Predicting Future Supreme Court Decisions on Race and the Fourth Amendment
Norkin, Walter M., Texas Forum on Civil Liberties & Civil Rights
Oliver Wendell Holmes's theory of legal realism, which contends that written law is patently incomplete and compels wide judicial discretion in interpretation and application,1 has been called the "What the Judge Ate for Breakfast" theory of judicial decision-making.2 By emphasizing the large amount of discretion necessarily afforded to judges, Holmes's theory suggests that cases are decided based on judges' fancy. Indeed, when President Franklin Delano Roosevelt tried to pack the Supreme Court (of which Holmes was a member) in "[t]he defensible intent to end the Court's frustration of the people's will,"3 the President implicitly acknowledged the great power of individual justices to influence federal policy at personal whim.4
Nowhere is the importance of an individual judge's personal, non-legal opinion more evident than in Fourth Amendment reasonable suspicion jurisprudence.5 The Fourth Amendment guarantees the "right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."6 Temporary detention of individuals by the police, even if only for a brief period and for a limited purpose, constitutes a seizure within the meaning of the Fourth Amendment.7 An officer may conduct a temporary stop consistent with the Fourth Amendment when the officer has a reasonable, articulable suspicion, based on the totality of the circumstances, that criminal activity is afoot.8 While the officer must be able to articulate more than an inchoate suspicion or hunch of criminal activity,9 the term "reasonable suspicion" is itself undefined.10 "The concept of reasonable suspicion...is not 'readily, or even usefully, reduced to a neat set of legal rules.'"11 Thus, when the Supreme Court overrules a lower court's decision concerning reasonable suspicion, the Court is essentially saying, "you applied the right legal standard; we just disagree with you on what is reasonable."12
One of the most salient and oft-debated topics within reasonable suspicion jurisprudence is law enforcement's reliance on race, or racial profiles, as a factor in determining whether to detain a person.13 Although the Court has issued opinions pertaining to the use of race in establishing reasonable suspicion, it has never squarely addressed the topic in terms of an individual officer's personal beliefs when finding reasonable suspicion, or in terms of race as an element of a larger criminal profile.14
This article explores the territory bounded by race and reasonable suspicion by drawing a specific distinction between "personal" and "professional" experience or knowledge. The adjectival term "professional," as used in this article, describes information or beliefs attained through an occupation or during work, whether from personal observation, training, or hearsay. On the other hand, "personal" is used to describe knowledge gained outside of work or in a manner not related to the subject's occupation. Admittedly, sharp contrasts may not always exist in this demarcation. For example, a police officer may learn information about forensics while reading a gun aficionado magazine off duty. However, despite the possible drawbacks of such gray areas, this division serves to highlight the difference between an officer who relies on law enforcement statistics to find reasonable suspicion versus one who finds reasonable suspicion after applying a stereotype formed from personal beliefs. While stereotypes might not necessarily be illicit or hateful, these types of personal beliefs are plainly unsupported by professional experience. Intuitively, this lack of support should cause a court to give the factor less weight in evaluating reasonableness.
This article attempts to move beyond bare intuition to predict how the Court would decide a case that deals directly with racial profiling and an officer's own stereotypical perceptions.15 Part I discusses the legal precedent that guides the Court in this area of legal jurisprudence. …