Civil Rights and Discrimination | Constitutional Law | Criminal Law | Fourth Amendment | Law | Law Enforcement and Corrections
Regulation of Terry stops of pedestrians by police requires articulation of the reasonable and individualized bases of suspicion that motivate their actions. Nearly five decades after Terry, courts have found it difficult to articulate the boundaries or parameters of reasonable suspicion. The behavior and appearances of individuals combine with the social and spatial contexts where police observe them to create an algebra of suspicion. Police can proceed to approach and temporarily detain a person at a threshold of suspicion that Courts have been unable and perhaps unwilling to articulate. The result has been sharp tensions within Fourth Amendment doctrine as to what is reasonable, why, and in what circumstances. The jurisprudence of suspicion is no clearer today than it was in the aftermath of Terry. This issue has taken center stage in both litigation and policy debates on the legality of the Stop and Frisk policing regime in New York. Under this regime, police record the bases of suspicion using both a menu of codified stop rationales with supplemental text narratives to record their descriptions of suspicious behaviors or circumstances that produced actionable suspicion.
Evidence from 4.4 million stops provide an empirical basis to assess the revealed preferences of police officers as to the bases for these Terry stops and identify narratives of suspicion that justify their actions beyond the idiosyncrasies of the individual case. First, we identify patterns of articulated suspicion. Next, we show the individual factors and social conditions that shape how those patterns are applied. We also show how patterns evolve over time and become clearer and more refined across a wide range of police stops. That refinement seems to follow the capacious interpretative room created by Fourth Amendment jurisprudence. Next, we assess the extent of constitutional compliance and examine the neighborhood and individual factors that predict noncompliance. The results suggest that the observed patterns of narratives have evolved into shared narratives or scripts of suspicion, and that these patterns are specific to suspect race and neighborhood factors. We conclude that scripts are expressions of the norms within the everyday organizational exercise of police discretion and that these scripts defeat the requirement of individualization inherent in caselaw governing Fourth Amendment stops.
Jeffrey Fagan & Amanda Geller,
Following the Script: Narratives of Suspicion in Terry Stops in Street Policing,
University of Chicago Law Review, Vol. 82, p. 51, 2015; Columbia Public Law Research Paper No. 14-410
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1873