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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.{1} 1 U.S. Const. amend. IV.
I revere this language like a preacher carrying around his well-worn, dog-eared, annotated Bible on a Sunday morning. Not so the Supreme Court. The Court has dishonored the language and intent of this most sacred of constitutional passages; the critical and once powerful shield protecting citizens’ privacy interests and a central premise in criminal and civil rights law. The two clauses, one focusing on the reasonableness of a search and seizure, the other on warrants, represent the stopgap to prevent arbitrary and discriminatory detention, searches, and arrests, as well as law enforcement overreach and misconduct.
The judicial shift away from strict protection of Fourth Amendment rights has not been subtle, and the price for this diminution of rights has been severe. Although the anti-citizen trajectory of court rulings in this area affects all citizens, the most severe impact has been on Black and Brown Americans. This dereliction of duty by the courts comes at a steep price. These rulings contribute significantly to the 50-year history of mass incarceration in America{2} 2 https://www.nacdl.org/50YearsMassIncarceration. and the surge in unjustified use of force incidents. They also serve as a green light for law enforcement to act as unfettered and unregulated armed roving patrols. The judicial rulings regarding the constitutional tenet written to protect citizens from government overreach and abuses have instead fostered a culture of law enforcement misconduct, aggression, and brutality, facilitating racist policies and practices within the criminal legal system.
The catalyst behind early opinions responsible for the dismantling of the Fourth Amendment was the “war on drugs,” a phrase coined by Richard Nixon and intentionally racist in origin. A top Nixon aide, John Ehrlichman{3} 3 https://www.vera.org/reimagining-prison-webumentary/the-past-is-never-dead/drug-war-confessional. later admitted:
You want to know what this was really all about. The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying. We knew we couldn’t make it illegal to be either against the war or Black, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.{4} 4 https://www.vera.org/reimagining-prison-webumentary/the-past-is-never-dead/drug-war-confessional.
In Terry v. Ohio,{5} 5 Terry v. Ohio, 392 U.S. 1 (1967). the lowering of the probable cause evidentiary standard in law enforcement searches to one of reasonable suspicion signaled the Court’s willingness to favor law enforcement over citizen protections. By constructing a lower standard that allows officers subjective interpretive discretion in assessing what is “reasonable” based on their experience, and amid the “totality of the circumstances,” the Court signaled its alignment with the oft-argued government refrain that a more stringent standard would “handcuff” officers and jeopardize public safety.
The loosening of stop and search standards encouraged entire departments, even cities, to develop policies endorsing legally unrestricted and racially motivated officer stops — and for any reason. As but one example, as reported by the New York Civil Liberties Union after the 1999 shooting death of Amadou Diallo and subsequent protests: under NYC’s controversial stop and frisk policy,
Young Black and Latino men were the targets of a hugely disproportionate number of stops. Though they accounted for only 4.7 percent of the NYC’s population, Black and Latino males between the ages of 14 and 24 accounted for 41.6 percent of the stops in 2011. The number of stops of young Black men exceeded the entire city population of young Black men (168,126 as compared to 158,406). Ninety percent of young Black and Latino men stopped were innocent.{6} 6 New York Civil Liberties Union, Stop and Frisk 2011, available at https://www.nyclu.org/sites/default/files/publications/NYCLU_2011_Stop-and-Frisk_Report.pdf.
Despite such reports, the law has taken an approach that endorses racially motivated police policies and procedures. Officers in most instances can cite “high crime neighborhood” and “in my training and experience” as the factual backup for pretextual stops or detentions without judicial repercussion.
As a result, the country has seen the continued implementation of racist stop and frisk policies, the use of no-knock warrants, the creation of specialized SWAT forces used to effectuate service of these warrants, the unarmed killings of (primarily) Black men in the streets, and an unapologetic, indeed arrogant, abandonment of accountability standards or measures by agencies, state regulators, and prosecutors when law enforcement takes things too far.
The Court’s approach is across the board when it comes to the type of contact a citizen has with law enforcement. Within the vehicle context, the “driving while Black” moniker earned endorsement with the Supreme Court’s opinion in Whren.{7} 7 Whren v. United States, 517 U.S. 806 (1996). Whren allows officers to assert any reason for pulling over motorists, allowing the use of racial profiling to thrive openly in the criminal legal system.
The watering down of the Fourth Amendment continued more recently with Strieff.{8} 8 Utah v. Strieff, 136 S. Ct. 2056 (2016). Edward Strieff had been the subject of an illegal investigative detention, but during the detention, the officer learned there was an outstanding warrant for his arrest for unpaid traffic tickets. Upon taking Strieff into custody, drugs were found on his person. Despite the “fruit of the poisonous tree” doctrine, the Court divined a temporal break sufficient in this situation to justify denying defendant’s motion to suppress contraband. This ruling allows officers to stop a citizen without any justification to run a claimed warrants check. Whatever is then discovered as far as evidence of other crimes is admissible, despite the initial illegality of the encounter. Justice Sotomayor points out that this decision creates a group of second-class citizens subject to law enforcement stops and detentions on a whim. She frames the import of this decision in her dissent:
Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.
Undeniably, this ruling endorses the continued targeting of Black and Brown citizens by law enforcement, supports failed mass incarceration polices, and further removes the United States from its status as a democracy.
Law enforcement has no judicial guardrails when it comes to street, vehicle, or home encounters with citizens. Add to this mix the Supreme Court rulings on qualified immunity, and one could argue that openly racist law enforcement conduct and policies are monetarily incentivized by the pro-law enforcement, anti-civil rights framework created by our jurisprudence that shields officers and agencies from paying for their misdeeds.{9} 9 Pierson v. Ray, 386 U.S. 547 (1967); Harlow v. Fitzgerald, 457 U.S. 800 (1982); Pearson v. Callahan, 555 U.S. 223 (2009).
As defense lawyers, we need all the resources we can acquire to continue the battle for our clients’ rights amidst this backdrop. NACDL’s Fourth Amendment Center{10} 10 https://nacdl.org/4AC. represents a crown jewel in the organization’s portfolio of projects and services provided to members and their clients. Tackling the challenging landscape created by Fourth Amendment jurisprudence is difficult; having experts in this area accessible to provide direct assistance with your cases is invaluable. The Center tackles all manner of issues in the Fourth Amendment sphere, including, importantly, cutting-edge developments involving electronic data and surveillance techniques. If you are not familiar with the Fourth Amendment Center, you are not realizing the full potential of your membership benefits. Additionally, if you are interested in reform efforts around law enforcement misconduct and its relationship to Fourth Amendment concerns, consider joining NACDL’s Task Force on Police Accountability and Transparency.{11} 11 https://www.nacdl.org/committeedirectory. I also encourage you to support the work of NACDL, like the projects undertaken by the Fourth Amendment Center, by contributing to NACDL’s Foundation for Criminal Justice.{12} 12 https://nacdl.org/foundation/give.
About the Author
Nellie L. King is the owner of the Law Offices of Nellie L. King, P.A. She practices criminal defense in state and federal courts throughout the United States and lectures on criminal legal reform and constitutional issues. She is a Past President of the Florida Association of Criminal Defense Lawyers.
Nellie L. King (NACDL Life Member)
Law Offices of Nellie L. King, P.A.
West Palm Beach, Florida
561-833-1084
Nellie@CriminalDefenseFla.com
www.criminaldefensefla.com
