Creators: When a Hunch Leads to a Constitutional Violation

Matthew T. Mangino
Creators Syndicate
September 16, 2024

Bestselling author Malcolm Gladwell wrote about a concept he called "thin-slicing." This idea suggests that spontaneous decisions are often as good as — or even better than — carefully deliberated decisions.

His book "Blink" begins with the story of the Getty kouros, a statue purchased in 1985 by the J. Paul Getty Museum in California. Many experts thought the kouros was authentic, but others who just looked at the statue were skeptical. George Despinis, head of the Acropolis Museum in Athens, said after viewing the kouros, "Anyone who has ever seen a sculpture coming out of the ground could tell that that thing has never been in the ground."

Thin-slicing suggests that intuitive judgment is developed by experience, training and knowledge.

Intuitive judgment, in layman's terms, is a hunch. In the criminal justice system, a hunch is the lowest level of what is referred to as a standard of proof. To make a traffic stop, obtain a search warrant or make an arrest, the police must have probable cause. Probable cause means that a reasonable person would believe a crime was in the process of being committed, had been committed or was going to be committed.

In the context of the Fourth Amendment, a mere hunch refers to a situation in which the police have an intuitive feeling that a suspect is engaging in criminal activity, but they do not have any specific evidence to support that feeling.

The Fourth Amendment protects individuals from unreasonable searches and seizures. Thin-slicing in the criminal justice system, and acting on it, would violate the U.S. Constitution. A hunch is suspicion without articulable facts.

"On October 31, 1963 while walking the beat through downtown Cleveland," an ACLU of Ohio article reads, "Cleveland Police detective Martin McFadden with 39 years of police experience noticed three men acting suspiciously and pacing in front of a jewelry store on Euclid Avenue."

McFadden was thin-slicing; based on his years of experience, he was concerned the men were "casing a job, a stickup," and carrying weapons. "McFadden identified himself as a police officer ... asked them their names" and searched the three men for weapons.

Unfortunately for McFadden at the time, a hunch was not enough to overcome a constitutional violation. The searches resulted in John W. Terry's arrest for possessing a firearm without a license. He was convicted, and he appealed all the way to the U.S. Supreme Court. Although the court, in Terry v. Ohio, acknowledged that a hunch was not enough, the court carved out a new standard of proof — reasonable suspicion.

Reasonable suspicion was defined by the U.S. Supreme Court as "the sort of common-sense conclusion about human behavior upon which practical people ... are entitled to rely." According to an article on the Maricopa County, Arizona, website, "Further, it has defined reasonable suspicion as requiring only something more than an 'unarticulated hunch.' It requires facts or circumstances that give rise to more than a bare, imaginary, or purely conjectural suspicion."

Terry v. Ohio did not provide blanket authority to intrude on an individual's rights. However, it did radically expand police authority to investigate crimes where there is a reasonable articulable basis for suspicion.

To paraphrase a well-known sardonic commentary, no good decision goes unpunished. The Terry decision led to the controversial policy allowing police officers to stop, interrogate and search New Yorkers to find illegal guns, on the sole basis of reasonable suspicion. According to The New York Times, the New York Police Department made 4.4 million stops under the citywide stop-and-frisk policy between January 2004 and June 2012. "More than 80 percent of those stopped were Black and Latino people," according to the Leadership Conference on Civil and Human Rights.

In 2013, New York Judge Shira A. Scheindlin ruled that NYPD's stop-and-frisk tactics violated the U.S Constitution's Fourth Amendment prohibition of unreasonable searches and seizures. She didn't say that Terry v. Ohio was unconstitutional but that the NYPD's tactics were unconstitutional. Many New Yorkers of color were arrested, convicted and jailed as a result of NYPD's unconstitutional conduct.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner's Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on X @MatthewTMangino.

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SCOTUS extends police authority to stop a vehicle based on a hunch

The US Supreme Court ruled this week that it is reasonable under the Fourth Amendment for a police officer to make an investigative traffic stop after running the license plate of a vehicle and learning that the owner’s driver’s license has been revoked, even if the officer is unsure that the owner is driving the vehicle, reported Jurist.

The question of whether the stop was reasonable came to the court through a Kansas case, Kansas v. Glover. In the state trial court, Glover attempted to suppress all evidence seized during the stop, claiming that the officer lacked reasonable suspicion. The district court granted the motion to the suppress—a decision that has been disputed by the appellate courts. The Kansas Court of Appeals reversed the district court’s decision. Then, the Kansas Supreme Court reversed the Court of Appeals. Finally, the US Supreme Court, in an 8-1 decision, reversed the Kansas high court.

In the opinion of the Supreme Court, authored by Justice Clarence Thomas, the court said that “the level of suspicion [that reasonable suspicion] requires is considerably less than proof of wrongdoing by a preponderance of the evidence” and “depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.”

The court went on to say that “common sense suffices to justify” the officer’s inference that the owner was driving with a revoked license, and “Kansas law reinforces that it is reasonable to infer that an individual with a revoked license may continue driving.” In Justice Sonia Sotomayor’s dissent, she argued that the inference made was not a product of the officer’s training. The majority responded by saying that “[t]he inference that the driver of a car is its registered owner does not require any specialized training; rather, it is a reasonable inference made by ordinary people on a daily basis.”

The court concluded by reaffirming its precedents that the “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,'” and that the officer in this case “drew an entirely reasonable inference.” The court held that the stop was reasonable because the officer lacked any information that would rebut the reasonable inference that the owner of the vehicle was driving.

Justices Elena Kagan and Ruth Bader Ginsberg joined the court’s opinion, while also concurring. In the concurring opinion authored by Kagan, the note that the Kansas statutory scheme demonstrates that a revocation of a license stems from serious and repeated offenses, giving way to a reasonable inference that the owner was likely to continue breaking the law. They found Kansas’ unique statutory scheme to be a dispositive fact that leads the court to its conclusion.

In its narrow holding, this court said it has reaffirmed its precedents on the reasonable suspicion inquiry.

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