Written by Vincenzo Caporale

The Fourth Amendment to the Constitution of the United States provides that people shall not be subject to unreasonable searches and seizures, except when a warrant is approved by a judge and supported by probable cause, that justifies a governmental intrusion into the private lives of Americans.

Until the 1980s, the Supreme Court had been strict about enforcing the Fourth Amendment’s requirements.[1] Throughout the following decades, however, the Supreme Court incrementally eliminated protections against unreasonable searches and seizures by law enforcement in public, on the street, and in people’s homes.

The Court began dismantling Fourth Amendment protections by allowing police to search people without a warrant. The Court lowered the evidentiary standard required to justify a search from the strict showing of “probable cause” to the lower burden of “reasonable suspicion.” In doing so, the Court deferred to law enforcement to define “reasonable suspicion.” Police, in their discretion, have adopted policies that define almost all conduct as being “reasonably suspicious,” to justify a warrantless search. This phenomenon can be illustrated by the concept of “driving while black.”

This change in the law coincided with the beginning of the War on Drugs. The lower burden required for a search gave police nearly unconstrained discretion in waging the War on Drugs, resulting in policies—like “stop and frisk”—that disproportionately affected generations of black and brown Americans. This legal landscape created the current state of criminal justice and mass incarceration we see today, where the United States has 5 percent of the world’s population, but 25 percent of the world’s prisoners,[2] a majority of whom are young black and brown men.

In 1948, the Supreme Court explained that the Fourth Amendment places a judge between the people and the police to ensure that an objective mind determine when it is necessary to invade one’s right to privacy in order to enforce the law, because police acting on their own could not be trusted.[3] In 1967, the Supreme Court declared the basic purpose of the Fourth Amendment as safeguarding the privacy and security of people against arbitrary invasions by government officials, holding that searches authorized without a warrant lack the safeguards guaranteed by the Fourth Amendment.[4]

Just a year later, the Court carved out a major exception to the Fourth Amendment’s warrant requirement in the case of Terry v. Ohio (1968), upholding the police practice of “stop and frisk.” The “stop and frisk” practice permits police to stop, question, and search and individual — provided they have “reasonable suspicion” of criminal activity.[5] This decision dispensed with the higher standard of “probable cause” that the Fourth Amendment once required to justify a search. .”[6] In Terry’s lone dissent, Justice William O. Douglas warned that “[t]o give the police greater power than a [judge] is to take a long step down the totalitarian path.”[7]

That same year, President Richard Nixon called for a War on Drugs. The hard-fought victories for the Civil Rights Movement of the 1960s spurred colorblind rhetoric on crime but was clearly understood as having a racial dimension.[8] Nixon’s statements and Supreme Court jurisprudence reflected a conservative shift in the politics of crime and law enforcement policy that resulted in the reduction of Fourth Amendment protections, increased policing of minorities, and mass incarceration.

Police officers began to target their enforcement efforts toward young black and brown men because the “reasonable suspicion” exception to obtaining a warrant no longer required them to prove a showing of “probable cause” to search or seize an individual. Police departments created policies which justified the stopping of anyone on the street or driving a car because they have articulated new subjective standards that amount to nearly all conduct having the potential of being perceived as “reasonably suspicious.” When these egregious police practices were challenged in the courts, the Supreme Court continually upheld their constitutionality.

The Court, in the case of Sibron v. New York (1968), recognized that the New York City police department’s “reasonable suspicion” standards in its “stop and frisk” code did not align with Fourth Amendment standards because they were “susceptible to a wide variety of interpretations.”[9] In response, the Court required officers to articulate a specific description of “reasonably suspicious” activity to justify an intrusion of a person’s right of privacy. Despite attempting to prevent potentially discriminatory law enforcement practices by reigning in police discretion, the Court yet again deferred to law enforcement to define what conduct amounts to “reasonable suspicion” to justify a “stop and frisk.”

It should come as no surprise that the “stop and frisk” practice has been abused by law enforcement. In 2011, according to the New York Civil Liberties Union, the New York City Police Department (“NYPD”) conducted nearly 700,000 stops using the “stop and frisk” practice.[10] Four out of every five of these stops were of black and Latino people.[11] Eighty (80) percent of the nearly 700,000 stops did not result in an arrest,[12] meaning that there was insufficient probable cause to charge them with a crime. Law enforcement agencies have harassed black and brown people en masse because the Supreme Court has essentially authorized the practice of “stop and frisk” without accountability, allowing officers to use their subjective perceptions to invade the privacy rights of individuals in the pursuit of waging the War on Drugs.

The Supreme Court proceeded to dismantle Fourth Amendment protections and give police the upper hand in the case of Whren v. United States (1996), holding that police could stop drivers without a showing of “probable cause” through the practice of conducting a “pretext stop.” The “pretext stop” allows police to stop a vehicle for any reason, provided that a traffic violation has occurred. This standard gives the police an excuse to stop almost anyone driving down the street because of the multitude of traffic violations and the difficulty of always obeying all traffic rules perfectly.[13]

Fourth Amendment protections against unreasonable searches and seizures have evaporated in the context of “stop and frisk” on the street and pretext stops while driving. “The fact that the Fourth Amendment was specifically adopted by the Founding Fathers to prevent arbitrary stops and searches was deemed unpersuasive” to uphold these protections.[14]

According to the trajectory of Supreme Court jurisprudence, an individual may be searched by police while walking down the street or driving their vehicle down the road for almost any reason whatsoever, or no reason at all. Government intrusion into the private life of individuals does not end in the public space, as the police killing of Breonna Taylor indicates that black and brown people are not safe from unjustified police intervention even in their own homes. Increased scrutiny has been given to the “no-knock” warrant in the past year, since Taylor’s death, as creating circumstances for dangerous confrontations yet not serving a significant public safety purpose. The Fourth Amendment is a shell of its former self, with so many exceptions to the warrant requirement that its purpose of protecting the privacy rights of Americans has been defeated.

Since Terry, the Supreme Court has allowed law enforcement to stack assumptions against black and brown people, subjecting them to unconstitutional searches, which has contributed to the mass incarceration experienced today. The holding in Terry permitted police to assume that a black or brown person walking down the street is somehow committing a criminal act. The holding in Whren permitted police to assume that a black or brown person driving on the road is somehow committing a criminal act. These decisions have relieved police of their burden to show probable cause or reasonable suspicion to conduct a search.

Justice Douglas’s lone dissent in Terry is poignant: “[t]here have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” That hydraulic pressure has maintained its strength through Supreme Court jurisprudence since Terry was decided.

For the last half-century, the Supreme Court has dismantled Fourth Amendment protections by systematically carving out exceptions to the warrant requirement and no longer requiring a showing of probable cause to justify a governmental intrusion into a person’s private life, permitting police to wage the War on Drugs and target black and brown people. To mitigate the damage that “stop and frisk” and “pretext stops” have caused to black and brown America, political actors and everyday people must fight in the halls of justice, legislative houses, and the streets, for the purpose of the Fourth Amendment to be restored.

[1] Alexander, Michelle. The new Jim Crow : mass incarceration in the age of colorblindness, 62.

[2] Loury, Glenn C. Race, mass incarceration, and American values, 5.

[3] McDonald v. United States, 335 U.S. 451 (1948).

[4] See Camara v. Municipal Court of San Francisco, 387 U.S. 523 (1967).

[5] See Terry v. Ohio, 392 U.S. 1 (1967).

[6] McDonald, 335 U.S. at 456.

[7] Terry, 392 U.S. at 38.

[8] Alexander, 48.

[9] Sibron v. New York, 392 U.S. 40, 60 (1968).

[10] New York Civil Liberties Union, “Stop and Frisk Report,” p 3, 2011 (https://www.nyclu.org/sites/default/files/publications/NYCLU_2011_Stop-and-Frisk_Report.pdf).

[11] New York Civil Liberties Union, “Stop-and-Frisk in the de Blasio Era,” p 2, 2019 (https://www.nyclu.org/sites/default/files/field_documents/20190314_nyclu_stopfrisk_singles.pdf).

[12] Id. at 25.

[13] Alexander, 67.

[14] Alexander, 68.