It's very convenient that while I study for my upcoming Criminal Procedure test, that one of the top stories in the country right now reads like a fact pattern in some sort of dystopic law school exam question. I thought I'd take a study break to rebut a common Conservative talking point about the "reasonable suspicion" requirement as summarized by this passage from conservative Byron York:
As far as "reasonable suspicion" is concerned, there is a great deal of case law dealing with the idea, but in immigration matters, it means a combination of circumstances that, taken together, cause the officer to suspect lawbreaking. It's not race -- Arizona's new law specifically says race and ethnicity cannot be the sole factors in determining a reasonable suspicion.
Yes Byron there is a great deal of caselaw dealing with the concept. But it's in a completely different contex. Join me after the jump for a discussion.
Generally, any kind of search requires probable cause and a warrant. So where did "reasonable suspicion" come from?
In Terry v. Ohio, the Supreme Court authorized the stoping and frisking of a suspect based only on a reasonable suspicion. The court defined reasonable suspicion as a being grounded in a "particularized and objective basis". But reasonable suspicion of what? The Terry court made it perfectly clear that it was NOT reasonable suspicion that the suspect was guilty of any kind of crime. Instead the officer could only stop and frisk a suspect for weapons, and only if the officer had a reasonable suspicion that the suspect was putting the officers or civilians in imminent danger.
So even the Terry Court, who for the first time, authorized a warrantless search based only on "reasonable suspicion" realized that this was a radical departure from ordinary 4th ammendment jurisprudence. That's why they made it perfectly clear that the concept of the concept of "reasonable suspicion" was to be applied only in the context of frisking for weapons when the safety of the officers and others were at risk. Despite the limited holding, this opinion was actually itself criticized as inviting racial profiling and undermining the purpose of the 4th ammendment itself by many legal scholars.
And now we know why those legal scholars were so worried. Not only have Terry stops themselves been the subject of much controversy, but once you introduce the concept of reasonable suspicion as an alternative to probable cause, it invites legislatures to apply it to other contexts. And that's exactly what happened, with the Arizona legislature applying the concept beyond the search for weapons and allowing cops to stop and demand the papers of anyone they suspect to be an illegal immigrant based on mere reasonable suspicion--despite the fact that they may pose no immediate safety risk to the officers or anyone else.
It's funny, lately conservatives have been complaining a lot of the things we have been doing are a "slippery slope" to some sort of horrible liberal netherworld where you can only do what big brother says you can do--often times doing rhetorical jujitsu to make their point. Well here we have something that really presents a REAL slippery slope to a police state. And not just because it authorizes racial profiling (my personal reading is that the statute would not allow racial profiling because racial profiling should be considered by any reasonable court to be by definition unreasonable and not objective and particularized). No, the real slippery slope here is that we are taking a standard that was intended to be limited to a small number of situations and expanding it to other contexts that are not even remotely similar to the intended context that the standard was invented for.
It will be interesting to watch Alito and Roberts do some legal back flips to find this consistent with 4th amendment jurisprudence (if it comes to that).