NCJ Number
92601
Journal
Yale Law Journal Volume: 93 Issue: 2 Dated: (December 1983) Pages: 214-258
Date Published
1983
Length
45 pages
Annotation
Race and other personal and situational factors beyond a person's control should not be accepted as permissible factors in establishing the probable cause and reasonable suspicion requirements for detaining a person.
Abstract
The U.S. Supreme Court has developed a two-tier standard for measuring the legality of a detention; the prosecution must establish probable cause to justify a full custodial arrest, and it must show reasonable suspicion to justify an investigatory stop and frisk. Both concepts focus on the aggregate information available to the police and emphasize the uniqueness of each constellation of facts. This focus has permitted the Supreme Court and commentators to neglect the issue of whether some facts are impermissible components of that constellation. Without systematic guidance on which facts can contribute to justifying police interference with individual freedom, some lower courts give great deference to police testimony on criminal profiles and crime-prone neighborhoods, while others refuse to give weight to these factors; therefore, it is not enough to know that race alone can never establish probable cause or reasonable suspicion; it must also be determined whether or when race may be used to tip the scales from not-quite-probable cause to probable cause. No fact should weigh in the probable cause or reasonable suspicion mix unless its use satisfies both fourth amendment probabilistic constraints and 14th amendment equal protection constraints. Judicial acceptance of the use of race as a factor which elevates suspicion generally disregards the nature of probable cause and reasonable suspicion, the guarantees of equal protection. Other factors in the mix of constituents that should be closely scrutinized include gender of the suspect, the apparent wealth of the suspect, and the type of neighborhood where the suspect was observed. A total of 254 footnotes are provided. (Author summary modified)