The Fourth Amendment doesn’t ask how you feel. It asks what a reasonable person would perceive. That’s not a technicality — it’s the architecture. A single objective standard, applied consistently, is what separates constitutional protection from a sliding scale that produces different rights for different people depending on who they are.
The D.C. Court of Appeals just decided that architecture needs renovation.
In United States v. Carter, the court held that a defendant’s race may be considered when evaluating whether a police encounter constitutes a “seizure” under the Fourth Amendment. The question at the center of every seizure case is whether a reasonable person would have felt free to walk away. For decades, courts have answered that question the same way: objectively, without regard to the defendant’s race, background, or personal history with law enforcement. The court broke from that standard. It ruled that lived experience and social context, including race, are relevant to the analysis. The court suppressed the resulting evidence. The defendant walked.
The Supreme Court declined to hear the case. Justices Samuel Alito and Clarence Thomas dissented from that denial, and their dissent is worth reading carefully. Alito’s core point is direct: Incorporating race into the reasonable-person test conflicts with established precedent and creates constitutional fragmentation — different Fourth Amendment rights for different groups, calibrated to identity rather than conduct. The Constitution, as he notes, “hardly ever” permits the government to treat individuals differently on the basis of race. The D.C. court’s ruling does exactly that, just in a direction the left finds comfortable.
The practical problem is worse than the theoretical one. A race-specific reasonable-person standard requires courts to determine what a person of a particular race would perceive in a given encounter with police. That’s not a legal standard. It’s a sociological presumption — and one that varies by judge, by jurisdiction, and by whatever social science the court finds persuasive on a given day. The whole point of an objective test is to take that variability off the table. Once you concede that the test can be race-adjusted, you’ve conceded that it can be adjusted for any demographic characteristic a future court finds relevant.
Consider what the D.C. ruling implies geographically. Washington, D.C. is roughly 44% black. A standard calibrated to the lived experience of black residents in that city may produce different outcomes than the same standard applied in a jurisdiction with a different demographic profile. If the constitutional question turns partly on race, the constitutional answer turns partly on where you live. That’s not equal protection. That’s the opposite of it, and it’s coming from courts that typically claim equal protection as their primary justification.
I’ve spent 30 years in financial services, much of that time navigating Securities and Exchange Commission regulatory demands and administrative subpoenas that the government can issue without a warrant under the third-party doctrine. I’ve watched the Fourth Amendment’s warrant requirement shrink steadily as courts accommodate institutional convenience. What the D.C. court is doing is different in kind. It’s not shrinking the right. It’s making it unequal. That’s a more fundamental problem.
The Fourth Amendment’s warrant requirement was written to apply to everyone the same way. The founders weren’t designing a system of contextually adjusted protections that a defendant’s demographic characteristics could expand or contract. They were building a floor — a minimum standard of protection that every citizen could count on regardless of who they were or where they lived. The reasonable-person test is that floor. The D.C. court has decided the floor should be adjustable.
YOUR PHONE HAS NO FOURTH AMENDMENT
Alito is right that this question warrants the Supreme Court’s full attention. A circuit decision that redefines the foundational standard of Fourth Amendment seizure analysis — and does so by injecting race into what was deliberately an objective inquiry — is not a minor doctrinal variation. It’s a departure from the principle that constitutional rights belong to citizens equally, not proportionally.
The Constitution has one reasonable person. The moment courts start building a second one, calibrated to identity and geography, they’ve stopped applying the law and started engineering outcomes. That’s not judicial interpretation. That’s judicial legislation — and it will not stop with the Fourth Amendment.
Jay Rogers is a financial professional with more than 30 years of experience in private equity, private credit, hedge funds, and wealth management. He has a BS from Northeastern University and has completed postgraduate studies at UCLA, UPENN, and Harvard. He writes about issues in finance, constitutional law, national security, human nature, and public policy.