Race and the Fourth Amendment

By Maclin, Tracey | Vanderbilt Law Review, March 1998 | Go to article overview
Save to active project

Race and the Fourth Amendment

Maclin, Tracey, Vanderbilt Law Review

Tracey Maclin*


In America, police targeting of black people for excessive and disproportionate search and seizure is a practice older than the Republic itself.' Thus, it was not startling to learn that a special squad of the North Carolina Highway Patrol that uses traffic stops to interdict illegal narcotics charged black male drivers with traffic offenses at nearly twice the rate of other troopers patrolling the same roads.2 The commander of the drug team issued more than sixty percent of his traffic citations to black men. When confronted with this evidence, he could not explain why he disproportionately stopped black men: "I can't say I'm surprised, and I can't say I'm not surprised. It doesn't bother me either way, to be honest with you."3

The commander's conduct comes from an ancient pedigree. In 1693, court officials in Philadelphia responded to complaints about the congregating and traveling of blacks without their masters by authorizing the constables and citizens of the city to "take up" any black person seen "gadding abroad" without a pass from his or her master.4 Of course, the order to stop and detain any Negro found on the street did not distinguish between free and enslaved blacks.5

Three years later, colonial South Carolina initiated a series of measures that subjected blacks to frequent and arbitrary searches and seizures. One such measure required state slave patrols to search the homes of slaves for concealed weapons on a weekly basis.6

These searches became biweekly in 1712 and extended to contraband as well as weapons. In 1722, South Carolina authorized its slave patrols to forcibly enter any home where the concealed weapons of blacks might be found,7 and to detain suspicious blacks they encountered. By 1737, slave patrols had power to search taverns and homes suspected of serving blacks or housing stolen goods.8 Three years later, South Carolina authorized its justices of the peace to conduct warrantless searches for weapons and stolen goods and to seize any slave suspected of any crime "whatsoever."9

To inhibit seditious meetings, Virginia, in 1726, permitted its slave patrols to arrest slaves on bare suspicion.10 By 1738, Virginia's patrols conducted mandatory searches of the homes of all blacks. The patrols also possessed power to arrest blacks whose presence excited suspicion and to detain any slave found off his master's property without a pass.ll In Virginia, as in its sister colonies, judges did not supervise the activities of state slave patrols. Throughout the southern colonies, "no neutral and detached magistrate intervened between a patrolman's suspicions and his power to arrest or search, for that power was ex officio."12

By the mid-1700s, oppressive British search and seizure practices that affected white colonists became a potent political issue throughout the colonies.l3 But resistance to high-handed British intrusions did not inspire colonial officials to check the search and seizure powers of southern slave patrols. In the mid-1760s, Virginia, South Carolina, and Georgia reaffirmed their laws on slave patrols enacted earlier in the century.l4 A black resident of Savannah recalled that in 1767, the slave patrol of that city would "enter the house of any black person who kept his lights on after 9 P.M. and fine, flog, and extort food from him."15

While many white colonists experienced arbitrary and suspicionless intrusions of their homes and businesses, these practices paled in comparison to the indignities and invasions suffered by blacks at the hands of colonial officials.ls White colonists rightfully protested that certain British search and seizure practices conferred "a power that places the liberty of every man in the hands of every petty officer,"17 but at the same time, colonial officials denied blacks the privacy and personal security that white colonists claimed as a birthright. Blacks, both slave and free, were targeted for searches and seizures solely because of their race-a phenomenon never experienced by white colonists.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
Loading One moment ...
Project items
Cite this article

Cited article

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited article

Race and the Fourth Amendment


Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

While we understand printed pages are helpful to our users, this limitation is necessary to help protect our publishers' copyrighted material and prevent its unlawful distribution. We are sorry for any inconvenience.
Full screen

matching results for page

Cited passage

Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.

Are you sure you want to delete this highlight?