July 2, 2012
"Police power exercised without probable cause is arbitrary. To say that the police may accost citizens at their whim and may detain them upon reasonable suspicion is to say, in reality, that the police may both accost and detain citizens at their whim."

—

Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 395 (1974).  This comment was quoted by Justice Douglas in United States v. Brignoni-Ponce, 422 U.S. 873 (1975), which inadvertently extended the “reasonable suspicion” standard of Terry v. Ohio to border patrol stops for immigration enforcement purposes.  

Terry allows police to “stop and frisk” a citizen upon “reasonable suspicion” that the individual is armed or about to engage in a violent crime.  The Court in Terry justified its ruling by claiming that a “stop and frisk” is a less invasive search than that allowed during an arrest supported by probable cause.  The decision was a rare miss for the Warren Court on Fourth Amendment issues, and unfortunately, a costly one.

The hole in the Terry Court’s logic is that these types of searches can establish probable cause by virtue of items discovered on the person of the “friskee;” in other words, the current legal standard for search and seizure of one’s person is basically something less than probable cause, by virtue of the Terry decision.

The Reasonable suspicion standard also strains the practical application of the Court’s decision in Florida v. Royer, in which they claimed that an individual is free to ignore a police officer who lacks probable cause or reasonable suspicion.  The problem with this logic, of course, is that the average citizen, when confronted by a police officer, has no idea what the police officer may have seen (or thought they saw), and is therefore ill-suited to determine whether the police officer actually has reasonable suspicion or probable cause.  Since a police officer that ‘believes’ they have reasonable suspicion will inevitably try to physically detain you anyway, the rational thing to do is obey the officer’s commands, regardless of whether they actually do have reasonable suspicion or probable cause.  

This is why the reasonable suspicion standard essentially allows police officers to stop whomever they choose, for basically any reason: law enforcement officials have inherently coercive authority that compels lay citizens to cooperate.  A private citizen, when confronted by a police officer, is essentially caught in a Pascal’s Wager: cooperate, and hopefully things work out.  Don’t cooperate, and you risk being physically restrained, or inflaming the officers’ sense of discretion, potentially resulting in additional exposure to legal sanctions.  The Court has continually and systematically refused to recognize the inherently coercive nature of the authority invested in law enforcement officials, and has thus repeatedly maintained that people are free to ignore the police, while ignoring how completely irrational it is to do so under most circumstances.

(originally posted Nov. 27, 2011)

11:45pm  |   URL: http://tmblr.co/ZMMjnxObNaPM
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