Michigan Law Review Volume 100 Issue 5 2002 (E)racing the Fourth Amendment Devon W. Carbado UCLA School of Law Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Civil Rights and Discrimination Commons, Criminal Procedure Commons, Fourth Amendment Commons, Law and Race Commons, and the Supreme Court of the United States Commons Recommended Citation Devon W. Carbado, (E)racing the Fourth Amendment, 100 MICH. L. REV. 946 (2002). Available at: https://repository.law.umich.edu/mlr/vol100/iss5/3 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. (E)RACING THE FOURTH AMENDMENT Devon W. Carbado* PROLOGUE: NOTES OF A NATURALIZED SON (OR HOW I BECAME A BLACK AMERICAN) ................................................. 947 I. INTRODUCTION... .......................................................................... 964 " II. RACE AND THE "FREE TO LEAVE TEST .................................. 974 A. Introduction ........................................................................... 974 B. A Racial Re-Reading of Florida v. Bostick ........................ 975 1. The Racial Facts .............................................................. 975 2. Racial Vulnerability to Police Encounters .................... 976 C. A Racial Re-Reading of INS v. Delgado ............................ 990 1. The Racial Facts .............................................................. 990 2. The Workplace Was Not Seized: Delgado's Racial Relationship to Bostick ................................................... 991 3. The Individuals Whom the INS Questioned Were Not Seized: How Delgado Racially Burdens Latinas/os . ..................................................................... ... 993 D. Integrating Race Into the Seizure Analysis ....................... 1000 III. (E)RACING CONSENT SEARCHES ............................................. 1004 A. Introduction ......................................................................... 1004 B. Innocence, Consent, and the Fourth Amendment: Revisiting Bostick .............. .................................................. 1005 1. Challenging Justice O'Connor's Notion of Innocence ......................................... .............................. 1006 2. Assuming the Doctrinal Legitimacy ofJustice O'Connor's Notion of Innocence ................................ 1011 * Acting Professor of Law and Director of the Critical Race Studies Concentration, UCLA School of Law. B.A. 1991, University of California, Los Angeles; J.D. 1993, Harvard. Internet: [email protected];<http://www.law.ucla.edu/faculty/carbado>. - Ed. For comments on or conversations about this Article, many thanks to Muneer Ahmad, Richard Banks, Gari Blasi, Ann Carlson, Kimberle Crenshaw, David Cruz, Angela Davis, David Dolinko, Mary Dudziak, Jody Freeman, Robert Goldstein, Laura Gomez, Ariela Gross, Mitu Gulati, Cheryl Harris, Kim Savo, David Sklansky, Kirk Stark, Ronald Sullivan, Giovanna Tringali, Leti Volpp and the Critical Race Theory class, UCLA, Fall 2001. I also thank the participants at the following workshops and conferences for their feedback: Blackness in Global Contexts (U.C. Davis African-American and African Studies Program), Unfair Gains: A Colloquium on the Socio-Economic Legacy of Slavery (Center for African American Studies at UCLA), A New Look at Race (Stanford University), Association of American Law Schools Minority Group Luncheon, and American University, Washington College of Law. This paper was also delivered as the Martin Luther King, Jr. Lecture at the University of Pittsburgh School of Law. The Hugh & Darling Law Library at UCLA, and in particular Dylan Ford, provided valuable research assistance. The UCLA Academic Senate and UCLA Law School Summer Research Grant provided funding. 946 March 2002] (E)Racing The Fourth Amendment 947 C. Involuntary Consent: Bostick's Relationship to Schneckloth v. Bustamonte ............................................... 1012 1. Voluntariness and Knowledge: Racializing Consent . 1014 2. Bustamonte's Waiver Analysis .................................... 1025 IV. TRAFFICKING RACE ................................. ... .. ............................. 1030 A. The Supreme Court and Racial Profiling... ..... .... ............ 1032 B. Policing Innocence: Looking fo r a Few Good Blacks .... 1034 V. CONCLUSION ............................................................................... 1043 PROLOGUE: NOTES OF A NATURALIZED SON (OR How I BECAME A BLACK AMERICAN) I remember the very day I became colored. Zora Neale Hurston1 If there were no black people here in this country, it would have been Bal­ kanized .... But in becoming an American, from Europe, what one has in common with that other immigrant is contempt for me - it's nothing else but color ....So in that sense, becoming an American is based on an atti­ tude: an exclusion of me. Toni Morrison2 It's been almost two years since I pledged allegiance to the United States of America - that is to say, became an American citizen. Be­ fore that, I was a permanent resident of America and a citizen of the United Kingdom. Yet, I became a black American long before I acquired American citizenship.3 Unlike citizenship, black racial naturalization was always available to me, even as I tried to make myself unavailable for that particular Americanization process.4 Given the negative images of 1. Zora Neale Hurston, I Love Myself When I am Laughing and then Again When I am Looking Mean and Impressive, in A ZORA NEALE HURSTON READER (Alice Walker ed., 1979). 2. Toni Morrison, quoted in Leslie Espinoza & Angela P. Harris, Afterword: Embracing the Tar-Baby - LatCrit Theory and The Sticky Mess of Race, 85 CAL. L. REV. 1586, 1602 n.59 (1987). 3. Formal citizenship and national membership are not coextensive. See KENNETI-1 L. KARST, BELONGING TO AMERICA: EQUAL CITIZENSHIP AND TI-IE CONSTITUTION (1989) (arguing that American jurisprudence has failed to produce civic and political participation that is inclusive of all segments of society, rendering the legal status of citizenship far short of any real sense of national belonging). 4. Cf GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY (1944) (discussing racial subordination as a natural part of Ameri­ can society that co-existed with formalistic ideals of equality); see also DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1989) (suggesting that racism is fundamental to a permanent part of American society); RICHARD DELGADO, THE COMING RACE WAR (1996) (same). 948 Michigan Law Review (Vol. 100:946 black Americans on 1970s British television5 and the intra-racial ten­ sions between blacks in the U.K. and blacks in America, I was not ea­ ger, upon my arrival to the United States, to assert a black American identity. My parents had taught me "better" than that.6 But I became a black American anyway. Before I freely embraced that identity it was ascribed to me.7 This ascription is part of a broader social practice wherein all of us are made intelligible via racial catego­ rization. 8 My intelligibility was skin deep. More particularly, it was 5. There is an entire body of literature problematizing the racial nature of 1970s American television. The television films and situation comedies produced during this period are typically referred to as black exploitation productions. For a discussion of the politics of race and Hollywood during the 1970s, see KAREN Ross, BLACK AND WHITE MEDIA: BLACK IMAGES IN POPULAR FILM AND TELEVISION (1996), and JAMES A. SNEAD, WHITE SCREENS, BLACK IMAGES: HOLLYWOOD FROM THE DARK SIDE (1994). See also HOLLYWOOD SHUFFLE (Conquering Unicorn 1987) (employing parody, in a Robert Townsend film, to comment on the ways in which race structures the ways in which blacks are represented on television and in the movies); A Gallery of Twisted Images: The Black Man Distorted, EMERGE, Oct. 1995. Of course, the problem of race and television has not gone away. In early 2000, the National Association for the Advancement of Colored People ("NAACP") and other civil rights groups successfully obtained signed commitments from the four major U.S. television networks to increase ethnic diversity in television series. NAACP President Kweisi Mfume had inaugurated a campaign to promote diversity on tele­ vision in 1999, after the close of a season that was notably lacking in significant characters of color. The major studios agreed to address the issue only after the NAACP threatened boy­ cotts and protests. See In Face of Th reats, Fox and CBS Join Pledge to Promote Diversity, N.Y. TIMES, Feb. 3, 2000, at Al4. 6. For a specific indication of the nature of the conflict between black Americans and black Caribbeans, see MARY WATERS, BLACK IDENTITIES: WEST INDIAN IMMIGRANT DREAMS AND AMERICAN REALITIES (1999); Reuel Rogers, Afro-Caribbean Immigrants, African Americans, and the Politics of Group Identity, in BLACK AND MULTIRACIAL POLITICS IN AMERICA 15-59 (Yvette M. Alex-Assensoh & Lawrence J. Hanks eds., 2000); and Martin C. Evans, Making Their Mark: Long Island's Black Immigrants Find Success, Racial Tension, NEWSDA Y, Sept. 18, 2000, at AS ("Many black immigrants say they are often rejected by black Americans as too