Stopping the Usual Suspects: Race and the Fourth Amendment
Anthony C. Thompson
In this Article, Professor Thompson addresses the constitutional and policy implications of racially motivated searches and seizures. He begins by showing that the Supreme Court’s most recent pronouncement on the subject, Whren v. United States, which has been treated by scholars as a new direction in the Court’s Fourth Amendment jurisprudence, is actually a natural and inevitable consequence of jurisprudential, rhetorical, and narrative choices the Court made thirty years ago in Terry v. Ohio. Analyzing the language of Terry, Professor Thompson demonstrates the way in which the Court removed race from the case and explains that the Court was forced, as a result, to create an alternative narrative to explain its judgment. He then traces the effects that Terry has had on the Court’s treatment of race in subsequent decisions. In Part II of the Article, Professor Thompson challenges the assumptions that underlie the Court’s analysis of racially motivated searches and seizures in Terry and subsequent decisions. First, he uses social science data to demonstrate that the Court’s conception of “racially neutral” searches and seizures overlooks compelling evidence of the hidden effects of race on individuals’ perceptions and judgment. He then draws upon the history of the Fourth Amendment to demonstrate that the Court’s treatment of racially motivated searches and seizures runs counter to the intentions of the framers of the Amendment. Professor Thompson argues that the framers of the Fourth Amendment specifically intended to protect disfavored minority segments of the population from selective governmental use of search and seizure powers. Finally, in Part III, Professor Thompson proposes a variety of doctrinal and nonjudicial remedies designed to effectuate the original intent of the Fourth Amendment by deterring racially motivated searches and seizures.