Can Social Science Defeat a Legal Fiction?: Challenging Unlawful Police Stops Under the Fourth Amendment

18 Washington & Lee Journal of Civil Rights & Social Justice 315 (2012)

Howard Law Research Paper

36 Pages Posted: 21 Aug 2018

See all articles by Josephine Ross

Josephine Ross

Howard University School of Law

Date Written: 2012

Abstract

When police lack reasonable suspicion to make a stop, prosecutors often claim that the civilian was free to walk away had he wished to do so. That avoids suppression of the evidence seized during an improper Terry stop. This article looks at how this and consensual search situations play out in trial courts across the country by using one example where the defense lawyer, a third-year law student in a clinic, moved to suppress drugs found during an unlawful stop and search. The problem for lawyers is that the Supreme Court created a legal fiction in the way it applies the Fourth Amendment “free to leave” test and the consent to search test. Looking at the elements, the “free to leave” test articulated by the Court should benefit most civilians corralled and questioned by the police, but instead, in case after case, the Court determined that a reasonable person is the position of the civilian would have felt free to walk away or decline to cooperate with the officer’s requests. This creates a particular challenge to lawyers and raises the question of whether making arguments that reference empirical data in our written and oral motions will persuade trial judges to honestly apply the Supreme Court test rather than perpetuating the legal fiction. Social science research may eventually influence the Supreme Court to change course, but defense lawyers can harness it to benefit their clients now, starting at the trial level. Empirical data allows trial judges to apply the elements of the test without making the same unrealistic assumptions about how reasonable people behave. Instead, the scientific and psychological research should encourage judges to honestly apply the Supreme Court test to the circumstances before them.

Keywords: Fourth Amendment, exclusionary rule, suppression hearing, “free to leave”, consent, criminal defense clinic, student attorney, defense lawyers, policing, race

Suggested Citation

Ross, Josephine, Can Social Science Defeat a Legal Fiction?: Challenging Unlawful Police Stops Under the Fourth Amendment (2012). 18 Washington & Lee Journal of Civil Rights & Social Justice 315 (2012), Howard Law Research Paper , Available at SSRN: https://ssrn.com/abstract=3228845

Josephine Ross (Contact Author)

Howard University School of Law ( email )

2900 Van Ness St., N.W.
Washington, DC 20008
United States

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