CA11: Encounter was consensual; race of occupants of car never a valid concern

The court finds that the police-citizen encounter here was consensual, so the question of reasonable suspicion doesn’t have to be decided. The race of the occupants is never a concern in consent. United States v. Knights, 2021 U.S. App. LEXIS 6974 (11th Cir. Mar. 11, 2021):

Knights’s other arguments are also unpersuasive. He argues that a reasonable person would not have felt free to walk away because doing so would have required abandoning his car in a high-crime area. But we disagree because two officers would have been near the car, and Knights could have easily returned to the car as soon as they left. He also repeatedly mentions that Officer Seligman used a flashlight when he approached the Oldsmobile. But we fail to see how a flashlight communicated a show of authority in these circumstances. A flashlight would also be used by “an officer approach[ing] a stranded motorist to offer assistance,” Miller, 458 F.3d at 1258, or by an ordinary person outside in the middle of the night. Knights also argues that the presence of two officers weighs in favor of the encounter being a seizure, and that “young African-American men feel that they cannot walk away from police without risking arrest or bodily harm.” Although the presence of multiple officers and the age of a suspect may be relevant factors, Perez, 443 F.3d at 778, the totality of the circumstances establish that this encounter was not coercive.

Moreover, unlike age, the race of a suspect is never a factor in seizure analysis. In our original opinion, we cited United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed. 2d 497, for the proposition that race might be a relevant factor. But Mendenhall establishes that race is “not irrelevant” to the voluntariness of a seizure; it did not address the relevance of race to the existence of a seizure. Id. at 557-58; see also United States v. Easley, 911 F.3d 1074, 1081 (10th Cir. 2018) (recognizing that “the Supreme Court has [n]ever considered race a relevant factor” in the latter context). Nor have our sister circuits considered race in the threshold seizure inquiry. But see United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015) (stating in dicta, based on Mendenhall, that “race is ‘not irrelevant’ to the question of whether a seizure occurred” but not analyzing its import with respect to that appeal). Upon further review, we clarify that race may not be a factor in the threshold seizure inquiry.

We may not consider race to determine whether a seizure has occurred. True, as Knights points out, race can be relevant in other Fourth Amendment contexts. See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 886-87, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975). For example, we consider a suspect’s personal characteristics to decide whether he gave consent to a search or seizure because that question is subjective. United States v. Spivey, 861 F.3d 1207, 1215 (11th Cir. 2017). But the existence of a seizure is an objective question. Craig v. Singletary, 127 F.3d 1030, 1041 (11th Cir. 1997) (en banc). We ask whether a reasonable person would have believed he was not free to leave in the light of the totality of the circumstances. Id. The circumstances of the situation are key to this inquiry—in particular, the police officer’s objective behavior. Miller, 458 F.3d at 1258 n.4. An objective test has important virtues: we can readily apply it, and “law enforcement [can] know ex ante what conduct implicates the Fourth Amendment.” Easley, 911 F.3d at 1082.