Power, Responsibility, and Judicial Deference to Police Expertise in Fourth Amendment Decisionmaking

Authors

Nicholas A. Kahn-Fogel

Document Type

Article

Abstract

(Excerpt)

Courts have long deferred to police expertise in Fourth Amendment decisionmaking, most prominently in their application of the reasonable-person standard in assessments of probable cause and reasonable suspicion. Scholars have often bemoaned such deference as an abdication of the judicial obligation to make independent determinations of Fourth Amendment reasonableness. Nonetheless, the Supreme Court of the United States and lower courts are unlikely to abandon their view of police officers as possessing elevated knowledge, skill, experience, and perceptual abilities that merit judicial consideration in the evaluation of Fourth Amendment probabilities. On the other hand, the Court has tended to assume that certain technical skills are beyond the ken of police officers. Yet, given the similarities between tort law’s reasonable person standard and the Supreme Court’s invocation of that norm in its Fourth Amendment jurisprudence, attention to tort law’s demands of people who engage in risky conduct could inform a more balanced jurisprudence. Specifically, as in tort law, courts should insist that police officers obtain expertise commensurate with the risks their activities pose to the public, including awareness and avoidance of the flawed heuristics on which laypeople might rely to draw false conclusions about the likelihood of criminal conduct. In some instances, this principle would require police officers to rely on quantitative analysis to guide their judgments. Likewise, tort law’s assessment of reasonableness for people who already possess specialized skill and knowledge could inform the development of a more nuanced approach to the analysis of police expertise under the Fourth Amendment. If police officers are, in fact, exceptionally capable of perceiving circumstances indicative of criminal activity, then courts must also hold police officers accountable for failing to notice potentially exculpatory circumstances to which their greater perceptive abilities should have alerted them.

In this Article, I will provide a sustained assessment of the ways in which tort law’s reasonable person standard might guide judicial treatment of police expertise in deciding whether probable cause or reasonable suspicion established a legitimate basis for a Fourth Amendment search or seizure. I will examine not only the doctrinal implications of tort law’s balanced approach but also the normative basis for balancing deference to expertise with accountability for exercising one’s superior abilities responsibly and for obtaining expertise sufficient to offset the risks one imposes on others. In Part I, I will describe the history of the Supreme Court’s treatment of law enforcement expertise, including its sense of the limits of that expertise, in its analysis of Fourth Amendment probability. I will also discuss scholarly reactions to judicial deference to police training and experience. In Part II, I will examine tort law’s reasonable person standard, including the ways in which negligence law deals with superior mental attributes, and I will discuss the justifications for that approach. In Part III, I will evaluate the implications of tort law’s approach to superior knowledge and experience for the assessment of probable cause and reasonable suspicion. In circumstances in which the facts are susceptible to quantitative analysis, these principles suggest that courts should require police to acquire expertise that judges have assumed is beyond the scope of law enforcement ability. On the other hand, in circumstances requiring qualitative analysis, tort law suggests that courts should hold police responsible for using the faculties judges tend to assume they already possess, not merely to ferret out crime but also to protect the interests of people their investigative conduct puts at risk. Overall, I will contend that the arguments for tort law’s approach to superior mental capacity are equally compelling in the Fourth Amendment context.