Legal Reasonable Suspicion Rests on Unreasonable Assumptions

By Melissa Anderson, MS, and Cynthia J. Najdowski, Ph.D., University at Albany, State University of New York.

The Fourth Amendment requires police officers to meet the standard of “reasonable suspicion” to justify any stops, searches, and seizures of civilians. The U.S. Supreme Court decided in Illinois v. Wardlow in 2000 that a suspect’s location in a “high crime area” is relevant to determining the “reasonableness” of an officer’s suspicion. However, more than 20 years later, what constitutes a high crime area is still unclear. Recent cases in state appellate courts have called into question the use of this vague construct in justifying reasonable suspicion and police conduct in relation to potential Fourth Amendment violations (e.g., Washington v. State of Maryland, 2021), but the U.S. Supreme Court has so far rejected the opportunity to provide clarification (e.g., Johnson v. Texas, 2021).

The need for objective criteria for assessing “high crime” is underscored by police records demonstrating how loosely the construct is applied in practice, particularly in cases involving people of color. In 2019, Ben Grunwald, J.D., Ph.D., and Jeffrey Fagan, Ph.D., showed that officers described most neighborhoods in New York City as high crime areas, but their descriptions did not correlate with actual crime rates (California Law Review, Vol. 107, No. 2, 2019). Moreover, officers’ invocation of the “high crime area” justification was influenced by the race and ethnicity of the people stopped and was less related to actual prevalence of crime than to the racial and ethnic composition of neighborhoods. Thus, officers’ reports of crime prevalence are not merely inaccurate; they are also—knowingly or unknowingly—biased by the racial and ethnic identity of civilians and communities.

Recent theorizing on bias points to the influence of contexts, explaining that individual bias is merely a reflection of systemic issues (see Murphy et al., 2018; Payne & Hannay, 2021). As such, psychologists interested in addressing police officer bias should look beyond changing individual officers’ attitudes and instead consider how legal policy and police practice related to high crime areas set the stage for Fourth Amendment violations. Unfortunately, policy and practice associating crime with Black spaces is deeply rooted in U.S. history. For example, in 1965, President Lyndon B. Johnson’s “War on Crime” specifically targeted Black neighborhoods for policing (see Hinton & Cook, 2021). Negative stereotypes linking Black people and neighborhoods to crime still exist, and these race- and place-based stereotypes interact to impact policing (Bonam et al., 2017). Indeed, a 2022 analysis of arrest report data by Shytierra Gaston, Ph.D., and colleagues revealed a lower threshold for policing Black people in “high crime areas” than similarly situated Hispanic or White people: Black people were investigated not because of suspicious behavior but instead because of their presence in suspicious locations (Criminology & Public Policy, 2022).

Although local crime rates might be relevant to judgments of suspicion, real-world data show that police officers broadly and inaccurately apply the “high crime area” label (Grunwald & Fagan, 2019). Empirical research connecting officers’ misuse of this label to the race of the people in the area is even more concerning. In conjunction with research demonstrating environmental influences on bias, research suggests the label provides cover for racist policing, however unintended it may be.

Psychologists can advocate to ensure that courts seize the next opportunity to objectively define “high crime” with the goal of limiting misapplication of the label and curbing racial and ethnic disparities in policing. They also should partner with policing agencies to discover methods that will reduce the risk that the stigma of high crime neighborhoods will spill over to contaminate judgments of the people who live there. Until then, people of color will continue to be less protected by the Fourth Amendment and more vulnerable to policing than others, further perpetuating harmful stereotypes about marginalized racial and ethnic groups and their communities.