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79 Journal of Criminal Law and Criminology 437 (1988)


This Article proposes that the Mendenhall-Royer standard, as presently interpreted, should be discarded because it is unworkable and fails to strike the appropriate balance between the liberty interests of citizens and the interest of the state in combatting crime. The test is unworkable because the outcomes of cases turn on subtle factual distinctions unrelated to an individual's actual freedom to end an encounter with a police officer, making it difficult for police officers to apply the standard in the field and adjust their conduct accordingly. Moreover, the standard provides insufficient protection for an individual's rights by failing to consider the purpose of the encounter.

Next, the Article will examine the cases in which the Supreme Court has used the Mendenhall-Royer test. These cases serve as further illustrations both of the difficulty in applying the test and of the lack of guidance the Supreme Court has provided. The Article then will explore the results of this lack of guidance by examining the confusion lower courts are experiencing in deciding cases using the Mendenhall-Royer standard.

Finally, the Article will examine possible alternatives to the Mendenhall-Royer test. It will show that some of these alternatives have been rejected without careful consideration, by overstating the perceived drawbacks to such tests and placing unfounded confidence in the courts' ability to modify' the Mendenhall-Royer test to yield appropriate results. The Article concludes that a per se rule based on the purpose for which a police officer initiates the encounter, although rejected by courts and commentators, is necessary. Such a test provides the appropriate balance between the liberty interest of citizens and the crime fighting interest of the state and is justified by experience with the Mendenhall-Royer test.