Written by Emma McGovern, L’26

INTRODUCTION

The phrase “Driving While Black” is commonly used to describe racial profiling of Black drivers and passengers by police officers.^[1] As a small datapoint, in 2021, 12.5% of drivers stopped in California were perceived to be Black even though Black people only make up 5.4% of the state’s population.^[2] Though these policies and implicit biases that result in racial profiling are implemented on the local law enforcement level, the US Supreme Court has had an indelible effect on how law enforcement overpolices people of color.^[3] Hidden in language about probable cause and attenuating factors, the Court enables and empowers officers with a disconcerting level of discretion resulting in people of color being stopped at disproportionate rates.^[4] This blog post highlights two Supreme Court cases that give broad discretion to police officers to racially profile without remedy for the victims, as well as a study done in Washington that highlights the impact of these types of cases on racial profiling statistics.

TWO SCOTUS CASES ENABLING RACIAL PROFILING

In Whren v. United States, plainclothes police officers were patrolling a “high-crime” area of DC in an unmarked car when they saw petitioners Whren and Brown, two young Black men, driving in a dark truck with temporary license plates.^[5] The officers saw the driver stare into the lap of his passenger and linger at the stop sign for over twenty seconds.^[6] The officers made a U-turn to face them, and Whren and Brown, seeing an unmarked vehicle circling back toward them in an apparent high crime area, turned right without signalling at an “unreasonable speed.”^[7] The officer walked up beside the vehicle and looked inside the car, seeing large plastic bags of what appeared to be drugs, and arrested both of them.^[8] DC police regulations only permit plainclothes officers in unmarked vehicles to enforce traffic laws in cases where the violation poses an immediate threat to the safety of others–an argument even the officers did not claim here.^[9]

Whren and Brown argued that because drivers are so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, officers can find just about any reason to pull someone over if they want to.^[10] This creates a loophole for officers to stop and search drivers under the pretense of traffic offenses for crimes they do not have probable cause or even reasonable suspicion for.^[11] Whren and Brown further contended that this rule would allow officers to stop drivers for impermissible factors (like race) while claiming that the traffic violation was the impetus for the stop–a “pretextual” stop, where the traffic violation serves as a pretext for racial discrimination.^[12]

Justice Scalia, writing for the majority of the Court, was not persuaded by these arguments. In just one line, he dismisses the concerns about racial profiling, writing:

We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.^[13]

As a result of Whren,  pretextual traffic stops are not actionable violations under Fourth Amendment jurisprudence. Defendants in a criminal trial cannot claim that officers racially profiled them, or stopped them for some other prohibited reason, as a defense in their case.

Justice Scalia’s alternative solution, filing a suit under the Equal Protection Clause, provides little remedy.^[14]Victims of racial profiling must typically prove that a police officer intentionally discriminated against them because oftheir race, which is nearly impossible to prove.^[15] This burden proves even more difficult given the widespread problem of police perjury, specifically when officers are testifying about searches, seizures, and witness interrogations.^[16]

Further, there is no exclusionary rule for Equal Protection Violations, meaning that an officer who violates the law by racially profiling a defendant can still admit that evidence against them in a criminal trial.^[17] This dilemma has sparked some to call for the lowering of the evidentiary burden for claims of racialized traffic stops and using the exclusionary rule as a remedy and deterrent for Equal Protection Violations.^[18]

The Court did not stop at Whren. In Utah v. Strieff,  the Court used the attenuation doctrine to justify their failure to apply the exclusionary rule to an unconstitutional search and seizure, therefore giving police yet another avenue of admitting evidence obtained from an illegal pretextual stop.^[19] In this case, the officer stopped Strieff for leaving a residence he had a hunch was a drug house; Utah conceded that there was not enough evidence to meet reasonable suspicion, therefore making the stop unconstitutional.^[20] Once stopped, the officer asked for Strieff’s identification and contacted the police dispatcher who informed him that Strieff had a warrant out for a traffic violation.^[21] The officer then arrested him, searched him, and found drugs in his pocket.^[22] By refusing to apply the exclusionary rule, the Supreme Court validated and legitimized this officer’s actions, setting a dangerous precedent.

Similarly to Whren, Strieff firms up avenues of racial profiling while pointing to other means, in this case §1983 actions, as a remedy for that profiling.^[23] However, because Strieff eliminated the exclusionary rule in attenuation cases, it increases the likelihood of unconstitutionally obtained incriminating evidence resulting in a conviction.^[24] Convictions produced as a result of this illegally obtained evidence bar claims for false arrests in §1983 actions, severely limiting the damages a plaintiff can receive.^[25]

In Justice Sotomayor’s scathing dissent, she remarked on how being subjected to suspicionless and unwarranted stops humiliates, violates, and terrifies the victims, who are disproportionately people of color.^[26] This system tells them they are “not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”^[27]

RACIAL PROFILING DATA AS A RESULT OF COURT CASES

Data has shown that the critics of Whren, Strieff, and countless other Supreme Court criminal procedure cases were correct in their worries: these policies result in more racial profiling.^[28] In their 2021 Stanford Law Review article, Stephen Rushin and Griffin Edwards empirically illustrate that legal doctrines permitting police officers to engage in pretextual traffic stops contribute to an increase in racial profiling.^[29] Washington datasets were used specifically because of the state’s unique history of changing rules providing differing levels of protection against pretextual stops.^[30]

The Supreme Court decided Whren in 1996.^[31] Presumably in response to Whren, in 1999, the Washington Supreme Court held in State v. Ladson that the state constitution barred police from conducting pretextual traffic stops.^[32] However, in 2012, the Court eased this restriction on pretextual stops in State v. Arreola.^[33] Because of this evolution of law, Washington’s data on pretextual stops sheds light onto the effects of doctrine surrounding pretextual stops.

Perhaps not shockingly, an analysis of 8,257,527 traffic stops showed the following results: after Arreola, the case that eased back on pretextual stops, there was a statistically significant increase in traffic stops of drivers of color in relation to white drivers.^[34] Even more disturbingly, data showed that traffic stops of drivers of color were concentrated during the daytime hours when law enforcement would be more likely to ascertain the race of the driver.^[35]

It is not only that communities of color feel more stopped and harassed by law enforcement—empirically, they are stopped and harassed at higher rates than their white counterparts (at least in the traffic context, though data that discusses other types of contact with law enforcement is available).^[36]

CONCLUSION

            It is not a popular legal stance to support racial profiling; most would feel comfortable calling someone a racist for believing that people should be pulled over by police just because of the color of their skin. However, far more people, including Supreme Court Justices, believe that police officers should be given extreme deference in enforcing the law, and that crime prevention is a compelling interest stacked against the rights of criminal defendants. These beliefs motivating the Supreme Court in Whren, Strieff, and several other cases have legitimized and enabled racial profiling of people of color by law enforcement agencies, all while gutting the ability for racial profiling victims to seek a remedy. If law enforcement agencies seek to promote racial justice and rebuild trust with communities of color, they must protect and uphold individual’s constitutional rights more than the highest court in the land is willing to.

 

—

^[1] See Pierre Thomas et. al., Driving While Black: ABC News Analysis of Traffic Stops Reveals Racial Disparities in Several US Cities,  ABC News  (Sept. 9, 2020), https://abcnews.go.com/US/driving-black-abc-news-analysis-traffic-stops-reveals/story?id=72891419.

^[2] Nicole Chavez, New Report Details the Extent of Racial Profiling During Traffic Stops in California, CNN (Jan. 4, 2024), https://www.cnn.com/2024/01/04/us/california-traffic-stops-profiling-data-reaj/index.html.

^[3] See, e.g., Whren v. United States, 517 U.S. 806 (1996); Utah v. Strieff, 579 U.S. 232 (2016).

^[4] See id.

^[5] Whren v. United States, 517 U.S. 806 (1996).

^[6] Id. at 808.

^[7] Id.

^[8] Id. at 808-09.

^[9] Id. at 815.

^[10] Id. at 810.

^[11] Id.

^[12] Id. at 810-11.

^[13] Id. at 813.

^[14] Stephen Rushin & Griffin Sims Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling, 73 Stan. L. Rev. 637, 700 (2021).

^[15] Id. at 650-51.

^[16] Morgan Cloud, The Dirty Little Secret, 43 Emory L. J. 1311, 1315 (1994).

^[17] Abby M. Fink, The Long Road to Justice: Why State Courts Should Lower the Evidentiary Burden for Proving Racialized Traffic Stops and Adopt the Exclusionary Rule as a Remedy for Equal Protection Violations, 13 Wash. J. Soc. & Env’t. Justice 1, 3 (2023).

^[18] See id. at 13.

^[19] Utah v. Strieff, 579 U.S. 232, 232 (2016).

^[20] Id. at 244 (Sotomayor, dissenting).

^[21] Id. at 232.

^[22] Id.

^[23] Id. at 243.

^[24] Katherine A. Macfarlane, Predicting Utah v. Streiff’s Civil Rights Impact, 126 Yale L.J. F. 139, 143 (2016).

^[25] Id.

^[26] Strieff, supra note 20, at 252 (Sotomayor, dissenting).

^[27] Id. at 12

^[28] See Rushin & Sims Edwards, supra note 12.

^[29] Id.

^[30] Id. at 637.

^[31]Whren, supra note 6.

^[32] Rushin & Sims Edwards, supra note 12, at 643.

^[33] Id.

^[34] Id. at 644.

^[35] Id.

^[36] Police Brutality Statistics: What the Data Says About Police Violence in America, Police Brutality Center, https://policebrutalitycenter.org/police-brutality/statistics/ (last visited Mar. 18, 2025).