New Law Review article: Police Efficiency and the Fourth Amendment

L. Song Richardson, Police Efficiency and the Fourth Amendment, 87 Indiana Law Journal 1143 (Summer, 2012):

This Article argues that provocative new research in the mind and behavioral sciences can transform our understanding of core Fourth Amendment principles. Recent research in the field of implicit social cognition-a combination of social psychology, cognitive psychology, and cognitive neuroscience -demonstrates that individuals have implicit (nonconscious) biases that can perniciously affect the perceptions, judgments, and behaviors that are integral to core Fourth Amendment principles. Drawing from recent implicit social cognition research and prior work, this Article attempts to solve a conceptual puzzle that continues to stymie courts and Fourth Amendment scholars. How can the reasonable suspicion standard promote efficient policing-policing that protects liberty against arbitrary intrusion while simultaneously promoting effective law enforcement?

The reasonable suspicion standard attempts to strike a delicate balance between individual privacy rights and law enforcement needs. This standard serves law enforcement interests by permitting officers to act on their suspicions of criminal activity even in the absence of probable cause. However, in order to prevent arbitrary police actions, courts impose an articulation requirement that obliges officers to justify the intrusion by stating the facts-not mere hunches-that led them to feel suspicious of the individual’s ambiguous behaviors. Courts then review these facts to determine whether they give rise to a reasonable inference of criminality.

Ultimately, the standard fails to protect against unjustified encroachments upon individual liberty because it treats suspicion as an objective concept. Courts assume that it is possible to objectively determine whether people are acting suspiciously. They also assume that only people who are behaving suspiciously will be accosted by the police and restrained in their freedom to walk away. This assumption is crucial to the efficacy of the safeguards against arbitrary policing offered by the reasonable suspicion standard.

This Article makes the case, however, that the assumptions driving Fourth Amendment stop-and-frisk jurisprudence are flawed; they are based upon a critical misunderstanding of the nature of suspicion. Implicit social cognition research demonstrates that implicit biases can affect whether police interpret an individual’s ambiguous behaviors as suspicious. For instance, studies repeatedly reveal that people evaluate ambiguous actions performed by non-Whites as suspicious and criminal while identical actions performed by Whites go unnoticed. The current operation of the articulation requirement does not ameliorate the problem because an officer will likely be unaware that nonconscious biases affected his or her interpretation of ambiguous behavior. Thus, an officer who acts on his suspicions can easily point to the specific facts that he believes made him feel suspicious without even realizing that implicit biases affected how he interpreted the behavior.

. . .

My argument unfolds in three parts. Part I introduces the science of implicit social cognition and examines its relevance to core Fourth Amendment principles. Part II scrutinizes the reasonable suspicion standard and exposes its weaknesses. Part III draws from implicit social cognition research to reconceptualize the reasonable suspicion standard. It ends by considering some of the benefits and shortcomings of this new approach.

Via Race, Racism, and the Law.