Abstract

In Terry v. Ohio, Earl Warren held that police officers could temporarily detain a suspect, provided that they could articulate the “reasonable inferences” for their suspicion, and not merely allude to a “hunch.” Since Terry, the American legal system has discounted the “mere” hunches of police officers, requiring them to articulate “specific” and “objective” observations of fact to support their decision to conduct a stop and frisk. The officer’s intuitions, gut feelings and sixth sense about a situation are all disallowed.

This dichotomy between facts and intuitions is built on sand. Emotions and intuitions can be reasonable, and reasons are often predicated on emotions. Even as courts have, over the past two generations, grown more dismissive of hunches, there has been a counter-revolution in the cognitive sciences. Emotions and intuitions are not obstacles to reason, but indispensable heuristic devices that allow people to process diffuse, complex information about their environment and make sense of the world. If the legal rules governing police conduct are premised on a mistaken assumption about human cognition, can one craft a doctrine of policing that credits the wisdom of hunches? Can the legal system defer to police officers’ intuitions without undermining protections against law enforcement overreaching?

This article argues that, to some extent, judicial skepticism about police hunches can and should be abandoned. As a practical matter, the current legal regime substitutes palliative euphemisms for useful controls on police discretion. When an energetic police officer has a hunch that something is wrong and action is imperative, the officer will simply act. Months will pass before a suppression hearing, and by then it will be a simple matter to reverse-engineer the objective “reasons” for the stop — e.g., “I saw a bulge.” The legal system in practice simply rewards those officers who are able and willing to spin their behavior in a way that satisfies judges, while it penalizes those officers who are less verbally facile or who are transparent about their motivations. It would be preferable if politically accountable authorities joined the courts in monitoring police practices. The focus should be less on what police say after the fact and more on what they do — that is, how successful police officers are in catching criminals and how respectful they are of all citizens.

Disciplines

Criminal Law | Criminal Procedure

Date of this Version

August 2005

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