In Bostick and Drayton, the Supreme Court announced that per se rules were inappropriate in answering the Fourth Amendment seizure question, “Would a reasonable citizen feel free to leave?” But when, if ever, can one factor in a pedestrian encounter with police be so inherently coercive that it becomes dispositive? The D.C. and Fourth Circuits explicitly disagree over whether police retention of identification documents constitutes such a factor. The D.C. Circuit has held that such retention is a per se seizure because a citizen cannot feel free to leave when her documents are in police hands. In contrast, the Fourth Circuit rejected this reasoning on the grounds that a citizen can always demand the return of her documents.
Contrary to its strong wording, however, the Supreme Court’s rejection of per se rules is not so absolute, and in fact, per se rules do apply where single factors are inherently coercive. Two related areas of Fourth Amendment jurisprudence—traffic stops and voluntariness of consent—demonstrate that courts typically recognize this inherent coercion in police retention of documents. Further, the Fourth Circuit’s approach fails to reflect accurately citizens’ true feelings of restraint in these contexts, as explored in recent empirical studies. Instead, the D.C. Circuit’s approach takes into account the power disparity present where police retain identification. Its per se rule not only clarifies the standard for courts but also creates clear conduct rules and places the burden of monitoring coercive force on the police, who are best equipped to do so.