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Document Type

Article

Publication Date

Summer 2012

Publication Citation

87 Indiana Law Journal 1143 (2012)

Abstract

Much of our Fourth Amendment jurisprudence is premised upon a profound misunderstanding of the nature of suspicion. When determining whether law enforcement officers had the reasonable suspicion necessary to justify a “stop and frisk,” courts currently assume that, in any given case, the presence or absence of reasonable suspicion can objectively be determined simply by examining the factual circumstances that the officers confronted. This Article rejects that proposition. Powerful new research in the behavioral sciences indicates that implicit, nonconscious biases affect the perceptions and judgments that are integral to our understanding of core Fourth Amendment principles. Studies reveal, for example, that many people regard ambiguous actions performed by non-Whites as suspicious, but regard Whites’ performance of those same actions as innocuous. Empirical evidence also demonstrates that officers vary in their ability to overcome implicit biases. Utilizing the behavioral realism framework, this Article considers whether courts should supplement their objective, fact-centered approach to stop-and-frisk cases with one that is more officer-centric. Rather than treat reasonable suspicion as something that either is or is not objectively provoked by a given case’s facts, this Article explores whether courts should place a heavy emphasis on each officer’s “hit rate”—the rate at which an officer has successfully detected criminal activity when conducting stop and frisks in the past. This move, combined with a more robust articulation requirement, may better protect Fourth Amendment norms.

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