Police are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right

Abstract

Some Fourth Amendment scholars have embraced the idea that the courts should defer to police judgments about reasonable suspicion and probable cause. The primary argument for deference is that much police reasoning is intuitive and unconscious, thus not accessible to systematic analysis. Yet, the argument continues, intuition is often more reliable than conscious thinking. This article examines this claim by exploring in depth the cognitive biases and abilities that serve respectively as obstacles to, and opportunities for, police making accurate judgments about individualized suspicion. The article concludes that requiring police consciously to justify their intuitions can improve their accuracy, that the greatest accuracy comes from constructing institutions in a way that combines the best of unconscious intuition with more systematic critique, and that police training can be improved in various ways to enhance cognitive accuracy about the individualized suspicion judgment.

Keywords: search, seizure, Fourth Amendment, cognition, biases, attribution, error, explanation, warrant, reasonable suspicion, probable cause, unconscious, conscious

JEL Classification: K14, K42