Social problems can arise from many sources; one of the most interesting of those sources is the official manifest structure of social control, the legal system. In U.S. law, with its foundations primarily in English “common law” traditions, the use of reasonable suspicion to justify governmental interference with the liberty of persons is one such social problem. The implications of reasonable suspicion can be understood by looking at its definition in legal terms, the legal debates surrounding this doctrine, illustrations of its extension to other areas of social life, and, finally, some of the reasons to consider this development as a social problem.
The use of reasonable suspicion as a standard to justify police intervention initially received official recognition in the U.S. Supreme Court decision Terry v. Ohio, one of a series of opinions issued by the Warren Court as part of the “due process revolution.” This “revolution” refers to the Warren Court’s use of the Fourteenth Amendment’s due process clause to place limitations on state actions that interfere with individual rights when they violate federally protected rights considered to be fundamental rights. Accordingly, when the Court determines that a right found in the Bill of Rights is fundamental to the concepts of liberty, that right is “selectively incorporated” into the Fourteenth Amendment’s due process clause. It thus protects these rights from state government interference, just as the Bill of Rights protects them from federal government interference.
So why is this case sociologically intriguing as a social problem and perhaps an example of selective social control? In Terry v. Ohio, the Warren Court was asked to determine “whether it is always unreasonable for a policeman to seize a person and subject him to a limited search for weapons unless there is probable cause for an arrest” under the Fourth Amendment. This legal question arose from the facts of the case. Codefendants Terry and Chilton had been stopped by Cleveland Police Detective Martin McFadden after surreptitious observation. The detective testified that while he was unable to say what initially drew his attention to the defendants, their behavior made him suspicious enough to stop and watch them more closely. In his professional opinion, they exhibited behavior consistent with “casing” the area for an armed robbery. After watching the defendants for a short time, the detective confronted the men, who “mumbled something” in response to his challenge. Officer McFadden then patted down the exterior of Terry’s clothing, feeling a pistol in the process. In the search of the second defendant, Chilton, he found another revolver. In the subsequent search of a third man, Katz, he found nothing, and this suspect was ultimately released. Both Chilton and Terry were eventually charged with carrying concealed weapons.
The Supreme Court affirmed the trial court’s denial of the defendant’s motion to suppress the evidence found in these searches. The motion was not denied because the trial judge agreed with the prosecution’s claim that these facts amounted to probable cause; rather, the Supreme Court instead agreed with the trial court’s determination that when the police have “reasonable suspicion” that is based on “specific and articulable facts which taken together with rational inferences reasonably warrant that intrusion,” the search does not violate the Fourth Amendment. Further, the Court said that a limited search, or pat-down of the clothing, of the person(s) being stopped is also protected by the Fourth Amendment. Such “frisks” will only be permitted where there is “reasonable suspicion” that the person stopped might be armed and dangerous to the police officer who has stopped them, thereby justifying the search to protect the safety of the officer.
Legal experts criticize this decision as expanding the area within which the government may lawfully interfere with citizen rights. They point to Bureau of Justice Statistics, for example, that show, on average, about one-fifth of U.S. citizens over the age of 16 reported that they had with police, more than half for traffic stops. They assert that so many interactions allow for a significant expansion of police authority, a significant widening of the social control net, and that this widened net increases the range in which police can justify coerced interactions with people and that it disproportionately impacts minorities.
Defenders of the Terry decision agree with the Supreme Court’s reasoning that these stops and frisks are essential law enforcement tools if police are to be able to keep the peace. They argue that the police need this authority to investigate and proactively prevent criminal behavior. They contend that police must have the authority to stop and speak to those whom they have a reasonable basis for suspecting of ongoing criminal behavior and, because it is a “limited” search and “limited” stop, that the authority to do so is not overly broad, thus making it a reasonable application of the protections of the Fourth Amendment. In recent years authorities have pointed to the need, in a post-September 11 world, to use interdiction against potential terrorists who have the potential of disrupting society and causing significant injury to innocent bystanders. They cite this specific example of the compelling societal interest served by granting police this authority.
Widening the Net: Other Suspicious Applications
The widening net of reasonable suspicion has not been limited to the police or the war on terrorism. In New Jersey v. T.L.O., the search by a public high school vice principal of a student’s purse and subsequent determination of delinquency was deemed warranted because of “reasonable suspicion,” thus permitting schools to use the Terry decision to justify searches of students’ possessions when there is less than probable cause for a search. In the decision, Justice Byron White specifically noted that age and sex are factors that can be considered in determining whether or not a search is reasonable.
Court decisions applying the standard of reasonable suspicion to governmental actions characterized as “stops and frisks” have resulted in expanding the range and types of circumstances in which police have the authority to coerce compliance. These extensions include such behaviors as appearing agitated in public (e.g., belligerence), running away from authorities when first sighted, and interfering with the movements of anyone who “matches” the description of a suspect and is found in the same general area as the crime. These extended circumstances in which this doctrine applies give evidence to the dynamic nature of court interpretations of laws. As binding precedent, they are meant to be used in other similar cases in the future and, as such, expand the scope of police authority through the extension of this legal standard to more and more aspects of social life.
Why Does This Matter?
Widening the net used by police to limit ability of the members of society to encompass ever more aspects of social life is disturbing in and of itself, since it represents the significant social problem of ever more social control by the government. However, this is only one area of controversy that arises when looking at decisions that apply the “reasonable suspicion” standard to governmental intrusions into the private activities of people. Another is the socially constructed nature of the interactions between the citizen and the official agents of social control. Here issues of race, age, gender, and many other variables come into play and beg the question of the “reasonableness” of the justification for the police interactions. Is being African American enough “reason” to stop a person who may only resemble a suspect because of skin color? Does shying away from the police, who may not be held in the highest esteem in that neighborhood, become a reason for a coerced stop and frisk?
These questions show the relativeness of the Terry standard and point to the significant social control implications of it and its progeny. The legal system may wish to believe it is blind, but defendants in such cases and under such circumstances perceive the “law” as being used to selectively oppress certain easily identifiable segments of society. Many groups may find such legally sanctioned intrusions harmful: minorities of various types, the poor, males, Muslims, and many others. This may be the most compelling reason why many consider this legal doctrine to be tantamount to an invitation to the police to engage in selective social control.
- Landmark Legal Cases Organization. “New Jersey v T.L.O. (1985).” Retrieved March 25, 2017 (http://landmarkcases.org/en/landmark/cases/new_jersey_v_tlo).
- New Jersey v. T.L.O., 469 U.S. 325 (1985).
- Saleem, Omar. 1997. “The Age of Unreason: The Impact of Reasonableness, Increased Police Force, and Colorblindness on Terry ‘Stop and Frisk.'” Oklahoma Law Review 50(Winter):451-53.
- Stulin, Jamie L. 2005. “Does Hiibel Redefine Terry? The Latest Expansion of the Terry Doctrine and the Silent Impact of Terrorism on the Supreme Court’s Decision to Compel Identification.” American University Law Review 54(June):1450-82.
- Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
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