Ending Racial Profiling in Law Enforcement: Appendix C - Reasonable Suspicion

© 2002 Peter Free

 

Go to: Page 1 ─ Page 2 ─ Page 3 ─ Page 4 ─ Appendix A

 

Appendix B ─ Appendix D ─ Appendix E ─ Footnotes

 

The Supreme Court Rejects the Ninth Circuit Attempt to Limit Police Discretion

 

            The United States Supreme Court has set out parameters that justify investigative stops.  The Fourth Amendment balances the public interest and the individual's right to personal security. [103]  This balancing permits investigative stops based on less than probable cause, if the officer has "reasonable suspicion to believe that criminal activity may be afoot." [104]  There must be "some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity." [105]

            The totality of circumstances determine the legitimacy of the detention.  Officers may draw on experience and training in making assessments regarding suspicious behavior.  The standard for investigative detentions falls below that required for probable cause to arrest.  It falls "considerably short" of the preponderance of evidence requirement. [106]  And "[a] determination that reasonable suspicion exists...need not rule out the possibility of innocent conduct." [107]

Reasonable Suspicion Requires Contextual Examples to Be Understood

            The reasonable suspicion standard is abstract.  The Supreme Court has deliberately avoided reducing it to a set of legal rules. [108]  Consequently, understanding requires contextual examples.

            The Court illustratively walked readers through a reasonable suspicion analysis when it overruled the Ninth Circuit's decision [109] to suppress evidence in the Border Patrol arrest of Ralph Arvizu for smuggling marijuana.  The justices examined and approved the totality presented by the elements Agent Stoddard had in mind when he stopped the Arvizu family vehicle. [110]

            The decision is revealing, because it rejected the lower court's attempt to dissect totality of circumstances analysis.  The Ninth Circuit had evaluated Stoddard's elements of suspicion separately on their individual merits. [111]  The lower court then threw out those elements that were subject to innocent explanation.  It did not accept that an agglomeration of individually explainable elements might, taken together, create a suspicion picture.

            There is a difference in the amount of detail the two courts analyzed.  The Ninth Circuit included significant exonerating detail; the Supreme Court did not.  The lower court was deliberately trying to narrow law enforcement discretion.  The high court gave police room in which to move without being second-guessed at each turn. 

Reasonable Suspicion Illustrated: The Border Patrol Stops Ralph Arvizu

            The Arvizu case reveals how police think about reasonable suspicion and how difficult it is to make a principled dissection of their analyses in court afterward.  Ralph Arvizu and his family were driving in a remote area of southeastern Arizona.  Border Patrol Agent Stoddard made what he thought was a reasonable suspicion stop of the vehicle.  The stop led to a consensual search of the car.  The agent found 100 plus pounds of marijuana in a duffel bag on the floor in front of the back seat of the minivan.

Stoddard's testimony [112] set out the elements he thought gave him reasonable suspicion to make the stop:

(1) A Border Patrol checkpoint is located in the area where Mr. Arvizu was driving; illegal immigrants often try to avoid it.

 

(2) Magnetic sensors monitor traffic on back roads near the checkpoint; Arvizu's vehicle apparently tripped one.

 

(3) The activated sensor was on a primitive road; the road was rarely used except by ranchers and Forest Service personnel.

 

(4) Smugglers sometimes used this road.

 

(5) The sensor tripped near shift change time; smugglers sometimes tried to take advantage of shift change, because the area is not patrolled then.

 

(6)        A fellow agent told Stoddard that he had apprehended a marijuana-smuggling minivan using that road some weeks before.

 

(7) When Stoddard found the vehicle he thought had tripped the sensor, it slowed from 50-55 mph to 25-30 mph upon seeing him.

 

(8) The vehicle was a minivan; he did not recognize it as part of the local traffic.

 

(9) The driver was stiff and appeared to be trying to ignore Stoddard; the agent believed that most people from the area give a friendly wave.

 

(10) Two of the three children in the back seat had their knees unnaturally high, as if their feet were propped atop cargo on the floor.

 

(10) After Stoddard turned to follow the minivan, the children, still facing forward, simultaneously began to wave; it looked as if they had been instructed to do so; the waving continued on and off for 4 to 5 minutes.

 

(11) The minivan took the last exit possible before reaching the checkpoint; the exit road is very rough and mostly used by four wheel drives.

 

(12) Stoddard was not aware of picnic grounds that could be reached on the exit road in this direction, and he had never seen anyone picnicking in the area where the sensor had first been tripped.

 

(13) A registration check listed the vehicle to an address in Douglas that was four blocks north of the border; Stoddard believed the area to be notorious for alien and narcotics smuggling.

 

            When the Ninth Circuit took the case on appeal, it took exception to Stoddard's reasoning and the District Court's approval of it. [113]  The Ninth Circuit held the agent's suspicion had not been reasonable.  The court noted:

(1) Innocents as well as smugglers used the road.

 

(a) There were residences on the road, but Stoddard had indicated was rarely traveled except by ranchers and Forest Service personnel.

 

(b) There were a National Forest, a National Monument, and picnic grounds in the area; people who lived in the nearby town of Douglas frequently used the area for recreation.

 

(c) There were a number of other communities in the area; driving between them on this particular road made for a shorter trip for some residents.

 

(2) The checkpoint did not operate every day.

 

(3) Stoddard had never made a drug-related stop in the area, despite having been there two years.

 

(4) Tripping the sensor was not suspicious.

 

(a) There were residences on the road, but Stoddard had indicated was rarely traveled except by ranchers and Forest Service personnel.

 

(b) There were a National Forest, a National Monument, and picnic grounds in the area; people who lived in the nearby town of Douglas frequently used the area for recreation.

 

(c) There were a number of other communities in the area; driving between them on this particular road made for a shorter trip for some residents.

 

(5) The sensor had been tripped 45 minutes before shift change; therefore the timing didn't add much to shift change suspicion.

 

(6) Stoddard had no information about smuggling at the vehicle's home address, or on the part of the registered owner.

 

(7) Arvizu violated no traffic laws, and the fact that he slowed upon seeing Stoddard had no analytical merit; people often slow upon seeing police.

 

(8) Arvizu's failure to acknowledge the agent did not provide a basis for suspecting criminal activity, though it might have indicated a lack of neighborliness.

 

(9) The children's conduct carried no weight; "[i]f every odd act engaged in by one's children while sitting in the back seat of the family vehicle could contribute to a finding of reasonable suspicion, the vast majority of American parents might be stopped regularly within a block of their homes." [114]

 

(10) Minivans are very common; the fact that one minivan had smuggled marijuana hardly meant that others were tainted with suspicion.

 

(11) The agent could not expect to recognize each passing car as local, given the fact that the area was used recreationally.

 

(12) The notorious area from which the minivan had come had no significance, because "[o]therwise, persons forced to reside in high crime areas for economic reasons (who are frequently members of minority groups) would be compelled to assume a greater risk not only of becoming the victims of crimes but also of being victimized by the state's efforts to prevent those crimes..." [115]

 

(13) Stoddard did not support the allegation of the border neighborhood notoriety with any facts.

 

(14) The children's raised knees were also consistent with resting their feet on innocent cargo.

 

            The Ninth Circuit rationalized this restrictive view of reasonable suspicion by saying that it was attempting to "describe and clearly delimit the extent to which certain factors may be considered by law enforcement." [116]

            The Supreme Court held that the Ninth Circuit view of reasonable suspicion ran counter to precedent and underestimated the standard's ability to guide officers in the field. [117]  The opinion observed that it was quite reasonable to think that slowing down, stiffening one's posture, and failing to acknowledge a police officer would be unremarkable in one instance, but quite unusual in a remote portion of Arizona.  A police officer was entitled to make this assessment in light of her specialized training and familiarity with local custom. [118]

            The Court held that Stoddard could reasonably infer from his observations, the registration check, and his experience that Mr. Arvizu had set out on a route used by smugglers to avoid the checkpoint.  The officer was entitled to the common sense inference that someone might be taking advantage of the weakness presented by shift change.  The likelihood the family was on a picnic diminished when the minivan turned away from known recreational areas.  This was corroborated by the fact that more distant recreational areas would have been easier to reach by paved road than by a 40-to-50 mile trip on primitive roads.  The children's raised knees did suggest concealed cargo, and the family's reactions upon seeing Stoddard were entitled to some weight.

            The Court noted that each factor was undoubtedly subject to an innocent explanation.  Taken together, they sufficed to give Stoddard a particularized and objective basis for stopping the vehicle.  The stop was reasonable within the meaning of the Fourth Amendment. [119]

The Practical Problem with Reasonable Suspicion

            The conflict between the Supreme Court and the Ninth Circuit illustrates the real world difficulty with reasonable suspicion.  If reasonable suspicion is defined broadly enough to be useful in preventive/proactive policing, it requires enough room to introduce significant analytical discretion on the part of police.  If discretion is curbed in favor of protecting minorities and innocents in the manner of the Ninth Circuit's dissection of totality of circumstances, reasonable suspicion will be too narrowly defined to have crime-preventive practicality.  It is very rare that each element of reasonable suspicion is not subject to an innocent explanation.

            Some of the difficulty the courts have in interpreting law enforcement action is that the bench has no experience policing and no real understanding of what goes into it.  Neither does the public.  What is obvious to talented officers is often not at all obvious to anyone else.

            In some respects, proactive policing, properly done, is like setting loose a dog with an exceptional nose.  We have trained the dog to articulate its findings in language we can understand.  But our understanding of the context the dog describes is limited, because we were not there, we do not have a similar talent, and smell is nonverbal.

            This is not solely about "hunch."  It is about the subtle nuances that some officers pick up, in the holistic and inarticulate parts of the human brain, in interpreting behavior.  When the officers are good, the connections they detect are usually correct.  When officers lack talent, their hunches are usually wrong.

In my experience, the majority of officers are not especially gifted in detecting suspicious behavior.  The societal problem lies in (a) detecting when this sixth sense is absent or wrong and in (b) inventing ways to prevent officers from exercising a skill they do not have.  The problem is compounded by our unreasoned hostility to street crime.  This emphasis masks the costs of aggressive and mistaken street policing.

            Pressure on police to "produce" magnifies misdirected suspicion.  Politically desirable law enforcement statistics usually come from the macho end of the police spectrum: numbers of contacts, arrests, and seizures.  Under pressure to quantitatively justify their existence, officers who lack talent for really seeing what is going on around them seize on memorized profiles or personal biases to boost their number of citizen contacts.  If officers increase the number of contacts, the number of illegalities they discover will rise.  Their supervisors will be happy.

            In police training, one must distinguish between talented and untalented officers. Less talented officers assume that a profile or bias will provide legitimate suspicion for appropriately directing their attention.  These officers try to match the elements of what they have been taught to the behavior they are observing.  They do not have the spark of direct and accurate recognition that something is amiss.  Their actions are primarily by rote or, worse, directed by racism/ethnocentrism.  The vacuity of their technique is disguised by the fact that large numbers of contacts they make necessarily result in some legitimate arrests.

            In contrast, a talented cop instinctively sniffs behavior and circumstances first.  It is as if the behavior (and sometimes just the presence) of a person with bad intent reaches out and grabs her attention.  In the time it took to notice, the behavior has already run its way through the inarticulate "something amiss" part of her brain.  The officer will wait, even in the face of her certainty that something is wrong, to collect and verbalize the volume of data needed to satisfy a judge.  This is particularly true when the officer has had an inexplicable, but nevertheless strong, instinctive reaction that something is wrong. This insistence on being able to articulate the reason for the stop works as a partial method of monitoring and rejecting biases only if the officer has trained herself to be consciously aware of her prejudices.

            Gifted officers don't operate according to profiles, and the best among them try not to act on their racial or ethnic biases.  This combined ability is rare and admired.  As a consequence, everyone aspires to reproduce it.  Given our capacity for self-delusion, a much larger number of officers believe they have the gift than do. [120]  Current police practice, poisoned by racial profiling, avoids dealing with the problem posed by ordinary officers trying to emulate extra-ordinary ones.

 

(This is Appendix C)

 

Go to: Page 1 ─ Page 2 ─ Page 3 ─ Page 4 ─ Appendix A

 

Appendix B ─ Appendix D ─ Appendix E ─ Footnotes