Kahn-Fogel on Judicial Deference to Police Expertise in Fourth Amendment Decisionmaking

Nicholas Alden Kahn-Fogel (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted Power, Responsibility, and Judicial Deference to Police Expertise in Fourth Amendment Decisionmaking on SSRN. Here is the abstract:

 

In its Fourth Amendment jurisprudence, the Supreme Court relies on a version of the reasonable person standard to assess probable cause and reasonable suspicion. In applying that standard, the Court has regularly deferred to law enforcement officers’ ostensibly superior capacities for recognizing patterns of criminal activity. On the other hand, the Court has clarified that the heightened abilities of law enforcement agents extend only to qualitative analysis; technical assessment of probability is, under this approach, beyond the ken of the police. This Article makes an extended analogy to tort law’s reasonable person standard to urge a more nuanced approach. Under a tort-inspired model, courts would require police officers to base their decisions on quantitative data when such data can provide the best evidence of whether criminal activity is afoot. Likewise, this framework would require law enforcement officers to use their putatively elevated powers not merely to ferret out crime but also to exercise restraint when their expertise should alert them to the absence of suspicious circumstances.