Policing in the Shadow of Legality: Pretext, Leveraging, and Investigation Cascades

Abstract

Police officers often exercise their authority at the boundary of legality. Two of policing’s features contribute to this tendency: first, the scope of certain police powers is unclear; second, officers enjoy broad discretion to initiate proactive police encounters. This article argues that these interrelated features of policing result in three law enforcement phenomena: pretext, leveraging, and investigation cascades. Pretext denotes that police officers invoke lawful justifications to pursue unlawful aims. Leveraging implies that officers exploit individuals’ psychological vulnerabilities to secure compliance or to receive consent to engage in more intrusive investigatory tactics. Investigation cascades occur when officers gather information through police powers with low burdens of proof to exercise more invasive investigation tactics with stricter burdens of proof. This article demonstrates how criminal procedure fails to adequately protect individuals against pretext, leveraging, and investigation cascades. It concludes with a set of concrete proposals to address these three law enforcement phenomena.