traffic stop cases, in which there is no dispute that the police seized the defendants in the stopped car.) In the circumstance we are focused on here – the person sitting in her parked car – the underlying test courts apply to determine if and when a Fourth Amendment seizure occurred is the same: In view of all the circumstances, would a reasonable person have believed she was free to leave or to otherwise end the encounter? Determining when a Fourth Amendment seizure occurred is particularly important in cases in which the police do not develop a reasonable suspicion of criminal activity until seconds or minutes into the encounter with the car’s occupants, because it protects against the “seize first, develop suspicion later” approach by police that Maryland courts have uniformly condemned.

The Maryland Court of Special Appeals’ unreported decision in Miller v. State is just the latest example of what we view as a misapplication of the “free to leave” standard in this context.[6] In that case, Miller was sitting (and possibly sleeping) in the passenger seat of a parked car, with the engine running, when a police officer “made a U-turn, drove up to the rear of the vehicle, and parked behind it[.]” At the time he parked his police cruiser, the officer knew only that the car in which Miller was seated was idling in an area of Anne Arundel County associated with drug activity. The officer then approached the car on foot, asked the driver a number of questions, and requested the driver’s identification. At some point, the officer claimed, he smelled the odor of marijuana emanating from inside the car.

Miller argued that the police officer seized him, for Fourth Amendment purposes, when the officer “‘changed directions and parked behind the suspects’ vehicle,’ [i.e., before the officer smelled the marijuana] because … no reasonable person would have felt free to leave the scene.” Miller therefore claimed that the seizure was unlawful, because it was unsupported by a reasonable suspicion of criminal activity. The Court of Special Appeals disagreed. In applying the “free to leave” test, the court considered the same factors it routinely considers in this type of case, such as the number of officers on the scene, how quickly the officer approached the parked car, whether the police officer positioned his cruiser in a way that blocked the parked car, and the time of the encounter. Operating from a baseline presumption that “[o]rdinarily, approaching a parked vehicle to question occupants about their identity and actions is a mere accosting and not a seizure,” the court concluded that a reasonable person in Miller’s shoes would have believed he was free to leave, so the Fourth Amendment was not implicated. The court reasoned that the officer “did not exhibit ‘threatening behavior or physical contact,’ but merely parked his patrol cruiser behind the vehicle in which Miller was sitting, in a manner that did not block the path of the vehicle.”

Our concern with cases like Miller is the faulty premise that underlies the courts’ analyses—that people sitting in their cars “ordinarily” feel free to leave the scene when they are approached by a police officer for questioning. This misguided presumption about how people react to routine police encounters, which finds no support in basic human experience or the limited empirical evidence on the subject, leads courts to require that defendants rely on additional evidence of police coercion in order to establish that a reasonable person would not have felt free to leave. In fact, “most people who have been stopped [by a police officer for questioning] understand that they are not free to leave until the police officer tells them so.”[7] It is no wonder, therefore, that Fourth Amendment commentators criticize courts’ application of the “free to leave” test as a legal fiction.

The solution, we think, is simple: In applying the “free to leave” test, courts should consider as one factor in their “totality of the circumstances” analysis the basic reality that, when a person is approached by a uniformed police officer for questioning, she generally feels compelled to submit to the officer’s authority. We understand that, in the case of a person in a parked car, there may be rare circumstances when that person would feel free to drive away from the scene and ignore the police officer’s questions. But courts should acknowledge that this is the exception, not the rule. Whether the officer activated his emergency lights, or parked his cruiser in a way that blocked a suspect’s car, or called for backup may very well be relevant to the court’s analysis. The absence of these circumstances, however, should not, by rule, lead to a finding that the defendant wasn’t seized.

To be sure, flipping the presumption about how people ordinarily react to police encounters in the way we suggest would lead to more findings by courts that suspects were seized, within the meaning of the Fourth Amendment. This, in turn, would require the police to develop a reasonable suspicion of criminal activity before they begin questioning a potential suspect. To the extent this leads to an increased burden on police officers (a point we don’t necessarily concede, given the low standard for establishing reasonable suspicion of criminal activity), we view this as a necessary consequence of correcting a strand of Fourth Amendment law that has become unhinged from reality.


[1] The authors are associates at Hughes Hubbard & Reed LLP. As with all Maryland Appellate Blog posts, the views expressed here are the authors’ and not their firm’s.

[2]. David K. Kessler, Free to Leave –An Empirical Look at the Fourth Amendment’s Seizure Standard, 99 J. Crim. L. & Criminology 51, 74-75 (2009). Women and people under the age of 25 were most likely to respond they would not feel free to leave. Id. at 75-76.

[3] Id. at 78-79.

[4] We focus here on the cases in which Fourth Amendment issues arise in the context of people sitting in their parked cars (and not, for example, pedestrians standing on a public street). Aside from the fact that we are more familiar with the “parked car” cases, we think the proposed doctrinal shift we propose is especially important in these cases, because there are few, if any, circumstances under which a person in a car feels free to drive away from an officer who has approached for questioning. We probably would agree that there are more circumstances under which a person standing on the street might feel free to walk away from an approaching police officer.

[5] We were on the losing end of one of those appeals last year: Curtis Hill v. State, No. 1972, Sept. Term, 2016 (Md. Ct. Spec. App. Sept. 11, 2017).

[6] Miller v. State, No. 400, Sept. Term, 2016, slip op. at 1-2 (Md. Ct. Spec. App. Feb. 12, 2018).

[7] Arnold H. Loewy, Cops, Cars, and Citizens: Fixing the Broken Balance, 76 St. John’s L. Rev 535, 555 (2002).

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One response to “Free to leave? Maryland courts should rethink how they determine whether a car’s occupants are seized under the Fourth Amendment”

  1. trebort49 says :

    What also feeds into the authors’ analysis and supports their argument, are those cases in which it is reported that police officers consider the fact of a person “fleeing” (insert your preferred verb) the police, as one of multiple indicia of criminal conduct. I wonder whether there is any doubt that a uniformed police officer who approaches the operator of a parked car and is confronted by that operator driving away, would construe that “driving away” as anything other than fleeing, thereby entitling that officer to pursue, seize, even employ deadly force to stop the “driving away.”

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