By Sherry Colb
In my Verdict column for this week, part 1 of a 2-part series, I discuss a recent controversy over two New York appellate court decisions holding that the trial courts should have suppressed evidence that police obtained in the course of a stop and frisk. In the column, I examine some possible reasons for the controversy and suggest that part of the explanation is a clash between competing perspectives about what occurs during a police-civilian encounter: the perspective of the police officer and the perspective of the civilian.
In this post, I want to further explore the feelings that naturally accompany a confrontation between police officers and a person that they suspect of involvement in criminal wrongdoing. Let us begin with the police officer's perspective.
For most of us, when we see someone on the street behaving in a manner that arouses our suspicion and fear, we probably try to avoid that person, either by turning around, crossing the street, or perhaps running away, if we are frightened enough. The one thing we do not do is deliberately approach and confront the person who triggered our fear and attempt to ascertain whether our suspicions are in fact warranted. In the "fight or flight" response, in other words, flight generally seems like the more prudent course, unless pride and ego get in the way (which we might see sometimes in the "stand your ground" context, discussed here).
Confronting potentially violent people is imprudent because (1) if they are in fact violent, we expose ourselves to the risk of becoming a victim of their violence by going out of our way to approach them; and (2) if they are potentially violent, we may bring out the violent impulses in them by engaging in what they might understandably perceive as harassment. If they are not violent at all, then we likely accomplish nothing by approaching them with our suspicions, other than alienating them and perhaps embarrassing ourselves.
For a police officer, however, the job of protecting the community from criminal activity demands that in the sort of situations that frighten us into opting for an easy escape, they approach and confront the source of suspicion and attempt to figure out what is going on. Though police officers have more experience than we do approaching suspects, however, and may be more highly skilled in defending themselves, they nonetheless expose themselves to real risk when they go out of their way to approach and confront people who may be readying themselves to engage in antisocial and perhaps violent behavior.
Police officers are only human, and the same "fight or flight" biochemicals that lead most of us to move away from a potential threat floods their systems as well. They therefore have two competing mandates, one official and one more deeply personal and hard-wired: ascertain whether the suspicious person in fact poses a threat to the public, and protect oneself from potentially deadly harm. It is little wonder that police feel frustrated when courts pass judgment on their actions under these circumstances. This is especially true in cases in which the police officer feels vindicated by the fact that his or her suspicions ultimately yielded weapons concealed on the suspect's person and uncovered during a search, as happened in the New York cases at issue.
But let us turn now to the suspect. If the suspect is actually engaged in wrongdoing, he or she will undoubtedly become uncomfortable with the approach of a police officer, and outward manifestations of this discomfort will likely make up part of any "founded suspicion" (under New York law) or "reasonable suspicion" (under both New York and federal law) that the officer later presents in helping a prosecutor defend a suppression motion.
What if the suspect is innocent? It is, after all, the innocent suspect's perspective that most concerns us in assessing police conduct on the street, as "founded suspicion," "reasonable suspicion," and "probable cause" are all means of determining the likelihood that the suspect is in fact guilty (and is therefore the proper target of police intrusions, as I discuss at length in a Columbia Law Review article here).
If a suspect is innocent, some (including Justice Scalia) wonder, then what is he so scared of? To quote Proverbs (as Justice Scalia does in California v. Hodari D.), "The wicked flee when no man pursueth." In truth, however, most of us feel frightened when someone with authority approaches us and asks questions demonstrating that he or she suspects us of criminal wrongdoing. Like children (whether guilty or innocent) whose parents approach them with an accusing look, the innocent suspect is worried that the police are making a mistake and will inflict harm on her for something that she did not do. Now that the U.S. Supreme Court has decided Florence v. Board of Chosen Freeholders, such fear may legitimately encompass a concern about blanket strip searches that may now lawfully accompany entry as a prisoner into any detention facility in some states. If the suspect is a member of a minority group, moreover, then she may worry as well about hostility and potential stereotypes regarding her ethnic or racial group.
There is also a feedback loop that will likely aggravate the problem. When you are worried about appearing nervous, because you know that nervousness looks like guilt, this worry and awareness are likely to enhance rather than diminish your nervousness. Telling oneself urgently that "I need to come across as relaxed and breezy" is usually an ineffectual strategy for actual relaxation. The suspect may thus come to feel (and to outwardly manifest) fight-or-flight sensations, just as the police officer does, thereby increasing the officer's alarm and, in turn, adding to the innocent suspect's alarm as well.
This feedback loop reminds me of conflicts between my two dogs as well as conflicts between my two human children. In both sorts of conflicts, there comes a point when the most important thing for me to do is intervene and physically separate the (physical or verbal) combatants. I can, in these situations, imagine the functional MRI picture of two highly-lit-up amygdalae.
It was precisely such concerns about police-civilian encounters that led me in 2001 to propose here that the best thing we can do to address racial profiling on the highway might be to severely limit the sorts of occasions on which police may stop drivers.
An alternative to using stops and frisks to assess and mitigate danger would be to create social bonds between police and members of the community, a strategy known as "community policing." In one form of this strategy, police work with community elders (including grandparents in crime-ridden neighborhoods) to alert known drug-dealers and other violent criminals that everyone wants them to become law-abiding and successful but that a failure to do so will yield swift and harsh consequences. David Kennedy has written about this approach and its successes in Don't Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America. To be successful, such strategies require trust, where stop-and-frisk is built primarily on levels of distrust. If I were a gambler, I would bet on trust as the more promising way of reducing the crime rate while simultaneously respecting the individuality of people who are more than just "cops" and "criminal suspects."