Race and the Fourth Amendment

Article excerpt

Tracey Maclin*

I. INTRODUCTION

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. …

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