Racial Profiling and the Fourth Amendment: An examination of how The United States Supreme Court is reinforcing racial profiling practices in decisions being handed down.
S. H. Belshaw
University of Houston Clear Lake
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
U.S. Constitution: Fourth Amendment
In 2002, the United States Supreme Court held in Atwater v. Lago Vista that police officers may arrest a citizen for minor law violations such as violating a seat-belt law or for a traffic violation. Over the last several decades, the U.S. Supreme Court has issued opinions that have broadened police powers on the street, the Atwater case is another in this line of decisions. Indeed, 4th Amendment cases such as Belton v. New York, Carroll v. United States, Terry v. Ohio and Whren v. United States have all broadened the discretion of officers. Atwater and other Court opinions have effectively given the police more leeway to target minorities by establishing a vehicle stop and search without having to obtain a judicial warrant as prescribed by the 4th Amendment. This paper examines two questions in light of the Atwater decision: Is the U.S. Supreme Court rendering decisions that allow law enforcement to circumvent the Fourth Amendment, thus creating a tolerance for racial profiling? Did the Atwater decision create an unintended consequence allowing for law enforcement to circumvent the constitutional protections in search and seizure cases?
While racial profiling is considered illegal in the United States, The U.S. Supreme Court has consistently handed down rulings that allow law enforcement an enormous amount of flexibility in decision-making on the street. One unintended consequence of these Court rulings is the reinforcement of the illegal practice of racial profiling in law enforcement. In the United States, law enforcement officers frequently utilize motor vehicle stops to enforce criminal laws.
Realistically, these violations, which are minor misdemeanor offenses and not of a felonious nature, are oftentimes based on a suspect’s physical appearance rather than on a valid and legal behavioral or criminal action. When these stops are due to race and not valid legal criteria, they can lead to improper vehicle searches not subjected to judicial review or 4th Amendment protection. In fact, in 2002, the United States Department of Justice completed a national survey which found that the police were more likely to carry out some type of search on African-Americans (10.2% of the time) and Hispanics (11.4% of the time) in comparison to Caucasians, who were searched 3.5% of the time. The police often justify these stops by reporting that the citizen fit the description of a criminal suspect. This vague “fitting the description” justification is still applicable if there is a significant description on a suspect. An example of this is if a police officer is targeting black males for possible drug activity in a neighborhood that has a history of drug activity, the police officer cannot legitimately detain all the black males in the neighborhood for questioning and possibly subject to search. The police must establish legal justification to detain and even arrest the subject pursuant to the 4th Amendment of the United States Constitution. The ruling in Atwater allows for the police officer to justify a search without going through the conventional constitutional protections as prescribed by the Constitution.
The Supreme Court has rendered decisions that allow police officers to stop and search a motorist’s vehicle if they believe the motorist is trafficking illegal drugs or weapons. In Terry v. Ohio 392 U.S. 1 (1968) the Court decided to allow the police to stop an individual walking down the street or simply standing on a street corner and frisk him for illegal contraband. Along the same grounds, in Atwater v. The City of Lago Vista (532 U.S. 318), the Court decided that the police have the authority to arrest a citizen for a class “C” criminal misdemeanor law violation. Examples of such offenses include traffic violations and violations that are not subject to punishment by incarceration. Implementation of Atwater, along with other court rulings, allows police more freedom to target minorities by establishing that a vehicle stop and search can be performed without having to obtain a warrant, thus diminishing the probable cause doctrine.
In the Atwater decision the Court stated, “The Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine” (Atwater v. Lago Vista 2001). Since the Atwater decision, the Courts have ruled that if a citizen is stopped for a traffic citation, he or she can be subject to arrest and detention. The suspect’s vehicle is also subject to search and impoundment, all without a warrant from a judicial body. Police officers then can execute more traffic stops, targeting young minorities in high crime areas, which lead to more arrests, which further skews the racial profiling statistics against African-Americans and other minorities. The police can use this tactic to target low income areas with high crime and justify illegal detentions all without 4th Amendment protection for the citizen.
In light of the Atwater decision, the issues that are presented in this paper are: Is the U.S. Supreme Court rendering decisions that allow law enforcement to circumvent the Fourth Amendment. Second, does the Atwater decision produce an unintended consequence to Fourth Amendment case law.
Procedural history of 4th Amendment cases
(fostering increased discretion for the law enforcement officer):
The Supreme Court has issued search and seizure opinions that are focused towards police officer behavior on the street. In Carroll v. United States 26 U.S 132,153 (1925) the Supreme Court allows for a vehicle to be stopped without a judicial warrant when the police officer establishes “probable cause” that the vehicle might contain illegal contraband. In Whren v. United States 517 U.S. 806 (1996), the Court specifically refines Carroll and specifies that a motor vehicle can only be stopped when a traffic violation has occurred in the presence of the police officer. The Court noted in Whren that the constitutional reasonableness of the stop does not depend on “ulterior motives”, “actual motivations”, or “subjective intentions” of the officer making the stop.
Consequently, when the Whren decision is applied in conjunction with Atwater ruling, the United States
Supreme Court endorses the practice of police officers using a simple traffic violation to justify a traffic stop, even when the actual purpose was to conduct an investigation into suspected criminal activity not necessarily related to the traffic violation. Confronting the racial issue, the officer can justify the stop when they believe that a minority is merely possessing drugs or illegal contraband. Under Atwater, while declaring that such stops do not violate the Fourth
Amendment, the Court did allow that allegations of unlawful selective enforcement (stops based on race or ethnicity) could be challenged civilly under the equal protection clause of the Fourteenth Amendment. With the decision of Atwater, the court is essentially giving the officers a broader discretion that allows them to stop an individual based on race and justify that stop using Whren and Carroll respectively.
In Terry v. Ohio 392 U.S. 1 (1968), the court established the stop-and-frisk doctrine that clearly outlines police procedures when stopping a citizen on the street and frisking him. The court held that police may, under certain circumstances, approach and stop a person for the purpose of investigating possible criminal behavior. This includes briefly detaining an individual under a reasonable suspicion as well as frisking or patting the person down for possible illegal contraband. All of this can be done without a warrant. In Atwater, as stated above, the High Court also handed down a ruling that allowed police to arrest a citizen for a law violation that amounted to nothing more than a traffic ticket. Other significant Fourth Amendment cases involving search and seizure include:
In Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330 (1977) the Supreme Court ruled that an officer can order a driver out of his or her vehicle following a lawful traffic stop. The Court decided this case on the basis of officer safety, and cited a study that revealed 30% of police shootings occurred when officers approached suspects who were in vehicles.
In Maryland v. Wilson, 117 S.Ct. 882 (1997) a United State Supreme Court decision permits officers to order passengers out of a vehicle following a lawful traffic stop pending the completion of the stop. This is an extension of Pennsylvania v. Mimms.
In Ferris v. State, 355 Md. 356, 735 A.2d 491 (1999) the Fourth Amendment permits the warrantless search of an automobile when there is probable cause to believe that the automobile contains contraband or evidence of criminal activity. The officer’s purpose in an ordinary traffic stop is to enforce the laws of the roadway, and ordinarily to investigate the manner of driving with the intent to issue a citation or warning. Once the initial purpose of that stop has been fulfilled, the continued detention of the car and the occupants amounts to a second detention.
Once the underlying basis for the initial traffic stop has concluded, Pelic states that a police-driver encounter which implicates the Fourth Amendment is constitutionally permissible only if (1) the driver consents to the continuing intrusion; or (2) the officer has, at a minimum, a reasonable suspicion that criminal activity is presented (2003).
In meeting the reasonable suspicion standard, it is not enough for police officers to articulate reasons why they stopped someone if those reasons are not probative of behavior in which few innocent people would engage. The factors together must serve to eliminate a substantial portion of innocent travelers before the requirement of reasonable suspicion will be satisfied. Police officers’ assertions that a criminal activity is indicated by “garden variety nervousness” must be treated with caution.
The court has established that the officer must take a second step, other than a hunch, to justify the stop. In Ferris the Court became aware that racial profiling can be used to justify a stop under just a reasonable suspicion alone. The Court ruled that the officer must justify the stop based on other factors, beyond reasonable suspicion. This case was one of the first that began to narrow officer discretion on police stops.
The question that ensues is, is this narrowing enough to thwart officer stops based on race?
Or can this still be justified?
In United States v. Arvizu 534 U.S. 266 (2002), the Supreme Court held that the Fourth Amendment does not prohibit investigatory stops as long as the facts and circumstances lead to a reasonable suspicion that the driver has engaged in criminal activity (Pelic 2003). As we see in Arvizu, the Court continues to broaden the powers of the law enforcement officer on the street by changing the language and allowing a broader discretionary power. This case sets a strong precedent and reinforces previous cases, aforementioned above, giving discretion to the law enforcement officer
The Court has essentially ruled that probable cause now is subject to degrees. The interpretation of these degrees is still left up to the discretion of the individual officer.
In New York v. Belton, 453 U.S. 454 (1981), the Court allowed that police may conduct a full search of a vehicle’s passenger compartment incidental to a custodial arrest of an occupant. Prior to Atwater, a full search would not be permitted in those situations where the officer merely issued a citation. Subsequently, a person could not be arrested for a crime that was punishable only by a fine. This was generally common practice among law enforcement officers. This would deny the officer a search of the vehicle if it was not incidental to arrest. If an officer observes a person of a minority racial group driving through a heavily crime and drug-infested area, he would have a hunch that the driver was engaged in criminal activity. According to the intent of current opinions of the courts, the officer could not justify a blatant stop and search under the Fourth Amendment and Belton. However, as we will see in Atwater, the police have the justification to arrest and search for a meager violation that is punishable by a fine only. The police can now justify the above arrest and search incidental to arrest only for running a stop sign or speeding through a neighborhood without any other probable cause.
In the above opinions, the Court permits the field officer a wide range of discretion when stopping and investigating citizens operating motor vehicles, standing on the corner of a street, or walking down the street. This discretion is allowing the officer to make judgmental decisions which are fundamental to racial profiling issues. The above court cases broaden the police officers’ discretionary powers with unintended consequences.
Facts and Procedural History of Atwater:
In Texas, violation of the seat belt law is a misdemeanor punishable by a fine only. Texas law also authorizes, but does not require, police to arrest a person found violating the seat belt law, pursuant to Atwater. In March 1997, Petitioner Gail Atwater was driving her pickup truck in Lago Vista with her two children; neither Atwater nor her children were wearing seatbelts. Respondent Bart Turek, a police officer for respondent Lago Vista, Texas, observed the seat belt violations and pulled over Gail Atwater’s truck. Officer Turek approached the truck in a belligerent manner, shouting at Atwater. When Atwater asked him to lower his voice because he was frightening her children, Officer Turek yelled that Atwater was “going to jail”. Officer Turek then called for backup and asked to see Gail Atwater’s driver’s license and insurance papers, which Texas law required her to carry. Atwater did not have these papers, claiming that her purse had recently been stolen. Atwater was arrested and brought to the local police station. There, booking officers had her remove her shoes, jewelry, and eyeglasses, and empty her pockets. Police took a mug shot of Atwater and placed her in a jail cell for one hour, after which she was taken before a magistrate and released on a three hundred and ten dollar bail. Later, Atwater was charged with violations of the seat belt law, driving without a license, and failure to provide proof of insurance. Atwater pled no contest to the seatbelt offense and paid a fifty dollar fine. All other charges were dismissed.
Petitioner Gail Atwater later filed suit in Texas State court, claiming that Lago Vista and Officer Turek had violated her Fourth Amendment right to be free from unreasonable seizure. The case was removed to the United States District Court for the Western District of Texas, which later dismissed the case, holding that Atwater’s guilty plea, along with the absence of any allegation that she had been harmed or detained in any way inconsistent with the law, made her Fourth Amendment claims meritless. The United States Court of Appeals for the Fifth Circuit reversed, concluding that an arrest for a first-time seat beat offense constituted an unreasonable Fourth Amendment seizure. It also held that Officer Turek was not entitled to qualified immunity. The Supreme Court vacated the panel’s decision. Gail Atwater filed a writ of certiorari with the U.S. Supreme Court. The Court agreed to hear her case challenging the fact that her 4th Amendment rights were violated.
In its Supreme Court decision stated that since neither party disputed Officer Turek’s probable cause to arrest Atwater nor was there no evidence that he acted in an extraordinary manner, the arrest was not unreasonable under the Fourth Amendment. The standard of probable cause applies to all arrests, without the need to balance the interests and circumstances involved in particular situations. As stated in Atwater, “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” The Court found that the Fourth Amendment does not forbid a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. The residual effects from these rulings have allowed the police greater ease to target potential offenders by race contradictory to state law.
Racial Profiling Background-Texas
In order to understand the significance of the U.S. Supreme Court’s rulings on racial profiling, it is appropriate to define what exactly is racial profiling.
According to the Houston Police Department’s operational definition, racial profiling is defined as “any law enforcement-initiated action based on an individual’s race, ethnicity, or national origin rather than on the individual’s behavior or information identifying the individual as having engaged in criminal activity” (2005). According to the Houston Police Department, an example of law enforcement-initiated racial profiling includes performing a traffic stop on a particular vehicle because of the race, ethnicity, or national origin of the driver of the vehicle (2005). Stopping or detaining the driver of a vehicle based on the determination that a person of that race, ethnicity, or national origin is unlikely to own or possess that specific make or model of vehicle is racial profiling.
The definition would also include stopping or detaining an individual based on the determination that a person of that race, ethnicity, or national origin does not belong in a specific part of town or a specific place. Lamberth (1998) states that the research shows that African-Americans are far more likely to be stopped and searched than their Caucasian counterparts. The report from the United States Department of Justice on contact between police and the public also states that minorities are searched at a higher rate than Caucasians (2002). According to Walker, Spohn and Delone (2004) race is often a “cue”. A young man, belonging to a racial minority, driving in a white neighborhood is likely to trigger an officers suspicion because he “looks out of place” (18). By the same token, the presence of two middle-class white men in a minority neighborhood known to have a high level of drug trafficking is likely to trigger the suspicion that they are tying to purchase drugs (Walker, 2004). An example to illustrate this was reported in the Austin American-Statesman. In Austin, Texas in the summer of 2001, an off-duty police officer named Timothy Enron chased down, harassed, and arrested a young black man apparently because he was driving a nice truck. Enron said, “When I see a 16-year–old African-American male get into a late model F-150 pickup, do I think there’s more going on than their back-up light out? You bet I do. The truck should have belonged and driven by someone who lived possibly in the county or was a construction worker…not a 16-year–old black male” (2001).
According to Steward (2005), founder of the Steward Research group, Texas law enforcement agencies continue to search Blacks and Latinos at higher rates than they do Anglos: approximately 2 out of 3 agencies reported searching African Americans and Latinos at higher rates than Anglos following traffic stops. Sixty-six percent (66%) of agencies searched African Americans at higher rates than Anglos, while 69% of agencies searched Latinos at higher rates than Anglos. Steward also states that of the agencies that consent-searched African-Americans at higher rates, 3 out of 4 (75%) consent-searched African Americans at least 50% more frequently than they consent-searched Anglos, representing a significant disparity in treatment between Anglos and African Americans (2005). Of the agencies that consent searched Latinos at higher rates, 3 out of 4 (74%) consent-searched Latinos at least 50% more frequently than they consent- searched Anglos, representing a significant disparity in treatment between Anglos and Latinos.
Source: Texas Department of Public Safety 2004 Annual Traffic Stop Data Report
In contrast, the racial disparity in Texas continues . According to the Texas Department of Public Safety’s 2001 Annual Traffic Stop Data Report, thirty-one percent (31%) of traffic stops conducted in 2001 by state troopers involved both African-American and Hispanic drivers (2001). However, the Texas Department of Public Safety states that African Americans and Hispanics combined make up almost forty two percent (42%) of the entire population of Texas (see Figure 1). These disproportionate numbers are large in comparison to the larger picture. The above statistic makes up only one law enforcement agency in Texas out of a possible two thousand one hundred forty-seven according to the Texas Department of public safety 2004 Annual Traffic Stop Data Report.
Source: Texas Department of Public Safety 2001 Annual Traffic Stop Data Report
When examining the Texas Department of Public Safety 2001 research on vehicle searches, it shows a clear racial disproportion with the total population of minorities that live in Texas (see Figure 2). According to DPS research, 60.22% of drivers from racial minority groups were stopped and their vehicles were searched for illegal contraband. In comparison, the total population of minorities in Texas is 47.53% of the entire population. These statistics show that there is a concern with law enforcement-initiated racial profiling. These examples show that the police on the street are entrusted with a broadened discretion that allows with ease the individual officer to make decisions based on racial variables rather than legal ones. The police have developed a practice of stopping and searching vehicles operated by primarily African-American drivers because of a belief that those individuals are “more likely than none” to possess drugs or be involved in criminal activity (Weeden 1999). Often these police officers target specific minority neighborhoods that are infested with criminal complaints and activity. In summary, law enforcement targets individuals for arrest based on racial group instead of targeting the behavior of an individual. The same behaviors that can be exhibited in high minority areas can also be exhibited in non-minority areas.
As stated earlier research conducted by The United States Department of Justice: Study of Contacts Between Police and the Public finds from their 2002 national survey the data concluded that during a traffic stop the police were more likely to target and search African-Americans and Hispanics at a higher rate than their caucasian counterparts (2002). To understand how law enforcement can use racial profiling, we must first examine the Court’s rulings that have fostered the approach that more easily allows police discretion to racially profile potential offenders.
Unintended Consequences of the Atwater case
After Atwater and subsequent rulings, the police now have broader discretion to stop a member of a minority group and search his vehicle. This is in contrast to rulings from earlier courts. The police were given this general guideline by the Court beginning in 1925 to establish a “probable cause” to search a citizen’s vehicle. That ruling was eventually watered down to establishing a “reasonable suspicion” to stop and frisk a citizen as stated in the Terry decision. Many critics of the reasonable suspicion test contend that the test permits racial profiling, because it uses stereotypes and physical profiles (Harris 2002). These decisions were intended to make an officer’s authority narrower but as we have seen, the unintended consequences of these rulings, collectively, have broadened their powers and make it easier to justify racially based stops. The purpose of understanding these consequences is to prevent law enforcement officers from abusing their powers by relying on inappropriate stereotypes to enforce the law (Pelic 2003). Out of these decisions rendered by the United States Supreme Court, they have resulted in increasing police officer discretionary powers, therefore setting a negative precedence in future Fourth Amendment cases. Some of the research issues that still remain are that these rulings have fostered an easier approach that allows the officer to profile potential offenders by race, contradictory to state law.
The Atwater decision had the potential to shield minorities from the Whren decision that allowed police to search after a traffic stop. Instead, in Atwater, the Whren decision was upheld, which further enhances the likelihood that more American minority motorists will be subject to police harassment, as virtually every driver will be guilty of a traffic violation at some point in time (Ruddy 2002). The decision that the police officer makes has a ramification that lasts beyond the initial arrest. The defendant is now part of the criminal justice system and is subject to its fallacies. The defendant has a record of arrest and potential for conviction of a criminal infraction. The defendant must hire an attorney and incur expenses. This does not even take into consideration that an illegal activity, such as profiling racially, is further reinforced until the next incident. According to Harvard Law Professor Randall Kennedy, the practice of using race “nourishes powerful feelings of racial grievance against law enforcement authorities (Kennedy 1998).
The future of Atwater and racial profiling.
In the United States, racial profiling has become a serious problem affecting all communities and citizens, not just people of color. We see how the United States Supreme Court’s rulings not only affect the specific case but also unintended community consequences have become a bi-product of these rulings. Police officers have substantial discretion out on the street when confronting citizens. Along with Atwater’s arrest for minor traffic offenses and these other Supreme Court rulings, the police officer is allowed to circumvent the Fourth Amendment. These unintended consequences have had a direct impact on racial profiling practices.
The Court noted in Atwater that the most effective way to eradicate the problem would be to have the state governments pass laws that specifically prohibit arrests for minor, fine-only, traffic offenses. The Court also stated that these arrests carry a cost on the state and citizens that clearly outweighs its purpose. When the officer conducts an investigatory stop that is challenged, the officer must identify the factors and inferences relied upon as well as the basis for the reliance (Pelic 2002). These factors must be articulated to a detail that can be scrutinized constitutionally. It is clear that racial issues need to be addressed in future Court decisions because of the unintended enforcement consequences that have derived from these cases.
In order to prevent law enforcement officers from abusing their power and discretion or relying on racial stereotypes, the courts provide a check on the reasonableness of the factors used by the officer. The police departments must also adopt policies that will allow them to collect racial profiling data that far exceeds what the law requires in Texas. Law enforcement must also network with local and national non-governmental agencies to encourage more research and data collection. This data collection should also include racial profiling complaints made by the public allowing researchers to find statistical trends that can be interwoven in future public policy. This will allow the police departments to see any problems that are observed from a citizen’s perspective rather than one of law enforcement. Another future recommendation would be to provide more public education from law enforcement officers regarding racial profiling practices and procedures that are in place to eradicate it. Having law enforcement take a pro-active public relations approach with regard to racial profiling would foster an increased citizen confidence in the police. The key is to eliminate the practice that the officer relies solely on stereotypes and hunches to make a legal stop. These facts must be able to withhold the scrutiny of the scholars and the courts; then the Supreme Court must consider this in future decisions rendered.
- Gail Atwater et al. v. The City of Lago Vista 532 US 318 (2002)
- Banks, R. (2001). Race-based suspect selection and colorblind equal protection doctrine and disclosure. University of California at Los Angeles Law Review, 48, 1075-1108
- Chavez v. Illinois State Police, 251 F. 3rd 612 (2001).
- Durose, Mathew et. al. United States Department of Justice-Bureau of Justice Statistics Study: Contacts between the police and the public: Findings of the 2002 national survey. Retrieved February 5, 2005 from http://www.ojp.usdoj.gov/bjs/abstract/cpp02.htm
- Federal Bureau of Investigation. (2001). Uniform crime reports: Crime in the United States, 2001. Washington, DC: Department of Justice.
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- Steward, Dwight. (2005). Steward Research Group, Texas Criminal Justice Coalition and NAACP: “ Don’t Mind if I take a look, Do Ya” retrieved February 1, 2005, from http://www.criminaljusticecoalition.org/racial_profiling_report_full.pdf
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- Terry v. Ohio, 392 U.S. 1 (1968).
- Texas Department of Public Safety: 2001 Annual Traffic Stop Data Report. Retrieved on February 2, 2005 from http://www.txdps.state.tx.us
- Texas Department of Public Safety: 2004 Annual Traffic Stop Data Report. Retrieved on February 2, 2005 from http://www.txdps.state.tx.us/
- Walker, Samuel; Spohn, C.; Delone,M. (1998) The Color of Justice. Belmont, CA: Thompson Wadsworth
- Weeden, L. D. (1999). It is not right under the Constitution to stop and frisk minority people because they don’t look right. University of Arkansas at Little Rock Law Review, 21, 829.