Police efficiency and the Fourth Amendment

Indiana Law Journal

Volumn 87, Issue 3, 2012, Pages 1143-1182

  Richardson, L Song ^a  

^a AMERICAN UNIVERSITY   (United States)

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EID: 84055225830     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (205)

1. This Article utilizes the behavioral realist approach, which argues that judges should not base their theories of human behavior on a purely conceptual, a priori process but rather, on the best empirical scientific evidence that exists. For a summary of this approach, see Jerry Kang & Kristin Lane, Seeing Through Colorblindness: Implicit Bias and the Law, 58 UCLA L. REV. 465 (2010);
2. Symposium on Behavioral Realism, 94 CALIF. L. REV. 945 (2006).
3. For recent scholarship utilizing this approach, see Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 VA. L. REV. 1893 (2009);
4. Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 CALIF. L. REV. 945 (2006);
5. Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005);
6. Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action", 94 CALIF. L. REV. 1063, 1064 (2006)
7. [hereinafter Kang & Banaji, Fair Measures];
8. Cynthia Lee, The Gay Panic Defense, 42 U. C. DAVIS L. REV. 471 (2008);
9. Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 DUKE L. J. 345, 354 (2007);
10. Justin D. Levinson, Huajian Cai & Danielle Young, Guilt by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test, 8 OHIO ST. J. CRIM. L. 187 (2010);
11. Rigel C. Oliveri, Between a Rock and a Hard Place: Landlords, Latinos, Anti-Illegal Immigrant Ordinances, and Housing Discrimination, 62 VAND. L. REV. 55 (2009);
12. see also Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 SUP. CT. REV. 153 (arguing that the Supreme Court's consent jurisprudence should incorporate findings from the psychology of compliance).
13. Jerry Kang & Kristin Lane, A Future History of Implicit Social Cognition and the Law (UCLA School of Law, Research Paper No. 09-26, 2009)
14. [hereinafter Kang & Lane, Future History], available at http://ssrn. com/abstract=1458678.
15. L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 MINN. L. REV. 2035 (2011).
16. This paraphrases language from Terry v. Ohio, 392 U. S. 1, 16(1968), the seminal Supreme Court decision that created the reasonable suspicion standard.
17. This phrase is borrowed from Andrew Gelman, Jeffrey Fagan & Alex Kiss, An Analysis of the New York City Police Department's "Stop-and- Frisk" Policy in the Context of Claims of Racial Bias, 102 J. AM. STAT. ASS'N 813, 821 (2007)
18. [hereinafter Gelman et al., NYPD Analysis].
19. MINNESOTA STATEWIDE RACIAL PROFILING REPORT: ALL PARTICIPATING JURISDICTIONS 22(2003), available at http://www1.umn. edu/irp/racialprof/ aggregate%20report%2092303.pdf.
20. CTR. FOR CONSTITUTIONAL RIGHTS, NYPD STOP-AND-FRISK STATISTICS 2009 AND 2010, available at http://ccrjustice.org/files/CCR-Stop-and-Frisk-Fact-Sheet. pdf.
21. In 2009, Blacks comprised 53% of those stopped and frisked while Whites were only stopped and frisked 9% of the time. Id. When researchers studying the stop and frisk practices of the NYPD controlled for the racial composition and crime rates of neighborhoods as well as arrest rates, they found that stops of Whites were more likely to lead to an arrest than stops of either Blacks or Hispanics. Gelman et al., NYPD Analysis, supra note 6, at 820. They also found that "for the most frequent categories of stops-those associated with violent crimes and weapons offenses-blacks and Hispanics were much more likely to be stopped than whites-" Id.
22. See ZIVA KUNDA, SOCIAL COGNITION: MAKING SENSE OF PEOPLE 1-3 (1999) (describing evolution of social cognition);
23. Nilanjana Dasgupta, Implicit Ingroup Favoritism, Outgroup Favoritism, and Their Behavioral Manifestations, 17 SOC. JUST. RES. 143, 144 (2004) (same).
24. See Kang & Banaji, Fair Measures, supra note 1, at 1064
25. see also Patricia G. Devine, Stereotypes and Prejudice: Their Automatic and Controlled Components, 56 J. PERSONALITY & SOC. PSYCHOL. 5, 6 (1989) ("Automatic processes involve the unintentional or spontaneous activation of some well-learned set of associations or responses that have been developed through repeated activation in memory. They do not require conscious effort and appear to be initiated by the presence of stimulus cues in the environment." (emphasis added)).
26. Birt L. Duncan, Differential Social Perception and Attribution of Intergroup Violence: Testing the Lower Limits of Stereotyping of Blacks, 34 J. PERSONALITY & SOC. PSYCHOL. 590, 591 (1976)
27. (quoting Henri Tajfel, Social and Cultural Factors in Perception, in HANDBOOK OF SOCIAL PSYCHOLOGY 423 (Gardner Lindzey & Elliot Aronson eds., 1969)).
28. Brian A. Nosek, Mahzarin R. Banaji & Anthony G. Greenwald, Harvesting Implicit Group Attitudes and Beliefs from a Demonstration Web Site, 6 GROUP DYNAMICS 101, 112 (2002).
29. Kang & Lane, Future History, supra note 2, at 8.
30. Jennifer L. Eberhardt, Phillip Atiba Goff, Valerie J. Purdie & Paul G. Davies, Seeing Black: Race, Crime, and Visual Processing, 87 J. PERSONALITY & SOC. PSYCHOL. 876, 876 (2004) ("The stereotype of Black Americans as violent and criminal has been documented by social psychologists for almost 60 years.");
31. Sophie Trawalter, Andrew R. Todd, Abigail A. Baird & Jennifer A. Richeson, Attending to Threat: Race-Based Patterns of Selective Attention, 44 J. EXPERIMENTAL SOC. PSYCHOL. 1322, 1322 (2008) ("There is overwhelming evidence that young Black men are stereotyped as violent, criminal, and dangerous... both implicitly as well as explicitly." (citation omitted));
32. see also Patricia G. Devine & Andrew J. Elliot, Are Racial Stereotypes Really Fading? The Princeton Trilogy Revisited, 21 PERSONALITY & SOC. PSYCHOL. BULL. 1139 (1995);
33. While this section will discuss findings from studies related to implicit social cognitions, other social psychological literature also supports these biases. See, e.g., Dan M. Kalian, David A. Hoffman & Donald Braman, Whose Eyes Are You Going To Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837, 842-43 (2009) (noting that "[s]ocial psychology teaches us that our perceptions of fact are pervasively shaped by our commitments to shared but contested views of individual virtue and social justice. It also tells us that although our ability to perceive this type of value-motivated cognition in others is quite acute, our power to perceive it in ourselves tends to be quite poor.").
34. Kurt Hugenberg & Galen V. Bodenhausen, Ambiguity in Social Categorization: The Role of Prejudice and Facial Affect in Race Categorization, 15 PSYCHOL. SCI. 342, 342-45 (2004)
35. [hereinafter Hugenber & Bodenhausen, Ambiguity] (finding that subjects evaluated the same facial expression as more hostile on a black face than on a white face);
36. H. Andrew Sager & Janet Ward Schofield, Racial and Behavioral Cues in Black and White Children's Perceptions of Ambiguously Aggressive Acts, 39 J. PERSONALITY & SOC. PSYCHOL. 590, 593, 596 (1980) (finding that black and white school-age children rated an ambiguous bump in the hallway as more aggressive when performed by a black actor rather than a white actor);
37. see also Kurt Hugenberg & Galen V. Bodenhausen, Facing Prejudice: Implicit Prejudice and the Perception of Facial Threat, 14 PSYCHOL. SCI. 640, 643 (2003)
38. [hereinafter Hugenberg & Bodenhausen, Facing Prejudice] (demonstrating that implicit bias scores predicted how long it took white participants to judge when a hostile expression on a black face became nonhostile).
39. Joshua Correll, Bernadette Park, Charles M. Judd & Bernd Wittenbrink, The Police Officer's Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. PERSONALITY & SOC. PSYCHOL. 1314, 1317-18 (2002).
40. see also B. Keith Payne, Weapon Bias: Split-Second Decisions and Unintended Stereotyping, 15 CURRENT DIRECTIONS IN PSYCHOL. SCI. 287 (2006) (noting that split-second decisions limit individual ability to control for racial bias caused by racial stereotypes).
41. Joshua Correll, Bernadette Park, Charles M. Judd, Bernd Wittenbrink, Melody S. Sadler & Tracie Keesee, Across the Thin Blue Line: Police Officers and Racial Bias in the Decision To Shoot, 92 J. PERSONALITY & SOC. PSYCHOL. 1006, 1020-22 (2007) (finding that officers do not exhibit shooter bias to the same extent as civilians and suggesting that extensive training explains this result)
42. [hereinafter Correll et al., Thin Blue Line].
43. Hugenberg & Bodenhausen, Facing Prejudice, supra note 31, at 640.
44. see also Hugenberg & Bodenhausen, Ambiguity, supra note 31, at 342-45 (finding that subjects with high implicit bias scores were more likely to categorize an ambiguous individual as black as opposed to white when the expression was unambiguously hostile versus happy).
45. See Emily Balcetis & David Dunning, See What You Want To See: Motivational Influences on Visual Perception, 91 J. PERSONALITY & SOC. PSYCHOL. 612 (2006).
46. See, e.g., Matthew D. Lieberman, Ahmad Hariri, Johanna M. Jarcho, Naomi I. Eisenberger & Susan Y. Bookheimer, An fMRI Investigation of Race-Related Amygdala Activity in African-American and Caucasian-American Individuals, 8 NATURE NEUROSCI. 720 (2005). The strength of amygdala activation correlates with implicit bias scores related to racial attitudes.
47. Elizabeth A. Phelps, Kevin J. O'Connor, William A. Cunningham, E. Sumie Funayama, J. Christopher Gatenby, John C. Gore & Mahzarin R. Banaji, Performance on Indirect Measures of Race Evaluation Predicts Amygdala Activation, 12 J. COGNITIVE NEUROSCI. 729, 730-33 (2000). Researchers found stronger amygdala responses when they presented the pictures of black faces subliminally.
48. William A. Cunningham, Marcia K. Johnson, Carol L. Raye, J. Chris Gatenby, John C. Gore & Mahzarin R. Banaji, Separable Neural Components in the Processing of Black and White Faces, 15 PSYCHOL. SCI. 806, 809 (2004) (finding that the stronger reactions were correlated significantly with scores from the Implicit Association Test (IAT)-a test which reveals implicit biases);
49. see also Allen J. Hart, Paul J. Whalen, Lisa M. Shin, Sean C. McInerney, Hakan Fischer & Scott L. Rauch, Differential Response in the Human Amygdala to Racial Outgroup vs Ingroup Face Stimuli, 11 NEUROREP. 2351 (2000) (demonstrating that subjects showed greater amygdala activation to outgroup faces);
50. Andreas Olsson, Jeffrey P. Ebert, Mahzarin R. Banaji & Elizabeth A. Phelps, The Role of Social Groups in the Persistence of Learned Fear, 309 SCI. MAG. 785, 785-86 (2006) (demonstrating that humans more readily show a fear response to outgroup members);
51. Damian Stanley, Elizabeth Phelps & Mahzarin Banaji, The Neural Basis of Implicit Attitudes, 17 CURRENT DIRECTIONS IN PSYCHOL. SCI. 164, 165 (2008) (noting that amygdala activation is associated with fear);
52. cf. Mary E. Wheeler & Susan T. Fiske, Controlling Racial Prejudice: Social-Cognitive Goals Affect Amygdala and Stereotype Activation, 16 PSYCHOL. SCI. 56 (2005) (demonstrating that amygdala activation to outgroup members is not inevitable). Researchers have also found that a variety of physiological responses occur when Whites are exposed to Blacks, including sweating, increased heart rate, facial twitches, and increased eye blink.
53. Jennifer L. Eberhardt, Imaging Race, 60 AM. PSYCHOL. 181, 183 (2005).
54. Nicole C. Donders, Joshua Correll & Bernd Wittenbrink, Danger Stereotypes Predict Racially Biased Attentional Allocation, 44 J. EXPERIMENTAL SOC. PSYCHOL. 1328, 1332 (2008).
55. 392 U. S. 1 (1968).
56. Delaware v. Prouse, 440 U. S. 648, 653-54 (1979) ("The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of 'reasonableness' upon the exercise of discretion by government officials, including law enforcement agents, in order '"to safeguard the privacy and security of individuals against arbitrary invasions.... [sic]"'" (footnote omitted)).
57. Terry, 392 U. S. at 30.
58. United States v. Sokolow, 490 U. S. 1, 7 (1989)
59. (quoting Terry, 329 U. S. at 27);
60. see also United States v. Chavez-Valenzuela, 268 F.3d 719, 724 (9th Cir. 2001) (a hunch "cannot withstand scrutiny under the Fourth Amendment");
61. United States v. Salzano, 158 F.3d 1107, 1111 (9th Cir. 1998) ("[i]nchoate suspicions and unparticularized hunches" are not reasonable suspicion
62. (quoting United States v. Wood, 106 F.3d 942, 946 (10th Cir. 1997)).
63. See Sokolow, 490 U. S. at 7 (The "level of suspicion is considerably less than proof of wrongdoing by a preponderance of the evidence.");
64. New Jersey v. T. L. O., 469 U. S. 325, 346 (1985) ("[T]he requirement of reasonable suspicion is not a requirement of absolute certainty.");
65. United States v. Cortez, 449 U. S. 411, 417 (1981) ("But the essence of all that has been written is that the totality of the circumstances-the whole picture-must be taken into account.");
66. C. M. A. McCauliff, Burdens of Proof: Degrees of Belief, Quanta of Evidence, or Constitutional Guarantees?, 35 VAND. L. REV. 1293, 1301 (1982) (a preponderance is "something just over fifty percent").
67. Terry, 392 U. S. at 21-22.
68. See Ornelas v. United States, 517 U. S. 690, 696 (1996).
69. (quoting Pullman-Standard v. Swint, 456 U. S. 273, 289 n. 19 (1982)).
70. See Terry, 392 U. S. at 27. Professor Jerome Skolnick, a recognized expert on policing practices, notes that police officers by necessity often develop "symbolic assailants" in order to identify potential criminals.
71. JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY 45-46, 217-18 (1966). Often this "symbolic assailant" is associated with black men. Id. at 49.
72. United States v. Cortez, 449 U. S. 411, 418 (1981);
73. see also Ornelas, 517 U. S. at 699 ("[A] reviewing court should take care... to give due weight to inferences drawn from those facts by... local law enforcement officers... through the lens of his police experience and expertise.");
74. Brown v. Texas, 443 U. S. 47, 52 n. 2 (1979) (deference is due to the "observations of a trained, experienced police officer who is able to perceive and articulate meaning in given conduct which would be wholly innocent to the untrained observer").
75. See Terry, 392 U. S. at 27.
76. (quoting LaFave, "Street Encounters" and the Constitution: Terry, Sibron, Peters and Beyond, 67 MICH. L. REV. 40, 73 (1968)).
77. Terry, 392 U. S. at 5.
78. For McFadden's full testimony, see State of Ohio v. Richard D. Chilton and State of Ohio v. John W. Terry: The Suppression Hearing and Trial Transcripts, 72 ST. JOHN'S L. REV. 1387 (1998).
79. State of Ohio v. Richard D. Chilton and State of Ohio v. John W. Terry: The Suppression Hearing and Trial Transcripts, supra note 75, at 1456.
80. Terry's defense lawyer described Officer McFadden as "a guy that we really liked. He was straight. One thing about him-as a police officer, he came straight down the line. You did not have to worry about him misrepresenting what the facts were. He would come straight down the line, and as a defense lawyer I could appreciate that." Honorable Louis Stokes, Representing John W. Terry, 72 ST. JOHN'S L. REV. 727, 729 (1998).
81. See Terry, 392 U. S. at 7.
82. This articulation requirement is open to the same critique made by Justice Marshall in the peremptory challenge context. In his dissenting opinion in Batson v. Kentucky, 476 U. S. 79, 106(1986), Justice Marshall argued that requiring prosecutors to articulate a race-neutral reason for their use of peremptory challenges would fail to prevent discriminatory jury selection practices. He argued: A prosecutor's own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is "sullen", or "distant", a characterization that would not have come to his mind if a white juror had acted identically. A judge's own conscious or unconscious racism may lead him to accept such an explanation as well supported. Id. (Marshall, J., dissenting). Thus, he argued that peremptory challenges should be abolished. Id. at 107. One could make the argument that the reasonable suspicion test should be eliminated for similar reasons.
83. Terry, 392 U. S. at 27 (emphasis added).
84. United States v. Cortez, 449 U. S. 411, 418 (1981);
85. Omelas v. United States, 517 U. S. 690, 699 (1996);
86. see also David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271, 300-01 (critiquing the Ornelas decision for essentially stating "that police officers should receive as much deference as trial judges").
87. See Ornelas, 517 U. S. at 696 (citations omitted) (acknowledging that reasonable suspicion is a "fluid concept[] that take[s its] substantive content from the particular contexts in which the standards are being assessed");
88. see also Terry, 392 U. S. at 29 (the limitations imposed by the Fourth Amendment "will have to be developed in the concrete factual circumstances of individual cases");
89. Ker v. California, 374 U. S. 23, 33 (1963) (noting that "[t]his Cour[t] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application" and that "[e]ach case is to be decided on its own facts and circumstances" (internal quotation marks omitted)).
90. Ornelas, 517 U. S. at 699.
91. Cortez, 449 U. S. at 417 ("[T]hey fall short of providing clear guidance dispositive of the myriad factual situations that arise.").
92. See, e.g., United States v. Sokolow, 490 U. S. 1, 10 (1989)
93. ("We noted in Gates, 462 U. S., at 243-44, n. 13, that 'innocent behavior will frequently provide the basis for a showing of probable cause', and... [t]hat principle applies equally well to the reasonable suspicion inquiry.").
94. See generally Eli B. Silverman, With a Hunch and a Punch, 4 J. L. ECON. & POL'Y 133 (2007) (describing the contextual nature of suspicion). As the Supreme Court has stated, whether actions are indicative of "ongoing criminal behavior" or innocent conduct depends almost entirely on context, and thus, "one determination will seldom be a useful 'precedent' for another."
95. Ornelas, 570 U. S. at 698
96. (quoting Illinois v. Gates, 462 U. S. 213, 238 n. 11 (1983)).
97. Officers should also be able to articulate the individualized facts that justify their suspicions. Hence, I am not arguing that experience and training translate into hunches that deserve automatic deference. See, e.g., Craig S. Lerner, Judges Policing Hunches, 4 J. L. ECON. & POL'Y 25 (2007);
98. Craig S. Lerner, Reasonable Suspicion and Mere Hunches, 59 VAND. L. REV. 405 (2006).
99. SEE SOKOLOW, 490 U. S. AT 14 (MARSHALL, J., DISSENTING)
100. (POINTING OUT THAT IN REID V. GEORGIA, 448 U. S. 438, 441(1980), THE COURT FOUND INSUFFICIENT FACTS FOR REASONABLE SUSPICION DESPITE THE FACT THAT THE CASE INVOLVED "STRIKINGLY SIMILAR" FACTS.).
101. 803 F.2d 1505 (9TH CIR. 1986).
102. LERNER, REASONABLE SUSPICION AND MERE HUNCHES, SUPRA NOTE 88, AT 415.
103. DOUGLAS H. GINSBURG, OF HUNCHES AND MERE HUNCHES: TWO CHEERS FOR TERRY, 4 J. L. ECON. & POL'Y 79, 86 (2007).
104. TERRY V. OHIO, 392 U. S. 1, 5 (1968).
105. SEE STATE OF OHIO V. RICHARD D. CHILTON AND STATE OF OHIO V. JOHN W. TERRY: THE SUPPRESSION HEARING AND TRIAL TRANSCRIPTS, SUPRA NOTE 75, AT 1420.
106. SEE ALSO ANDREW E. TASLITZ, POLICE ARE PEOPLE TOO: COGNITIVE OBSTACLES TO, AND OPPORTUNITIES FOR, POLICE GETTING THE INDIVIDUALIZED SUSPICION JUDGMENT RIGHT, 8 OHIO ST. J. CRIM. L. 7, 10 (2010) (arguing that "[a]ny concept of reasonable suspicion... that tolerates massive false negative rates-frequent invasions of privacy, property, and locomotive rights that ensnare the apparently innocent-is a flawed conception. The costs imposed on communities and individuals become great, while little in the way of crime-control efforts is achieved.").
107. 469 U. S. 1 (1984).
108. In his concurring opinion in United Stales v. Mendenhall, Justice Powell referred to the officer's experience and training without any discussion of how they related to the officer's ability to discern criminal from noncriminal acts. 446 U. S. 544, 563-64 (1980) (Powell, J., concurring). He wrote, In all situations the officer is entitled to assess the facts in light of his experience. The two officers who stopped the respondent were federal agents assigned to the Drug Enforcement Administration. Agent Anderson, who initiated the stop and questioned the respondent, had 10 years of experience and special training in drug enforcement. He had been assigned to the Detroit Airport, known to be a crossroads for illicit narcotics traffic, for over a year and he had been involved in approximately 100 drug-related arrests. Id. at 564 (citations omitted) (internal quotation marks omitted)
109. (quoting United States v. Brignoni-Ponce, 422 U. S. 873, 885 (1975)). Many lower court decisions make the same mistake.
110. *5 (Ariz. Ct. App. Mar. 27, 2008) (considering officers' training, length of time served as a police officer, and number of stops that led to drug investigations);
111. *4 (Cal. Ct. App. June 14, 2007) (considering the officer's thirty-two years of experience as a police officer);
112. *2 (Iowa Ct. App. Apr. 14, 2004) (referencing the officer's eighteen years on the police force);
113. *3 (Minn. Ct. App. Jan. 9, 2007) (considering years as a police officer, number of traffic stops, and number of drug arrests);
114. State v. Long, 303 S. W.3d 198, 200 (Mo. Ct. App. 2010) (considering the fact that the officer had received specialized training in narcotics investigations);
115. State v. Kehm, 724 N. W.2d 88, 91, 96 (Neb. Ct. App. 2006) (concluding that the officer's experience included making "a number of arrests").
116. United States v. Arvizu, 534 U. S. 266, 273 (2002).
117. See Correll et al., Thin Blue Line, supra note 38.
118. Robert J. Sampson & Stephen W. Raudenbush, Seeing Disorder: Neighborhood Stigma and the Social Construction of "Broken Windows", 67 SOC. PSYCHOL. Q. 319 (2004).
119. But see State v. Warren, 718 N. E.2d 936, 938-41 (Ohio Ct. App. 1998) (finding no reasonable suspicion in part because the officer "never elaborated on his experience").
120. See Lorella Lepore & Rupert Brown, Category and Stereotype Activation: Is Prejudice Inevitable?, 72 J. PERSONALITY & SOC. PSYCHOL. 275 (1997);
121. Margo J. Monteith, Jeffrey W. Sherman & Patricia G. Devine, Suppression as a Stereotype Control Strategy, 2 PERSONALITY & SOC. PSYCHOL. REV. 63, 72 (1998)
122. (citing Russell H. Fazio, Joni R. Jackson, Bridget C. Dunton & Carol J. Williams, Variability in Automatic Activation as an Unobtrusive Measure of Racial Attitudes: A Bona Fide Pipeline?, 69 J. PERSONALITY & SOC. PSYCHOL. 1013 (1995));
123. Bernd Wittenbrink, Charles M. Judd & Bernadette Park, Evidence for Racial Prejudice at the Implicit Level and Its Relationship with Questionnaire Measures, 72 J. PERSONALITY & SOC. PSYCHOL. 262 (1997).
124. (citing Gordon B. Moskowitz, Peter M. Gollwitzer, Wolfgang Wasel & Bernd Schaal, Preconscious Control of Stereotype Activation Through Chronic Egalitarian Goals, 77 J. PERSONALITY & SOC. PSYCHOL. 167 (1999)).
125. Hugenberg & Bodenhausen, Ambiguity, supra note 31, at 342.
126. See, e.g., Leslie R. M. Hausmann & Carey S. Ryan, Effects of External and Internal Motivation to Control Prejudice on Implicit Prejudice: The Mediating Role of Efforts to Control Prejudiced Responses, 26 BASIC & APPLIED SOC. PSYCHOL. 215, 222 (2004) (finding that those with internal motivations to be nonprejudiced show decreased implicit biases compared to those who are only externally motivated);
127. Michael Johns, Jerry Cullum, Tonya Smith & Scott Freng, Internal Motivation to Respond Without Prejudice and Automatic Egalitarian Goal Activation, 44 J. EXPERIMENTAL SOC. PSYCHOL. 1514 (2008);
128. William W. Maddux, Jamie Barden, Marilynn B. Brewer & Richard E. Petty, Saying No to Negativity: The Effects of Context and Motivation To Control Prejudice on Automatic Evaluative Responses, 41 J. EXPERIMENTAL SOC. PSYCHOL. 19, 32-33 (2005);
129. Gordon B. Moskowitz, Peter M. Gollwitzer, Wolfgang Wasel & Bernd Schaal, Preconscious Control of Stereotype Activation Through Chronic Egalitarian Goals, 77 J. PERSONALITY & SOC. PSYCHOL. 167 (1999). A related discussion of how individuals whose "cultural orientation... prizes egalitarianism and social solidarity" can affect the interpretation of ambiguous acts.
130. Nilanjana Dasgupta, Mechanisms Underlying the Malleability of Implicit Prejudice and Stereotypes: The Role of Automaticity and Cognitive Control, in HANDBOOK OF PREJUDICE, STEREOTYPING, AND DISCRIMINATION 272 (Todd D. Nelson ed., 2009) ("[L]ongterm immersion in counterstereotypic social contexts may reduce the default accessibility of stereotypes or enhance the chronic accessibility of counterstereotypes, thereby decreasing the likelihood of biased automatic judgments and evaluations in the future.");
131. Cf. Nilanjana Dasgupta & Luis M. Rivera, When Social Context Matters: The Influence of Long-Term Contact and Short-Term Exposure to Admired Outgroup Members on Implicit Attitudes and Behavioral Intentions, 26 SOC. COGNITION 112, 119-20 (2008) (those with a great deal of prior contact with outgroup members-in this case, gays and lesbians-showed less outgroup bias regardless of the situational manipulation in the laboratory).
132. Shamena Anwar & Hanming Fang, An Alternative Test of Racial Prejudice in Motor Vehicle Searches: Theory and Evidence, 96 AM. ECON. REV. 127, 141 (2006). The data consisted of information for "906, 339 stops and 8, 976 searches conducted by a total of 1, 469 troopers." Of the stops considered, 66.5% were carried out against white motorists, 17.3% against Hispanic motorists, and 16.2% against black motorists. Id. Of the 8976 searches conducted, 54.6% were performed on Whites, 23.4% percent on Hispanics, and 22.1% on Blacks. Id. Slightly over 79% of the searches were unsuccessful. Drugs were the most common contraband found-15.1% of total searches-followed by alcohol/tobacco (2.1%) and drug paraphernalia (1.5%). Of the police officers, 76.3% were white, 13.7% were black, 10% Hispanic, 89% were male. White troopers conducted 73% of the stops, 86% of all searches; black officers conducted 16% of stops and 4.6% searches. Finally, Hispanic officers conducted 11.4% of stops and 9.5% of searches. Id.
133. Ian Ayres & Jonathan Borowsky, A Study of Racially Disparate Outcomes in the Los Angeles Police Department 28 (Oct. 2008), http://www.aclu-sc.org/ documents/view/47. Importantly, however, the researchers assumed that "officers are less likely to engage in racially biased policing against members of their own race." Id. This, of course, may not be the case.
134. See also Billy R. Close & Patrick L. Mason, Searching for Efficient Enforcement: Officer Characteristics and Racially Biased Policing, 3 REV. L. & ECON. 263 (2007) (finding that the hit rates of black and Latino officers were higher than that of white officers).
135. See Max Minzner, Putting Probability Back into Probable Cause, 87 TEX. L. REV. 913, 914 (2009).
136. See also Albert W. Alschuler, Upside and Downside of Police Hunches and Expertise, 4 J. L. ECON. & POL'Y 115, 117-18 (2007) (describing the process of chicken sexing where experienced individuals can differentiate between male and female recently hatched chicks, yet they cannot articulate exactly how they are able to differentiate);
137. James M. Rosenbaum, Hunches: Too Much Discretion, Not Enough Control, 4 J. L. ECON. & POL'Y 107, 107-08 (2007) (relating the story of an officer on a ride along with an experienced DUI officer who could determine whether or not someone was drunk to a high level of accuracy even when the individual did not appear drunk to others).
138. 831 F.2d 1413 (9th Cir. 1987)
139. rev'd on other grounds, 490 U. S. 1 (1988).
140. United States v. Sokolow, 490 U. S. 1, 8 (1988).
141. Sokolow, 831 F.2d at 1423-24.
142. Sokolow, 490 U. S. at 8.
143. For another example of antithetical inferences, see United States v. Erwin, a case in which the reasonable suspicion determination turned on the court's interpretation of the defendant's movements in an airport. 803 F.2d 1505, 1511, 1512 (9th Cir. 1986). The majority interpreted the defendant's movements as evasive, while the dissent attributed the defendant's circuitous route in the airport to his desire to avoid a picket line.
144. Sokolow, 490 U. S. at 8-11.
145. 534 U. S. 266 (2002).
146. See United States v. Sokolow, 831 F.2d 1413, 1418 (9th Cir. 1987)
147. rev'd on other grounds, 490 U. S. 1 (1988) ("In assessing whether a given set of facts constitutes reasonable suspicion, we must determine whether the facts collectively establish reasonable suspicion, not whether each particular fact establishes reasonable suspicion. '[T]he totality of the circumstances-the whole picture-must be taken into account.'"
148. (quoting United States v. Cortez, 449 U. S. 411, 417 (1981)) (alteration in original)).
149. For discussions about the importance of proportionality to the Fourth Amendment, see generally Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 St. John's L. Rev. 1097, 1120-23 (1998) (discussing Terry's proportionality principle);
150. Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L. REV. 1, 47 (1991) (stating that "the level of intrusion associated with the police action is the most important gauge of how much certainty the police must have before they conduct a search or seizure").
151. See L. Song Richardson, Cognitive Bias, Police Character, and the Fourth Amendment, 44 ARIZ. ST. L. J. (forthcoming Spring 2012) (exploring the influence of officer character on judgments of suspicion).
152. See, e.g., Illinois v. Caballes, 543 U. S. 405, 413 (2005) (Souter, J. dissenting) ("[T]he Fourth Amendment does not demand certainty of success to justify a search for evidence or contraband.").
153. Jamie L. Flexon, Arthur J. Lurigio & Richard G. Greenleaf, Exploring the Dimensions of Trust in the Police Among Chicago Juveniles, 37 J. CRIM. JUST. 180, 180 (2009) (explaining that when citizens distrust the police they are hesitant to report crimes and to help with police investigations).
154. Numerous studies demonstrate that implicit biases are malleable. See, e.g., Irene V. Blair, The Malleability of Automatic Stereotypes and Prejudice, 6 PERSONALITY & SOC. PSYCHOL. REV. 242 (2002) (reviewing literature testing whether automatic stereotypes are malleable). Neuroscientific studies also provide evidence of malleability.
155. Patricia G. Devine & Lindsay B. Sharp, Automaticity and Control in Stereotyping and Prejudice, in HANDBOOK OF PREJUDICE, STEREOTYPING, AND DISCRIMINATION 76-80 (Todd D. Nelson ed., 2009) (citations omitted).
156. Irene V. Blair, Jennifer E. Ma & Alison P. Lenton, Imagining Stereotypes Away: The Moderation of Implicit Stereotypes Through Mental Imagery, 81 J. PERSONALITY & SOC. PSYCHOL. 828 (2001) (discussing mental imagery studies which demonstrate that stereotypes are malleable);
157. John T. Jost, Laurie A. Rudman, Irene V. Blair, Dana R. Carney, Nilanjana Dasgupta, Jack Glaser & Curtis D. Hardin, The Existence of Implicit Bias Is Beyond Reasonable Doubt: A Refutation of Ideological and Methodological Objections and Executive Summary of Ten Studies that No Manager Should Ignore, 29 RES. ORGANIZATIONAL BEHAV. 39, 44-45 (2009);
158. Ziva Kunda & Lisa Sinclair, Motivated Reasoning with Stereotypes: Activation, Application, and Inhibition, 10 PSYCHOL. INQUIRY 12, 18 (1999) (stating that "research provides suggestive but not indisputable evidence for the possibility that people may inhibit the activation of stereotypes in some circumstances"); Wheeler & Fiske, supra note 49 (demonstrating that amygdala activation to outgroup members is not inevitable). Evidence of malleability is also found in neuroscientific studies. Devine & Sharp, supra note 146, at 76-80. In fact, some studies demonstrate that some people who are low in prejudice may not activate racial stereotypes at all. Kunda & Sinclair, Motivated Reasoning, supra, at 15-16. One study demonstrated that exposure to positive examples of outgroup members could reduce implicit biases.
159. Nilanjana Dasgupta & Anthony G. Greenwald, On the Malleability of Automatic Attitudes: Combating Automatic Prejudice with Images of Admired and Disliked Individuals, 81 J. PERSONALITY & SOC. PSYCHOL. 800 (2001).
160. But see Jennifer A. Joy-Gaba & Brian A. Nosek, The Surprisingly Limited Malleability of Implicit Racial Evaluations, 41 SOC. PSYCHOL. 137, 144-145 (2010) (while malleability was shown after exposure to counter-stereotypical racial group members, the effects were weak).
161. For studies discussing the importance of motivation to reducing implicit biases, see Patricia G. Devine, E. Ashby Plant, David M. Amodio, Eddie Harmon-Jones & Stephanie L. Vance, The Regulation of Explicit and Implicit Race Bias: The Role of Motivations To Respond Without Prejudice, 82 J. PERSONALITY & SOC. PSYCHOL. 835, 845 (2002) (showing that people with high internal motivation to be nonprejudiced more effectively controlled racial bias);
162. Jack Glaser & Eric D. Knowles, Implicit Motivation To Control Prejudice, 44 J. EXPERIMENTAL SOC. PSYCHOL. 164, 171 (2008); Wheeler & Fiske, supra note 49.
163. C. Neil Macrae, Galen V. Bodenhausen, Alan B. Milne, Tania M. J. Thorn & Luigi Castelli, On the Activation of Social Stereotypes: The Moderating Role of Processing Objectives, 33 J. EXPERIMENTAL SOC. PSYCHOL. 471 (1997);
164. see also Susan T. Fiske, Stereotyping, Prejudice, and Discrimination, in THE HANDBOOK OF SOCIAL PSYCHOLOGY 357 (Daniel T. Gilbert, Susan T. Fiske & Gardner Lindzey eds., 4th ed. 1998) (reviewing studies documenting that individuation reduces automatic stereotyping);
165. Susan T. Fiske, Intent and Ordinary Bias: Unintended Thought and Social Motivation Create Casual Prejudice, 17 SOC. JUST. RES. 117, 123-24 (2004) (discussing individuation);
166. Margo J. Monteith, Jeffrey W. Sherman & Patricia G. Devine, Suppression as a Stereotype Control Strategy, 2 PERSONALITY & SOC. PSYCHOL. REV. 63, 72 (1998) (discussing individuation and citing studies that demonstrate that "[o]ne factor that strongly influences the likelihood of individuation is the perceiver's degree of motivation to form accurate, nonstereotypical impressions").
167. Correll et al., Thin Blue Line, supra note 38.
168. Andrew E. Taslitz, Forgetting Freud: The Courts' Fear of the Subconscious in Date Rape (and Other) Cases, 16 B. U. PUB. INT. L. J. 145, 177 (2007) (noting that "[t]he subconscious mind also monitors, and learns from, our own behavior.... Your behavior provides new data for the subconscious, and any behavior repeated often enough to become habitual will also become part of the subconscious.").
169. Professor Craig Lemer writes, "[a]mong themselves and in informal discussions with others, police officers insist that their hunches about criminals are often right and that their 'sixth sense' proves invaluable in the field." Lerner, Reasonable Suspicion and Mere Hunches, supra note 88, at 413.
170. Myron Rothbart, Mark Evans & Solomon Fulero, Recall for Confirming Events: Memory Processes and the Maintenance of Social Stereotypes, 15 J. EXPERIMENTAL SOC. PSYCHOL. 343, 344 (1979);
171. see also Claudia E. Cohen, Person Categories and Social Perception: Testing Some Boundaries of the Processing Effects of Prior Knowledge, 40 J. PERSONALITY & SOC. PSYCHOL. 441 (1981) (describing study in which subjects were more likely to remember stereotype consistent information).
172. Charles M. Judd & Bernadette Park, Definition and Assessment of Accuracy in Social Stereotypes, 100 PSYCHOL. REV. 109, 112 (1993).
173. United States v. Montero-Camargo, 208 F.3d 1122, 1142 (9th Cir. 2000) (Kozinski, J., concurring). Federal court Judge Harold Baer also notes that it is easy for officers "to conform their testimony to the gossamer-like requirements" of reasonable suspicion.
174. The Honorable Harold Baer, Jr., Got a Bad Feeling? Is That Enough? The Irrationality of Police Hunches, 4 J. L. ECON. & POL'Y 91, 103 (2007).
175. Lerner, Reasonable Suspicion and Mere Hunches, supra note 88, at 441.
176. Terry v. Ohio, 392 U. S. 1, 15 (1968).
177. See, e.g., Margaret Raymond, Down on the Corner, Out in the Street: Considering the Character of the Neighborhood in Evaluating Reasonable Suspicion, 60 OHIO ST. L. J. 99 (1999) (arguing that the character of the neighborhood should not be considered in determining whether a reasonable suspicion exists except in limited circumstances).
178. See, e.g., United States v Martinez-Fuerte, 428 U. S. 543, 563 (1976) (ancestry is a relevant factor but not standing alone);
179. United States v. Brignoni-Ponce, 422 U. S. 873, 885-87 (1975) (same).
180. But see United States v. Montero-Camargo, 208 F.3d 1122, 1135 (9th Cir. 2000) (en banc) ("Hispanic appearance is, in general, of such little probative value that it may not be considered as a relevant factor where particularized or individualized suspicion is required. Moreover, we conclude, for the reasons we have indicated, that it is also not an appropriate factor.").
181. As Margaret Raymond has argued, articulation "not only exposes the basis for police conduct to judicial oversight, but the articulation of precisely what was observed and how it had meaning in the context of the officer's experience has educative value. Only then can we begin to bridge that gap between police perception and community perception of who should be stopped
182. See generally Eric J. Miller, Putting the Practice into Theory, 7 OHIO ST. J. CRIM. L. 31 (2009) (noting the lack of uniform training standards for police).
183. See also Editorial, The Truth Behind Stop and Frisk: A Court Needs To Take a Very Hard Look at the Police Tactic, N. Y. TIMES, Sep. 3, 2011, at A20 (noting that NYPD officers did not recall receiving training that covered proper arrest procedures and warnings to avoid racial profiling).
184. For a general discussion of the importance of individualized suspicion in the Fourth Amendment context, see Andrew E. Taslitz, What Is Probable Cause, and Why Should We Care?: The Costs, Benefits, and Meaning of Individualized Suspicion, 73 LAW & CONTEMP. PROBS. 145 (2010). Another safeguard against post-hoc rationalizations may be to have officers record their explanations for the stop and frisk before approaching the target, when time allows. This could be done through a recording device attached to their uniforms.
185. In a recent article, Professor Tonja Jacobi argues that Fourth Amendment doctrine should "embrace rules that aid screening between innocent and guilty defendants and forego rules that blur those categories." Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87 NOTRE DAME L. REV. 585, 660 (2011). In her view, if the purpose of the Amendment is to "protect the guilty so as not to intrude on the innocent, rather than the reverse, then the more accurate and powerful a screening device is, the more reasonable it is."
186. Harris v. State, No. SC08-1871, 2011 Fla. LEXIS 953 (Fla. Apr. 21, 2011).
187. Illinois v. Caballes, 543 U. S. 405, 409 (2005) ("[T]he use of a well-trained narcoticsdetection dog-one that 'does not expose noncontraband items that otherwise would remain hidden from public view',-during a lawful traffic stop generally does not implicate legitimate privacy interests."
188. (quoting United States v. Place, 462 U. S. 696, 707 (1983))).
189. Caballes, 543 U. S. at 411-13 (Souter, J. dissenting).
190. For a full discussion critiquing the Court's approach to drug-sniffing dogs, see Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of the Dog Scent Lineup, 42 HASTINGS L. J. 17 (1990).
191. *25.
192. see also State v. England, 19 S. W.3d 762, 768 (Tenn. 2000) (noting that probable cause should not be based solely upon a canine's positive alert but also upon proof of the dog's reliability).
193. One intriguing suggestion is to replace Terry stops with random stops of groups of citizens. In a recent article, Professors Harcourt and Meares argue that the obsession with individualized suspicion in Fourth Amendment jurisprudence should be abandoned. Replacing it would be "a new paradigm of randomized encounters that satisfy a base level of suspicion in order to capture the benefits of both privacy-protection (by ensuring a minimum level of suspicion) and evenhandedness (by cabining police discretion)." Bernard E. Harcourt & Tracey L. Meares, Randomization and the Fourth Amendment 4 (John M Olin Law & Econ., Working Paper No. 530 and Pub. Law & Legal Theory, Working Paper No. 317, 2010) (emphasis in original), available at http://www.ssrn. com/abstract=1665562;
194. see also William J. Stuntz, Local Policing After the Terror, 111 YALE L. J. 2137, 2163-69 (2002) (arguing that seizures of groups, "classes of people defined by place and time", would better protect Fourth Amendment values that the current individualized suspicion analysis).
195. For a discussion of the use of body-worn video devices and their cost-effectiveness, - see David A. Harris, Picture This: Body-Worn Video Devices (Head Cams) as Tools for Ensuring Fourth Amendment Compliance by Police, 43 TEX. TECH. L. REV. 357 (2010).
196. See, e.g., CHICAGO POLICE DEP'T, CRIME SURVEILLANCE INNOVATIONS IN CHICAGO: THE HISTORY OF POLICE OBSERVATION DEVICES (2008), available at https://portal.chicagopolice.org/portal/page/portal/ClearPath/About%20CPD/ POD%20Progra m/POD-History.pdf.
197. James J. Fyfe, Terry; An Ex-JCop's View, 72 ST. JOHN'S L. REV. 1231, 1247 (1998) (citing numerous research studies which conclude that "the major determinant of officer's behavior in the streets is the philosophy and policy of their chiefs").
198. Gelman et al., NYPD Analysis, supra note 6, at 815.
199. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 556, 655-57 & n. 299 (1999).
200. Albert W. Alschuler, Racial Profiling and the Constitution, 2002 U. CHI. LEGAL F. 163, 216 (2002).
201. U. S. CONST, amend. XIV, § 1 ("[N]or shall any State... deny to any person within its jurisdiction the equal protection of the laws.");
202. Washington v. Davis, 426 U. S. 229, 239-42 (1976) (noting that an equal protection violation requires proof of intentional race discrimination).
203. See Donna Coker, Addressing the Real World of Racial Injustice in the Criminal Justice System, 93 J. CRIM. L. & CRIMINOLOGY 827, 844-48 & n. 100 (2003).
204. Courts have not barred all consideration of race as a factor in the reasonable suspicion analysis. See supra note 174; see also I. Bennett Capers, Policing, Race, and Place, 44 HARV. C. R.-C. L. L. REV. 43, 66 n. 148 (2009) (noting that some courts have considered racial incongruity as a factor giving rise to a reasonable suspicion).
205. Dan Horan, A Hunch, or the Whispered Voice of Experience?, 4. J. L. ECON. & POL'Y 13, 23 (2007).