The Fourth Amendment guarantees the people a right “to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.[1] For the most part, this appears to be a straightforward principle. But why is it also often the most controversial? As the American Civil Liberties Union notes, “this is one of our most cherished Amendments, but often our most threatened,” and it calls for an extra careful look into the selective enforcement policing that often disproportionately harms communities of color. [2]

In 2019, the Stanford Open Policing Project found that Cincinnati police make 120% more total stops per resident in predominantly black neighborhoods than white ones.[3] This is a typical scenario for other states around the country as well. And in nearly every jurisdiction, it is found that black and Hispanic drivers are searched more often than white drivers.[4]

African Americans have endured an uneasy relationship with American law enforcement for decades.[5] “Driving While Black,” a common phrase and the most familiar form of racial profiling in the United States, has drawn heightened media coverage lately, and is described as abusive police stops and searches of people of color.[6] This can certainly be deemed as infringing upon one’s lawful rights. Not surprisingly, more and more around the United States, police have pushed strategies to try to record more busts, creating both spoken and unspoken policies for targeting racial minorities.[7]

The landmark Supreme Court case of Terry v. Ohio documents just how controversial the Amendment really was.[8]

In Terry, the Court established that the Fourth Amendment permits police to stop a person, but they must have reasonable suspicion that the person may be armed and dangerous, even when that suspicion does not amount to the probable cause necessary to make an arrest.[9] This, for many reasons, creates problems for minorities. And this reasonable test does not take into account the racial perceptions in an abusive search.[10]

As the law has developed since Terry, a plaintiff who wants to prevail on a 1983 claim under the Fourth Amendment must overcome a difficult burden in proving that she was unreasonably seized.[11] Some pertinent factors identifying a police seizure can include: (1) threatening presence of several officers; (2) display of a weapon; (3) physical touching by the officer; and (4) language or tone indicating that compliance with the officer is compulsory.[12]

In Whren v. United States, the remedies under the Fourth Amendment were narrowed even more.[13] The Court held that the unconstitutional reasonableness of traffic stops does not depend on the actual motivations of the individual officers.[14] But by ruling that subjective intentions play no role, it gave officers  wider discretion.[15]

It is important to note that judges play an intricate part in this area, as it is usually up to their discretion to determine what is and is not considered to be unreasonable. However, the absence of diversity from most judges’ lives makes hypothetical racial role-playing a difficult and often unproductive task.[16] Since most judges have no experience of a “genuine cultural pluralism,” they do not have an “experiential basis” for easily creating race-neutral reasonableness standards.[17] Judges must do more to place themselves in the shoes of minority plaintiffs, utilizing a heightened standard for legal and factual review.[18]

In order for the rights of minorities to be actively protected, it will be essential for judges to take the necessary step to limit the scope of police discretion. Lastly, in order to achieve more equitable results under the Fourth Amendment, judges need to move away from ideological assumption of sameness and utilize a reasonableness standard that permits a more sophisticated understanding of racial perceptions.[19]

[1] See U.S. Const. amend. IV.

[2] Search and Seizure, Am. Civ. Liberties Union, https://www.aclu.org/issues/criminal-law-reform/reforming-police/search-and-seizure (last visited Nov. 17, 2021).

[3] Jonathan Hofer, Ethical Hurdles to Combating Racially Biased Police Algorithms, Independent Institute, (Feb. 19, 2020, https://www.independent.org/news/article.asp?id=13060&gclid=CjwKCAiA7dKMBhBCEiwAO_crFCMVB5TQygnLPa0hzPUKOIBlIKpXtJm3gK83shbU2gVVbM-7osvulxoCBEUQAvD_BwE.

[4] Findings, The Stanford Open Policing Project 2021, https://openpolicing.stanford.edu/findings/ (last visited Nov. 17, 2021).

[5] Peter A. Lyle, Racial Profiling and the Fourth Amendment: Applying the Minority Victim Perspective to Ensure Equal Protection Under the Law, 21 B.C. Third World L.J. 243, 246 (2001), https://lawdigitalcommons.bc.edu/twlj/vol21/iss2/2/.

[6] Id.

[7] Id.

[8] See Terry v. Ohio, 392 U.S. 1 (1968).

[9] See id.

[10] Id.

[11] Id.

[12] See Brown, 221 F.3d at 339–40

[13] See Whren v. United States, 517 U.S. 806, 813 (1996). Led by Justice Scalia, the Supreme Court held that prior jurisprudence foreclosed any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of individual officers.

[14] Id. at 812–13

[15] Id..

[16] Supra note 5, at 265.

[17] Id.

[18] Id. at 275

[19] Supra note 5, at 276.