"Like every other normal person"

The Genesis of Suspicion in Judicial Grey Areas of Proactive Police Stops

Abstract

The German police are given the opportunity to proactively stop and search people under certain circumstances, by means of various regulations on danger prevention and criminal procedure. In doing so, they are repeatedly criticised for racial profiling. This article examines from a legal-sociological perspective what legal scope for police discretion exists, and what criteria the police use to select people for stops. For this purpose, we reconstruct the genesis of suspicion by the police as an 'in-/congruity procedure': In the context of proactive controls, police suspicion is based on the behaviour of the person, on personal characteristics such as age, gender or the attributed ethnicity, and on the place or space of their encounter. If officers perceive these different characteristics as congruent – or incongruent with police ideas of order – they identify the person as suspicious. This identification process is routinely based on their 'professional and life experience'. However, this experience often remains intransparent as a basis for stops and is relatively resistant to possible irritations. The police thus operate in a legal grey area that is highly susceptible to discriminatory forms of profiling.