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excerpted from: Devon W. Carbado, (E)racing the Fourth Amendment, 100 Michigan Law Review 946-1044, 964-974, 1043-1044 (March, 2002)(374 Footnotes)


A growing body of literature contests the racial dimensions of Fourth Amendment law. The central claim this literature advances is that Fourth Amendment jurisprudence is insensitive to, and unconcerned with, the contemporary realities of race. While this body of work is important and illuminating, it can be expanded upon in three important ways. First, virtually none of this literature links the Supreme Court's racial insensitivity in the Fourth Amendment context to racial ideology--that is, commitments about and conceptions of race. Put another way, the race and Fourth Amendment scholarship fails to examine the nexus between the development of Fourth Amendment doctrine on the one hand, and ideological notions about what race is and should be on the other. Part of the project of Critical Race Theory has been to illustrate not only the role courts play in constructing racial identities, but also the relationship between the construction of race in judicial opinions and the production and legitimation of racial inequality. For the most part, scholars writing about race and the Fourth Amendment have not meaningfully engaged this body of work. Thus, they have failed to consider the race constructing role the Court performs in the Fourth Amendment context. An examination of this role could further illuminate the disjuncture between how the Court on the one hand and police on the other make race matter. This illumination would help to highlight the Court's complicity in, and legitimation of, police practices that target people of color.

Second, the literature on race and the Fourth Amendment has not fully examined the ways in which current doctrine affects the everyday lives of people of color. Certainly, the suggestion that suspicion is racialized and that this racialization burdens people of color is not novel. The literature, however, fails to capture the precise nature of this burden. The burden includes, but is not limited to, internalized racial obedience toward, and fear of, the police. Few people have noted that people of color are socialized into engaging in particular kinds of performances for the police. They work their identities in response to, and in an attempt to preempt, law enforcement discipline. This identity work takes place in a social atmosphere of fear and loathing. It is intended to signal acquiescence and respectability. This under-theorized partof the interaction between police officers and people of color provides a more complete understanding of the racial costs of current Fourth Amendment law. While the identification of these additional costs may, given the current political culture of the Supreme Court, be insufficient substantively to change existing doctrine, their incorporation into Fourth Amendment discourse could perform an epistemological function. Specifically, an awareness of the relationship between identity performance and race-based policing could shape how scholars think about Fourth Amendment law and render it more difficult for the Court to ignore or race neutrally construct race.

Finally, the scholarship on race and the Fourth Amendment is underinclusive, focusing primarily on blacks. The point is not that we have a complete understanding of how the Fourth Amendment burdens black people; indeed, part of my aim in this Article is to broaden that understanding. Instead, the point is that to the extent that blackness is but one--albeit significant--racial identity burdened by the Court's formulation of Fourth Amendment doctrine, focusing exclusively on blacks presents a black and white racial picture of this body of law. Lost in this picture is the conception of race-based policing as a multiracial social phenomenon. Such a conception provides scholars with a window through which to broaden both their understanding of race and policing and their critique of the Supreme Court. Indeed, to the extent that race-based policing is perceived to affect only black people, the Supreme Court's indifference to it, and the practice itself, is easier to ignore.

The project of this Article, broadly stated, is to fill these gaps. To do so, it examines Fourth Amendment case law as a jurisprudential site within which the Supreme Court engages in the production of race. What I mean to suggest here is that, in the Fourth Amendment context, the Court both constructs race (that is, produces a particular conception of what race is) and reifies race (that is, conceptualizes race as existing completely outside of or apart from the very legal frameworks within which the Court produces it). My specific aim is to illustrate how the Supreme Court's construction and reification of race in Fourth Amendment cases legitimizes and reproduces racial inequality in the context of policing. In this sense, the Article will delineate the racial world that Fourth Amendment law helps to create and sustain.

The central claim I advance is that the racial effects of the Supreme Court's Fourth Amendment law is a function of the Court's adoption of what I call the perpetrator perspective. Two normative and race-constructing commitments underwrite this perspective: (1) the notion that how people interact with and respond to the police is neither affected by nor mediated through race; and (2) the idea that whether and how the police engage people is not a function of race. As a result of these commitments, the Court conceptualizes race primarily through the racial lens of colorblindness. In this sense, the race and Fourth Amendment problem is not just a function of the fact that the Court ignores race. It is also, and perhaps more fundamentally, a function of the Court's underlying investment in a particular conception of race: race neutrality or colorblindness.

The Supreme Court's investment in colorblindness reflects a perpetrator perspective in the sense that race becomes doctrinally relevant only to the extent that the presumption of race neutrality and colorblindness can be rebutted by specific evidence that a particular police officer exhibits overtly racist behavior--in other words, is obviously a perpetrator of racism. Put another way, race potentially matters in the Fourth Amendment context only when a case involves a "racially bad" cop. Police officers who cannot be so described are presumed to be "racially good," and their racial interactions with people on the street are presumed to be constitutional.

Significantly, the Supreme Court has not explicitly articulated colorblindness as a guiding principle of Fourth Amendment law. This ideology has to be excavated. Doing so helps to reveal precisely what the perpetrator perspective obscures: the racial allocation of the burdens and benefits of the Fourth Amendment. The material result of this racial allocation is that people of color are burdened more by, and benefit less from, the Fourth Amendment than whites. Consequently, the former are likely to feel less "secure in their persons, homes, papers, and effects" than the latter. Stated differently, people of color are more likely than whites to experience the Fourth Amendment as a technology of surveillance rather than as a constitutional guardian of property, liberty, and privacy. This problem is compounded by the fact that, as a historical matter, people of color have not been the beneficiaries of effective law enforcement. In other words, the privacy losses they experience are not the price they pay for effective crime prevention and detection, but a cost of race. This suggests that people of color are under-protected even as they are over-policed. In effect, from the perspective of many people of color, the Fourth Amendment has been eraced.

This Article suggests that the Supreme Court should abandon the perpetrator perspective in favor of the victim perspective. Fundamental to this perspective is the idea that, because people of color often experience their race as a crime of identity, and because this experience derives, at least in part, from availability heuristics about race, people of color are always vulnerable to being victims of police abuse. The victim perspective, in other words, is explicitly race-conscious, and not only with respect to people with vulnerable racial identities (that is, potential victims), but also with respect to racial interpolators like the police (that is, potential perpetrators). The victim's perspective, then, is less concerned with whether police officers are racially blameworthy or racially culpable in the "bad cop" sense, and more concerned with the coercive and disciplinary ways in which race structures the interaction between police officers and nonwhite persons.

The shift in focus to the victim perspective from the perpetrator perspective is not just rhetorical; it has descriptive, normative, and doctrinal value. As discussed more fully below, the victim perspective provides a more complete understanding of the harms of race-based policing, a more sophisticated sense of the Court's role in legitimizing those harms, and a normative basis for re- interpreting and re-conceptualizing particular Fourth Amendment doctrines.

The argument proceeds as follows. Part II analyzes the Supreme Court's interpretation of the "free to leave" test. This test determines whether, for Fourth Amendment purposes, a particular police activity "seizes" an individual--that is, renders the individual unfree either to leave or to terminate the police encounter. Focusing on Florida v. Bostick (which directly implicates blacks) and INS v. Delgado (which directly implicates Latinas/os), this Part specifically illustrates how the Supreme Court's seizure analysis relies too heavily on the perpetrator perspective. This overreliance simultaneously creates a racial-avoidance problem (that is, the Supreme Court's willful blindness to uncontestable facts about race and policing) and a racial-construction problem (that is, the Court's ideological representation of defendants and police officers without racial specificity). Identifying these problems helps to illustrate how the Supreme Court doctrinally masks (and not simply ignores) the ways in which race shapes (1) an officer's decision to select a particular individual for questioning, (2) the form and substance of the questioning, and (3) how the subject of the questioning responds. Part II argues that this doctrinal masking legitimizes, even as it obscures, the racial terms upon which police/citizen encounters are transacted.

Part III shifts the discussion to Fourth Amendment consent doctrine, the body of law that is concerned with determining the circumstances under which a person can be said to have consented to a particular governmental intrusion (e.g., the search of one's clothing or belongings). Broadly speaking, here, too, the project is to demonstrate the racial productivity of this body of law--the ways in which Fourth Amendment law constructs (not simply avoids) and reifies (not simply discovers) race--to implicate more directly the Supreme Court in people of color's experiences with the police. The more specific aim is to demonstrate that the Supreme Court's adjudication of what constitutes a valid consent race neutrally constructs suspects and police officers. This construction renders Latinas/os, for example, just people--a construction that erases their particular racial experiences with, and impressions of, the police. Simultaneously, white police officers become just police officers--a construction that erases their particular racial impressions of, and social interactions with, Latinas/os.

This colorblind production of identities exacerbates and legitimizes Latinas/os' (and other people of color's) racial vulnerability to consent searches. This vulnerability derives from four important social realities. First, given pervasive stereotypes as to the color of crime, police officers may be racially committed to searching Latinas/os' personal effects. Second, should a police officer ask a Latino for permission to search his belongings, pressure exists for that person to say yes. He may believe that, if he says no, the officer's (racial) suspicions will intensify. Central to this thinking could be the perception that, to the extent that this intensification occurs, the officer will prolong the encounter. Third, Latinas/os (especially young Latinas/os in the inner city) often will have imperfect information about their constitutional rights. Thus, they will not always know that they have a right to refuse consent. Fourth, assuming that police officers know that Latinas/os may be uninformed or apprehensive about exercising their constitutional rights, police officers have an incentive to exploit these vulnerabilities.

Significantly, these interracial dynamics do not turn on whether police officers are "racially bad" in the sense of exhibiting hard racial animus. Cumulatively, they provide a basis for rethinking consent doctrine and, more particularly, the way that doctrine was applied in the central consent doctrine case: Schneckloth v.Bustamonte. Together, Parts II and III broaden our understanding of the racial dynamics between people of color and police officers, redescribe the race and Fourth Amendment problem as a function of the Court's racial productivity, and provide a normative basis for articulating alternative doctrinal regimes to constitutionally regulate police conduct.

Part IV focuses on a specific race and policing problem: the Driving While Black/Brown ("DWB") phenomenon. The section defines DWB as an example of racial profiling and employs the perpetrator perspective to explain how the public campaigns against, and the Supreme Court's response to, racial profiling have functioned to manage (rather than solve) this pervasive social problem. The Supreme Court has responded to racial profiling through doctrinal avoidance. It accomplishes this avoidance, in part, by conceptualizing racial profiling as an "attitude" that resides in the minds of "racially bad" police officers (the perpetrator perspective), rather than as a disciplinary practice that police officers deploy and people of color experience (the victim perspective). In effect, the Supreme Court recognizes racial profiling--that is, acknowledges that the phenomenon exists--only to de-recognize it--that is, to ignore how racial profiling is actually experienced. Part IV exposes this racial recognition/de-recognition dynamic to demonstrate how the Court strategically uses race to achieve a particular doctrinal outcome: that the Fourth Amendment does not reach racial profiling. Demonstrating that this outcome is both ideologically invested and contingent creates a doctrinal space within which to articulate approaches to the Fourth Amendment under which racial profiling would be deemed unconstitutional.

The public's response to racial profiling has been one of condemnation. This condemnation, however, derives not from the idea that racial profiling is per se problematic. Instead, reflecting the perpetrator perspective, it is based on the perception that "racially bad" cops are profiling "racially good" blacks and Latinas/os. Almost every public narrative about racial profiling, including the ones with which this Article begins, involves "respectable" people: lawyers, actors, doctors, teachers, students, etc. The notion is that these people were not supposed to be racially profiled. In other words, in each case, the police officer should have known that he was profiling a "good" (nonstereotypical) person of color. To a considerable extent, this racial mistake is what the public discourse against racial profiling, including the ACLU's campaign, focuses on. This focus does not fundamentally change our norms about race and policing. Indeed, on some level, it confirms if not entrenches our racial suspicions about crime and criminality.