Become a Patron! 


Frank Rudy Cooper

For complete article see, Frank Rudy Cooper, Post-racialism and Searches Incident to Arrest, 44 Arizona State Law Journal 113 (Spring 2012) (295 footnotes)


Frank Rudy CooperIf criminal procedure of the mid-twentieth century can be understood as a type of civil rights law, criminal procedure of the early twenty-first century might come to be understood as an attempt to construct a post-racial era. Post-racialism is the notion that the United States has reached a point where race is so infrequently salient that it no longer makes sense to organize around it or even acknowledge its presence. We are to be race-silent, even when we try to address issues that correlate closely with race. The problem is, there are many examples of ongoing disparate negative treatment of racial minorities, such as racial profiling. Post-racialism would seem to suggest taking a race-silent approach to racial profiling. The main way police officers racial profile minorities as criminals is by obtaining probable cause to arrest based on a minor traffic violation and then searching the suspect and her vehicle incident to that arrest. So a post-racialist might curb police officers' search incident to arrest discretion in general without explaining the necessity for the curbs on the basis of race or tailoring the remedy to address race. As a case study in whether race-silent measures are as effective as directly attacking racism, this article considers the Court's doctrine governing police searches of vehicles incident to arrests.

The Court's vehicle search doctrine is a branch of its overall searches incident to arrest doctrine. Two early search incident to arrest cases conflict with each other and set the stage for a debate as to the appropriate scope of the doctrine. The United States v. Rabinowitz case contends that police officers' evidence-gathering function means they should be able to search anywhere in a home that evidence might be found whenever they have probable cause to arrest a suspect. The Chimel v. California case later links a police officer's full blown search powers in the home to twin rationales of officer safety and prevention of destruction of evidence and thus limits the search to the area in the immediate control of the suspect. Justice Scalia has claimed that both Rabinowitz and Chimel are plausible explanations of the rationale for the search incident to arrest. In an early application of the Chimel rule, the Court in United States v. Robinson held that an officer could fully search the person of the suspect and his immediate area after arresting him for a traffic violation. Under the Robinson decision, a police officer may make a search incident to arrest of a person even if she does not have the state of mind of fear for either safety or evidence that justifies the search incident rule. The New York v. Belton case then created a presumption that the entire passenger compartment of a car is within the immediate control of a suspect and held that officers may search a vehicle's passenger compartment incident to the arrest of the suspect for a traffic violation.

The full implications of the Belton doctrine were seen in the Whren v. United States decision, in which the Court held that the fact that our traffic laws are so pervasive that most people can be found in violation most days does not require police to have anything other than probable cause of the traffic violation before arresting the subject. In conjunction with Belton's permission to search, the Whren rule means that officers have the ability to search most people's cars for evidence of major crimes upon a mere hunch and a traffic violation. Moreover, the Whren Court explicitly holds that an officer's subjective decision to use the traffic violation as a pretext to search a racial minority for evidence of drug dealing solely because of her race is irrelevant to Fourth Amendment analysis. In the Atwater v. City of Lago Vista case, the majority held that whenever police officers have probable cause to believe that an individual has committed a traffic violation, they may arrest the suspect even for a minor, rarely-enforced violation carrying no possible jail time.

Scholar Donald Dripps refers to the citizen vulnerability created by the combination of Belton, Whren, and Atwater as the Iron Triangle; we might go further and refer to the combination of Robinson, Belton, Whren, and Atwater as creating a Mindless Square. Dripps is right that the combination of Belton, Whren, and Atwater ends up making everything in the passenger compartment of the car, including a locked glove box and sealed containers, subject to search incident to arrest for a minor traffic violation. Turning Dripps' Triangle into a Square emphasizes the significance of Robinson's refusal to look at officers' states of mind to the undoing of Chimel's limits on searches incident to arrest.

The recent Arizona v. Gant decision marks a turning point in search incident to arrest law that places some limits on the discretion created by the Mindless Square and may thereby limit racial profiling. The Gant decision limits Belton searches to situations where the officer can establish either (1) the Chimel rationales that the suspect has access to weapons or destructible evidence or (2) the Rabinowitz rationale that there are reasonable grounds to believe the officer will find evidence of the crime of arrest in the car. Nonetheless, Gant never mentions the fact that racial minorities are much more likely to suffer the consequences of an open-ended rule.

While many scholars read Gant as a triumph for civil liberties, I see it as a failure to fully address racial profiling. Racial profiling lives on in the post-Gant era because the Court failed to prohibit pretextual searches. Cops may leave suspects near a car in order to satisfy Gant's first prong. More importantly, they will often be able to characterize the crime of arrest as suggesting there could be evidence in the car. For instance, if a distracted driver turns without signaling, what is to stop an officer from claiming she suspected the crime of Driving Under the Influence and was searching for beer cans? Nothing in the Gant decision.

As Eric Miller and Song Richardson's articles in this symposium demonstrate, police officers are still prone to racial profiling. It would have made sense for the Gant decision to reference O'Connor's Atwater dissent. There, she explicitly criticizes the Whren decision as allowing racial profiling. By limiting a prime means of racial profiling--the bogus traffic stop as pretext for a drug search--without acknowledging the racial reasons for doing so, Gant uses a post-racial means to effect racial progress.

The core argument of this article is that the Court ought to extend the Gant limitation on vehicle searches incident to arrest by excising its Rabinowitz prong and requiring searches incident to be overall reasonable in light of any racial pretext. This would create a more race-sensitive search incident to arrest doctrine.

I. Post-racialism

Post-racialism is about avoiding the acknowledgment of race. An anecdote exemplifies this quality of post-racialism. A friend told me he was talking to his eight-year-old son while the son watched television. The son said he wanted a certain toy, but there were many children in the scene and many of them were holding objects. The friend asked which toy. The son said the kid on the left was holding it. The friend said, which kid, the black one? The son said, don't say that, it's not nice.The son explained that he had gathered from school that he was never to refer to someone's race because all people are the same. The friend asked, was there a better way to identify your toy?There was not. Like the son, when people are in a post-racial mode, they try to find broader, non-race categories for not only identifying but also addressing social problems.

To understand post-racialism's goals, it is helpful to understand its predecessor, colorblindness. Whereas colorblind ideology argued that assuming that race does not matter is the best way to reach a racially egalitarian society, post-racialism declares that race already no longer matters in societal interactions. Colorblindness is exemplified by Chief Justice Roberts's statement: The way to stop discrimination on the basis of race is to stop discriminating on the basis of race. He seems to mean that we should never act on the basis of having identified someone's race. To make race immaterial, we must act as though race is already immaterial. Colorblindness implicitly accepts that people do see race but thinks a society where people do not see race would be more egalitarian, and thus advocates pretending we do not see race.

In contrast, post-racialism says that we have already reached a state where race does not matter. As a prime example of the overcoming of racism, post-racialists point to the election of Barack Obama as the first black President of this (for now) majority white nation. Chris Matthews reflected this idea when he said, I forgot Obama was black for an hour. But even post-racialists probably do not mean that people literally no longer ever see race. More likely, they mean that invidious racism is so infrequent and so marginalized that race makes no practical difference in most people's lives. The implication of colorblindness, and especially of post-racialism, is that we should no longer organize around race--neither socially nor through race-based legal remedies. Post-racialism is thus a continuation of colorblindness in that it triumphantly declares that we have reached the racially egalitarian state that colorblindness was seeking. Critical race theorists, having long challenged colorblindness, are dubious about post-racialism.

Critical race theorists seem to be on to something in the criminal procedure context. In the context of the Fourth Amendment, post-racialism conflicts with strong evidence of ongoing racial profiling by police officers. For purposes of this Article, racial profiling occurs in the following situations: When a profiler (say, a police officer seeking to discriminate amongst potential suspects) adopts a racial profile (say, the stereotype of young black men as crime prone) and applies it as a way of deciding how to act toward an individual from the profiled group. Put another way, racial profiling is the inappropriate use of race, ethnicity, or national origin. Scholars have shown that racial profiling is a pervasive practice of U.S. police departments. They have also shown that the practice is both ineffective and detrimental in a number of ways.

What then is a post-racialist to do about racial profiling? To understand what a race-silent approach to racial profiling might look like, we might turn to the jurisprudence of former U.S. Supreme Court Justice Sandra Day O'Connor. O'Connor is an appropriate object of this inquiry because she created much of the Court's colorblind Equal Protection doctrine and called for a form of post-racialism before that term was widely used. She is known for her colorblindness due to her opinions in Richmond v. J.A. Croson Co. and Shaw v. Reno, which invalidated race-conscious remedies on the theory that the best way to reach a racially egalitarian society is to ignore race. Even in the case where she surprisingly allowed race-based affirmative action in higher education, she foreshadowed post-racialism by declaring that race-consciousness would surely be unnecessary in twenty-five years.

It should come as no surprise, then, that majorities including O'Connor were usually race-silent in the criminal procedure context, even when addressing overt racism. For example, the Ferguson v. City of Charleston case involved a South Carolina hospital that threatened forty-two women--forty-one black women and one white woman--with prosecution for drug use during pregnancy. The white nurse who had created the program was quoted as saying she was opposed to race-mixing and the only white woman prosecuted was in a relationship with a black man. Justice Stevens, who dissented in the aforementioned anti-affirmative action cases, wrote an opinion that never mentions race, yet strikes down the program as unreasonable under the Fourth Amendment because its purported special need for avoiding the probable cause requirement was actually an ordinary law enforcement interest. In other words, Stevens addressed racism in a race-silent manner. This article will demonstrate that Gant, another Stevens opinion, is race-silent. It will also show why that is not a good thing.

* * *

III. Why Gant Fails to Fully Address Racial Profiling

A. Richardson and Miller on Continuing Police Prejudice

Leading criminal procedure scholar Eric Miller's contribution to this Symposium, Detective Fiction, argues that while the Court has created a fiction that police officers have expertise that justifies judicial deference, the Court makes no reference to evidence of specific training and its effectiveness. The result is that the Court promotes race-based policing. He develops that argument by distinguishing role-based versus rule-based, authoritarian versus consensual, and craft versus managerial styles of regulating policing. Role-based authority prizes officers' insights that are developed in their role as crime investigators. Rule-based authority would place the Constitution and Courts above the police. Moreover, the Court facilitates an authoritarian versus a consensual style of policing. A consensual style of policing would emphasize community cooperation in policing based on mutual respect. The authoritarian model privileges deference to police authority based on their role. As I have noted in my article Who's the Man?: Masculinities Studies, Terry Stops, and Police Training, police in an authoritarian mode emphasize order maintenance through deference to their authority. Finally, Miller distinguishes between craft and managerial authority. Craft authority emphasizes the expertise of street police over management's regulations. The Court's belief in street-officer, craft-based authority leads it to defer in almost all cases to officers' discretion, even when they violate rules set by management. As Miller says, if the officer is sufficiently well trained and experienced, the Court will defer to her on-the-spot tactical judgments rather than rely upon the policy decisions of her executive superiors or the judiciary.

For Miller, this judicial deference to authoritarian policing leads to racial profiling because it allows the use of police officers' order maintenance techniques, including pretextual searches, for investigation. In Miller's view, we began losing the battle against racial profiling when the Court removed the implicit dangerousness requirement from Terry stops. That requirement would have barred order maintenance/preventative policing from being used as a technique of investigation. In conjunction with the Robinson/Whren pretext approach, which leads to the Mindless Square, allowing officers to go fishing for crime in the absence of a danger-based necessity facilitates racial profiling. Moreover, when accepting evidence from pretextual searches, the Court makes no effort to ascertain whether the officer is skillful or merely lucky. As a result, anything goes, especially racial profiling.

The primary reason that I say especially racial profiling is well explained by noted criminal procedure scholar Song Richardson's article in this symposium, Cognitive Bias, Policing, and the Fourth Amendment. Richardson asserts, and then proves, that as a result of psychological biases, officers are more likely to attribute the ambiguous behaviors of nonwhites to criminality and the identical behaviors of whites to external factors. Note that Richardson does not assert that all, or even most, officers are racist. She does say, however, that many people are implicitly biased against racial minorities. That means that non-conscious psychological processes affect people's behaviors, perceptions, and judgments. Richardson briefly surveys the evidence and concludes such biases significantly affect policing in the form of racial profiling.

The Fourth Amendment problem here is that the Court's thin definition of unreasonableness facilitates police officers' reliance on their implicit biases as a basis for deciding whom to investigate. As Richardson says, incentive structures within organizations can affect epistemic motivation by encouraging or discouraging [the] information gathering that might reduce implicit bias. From the point of view of the institutional control that the Court might have chosen to exercise over police officers who racial profile, we might ask the same question Richardson does:

Allowing officers to consider race . . . communicates to officers that it is appropriate to associate race with criminality; after all, why else does the Court permit them to consider a target's race, even when they do not have any specific information that a suspect of a particular race was engaged in criminal activity?

We might ask similar questions regarding pretext and searches incident to arrest: Why enact the Mindless Square of cases if you don't condone racial profiling? Why not explicitly remedy racial profiling in Gant, especially after O'Connor's warning about it? Seemingly, because the Court is seeking to create a post-racial era by ignoring race.

Together, Miller and Richardson reveal the scope of the racial profiling problem. The Court's way of looking at the police, by deferring to their authoritarian impulses under the guise of deferring to their undocumented expertise, facilitates racial profiling. As I have demonstrated, the Mindless Square approach to search incident to arrest doctrine is a significant part of that permissiveness. Moreover, the Court's refusal to acknowledge implicit bias, despite much evidence that has been presented to them, is itself a message to officers to continue their racist practices. I argue that pretext searches are the principal means by which implicit bias is converted into intrusions upon racial minorities. In the face of these problems, we ought to be critical of the Gant decision--both its Rabinowitz prong and its refusal to consider pretext need to be reconsidered.

B. The Gant Decision's Rabinowitz Prong Maintains Excessive Police Discretion

Given the significant racial profiling problem raised by search incident to arrest doctrine, we ought to challenge the very assumptions of this doctrine. In the context of Gant, the best way to challenge the doctrine is to ask why the Court inserted a Rabinowitz prong. Scholar Edwin Butterfoss called for Gant's suturing of a Rabinowitz-prong to the Chimel justifications for searches incident to arrest as a sensible approach. Others felt a pure Chimel approach was called for. This article agrees with the latter group.

The primary reason for objecting to the Gant decision's Rabinowitz prong is that it is philosophically inconsistent. Simply put Rabinowitz allows a search of the entire area that is generally in the possession or generally in the control of the arrestee. Chimel, on the other hand, requires that the suspect be in immediate control of the area to be searched. We know that distinction is more than semantics because the Chimel case overturns Rabinowitz. If the Gant Court were being honest, it would choose between the Chimel and Rabinowitz rationales. It does not do so because Scalia's vote was necessary. Scalia's Gant concurrence goes so far as to admit he has compromised. At best, then, Gant is the result of a sausage-making process.

The problem with the Gant decision's Rabinowitz prong is that it leaves police with wide discretion to search. While it is true that (absent danger to the officer or evidence) officers can no longer argue that waiting too long at a stop sign justifies a search incident to arrest, suppose a civilian gets distracted and strays just over the line into the next lane. In that case, the officer could characterize her arrest as based on suspicion of drunk driving. She could say she was searching for evidence of the crime of arrest, such as beer cans. What is to stop courts from refusing to suppress evidence so gained? Nothing in the Gant opinion. After all, Gant makes the search for evidence dependent not upon probable cause or even reasonable suspicion, but a new and undefined concept called reasonable to believe. If Gant had stuck to a Chimel rationale, the officer in my hypothetical would not get a general search for evidence. The Gant decision thus maintains a significant degree of the wide discretion that officers have been using to racial profile minority motorists.

C. Gant Still Allows Pretext

Perhaps even more significantly, the Gant decision does not address the heart of the racial profiling problem. If police officers only used their search incident to arrest powers when they legitimately thought the crime justified a search, the practice would not be nearly as offensive to the Fourth Amendment. The central problem with the current use of searches incident to arrest is that officers are making an end-run around the Fourth Amendment. In common parlance, it would be considered unreasonable to allow someone to do something prohibited by simply pretending she was doing something else. When officers use the traffic stop as a pretext to do a search they cannot justify, they are accomplishing their prohibited goal by means of semantics. That should be deemed constitutionally unreasonable.

The central problem is that the Gant decision leaves pretext doctrine untouched. An officer can still seize someone for the purpose of doing a search she cannot justify. The new rule merely makes her articulate her pretext as a belief that the suspect was a danger to the people or evidence, or that she would find evidence of the crime of arrest in the car. Standard police practices make it unlikely (though not impossible) that officers can articulate a danger rationale. But note that an officer could choose to let a suspect she does not fear remain near the car and thereby get the automatic Belton search of the car. While Scalia suggested such a ruse would make the search unreasonable in his Thornton concurrence, neither he nor Stevens refers to that idea in the Gant decision.

More importantly, the Gant decision allows pretextual articulations of a belief that evidence would be found in the car. As the prior lane-weaving example demonstrates, such a belief will not be particularly hard to manufacture. Given that courts are barred from considering officers' states of mind under Whren, the officer's stated belief will be hard to counter. Even though the officer's belief must be reasonable, how would one establish that it was unreasonable? Logic would suggest that one could point out that no reasonable officer would make such a search. But Whren characterizes such an argument as virtual subjectivity and seemingly forecloses it. Consequently, Gant leaves pretext alive and well. And we know that officers will use discretion to articulate pretext in order to racial profile.

IV. Conclusion

Having traced the problems with the Gant decision, this article concludes with a brief outline of a potential solution. First, we must acknowledge that post-racialism is a failure in the search incident to arrest context. The Court cannot fully address the use of searches incident to arrest without acknowledging that racial profiling is the heart of the problem. O'Connor's Atwater dissent did that. The Gant decision fails to do so. The result is a decision that makes it harder to racial profile but far from impossible.

Second, if we care about racial profiling, we have to limit police discretion. To do so in the search incident to arrest context requires a return to the heart of the Chimel approach. That means excising the Rabinowitz prong from the Gant decision. Such a move is justified by the fact that Chimel and Rabinowitz are inconsistent. But it is especially important because the Rabinowitz prong will be the primary means by which officers continue to use search incident to arrest law to racial profile.

Finally, a true return to the Chimel approach involves disabling pretext searches by breaking apart the Mindless Square of search incident cases. The Court could start by acknowledging that the analogy between the Robinson and Whren situations is false. The Chimel approach might justify a Robinson-type search incident to arrest of a person as a matter of course based on the inherent danger to the officer from close contact with the arrestee. But Robinson's pretext dictum does not justify the initial seizure in Whren. Instead, all searches and seizures should be subject to an overall reasonableness inquiry that takes racist motivations into account in the balancing analysis. Remember that even Justice Scalia has opined that leaving a suspect free for the purpose of generating a search rationale is constitutionally unreasonable. An overall reasonableness inquiry into whether there was a racial pretext is especially appropriate in the context of searches incident to arrest, where the intrusion itself is granted as an incident to the justified seizure but is not itself justified. This proposal is hardly a modest one in the current criminal procedure context, but if we are serious about addressing racial profiling, we will have to acknowledge race.

About the Author: Professor, Suffolk University Law School.