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L. Song Richardson

Excerpted from: L. Song Richardson, Police Efficiency and the Fourth Amendment , 87 Indiana Law Journal 1143 (Summer, 2012) (209 Footnotes)

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.

Arrest efficiency, or hit-rate data, provides evidence of these biases. Arrest efficiency refers to the rates at which the police find evidence of criminal activity when conducting a stop and frisk. When available, these data consistently demonstrate that the hit rates are lower for non-Whites than for Whites, or that the rates are at least equal. For instance, in Minnesota, a 2003 report conveyed that the hit rates for finding contraband were 11.17% for Blacks and 23.53% for Whites. In 2010, in New York City, the hit rates for finding contraband were 1.89% for Blacks and 2.42% for Whites. Although the hit rates for Whites were higher than for Blacks, Blacks were stopped and frisked far more often than Whites.

Implicit social cognition research demonstrates that while implicit biases are ubiquitous, their magnitude and effects on judgments vary both across individuals and across situations. Hence, officers are not equally proficient at determining whether ambiguous behaviors actually denote criminality. Accounting for these differences in officers' abilities can help ameliorate the current shortcomings of the reasonable suspicion standard.

In order to promote efficient policing and safeguard individuals against the effects of implicit biases, this Article contemplates a judicial refocus of the reasonable suspicion standard, one that does not solely assess whether an individual is acting suspiciously (the current fact-centered approach). Rather, this Article evaluates whether courts should also weigh an officer's skill at judging the criminality of ambiguous behavior by examining police efficiency data-the rate at which the individual officer finds evidence of criminality when conducting a stop and frisk (the officer-centric approach). Under this new approach, police efficiency would play a central role in a court's determination of the reasonableness of a Fourth Amendment seizure. Additionally, this Article explores whether broadening the scope of the articulation requirement by requiring officers not only to state the factual basis for the stop, but also the relationship between their training and experience and the facts that led to the stop will better effectuate Fourth Amendment norms.

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.