On Gut Feelings in Policing and the Law

Ken Lammers (a Virginia defense lawyer who writes the very good Crimlaw blog) posted Tuesday about the "great problems" of a police officer's gut feeling being used as a basis for policing.  Professor Orin Kerr, of Volokh.com, thought the post a must-read for criminal procedure students.  Though I think Mr. Lammers' whole blog is a good read for criminal procedure students, I think he's wrong on this point.

Gut feelings are not admissible in court, and every cop knows it.  What is admissible are specific and articulable facts giving rise to a reasonable suspicion.  With reasonable suspicion, a police officer can make a stop (commonly called a Terry stop, after Terry v. Ohio, 392 U.S. 1 (1968)), with or without a frisk, depending on the circumstances.  That stop can generate probable cause, which usually leads to an arrest.  It's a sequence every cop knows well, whether he would write it like this or not  (I'd call it a ladder, but you'd have to climb down):

Observation
Suspicion
Reasonable Suspicion
Probable Cause
Arrest

Where's the Gut Feeling?  Somewhere in between Observation and Suspicion.  About the only thing an officer can do with a gut feeling is follow it.  He can look, he can listen, he can find something that amounts to a legal reason for a stop -even if it isn't the real reason for his interest- and take it from there.  In the common motor vehicle context, that last is the pretextual stop or Whren doctrine (Whren v. U.S., 517 U.S. 806 (1996)).

In a Whren situation, where the lawful motor vehicle stop is pretextual, it is not pretext for an arrest, but pretext for the opportunity to develop such further specific and articulable facts as the officer may.  If those lead to Reasonable Suspicion of another crime, and then to Probable Cause, an arrest is likely.  Sure, the officer's gut feeling was important, but he took no action on it alone.  What he acted on was a violation of the law (minor motor vehicle violation).

In a non-Whren situaton (lawfully parked car, or no car), the officer's gut can suggest that he look more closely at a subject he has observed, turning his Observation into Suspicion.  The officer could walk up to him and ask a question, without detaining him.  The subject's responses may be among the specific and articulable facts that turn the officer's (mere) Suspicion into Reasonable Suspicion to detain the subject, but the gut feeling does not accomplish that alone.  To make an arrest, the officer's Reasonable Suspicion must harden into Probable Cause.  But if there's nothing the officer can verbalize -no specific and articulable facts- it stops before it gets there.  The officer's gut may be right, but it doesn't do any good.

In pretextual motor vehicle stops (Whren) and straightforward Terry stops, the gut plays a role, but it is neither a necessary nor a sufficient prerequisite to detention and arrest.  It is a tool that helps an experienced officer sort the criminal from the routine.  To imply that we should somehow restrict police action based on gut feelings is, first, to argue for the impossible; second, to argue for the undesirable; and third, to argue for the unnecessary.

First, it can't be done.  No human can rid himself of such prejudices as he carries, or entirely eliminate the experiential adaptations he makes in his daily work, without -perhaps- lifetime devotion to self-examination or philosophical study.  (Indeed, though I have no hard science, I firmly believe human instincts are very good indicators of  impending trouble.)  Second, there is no policing advantage to it.  If we could staff our police forces with feeling-free robocops that respond only on solid evidence of actual criminal violations, we would have a harsher and less flexible system of policing that missed considerable serious crime not actually committed in direct view of the police.  Third, we don't need to do it here.  The system is set up to prevent convictions based on nothing, which, as a matter of law, is all a lone gut feeling amounts to.  Precious few officers would expect a prosecutor to charge someone based only on a gut feeling.  No responsible prosecutor would do so.  Scarely any jurist would allow the case to stand.  And no reasonable jury would convict.  (Precious few * No responsible * Scarcely * No reasonable = damn near zero chance of conviction based on a gut feeling alone.)

What would an officer do, stand around and wait for a crime to be committed in front of him?  And what would we do with Whren?  Would we say an officer cannot stop a motor vehicle law violator unless that is the only reason for the stop?  That is, a motor vehicle stop may only be made if the officer has no reason to think anything criminal is afoot beyond the broken taillight lens?  If we could take human experience and human reason away from the police and we would lose a lot of good policing.

Mr. Lammers' argument comes down to the oft-posited false dichotomy: it's better to let ten guilty men go free than to imprison one innocent man (whose arrest and conviction rested only on an officer's gut feeling).  If 10-for-1 were the actual ratio, I might well agree.  But I'd wager it's more like 10,000-for-1.  If that.

I'm sure Mr. Lammers and I have very different perspectives from which to view this, and I respect his opinion.  I just don't accept it.

Comments

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[Andrea Williams]

I police office cannot got on just gut it has to be some form of proof that a crime has been committed. You will have to have proof when going to trial.

[Sobeida Soto]

I agree with the fact that gut feeling should not be admissible in the court because that cannot be an excuse for wrong doing or for not taking a necessary action. It is very hard to be a police officer and they have to have the confidence to make the right decision and to know what might be some consequences after dealing with a situation.