Saturday, September 19, 2020


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III. Fourth Amendment Constitutional Foundations for Racial Profiling

A. Search and Seizure Jurisprudence

Unfortunately and surprisingly, the bases for America's racial and ethnic profiling problems can be traced to rulings issued by our Supreme Court. These rulings essentially and collectively state that an officer has a right to make a temporary detention based on reasonable suspicion or a traffic stop even if that stop was primarily for the basis of checking out possible criminal behavior for which the officer lacked reasonable suspicion or probable cause.

We begin first, however, with Terry v. Ohio, the landmark opinion, which created the reasonable suspicion exception to the probable cause standard of the Fourth Amendment. McFadden, a plainclothes Cleveland, Ohio police officer, had been a detective for thirty-five years, thirty of which included an anti-shoplifting assignment in the downtown sector. He observed Terry and two other men engage in behavior, which led him to believe that they were planning a robbery.

McFadden explained that he had developed routine habits of observation and in this case when I looked over they didn't look right to me at the time. He saw one of the men leave the other one and walk down the street past some stores. The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. The second man repeated these actions. This occurred almost a dozen times. These two men then met up with a third man.

After this had gone on for over ten minutes, the two men walked off together, heading west on down another street, following the path taken earlier by the third man. By this time, Officer McFadden had become thoroughly suspicious. He testified that after observing their elaborately casual and oft-repeated reconnaissance of the store window, he suspected the two men of casing a job, a stick-up, and decided to investigate further. In making this move, he admitted his fear that they may have a gun.

McFadden approached the three men, identified himself as a police officer and asked for their names. When the men mumbled something in response to his inquiries, Officer McFadden grabbed Terry, spun him around so that they were facing the other two, with Terry between McFadden and the others, and patted down the outside of his clothing. In the left breast pocket of Terry's overcoat McFadden felt a pistol. He reached inside the overcoat pocket, but was unable to remove the gun.

At this point, the officer ordered all three men to enter the store. As they went in, he removed Terry's overcoat completely, removed a .38-caliber revolver from the pocket and ordered all three men to face the wall with their hands raised. Officer McFadden proceeded to pat down the outer clothing of Chilton and the third man, Katz. He discovered another revolver in the outer pocket of Chilton's overcoat, but no weapons were found on Katz.

Terry was charged with carrying a concealed weapon and he moved to suppress the evidence, asserting that the stop and frisk was an unreasonable search and seizure. The Supreme Court allowed the search that developed from the detention and frisk of Terry and his partners even though the officer lacked probable cause to arrest the suspects at the time of the stop. The Court stated:

We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, . . . he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

In Whren v. United States, the Court responded to allegations of a possible pretextual traffic stop by District of Columbia officers in a neighborhood noted for its high drug activity. The officers in the unmarked car became suspicious after witnessing a truck waiting at a stop sign for more than twenty seconds. During this stop, the youthful driver of the truck was seen looking down towards the passenger's lap.

The police made a turn and headed back towards the suspicious vehicle. The truck then turned without signaling and sped off at an unreasonable speed. The police caught up to the vehicle at a stop light. As the officer stepped up to the truck window, he observed two large bags of what he believed to be crack cocaine in Whren's hands.

Whren alleged that the stop was not justified by probable cause and that the officers' reasons for approaching the vehicle were pretextual. Whren conceded that the officer had probable cause for violations of the traffic code. Whren and his partner in crime, both of African American descent, asserted that a traffic violation should not suffice since officers will succumb to utilizing traffic stops to discover other law violations in the absence of probable cause or even reasonable suspicion and might select motorists to stop based on an impermissible factor such as the race of the car's occupants.

The Supreme Court ruled that an officer can stop a vehicle if he has probable cause to believe that a traffic violation has been committed. In addition, the evidence discovered would be admissible, even if the officer made the stop with the purpose of discovering criminal activity.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law