RACIAL PROFILING AND THE FOURTH AMENDMENT Juval O. Scott Attorney Advisor Office of Defender Services Training Division Washington, D.C. I. Introduction “The erosion of Fourth Amendment liberties comes not in dramatic leaps but in small steps, in decisions that seem “fact- bound,” case specific, and almost routine at first blush. Taken together, though, these steps can have broader implications for the constitutional rights of law-abiding citizens.”1 It seems as though one can barely turn on the nightly news without learning of yet another heartbreaking tale of a person dying at the hands of law enforcement officers. The face of the deceased is disproportionality black and/or brown. Of course this phenomenon is not new—these days it is simply caught on camera and disseminated via mass and social media for all to consume. While there are differing views on how these matters should be handled and what they mean for society as a whole, there is no question that having these issues surrounding race and the Fourth Amendment discussed openly means it is time for criminal defense attorneys to dig in and fight for change in our system. Specifically, we must address racial profiling and its impact on our clients articulating how the life experience, both individual and collective, our clients endure must be factored in to the court’s Fourth Amendment analysis. 1 United States v. Tinnie, 629 F.3d 749, 754 (7th Cir. 2011)(HAMILTON, dissenting). 1 001 This session will delve into the standards set forth by the United States Supreme Court and how we can use those standards to combat seizures that run afoul of the Fourth Amendment. II. Legal Standard A. Seizures A person can be “seized” before he is actually restrained by physical force at the moment when, given all the circumstances, a reasonable person would believe he is not free to leave2. As the Supreme Court reaffirmed in Florida v. Bostick3, the test for determining whether a Terry stop has taken place "is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter." That turns on "whether, taking into account all of the circumstances surrounding the encounter, the police conduct would 'have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'"4 The court stressed in Chesternut that there is a need for a seizure test which “calls for consistent application from one police encounter to the next” and permits police “to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.”5 While this test is an “objective” one, it is “necessarily imprecise” because “what constitutes a restraint on liberty prompting a person to conclude that he is not free to 2 Michigan v. Chesternut, 486 U.S. 567, 573 (1988) 3 501 U.S. 429, 436 (1991) 4 Bostick at 437 5 Chesternut at 574 2 002 ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.”6 “While it is true that any one stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract unwarranted attention.”7 "Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions."8 So long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required.9 “A consensual encounter becomes a seizure implicating the Fourth Amendment when, considering the totality of the circumstances, the questioning is ‘so intimidating, threatening, or coercive that a reasonable person would not have believed himself free to leave.’ “10 B. Traffic Stops 6 Chesternut at 573–74 7 Floyd v. City of New York, 959 F.Supp.2d 540 (S.D.N.Y., Aug. 12, 2013) 8 Florida v. Royer, 460 U.S. 491, 497; 523, n. 3 (REHNQUIST, J., dissenting) 9 Bostick at 434 (citing Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)) 10 United States v. Flores–Sandoval, 474 F.3d 1142, 1145 (8th Cir.2007) (quoting United States v. Hathcock, 103 F.3d 715, 718 (8th Cir.1997)). 3 003 The phenomenon of police seizures for “driving while black” has long been recognized.11 Terry authorized investigatory stops without a warrant when a police officer has a reasonable suspicion that a person is engaged or is about to engage in crime12. The logic of Terry has long been understood to authorize traffic stops to address violations of traffic laws.13 The Supreme Court’s ruling in Whren v. United States14 solidified law enforcement’s ability to engage in racial profiling by affirming that pretext alone does not render a traffic stop unreasonable. Any traffic violation, no matter how minor, is enough for the police to stop a person. “This combination of constitutional decisions already enables aggressive and intrusive police tactics. Officers who have probable cause for a trivial traffic violation can stop the car and then order all occupants out of the car15, often to frisk them16, to inspect the interior of the car visually17, and often to search at least portions of the vehicle's interior18. Add in the fact that a stop can be justified by an officer's mistake of either law or fact19, and the opportunities for pretextual intrusions on civilians multiply”20. 11 See, e.g., David A. Harris, Driving While Black and all Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J.Crim. L. & Criminology 544 (1997). 12 Terry v. Ohio, 392 U.S. 1, 20 (1968) 13 E.g., Pennsylvania v. Mimms, 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977); see also Rodriguez v. United States, 575 U.S. ––––, 135 S.Ct. 1609, 1614, 191 L.Ed.2d 492 (2015) (routine traffic stop more analogous to Terry stop than to formal arrest). 14 Whren v. United States, 517 U.S. 806 (1996) allows police to engage in traffic stops, even when the true motive is to find other things, as long as they treat it like a traffic stop. 15 Maryland v. Wilson, 519 U.S. 408, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997) 16 Arizona v. Johnson, 555 U.S. 323, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) 17 Colorado v. Bannister, 449 U.S. 1, 4 n. 3, 101 S.Ct. 42, 66 L.Ed.2d 1 (1980) 18 Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009); Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). 19 Heien v. North Carolina, 574 U.S. ––––, 135 S.Ct. 530, 536, 190 L.Ed.2d 475 (2014). 20 United States v. Johnson, 823 F.3d 408, 412 (7th Cir. 2016), reh'g en banc granted, opinion vacated (Aug. 8, 2016) 4 004 We must continue to make challenges to racial profiling stops. As the public is inundated with stories of the black community’s decades of harassment at the hands of law enforcement, judges are getting the same information. Part of the problem historically is that case scenarios were dismissed as outliers, thus not worthy of a ruling protecting the constitutional rights of the masses. These things weren’t prevalent, at least that is the rationale that was provided. Today we have data, technology, and a rampant news cycle on our side. We need to use it for good. Moreover, the courts can dismiss, if they choose, a single case as an outlier, but to deem a plethora of motions as such would be irrational. III. Why Race Matters In This Analysis As attorneys we must ask ourselves whether the standard currently used takes into consideration the way people of color view law enforcement and their interactions with citizens in this country. If that answer is not consistent with the way the courts view reasonableness and other Fourth Amendment violations, there is a problem with the standard, not the way millions of people in this country view their encounters with police. Courts must begin taking this into account in their analysis. In United States v. Smith21, I argued that race was a factor that should be considered in the totality of the circumstances analysis. The Seventh Circuit did not rule in Smith’s favor because of race, but instead determined that race was not dispositive in his case. Specifically, they said, “[w]e do not deny the relevance of race in everyday police encounters with citizens in 21 794 F.3d 681 (7th Cir. 2015) 5 005 Milwaukee and around the country. Nor we do we ignore empirical data demonstrating the existence of racial profiling, police brutality, and other racial disparities in the criminal justice system. But today we echo the sentiments of the Court in Mendenhall that while Smithʹs race is “not irrelevant” to the question of whether a seizure occurred, it is not dispositive either.