Suspicious person calls and third-party racial profiling
Can officers avoid contacting the suspected person if they believe the caller was acting out of their own bias toward someone’s appearance?
This article originally appeared in the August 2019 PoliceOne Leadership Briefing. To read the full briefing, visit Racially biased 911 calls | Profiling by proxy | OIS & race study, and add the Leadership Briefing to your subscriptions.
Police leaders, as well as front-line supervisors and officers, are so sensitive to the volatility of citizen contacts that a practice of simply avoiding contacts in the first place is an appealing strategy. The “no contact, no complaint” philosophy – often referred to as “de-policing” – can have both short- and long-term negative effects.
But what happens when racial profiling is done by the citizen calling in a suspicious person? Can officers avoid contacting the suspected person if they believe the caller was acting out of their own bias toward someone’s appearance?
What citizens know
Police officers are very aware of that so-called “sixth sense” that makes them take a second look at a situation.
We know two things about this seemingly extrasensory perception. The first is that this is a gathering and assessment of facts that happens at an instinctual level. This is a brain process so automatic that it takes an intentional effort to break it down and articulate what is making something or somebody “suspicious.” The second thing we know about the sixth sense, now that we understand it is quite rational and not supernatural, is that merely labeling something as “suspicious” has zero credibility in a court of law.
The citizen who gets the feeling that someone or something is suspicious is not likely to have the ability to articulate why they have that feeling. A police officer will report that a person was walking in shadows rather than the main portion of the sidewalk, that the person was looking constantly over their shoulder, that their arms weren’t swinging naturally but being held close in a manner consistent with concealing something heavy under their shirt, and that the person was wearing a coat on a hot day. The citizen is likely to say, “I don’t know, it just seemed suspicious.”
Must we mistrust that citizen’s vague concern? Do we allow dispatch to screen out those calls for lack of concrete reasons? Should officers ignore potential criminal behavior for fear of being accused of biased policing?
Answer the call
The officer should respond to the concern and make his or her own observations. Deciding whether to make a consensual contact or an investigatory stop must be based on the totality of circumstances, only one of which will be the call from a concerned citizen. Lacking any other articulable facts to justify an investigatory stop, the officer will either make a consent contact or clear from the call.
Keeping it consensual
For the officer, a clear understanding of contacts is essential. The basic rule is that the more articulable facts the officer has, the longer and more restrictive the contact can be. With zero facts, the officer is left only with a consensual contact. The citizen must be allowed to walk away and refuse to answer any questions if the contact lacks a factual basis.
Using consensual language is essential to preserve the non-confrontational context of a contact. Asking permission to chat, asking for help in observing for suspicious activity, thanking the person for their time and a conversational demeanor can preserve a positive contact. Expecting a normal amount of nervousness, hesitation and even hostility, the officer cannot use the subject’s invocation of their rights as a foundation for moving into an investigative stop.
A citizen being contacted by the police will not describe that contact with the legal precision of rulings on the fourth amendment to the Constitution. “The cops stopped me” will likely be the description regardless. Their story can be positive if officers engage lawfully and appropriately.