Inequitable enforcement: Introducing the concept of equity into constitutional review of law enforcement

Hastings Law Journal

Volumn 61, Issue 2, 2009, Pages 413-455

  Aviram, Hadar ^a   Portman, Daniel L ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 77649310129     PISSN: 00178322     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (323)

1. See Darien Shanske, Note, Four Theses: Preliminary to an Appeal to Equity, 57 STAN. L. REV. 2053 (2005). Professor Shanske's piece examines the original Aristotelian meaning of equity and observes that its introduction into Western philosophy has imbued the concept of equity with other meanings as well.
2. See id. at 2054-56.
3. For example, the failure to use discretion, id. at 2070-71, a failure to match justice to the particular circumstances of the case,
4. id. at 2073, or undue harshness in applying the law,
5. id. at 2074.
6. The discussion regarding racial profiling-to which we return in Part III for our equal protection argument-has developed around two main hinges: constitutional fairness and actual evaluation of efficiency. For more on this, see BERNARD E. HARCOURT, AGAINST PREDICTION: PROFILING, POLICING, AND PUNISHING IN AN ACTUARIAL AGE 195 (2007). These hinges echo the tension between efficiency and fairness highlighted in Herbert Packer's two models, which will be discussed below.
7. See HERBERT PACKER, THE LIMITS OF THE CRIMINAL SANCTION (1968);
8. infra Part II.
9. See, e.g., William J. Stuntz, O.J. Simpson, Bill Clinton, and the Transsubstantive Fourth Amendment, 114 HARV. L. REV. 842, 871-74 (2001);
10. Scott E. Sundby, An Ode to Probable Cause: A Brief Response to Professors Amar and Slobogin, 72 ST. JOHN'S L. REV. 1133 (1998).
11. Margaret Raymond, Penumbral Crimes, 39 AM. CRIM. L. REV. 1395, 1397-1417 (2002). Raymond identifies some of the problems that go unnoticed when the concept of inequity zooms in only on the discrimination/racism aspect, but her approach differs from ours in that she focuses on the implications of identifying "penumbral crimes" to the articulation of criminal offenses in substantive criminal law, rather than on the constitutional implications for law enforcement.
12. See id.
13. See, e.g., Joseph Goldstein, Police Dbcretion Not to Invoke the Criminal Process: Law-Visting Decions in the Adminstration of Justice, 69 YALE L.J. 543 (1960). For a thorough analysis of police literature on discretion,
14. see WESLEY G. SKOGAN & KATHLEEN FRYDL, FAIRNESS AND EFFECTIVENESS IN POLICING: THE EVIDENCE 57-78 (2004). For a classic study of the impact of police officers' personalities on their discretionary choices,
15. see WILLIAM KER MUIR, JR., POLICE: STREETCORNER POLITICIANS (1977).
16. See, e.g., Goldstein,supra note 6 at 586-88.
17. See, e.g., Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV. 1715, 1748-52 (2006) (emphasizing the impact of underenforcement on creating sanctuaries in low-income neighborhoods, which contribute further to stagnation of these areas of the city).
18. See infra Part II.
19. This idea was best expressed by Justice Warren in Terry v. Ohio, 392 U.S. 1, 10 (1967) ("[I] n dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess."). This is a concept of a "sliding scale" of intrusiveness in police reactions, which corresponds to a sliding scale in the level of suspicion.
20. For critiques of these nebulous concepts, and particularly of the difficulties in distinguishing the different levels of suspicion, see Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349 (1974);
21. Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 AM. CRIM. L. REV. 257 (1984).
22. This will be discussed primarily in the context of the Equal Protection doctrine and the difficulties in proving racial motives.
23. 414 U.S.218 (1973).
24. 517 U.S. 806(1996).
25. 532 U.S. 318 (2001).
26. 128 S. Ct 1598(2008).
27. Our pessimism stems primarily from Herring v. United States, 129 S. Ct. 695 (2009), which expanded the scope of the good faith doctrine;
28. while Herring itself should probably not be interpreted as the death blow to the exclusionary rule, when seen broadly, in the context of decisions such as Moore, 128 S. Ct at 1598-which we discuss in greater detail below-it can be said to undermine the importance of regulations and affirm a belief in unguided police discretion.
29. This discretion is essential for the screening action which occurs at every step of the process, diverting cases out of the system. For a good visual depiction of this "screening out" process, see U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, CRIMINAL JUSTICE SYSTEM FLOWCHART, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cjsflowco.pdif.
30. For analyses of prosecutorial discretion, see KEITH HAWKINS, LAW AS LAST RESORT. PROSECUTION DECISION-MAKING IN A REGULATORY AGENCY (2003);
31. JOHN L. WORALL & M. ELAINE NUGENT-BORAKOVE, THE CHANGING ROLE OF THE AMERICAN PROSECUTOR (2008);
32. Lisa Frohmann, Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decbionmaking, 31 LAW & SOC'Y REV. 531 (1997);
33. and Goldstein, supra note 6.
34. For an analysis of defense attorney discretion, see Debra S. Emmelman, Trial by Plea Bargain: Case Settlement as a Product of Recursive Decisionmaking 30 LAW a SOC'Y REV. 335 (1996).
35. This is particularly interesting in the context of determinate sentencing. See Shawn D. Bushway & Anne Morrison Piehl, Judging Judicial Discretion: Legal Factors and Racial Discrimination in Sentencing, 35 LAW & SOC'Y REV. 733 (2001).
36. See Mona Lynch, Waste Managers? The New Penology, Crime Fighting, and Parole Agent Identity, 32 LAW 4 SOC'Y REV. 839, 841 (1998).
37. There is at least a perception that informality is essential for these purposes. See MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT: HANDUNG CASES IN LOWER COURTS 417-18 (1979).
38. For example, as determinate sentencing developed to decrease judicial discretion, the burden of discretion shifted to the shoulders of prosecutors. See KATE STITH & JOSE A. CABRANES, FEAR OF JUDGING: SENTENCING GUIDELINES IN THE FEDERAL COURTS 78-103 (1998).
39. See PACKER, supra note 3.
40. Neither of the two models is designed to provide a realistic description of the criminal justice system. As Packer explains, they are merely "ideal types," which provide two ends of a spectrum along which one might locate a specific system or track transitions in its adherence to certain principles. Id. at 153-54. It is important to keep in mind that Packer's book was written in 1968, based on a piece published in 1964, at the height of the Warren Court's involvement in constitutionalizing criminal procedure; Packer used this model to demonstrate how constitutional incorporation encouraged a move from crime control to due process. For more background on these choices,
41. see generally Kent Roach, Four Modeb of the Criminal Process, 89 J. CRIM. L. & CRIMINOLOGY 671 (1999)
42. See PACKER, supra note 3, at 160. The presumption of guilt is what makes it possible for the system to deal efficiently with large numbers, as the Crime Control Model demands. The supposition is that the screening processes operated by police and prosecutors are reliable indicators of probable guUt. Once a man has been arrested and investigated without being found to be probably innocent, or, to put it differently, once a determination has been made that there is enough evidence of guilt to permit holding him for further action, then all subsequent activity directed toward him is based on the view that he is probably guilty. The precise point at which this occurs will vary from case to case; in many cases it will occur as soon as the suspect is arrested, or even before, if the evidence of probable guilt that has come to the attention of the authorities is sufficiently strong. But in any case the presumption of guilt will begin to operate well before the "suspect" becomes a "defendant."
43. Id.
44. Id. at 160-62.
45. Id. at 187.
46. See id. at 162. In the presumption of guilt this model finds a factual predicate for the position that the dominant goal of repressing crime can be achieved through highly summary processes without any great loss of efficiency (as previously defined), because of the probablility that, in the run of cases, the preliminary screening processes operated by the police and the prosecuting officials contain adequate guarantees of reliable fact-finding. Indeed, the model takes an even stronger position. It is that subsequent processes, particularly those of a formal adjudicatory nature, are unlikely to produce as reliable fact-finding as the expert administrative process that precedes them is capable of. The criminal process thus must put special weight on the quality of administrative fact-finding. It becomes important, then, to place as few restrictions as possible on the character of the administrative fact-finding processes and to limit restrictions to such as enhance reliability, excluding those designed for other purposes.
47. Id. This systemic reliance on administrative processes is confirmed by empirical evidence pointing to the large amounts of discretion exercised daily by poüce officers. This was noticed by police scholars during the Warren Court era.
48. See, e.g., JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY 12-15, 71-90(1966);
49. see also SKOGAN & FRYDL, supra note 6, at 74.
50. PACKER, supra note 3, at 165.
51. Id. at 159.
52. Id. at 165.
53. Id. at 152-54.
54. See id. at 163. The Crime Control Model, as we have suggested, places heavy reliance on the ability of investigative and prosecutorial officers, acting in an informal setting in which their distinctive skills are given full sway, to elicit and reconstruct a tolerably accurate account of what actually took place in an alleged criminal event. The Due Process Model rejects this premise and substitutes for it a view of informal, nonadjudicative fact-finding that stresses the possibility of error.
55. Id.
56. Leslie Sebba, Herbert Packer's Models of Criminal Justice in Histrocal Perspective (May 2006) (unpublished paper presented at New Directions in Criminal Courtroom Research, Tel Aviv University), available at www.tau.ac.il/law/events/16-17-05-07/conferenceprogram.doc.
57. See, e.g., Douglas Evan Beloof, The Third Model of Criminal Process: The Victim Participation Model, 1999 UTAH L. REV. 289; Roach, supra note 26.
58. See Malcolm M. Feeley, Two Models of the Criminal Justice System: An Organizational Perspective, 7 LAW 4 SOC'Y REV. 407, 422 (1973);
59. see also SKOGAN & FRYDL, supra note 6;
60. SKOLNICK, supra note 30, at 9-15, 182-83.
61. Chief Justice Burger was appointed in 1969, Justice Blackmun was appointed in 1970, and Justices Powell and Rehnquist were appointed in 1972.
62. See, e.g., CHARLES H. WHTTEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE: AN ANALYSIS OF CASES AND CONCEPTS 9-10 (5th ed. 2008).
63. Id. at 4.
64. Id. Perhaps the best example of this is the erosion of the Miranda warning to the status of a "stepchild" in the constitutional family of rights, held by Justices to be a prophylactic, albeit one with constitutional status.
65. See United States v. Patane, 542 U.S. 630, 634 (2004);
66. Dickerson v. United States, 530 U.S. 428, 432 (2000);
67. Oregon v. Elstad, 470 U.S. 298, 300 (1985);
68. New York v. Quarles, 467 U.S. 649. 655-56 (1984);
69. New Jersey v. Portash, 440 U.S. 450, 459-60 (1979); Michigan v. Tucker, 417 U.S. 433, 452(1974).
70. WHTTEBREAD & SLOBOGIN, supra note 40, at 5. This transition is notable in the shift from defining probable cause as two "prongs"-veracity and basis of knowledge,
71. see Spinelli v. United States, 393 U.S. 410, 412-13 (1969);
72. Aguilar v. Texas, 378 U.S. 108, 113-14 (1964), to examining it in light of the "totality of the circumstances,"
73. see Illinois v. Gates, 462 U.S. 213, 252 (1983).
74. WHTTEBREAD 4 SLOBOGIN, supra note 40, at 5.
75. See id. at 6-7;
76. see also, e.g., Herring v. United States, 129 S. Ct. 695, 702-04 (2009) (giving the police leeway when relying on their own mistakes, as long as they are merely "neguglient," rather than "reckless" or "intentional");
77. United States v. Leon, 468 U.S. 897,920-21 (1984).
78. See WHTTEBREAD & SLOBOGIN, supra note 40, at 7-8. The narrowing of the door on habeas corpus is particularly important.
79. See Teague v. Lane, 489 U.S. 288, 360 (1989). Actual innocence-a situation in which the "presumption of guilt" fails-may still be litigated through collateral attack, though many procedural hurdles exist for the defendant.
80. See Murray v. Carrier, 477 U.S. 478, 496 (1986);
81. Jackson v. Virginia, 443 U.S. 307, 320-21 (1979).
82. Chief Justice Warren's opinion in Terry v. Ohio, decided at the height of the due process revolution, is an excellent example of the Court's awareness of the realities of police discretion.
83. See 392 U.S. 1, 10 (1967) ("[I]t is frequently argued that in dealing with the rapidly unfolding and often dangerous situations on city streets the police are in need of an escalating set of flexible responses, graduated in relation to the amount of information they possess.").
84. See id.
85. See id. at 13. Street encounters between citizens and police officers are incredibly rich in diversity. They range from wholly friendly exchanges of pleasantries or mutually useful information to hostile confrontations of armed men involving arrests, or injuries, or loss of life. Moreover, hostile confrontations are not all of a piece. Some of them begin in a friendly enough manner, only to take a different turn upon the injection of some unexpected element into the conversation.
86. Id.
87. A good example of this is the emergence of the "protective sweep" of houses, see Maryland v. Buie, 494 U.S. 325, 337 (1995), and cars,
88. see Michigan v. Long, 463 U.S. 1032, 1049-50 (1983), which are aimed at police safety and relies on an assessment of discretion regarding "reasonable suspicion." The suspicion needs to be articulable, but its nature is not proscribed. Terry, 392 U.S. at 26.
89. See STITH 4 CABRANES, supra note 24. The reliance on guidelines as a limiting factor persists even after the loss of their mandatory power in United States v. Booker, 543 U.S. 220, 259 (2005).
90. See Rita v. United States, 551 U.S. 338, 347 (2007).
91. See Goldstein, supra note 6.
92. Id. at 543.
93. Id. at 546-47.
94. Id. at 565-66.
95. Id. at 574; see also Beloof, supra note 37, at 306.
96. Using such informal methods is well documented in police literature. See SKOGAN & FRYDL, supra note 6, at 68-69.
97. EDITH LINN, ARREST DECISIONS: WHAT WORKS FOR THE OFFICER? 74-83 (2008).
98. MUIR, supra note 6.
99. SKOGAN & FRYDL, supra note 6.
100. The recent lethal shooting of Oscar Grant at the Fruitvale Bay Area Rapid Transit station in Oakland, C.A. brought some of these issues to light. The police officer in question argues, as his defense, that his intention was to use a Taser stun gun rather than his sidearm. Demian Bulwa, Skeptical Judge Grants Bail to Former BART Cop, S.F. CHRON., Jan. 31, 2009, at A-I, available at http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/oi/ 3i/MNBIi5KCD5.DTL. There are detailed regulations regarding the usage of stun guns.
101. See Jim Leusner & Katie Fretland, Florida Police Followed Guidelines in Campus Taser Incident, ORLANDO SENTINEL, July 8, 2008. Detailed guidelines are created even for far less serious incidents
102. See, e.g., SAN LEANDRO POUCE DEPARTMENT GUIDELINES FOR SCREENING VIOLATIONS, available at http7/ www.d.san-leandro.ca.us/pd/GuidelmesSCTeeningViolations.pdf (showing the San Leandro 's police regulations on processing traffic offenses). In the United Kingdom, detailed model guidelines are published by the Association of Chief Police Officers.
103. See Assoc, of Chief Police Officers, Policies, http://www.acpo.police.uk/poucies.asp (last visited Nov. 17, 2009). It should also be mentioned that the practice of publicizing departmental guidelines, as is true with many other fundamental structures and practices, varies greatly across departments.
104. See SKOGAN & FRYDL, supra note 6, at 49-50.
105. See Raymond, supra note 5, at 1420.
106. Id. Raymond goes as far as to suggest that underenforcement of penumbral crimes "might simply reflect a different type of criminal law-one that enforces a widely recognized norm that happens to differ, in a universally understood dimension, from the expressed legal standard."
107. Id.
108. See Natapoff, supra note 8, at 1748-50.
109. U.S. CONST, amend. IV.
110. See Thomas J. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547,551 (1999).
111. Id. As Davies explains, the cities and towns of eighteenth-century America had no "police departments" at all, but rather a single sheriff and a jail staff.
112. Id. at 552.
113. Id. at 551 ("The evidence indicates that the Framers understood 'unreasonable searches and seizures' simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrants.").
114. Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mbchief of Cunara and Terry, 72 MINN. L. REV. 383, 387-88 (1988).
115. See Agnello v. United States, 269 U.S. 20, 32 (1925).
116. See Sundby, supra note 69, at 386.
117. 395 U.S. 752, 768 (1969); see also Sunby, supra note 69 (discussing Chimel, 395 U.S. 752).
118. See United States v. Robinson, 414 U.S. 218, 235 (1973).
119. Davies, supra note 66, at 552.
120. See California v. Acevedo, 500 U.S. 565, 583 (1991) (Scalia, J., concurring) ("In my view, the path out of this confusion should be sought by returning to the first principle that the 'reasonableness' requirement of the Fourth Amendment affords the protection that the common law afforded.").
121. See id. at 581-82.
122. See infra Part II.A.1.a.
123. See infra Part II.A.1.b;
124. see also Terry v. Ohio, 392 U.S. 1, 10 (1968).
125. See Camara v. Mun. Court, 387 U.S. 523, 525 (1967) ("[M]ore intensive efforts at all levels of government to contain and eliminate urban blight have led to increasing use of such inspection techniques....'');
126. see also Griffin v. Wisconsin, 483 U.S. 868, 873-74 (1987) (holding that certain places, such as prisons or schools, give rise to special needs beyond general law enforcement, which necessitate warrantless searches on something less than probable cause);
127. United States v. Montoya de Hernandez, 473 U.S. 531, 541 (1985) (holding that the government's interest in controlling the entry of people and things into the country allows for the detention of travelers at the international border on less than probable cause).
128. See Mich. Dep't of State Police v. Sitz, 496 U.S. 444(1990).
129. See United States v. Ramsey, 431 U.S. 606 (1977).
130. See Samson v. California, 547 U.S. 843 (2006).
131. See New Jersey v. T.L.O., 469 U.S. 325 (1985).
132. Id. at 351 (Blackmun, J., concurring in the judgment) ("[S]pecial needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable....");
133. see also Posting of Ryan Singel to Wired Magazine's Threat Level Blog, FCC's Warrantless Household Searches Alarm Experts, http://www.wired.com/threatlevel/2009/05/fcc-raid/ (May 21, 2009, 12:00 am) (showing a recent example of the extent of such permissions: the Federal Communications Commission's authority to search every home in which a wireless router can be found).
134. See Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) ("[C]onducting searches pursuant to a regulatory scheme need not adhere to the usual warrant or probable-cause requirements as long as their searches meet 'reasonable legislative or administrative standards.'" (emphasis added) (quoting Camara v. Mun. Court, 387 U.S. 523, 538 (1967))).
135. See T.L.O., 469 U.S. at 325 (discussing this constitutional balancing act). 87. 387 U.S.at539.
136. Wesley MacNeil Oliver, With an Evil Eye and an Unequal Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling, 74 TUL. L. REV. 1409, 1438 (2000).
137. Indeed, many police departments have begun to collect data on their stops and license checks to examine whether they are conducted in a random manner. SKOGAN & FRYDL, supra note 6, at 320-322.
138. Compare the Supreme Court's permissive approach toward random stops, see Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 447 (1990), to its attitude toward nonrandomized checks,
139. see Delaware v. Prouse, 440 U.S. 648, 663 (1979).
140. See William J. Stuntz, Unequal Justice, 121 HARV. L. REV. 1969, 2020 (2008).
141. Id. at 2021. Stuntz also considers factors such as the Warren Court's criminal procedure jurisprudence and the increase in the ratio of stranger crime to have contributed to the increasing difficulty police departments find in "clearing" violent crimes.
142. Id. at 2017 n.229.
143. Id. at 2020.
144. See Bonita R. Gardner, Separate and Unequal: Federal Tough-on-Guns Program Targets Minority Communities for Selective Enforcement, 12 MICH. J. RACE & L. 305, 312 (2007).
145. 18 U.S.C.§ 922(g)(1) (2006).
146. Id. §924(c)(1)(a).
147. Gardner, supra note 94, at 307 (citing Press Release, Debra W. Yang, L.A. Law Enforcement Officials Roll-Out Project Safe Neighborhoods (Dec. 18, 2003)). For a more recent example of aggressive prosecution,
148. see Cross Currents: US Attorney Russoniello's Tough on Drugs Tactics (KALW Radio broadcast May 4, 2009), available at httpy/www.crosscurrentsradio.org/features.php?story-id=2o83.
149. Drug. cases are more likely to be prosecuted than other crimes. See Bureau of justice Statistics, Drugs and Crime Facts: Drug Law Violations and Pretrial, Prosecution, and Adjudication, http://bjs.ojp.usdoj.gov/content/dcf/ ptrpa.cfm.
150. KATHERINE BECKETT, MAKING CRIME PAY: LAW AND ORDER IN CONTEMPORARY AMERICAN POLITICS 95-96 (1997).
151. This is especially true with one or more prior convictions. See U.S. SENTENCING GUIDEUNES MANUAL § 2D 1.1 (2007) (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)).
152. Wayne R. LaFave, The "Routine Traffic Stop" From Start To Finish: Too Much "Routine," Not Enough Fourth Amendment, 102 MICH. L. REV. 1843, 1852-53 (2004). Also used are "buy and bust" operations, which instead utilize the search-incident-to-arrest doctrine to obtain the necessary evidence.
153. See RICHARD VAN DUIZEND ET AL., THE SEARCH WARRANT PROCESS: PRECONCEPTIONS, PERCEPTIONS, AND PRACTICES 19, 68 -71 (1984);
154. see also SKOGAN & FRYDL, supra note 6, at 267.
155. Robert Post, Federalism, Positive Law, and the Emergence of the American Adminbtrative State: Prohibition in the Taft Court Era, 48 WM. & MARY L. REV. 1, 2 (2006).
156. Id. at 16-17. With respect to alcohol prohibition, see generally JOSEPH R. GUSFTELD, SYMBOLIC CRUSADE: STATUS POLITICS AND THE AMERICAN TEMPERANCE MOVEMENT (1968).
157. Stuntz, supra note 91, at 2024 ("A critical mass of Prohibition's supporters evidently concluded that repeal was preferable to uneven enforcement").
158. Id.
159. 414 U.S. 218, 224, 234 (1973).
160. VAN DUTZEND ET AL., supra note 101, at 19,68-71.
161. 517 U.S. 806, 813 (1996).
162. Id. at 813-15.
163. 532 U.S. 318, 354(2001).
164. Chavez v. Ill. State Police, 27 F. Supp. 2d 1053 (N.D. Ill. 1998), aff'd, 251 F.3d 612 (7th Cir. 2001).
165. Oliver, supra note 88, at 1424-25.
166. Id.
167. Id. at 1423.
168. See U.S. CONST, amend. IV.
169. The best illustration of this is Virginia v. Moore, 128 S. Ct. 1598, 1608 (2009), in which a violation of state law did not impact the reasonability of a probable-cause-based search.
170. 129 S. Ct 1710 (2009).
171. Id. at 1723-24.
172. See United States v. Ruckes, No. 08-30088, 2009 U.S. App. LEXIS 24578, at * 14-15 (9th Cir. Nov. 9, 2009).
173. We therefore hold that, while the search cannot be upheld as incident to arrest in light of Gant, the deterrent rationale for the exclusionary rule is not applicable where the evidence would have ultimately been discovered during a police inventory of the contents of Ruckes's car.
174. [T]he district court must conduct a case-by-case inquiry to determine whether a lawful path to discovery-such as inevitability-exists in each case. To hold otherwise would create an impermissible loop-hole in the Court's bright-line Gant determination.
175. Id. This potential "loop hole" could consist of an Atwater arrest for a minor offense, if the reviewing court's discretion allows it.
176. See Transcript of Oral Argument at 21, Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (No. 99-1408) ("It's not a constitutional violation for a police officer to be a jerk.").
177. See Brigham City v. Stuart, 547 U.S. 398, 403 (2006) ("[T]he ultimate touchstone of the Fourth Amendment is reasonableness....").
178. See Brief Amici Curiae of the National Ass'n of Criminal Defense Lawyers & the Ass'n of Federal Defenders in Support of the Petitioners at 14-17, Atwater, 532 U.S. 318 (No. 99-1408); Transcript of Oral Argument, supra note 120, at 11-12.
179. Transcript of Oral Argument, supra note 120, at 13.
180. Id. at 15.
181. Raymond, supra note 5, at 1401-11.
182. Transcript of Oral Argument at 12-13, Whren v. United States, 517 U.S. 806 (1996) (No. 95-5841); Brief for the Petitioners at 37, Whren, 517 U.S. 806 (No. 95-5841).
183. Transcript of Oral Argument, supra note 126, at 15-16; see also Whren, 517 U.S. at 815 ("Moreover, police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable."); Gustafson v. Florida, 414 U.S. 260, 267 (1973).
184. VA. GODE ANN. §19.2-74 (2008).
185. Id ("Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor... the arresting officer shaU take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of §19.2-82.").
186. 128 S. Ct 1598, 1601-02 (2008).
187. Id. at 1602.
188. Id.
189. 636 S.E.2d 395, 400 (Va. 2006).
190. Moore, 128 S. Ct. at 1602-08.
191. 517 U.S. 806, 813-19 (2008).
192. Moore, 128 S. Q. at 1605. Furthermore, Justice Scalla dismissed the idea that departmental rules and regulations carried any weight, writing that "founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness." Id. at 1603.
193. Id. at 1608.
194. 525 U.S. 113(1998).
195. 139- See id. at 118-19. An officer chose to cite a motorist rather than arrest him, despite having the authority to do so. Id. at 114. He then proceeded to conduct a search, later pronounced unconstitutional by the Supreme Court. Id. The decision pointed out that search incident to arrest can only be conducted when an actual arrest has been made; mere authority to arrest is not enough. Id. at 117-18.
196. See Oliver, supra note 88, at 1453.
197. See Michael R. Smith, Depoliticizing Racial Profiling: Suggestions for the Limited Use and Management of Race in Police Decbion-Making, 15 GEO. MASON U. Crv. RTS. LJ. 219, 219 4 n.2 (2005).
198. The "would have" rule from the Tenth Circuit is: a court should ask "not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose." United States v. Guzman, 864 F. 2d 1512, 1515 (10th Cir. 1988) (quoting United States v. Smith, 799 F. 2d 704,709 (11th Cir. 1986)).
199. That an officer theoretically could validly have stopped the car for a possible traffic
200. infraction [i]s not determinative. Similarly immaterial [i]s the actual subjective intent of the deputy. [A] stop [i]s unreasonable not because the officer secretly hope[s] to find evidence of a greater offense, but because it [i]s clear that an officer would have been uninterested in pursuing the lesser offense absent that hope.
201. Id. at 1517 (alterations in original) (second emphasis added) (quoting Smith, 799 F.2d at 710). The Guzman test was overruled in United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995), which held that a "traffic stop is valid under the Fourth Amendment if the stop is based on an observed traffic violation or if police officer has reasonable articulable suspicion that traffic or equipment violation has occurred or is occurring".
202. See supra Part H.A.
203. 144- 517 U.S. 806, 813(2008).
204. 145- See Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. MIAMI L. REV. 425, 426 n.10 (1997).
205. See Barbara C Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 TEMP. L. REV. 221, 223 (1989).
206. See infra Part II.B.i.
207. Washington v. Davis, 426 U.S. 229, 238-42 (1976).
208. Reynolds v. Sims, 377 U.S. 533, 538-54 (1964).
209. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 269 (1978).
210. Loving v. Virginia, 388 U.S. 1, 2(1967).
211. Davis, 426 U.S. at 248.
212. Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racbm, 39 STAN. L. REV. 317, 320-21 (1987). Lawrence summarizes the Court's objections as follows: (1) A standard that would subject all governmental action with a raciakllly disproportionate impact to strict judicial scrutiny would cost too much; such a standard, the Court argues, would substantially limit legitimate legislative decisionmaking and would endanger the validity of a "whole range of [existing] tax, welfare, public service, regulatory and licensing statutes"; (2) a disproportionate impact standard would make innocent people bear the costs of remedying a harm in which they played no part; (3) an impact test would be inconsistent with equal protection values, because the judicial decisionmaker would have to explicitly consider race; and (4) it would be inappropriate for the judiciary to choose to remedy the racially disproportionate impact of otherwise neutral governmental actions at the expense of other legitimate social interests.
213. Id. (alteration in original) (footnotes omitted) (quoting Davis, 426 U.S. at 248 & n.14).
214. Id. at 319.
215. Id.
216. Michael J. Perry, The Disproportionate Impact Theory of Racial Discrimination, 125 U. PA. L. REV. 540, 541 (1977).
217. Id. at 544. Perry notes that the Court in Davis did consider, albeit briefly, disproportionate racial impact, but dismissed it nearly summarily. See id. at 542-44.
218. See Washington v. Davis, 426 U.S. 229, 248 (1976).
219. Perry, supra note 156, at 548-49 ("The 'discriminatory purpose' terminology used in Washington and elsewhere, however, is misleading. The central prohibition of the equal protection clause [sic] is directed against the government's dehberate use of race as a criterion of selection. A law might employ a racial criterion of selection as a means to an objective, or purpose, having nothing to do with race." (footnote omitted)).
220. See Lawrence, supra note 153; see abo Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005); Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995).
221. Lawrence, supra note 153, at 323.
222. 476 U.S. 79, 97 (1986).
223. Id. at 96 (emphasis added) (citations omitted) (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953)).
224. See, e.g., Davis, supra note 145, at 437.
225. See Fullilove v. Klutznick, 448 U.S. 448, 519 (1980) (Marshall, J., concurring in judgment) ("[S]trict in theory, but fatal in fact.").
226. See Nordlinger v. Hahn, 505 U.S. 1, 110 (1992).
227. See United States v. Carolene Prods. Co., 304 U.S. 144, 152-53 (1938).
228. See id. at 152 n.4
229. There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.
230. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation...
231. Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious or national or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
232. Id. (emphasis added) (citations omitted).
233. JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 151-53 (1980).
234. Id.
235. Id.
236. Lawrence, supra note 153, at 349.
237. See Charles R. Epp et al., Racial Profiling as Racialized Surveillance (unpublished paper presented at the Law and Society Association Annual Meeting, Denver, CO (2009)).
238. Id.
239. Id.
240. See Lawrence, supra note 153, at 325.
241. Id.
242. See David A. Sklansky, Not Your Father's Police Department: Making Sense of the New Demographics of Law Enforcement, 96 J. CRIM. L. & CRIMINOLOGY 1209, 1228-29 (2006).
243. 179- Whren v. United States, 517 U.S. 806,818-19 (r995) (emphasis added).
244. See SKOGAN & FRYDL, supra note 6, at 55.
245. Mala in se offenses are acts, like murder, arson, or rape, that are considered "inherently immoral." BLACK'S LAW DICTIONARY 978 (8th ed. 2004). Mala prohibita offenses are wrong because they are prohibited by positive laws. Id. The distinction is somewhat related to issues of severity, but does not always overlap with the distinction between statutory offenses and major crimes. Werner Bertelsmann, The Essence of Mens Rea, 1974 ACTA JURIDICA 34, 42 (1974).
246. See supra Part I.
247. See TROY DUSTER, THE LEGISLATION OF MORALITY: LAW, DRUGS AND MORAL JUDGMENT (1972).
248. ROBERT J. MACCOUN 4 PETER REUTER, DRUG WAR HERESIES: LEARNING FROM OTHER VICES, TIMES AND PLACES 30-32 (2001).
249. The concern here might be about making the mistake of typifying crimes committed by certain people as more "morally wrong" than others. A classic example is the moral weight attached by politicians and interest groups to drug abuse by minorities, leading to the prohibition of some drugs but not others. See DUSTER, supra note 183.
250. Such indignation may have fueled Mrs. Atwater in her §1983 lawsuit.
251. MARVIN E. WOLFGANG ET AL., NATIONAL SURVEY OF CRIME SEVERITY, at vi-x (1985).
252. Sergio Herzog, Does the Ethnicity of Offenders in Crime Scenarios Affect Public Perceptions of Crime Seriousness? A Randomized Survey Experiment in Israel, 82 Soc. FORCES 757, 774 (2003).
253. See generally PAUL H. ROBINSON & MICHAEL T. CAHLL, LAW WITHOUT JUSTICE: WHY CRIMINAL LAW DOESN'T GIVE PEOPLE WHAT THEY DESERVE 138-39 (2006).
254. See Raymond, supra note 5, at 1436-38. Raymond sees the solution to the penumbral crime problem in legislation that prohibits certain "ranges" of infraction, rather than in judicial review of police power. See id. at 1437.
255. Robert J. MacCoun et al., Do Citizens Know Whether Their State Has Decriminalized Marijuana? Assessing the Perceptual Component of Deterrence Theory 5 (Goldman Sch. Pub. Pol'y, Working Paper No. GSPP08-011,2008). The decriminalization distinguishes between different types of drug offenses; one could envision distinctions based on type of drug and amount.
256. This fundamental understanding is the basis for Durkheim's functionalist theory, as well as for labeling theory in criminology. See HOWARD S. BECKER, OUTSIDERS 184 (1963); EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 265 (1899).
257. Note the problematic notion of the concept of victimless crime. See Roach, supra note 26, at 680.
258. See MACCOUN & REUTER, supra note 184, for further elaboration on this distinction. One such example might be different kinds of drugs. Absent additional circumstances, such as early and heavy use, marijuana abuse is not, in itself, a predictor of future abuse of more addictive and dangerous drugs. Michael T. Lynskey et al., Escalation of Drug Use in Early-Onset Cannibis Users vs Co-twin Controls, 289 JAMA 427, 432 (2003). Therefore, it seems that stops and arrests for marijuana possession cannot be justified on the basis that marijuana abuse might generate more serious drug activity.
259. See e.g., Dan M. Kahan et al., Whose Eyes Are You Going to Believe? Scott v. Harris and the Perib of Cognitive Illiberalbm, 122 HARV. L. REV. 837, 903-04 (2009)..
260. See Lawrence v. Texas, 539 U.S. 558, 569-70 (2003).
261. See THE WOLFENDEN REPORT REPORT OF THE COMMITTEE ON HOMOSEXUAL OFFENSES AND PROSTITUTION 43 (1963) [hereinafter WOLFENDEN REPORT].
262. This is one of the cornerstones of criminal law, established by Enlightenment-era literature. See CESARE BECCARIA, ON CRIME AND PUNISHMENT 29 (Adolph Caso ed., Int'l Pocket Library 4th ed. 1983) (1764).
263. There are other examples in criminal justice in which the Court has refused to recognize more than one voice for the government. See, e.g., Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971). Recently, however, in Herring v. United States, 129 S. Ct 695, 704 (2009), the Supreme Court was willing to exempt police officers from responsibility for a mistake made by other officers.
264. See, e.g.. MODEL PENAL CODE §2.04 (1985).
265. For one empirically tested example, see Peter Bowal, A Study of Lay Knowledge of Law in Canada, 9 IND. INT'L 4 COMP. L. REV. 121, 136 (1998).
266. In their study on marijuana decriminalization, Robert J. MacCoun and his coauthors pointed out that the original decriminalizing statutes were heavily publicized, and therefore, the public was familiar with them; however, currently, people are largely unaware that their state has decriminalized marijuana. See MacCoun et al., supra note 191, at 356.
267. See SKOGAN & FRYDL, supra note 6, at 300-01.
268. Think, for example, of a traffic citation for driving one mile over the speed limit in a rural area where no one has ever been issued a citation.
269. 532 U.S. 318, 323-24 (2001).
270. See id. at 324. The officer in Atwater is quoted to have said "we've met before." Id.
271. When looking at these situations, one must be cognizant of the role ethnicity and culture can play in the perceived opposition to the officer. See Epp et al., supra note 173. See generally, BECKER, supra note 192, at 184.
272. This becomes more important in Part IV, in which we discuss Tom Tyler's work.
273. See Shanske, supra note 1.
274. See SKOGAN 4 FRYDL, supra note 6, at 301.
275. See Whren v. United States, 517 U.S. 806, 813 (1996).
276. See supra Part II.A.3.
277. See Samson v. California, 547 U.S. 843, 857 (2006).
278. This is, admittedly, a rather naive argument; the current sentencing system has a variety of features, such as parole violations and three-strikes laws, in which one's criminal history certainly leads to a more aggressive fate in terms of sentencing. It should be kept in mind, however, that this Article tackles police enforcement, which is not even to be regarded as punishment.
279. 215- Barbara Hudson, Diversity, Crime, and Criminal Justice, in THE OXFORD HANDBOOK OF CRIMINOLOGY 158, 161-63 (Mike Maguire et al. eds., 2007).
280. See Ohio v. Robinette, 519 U.S. 33, 39 (1996)
281. See id.
282. See, for example, the role of veracity and basis of knowledge in establishing probable cause after Illinois v. Gates, 462 U.S. 213, 230 (1983).
283. This is a motion to dismiss criminal charges based on a showing of selective prosecution for improper purposes, which amounts to an equal protection violation. See Murgia v. Mun. Court, 540 P.2d 44,48 (Cal. 1975).
284. This is a motion to discover complaints made by other people against the law enforcement officer involved in the defendant's case, in order to show a pattern of aggressive behavior by the officer. See Pitchess v. Superior Court, 522 P.2d 305, 308 (Cal. 1974).
285. See, e.g., Mapp v. Ohio, 367 U.S. 643, 653 (1961) (reasonableness of police search is for trial court to determine); Burris v. United States, 192 F.2d 253, 254 (5th Cir. 1951).
286. See New Jersey v. T.L.O., 469 U.S. 325,341 (1985).
287. See United States v. Ramsey, 431 U.S. 606, 616 (1977).
288. See Mich. Dep't of State Police v. Sitz, 496 U.S. 444, 455 (1990).
289. Virginia v. Moore, 128 S. Ct. 1598, 1604 (2009) ("In a long line of cases, we have said that when an officer has probable cause to believe a person committed even a minor crime in his presence, the balancing of private and public interests is not in doubt. The arrest is constitutionally reasonable.").
290. See 440 U.S. 648 (1979).
291. Id at 663.
292. See Transcript of Oral Argument, supra note 126, at 10.
293. See discussion supra Part II.B.I.
294. See Davis, supra note 145, at 436. Davis identifies a further problem-that of the difficulty of a convicted criminal winning a jury verdict against the police department responsible for taking him or her off the street. Id.
295. See Batson v. Kentucky, 476 U.S. 79, 100 (1986).
296. Because the trial court flatly rejected the objection without requiring the prosecutor to give an explanation for his action, we remand this case for further proceedings. If the trial court decides that the facts establish, prima facie, purposeful discrimination and the prosecutor does not come forward with a neutral explanation for his action, our precedents require that petitioner's conviction be reversed.
297. Id.
298. 517 U.S. 456, 459 (1996).
299. 233- Some argue that the police are held to higher standards of accountability beyond those imposed by Supreme Court constitutional decisions. See, e.g., Samuel Walker, Beyond the Supreme Court: Alternative Paths to the Control of Police Behavior, 14 AM. J. CRIM. JUST. 189 (1990); see also SKOGAN 4 FRYDL, supra note 6, at 100.
300. This argument has been particularly pertinent to cases in which the police rely on the "good faith" exception to the exclusionary rule, see Herring v. United States, 129 S. Ct. 695, 701 (2009), and was also a substantial part of the decision in Terry v. Ohio, 392 U.S. 1,27 (1967).
301. See Illinois v. Gates, 462 U.S. 213, 233 (1983).
302. In Gates, for example, the Supreme Court moved away from the formalities required in previous cases for establishing suspicion. Id.; see abo, e.g., Spinelli v. United States, 393 U.S. 410, 415 (1969).
303. 237- "The void-for-vagueness doctrine requires that penal statutes define crimes so that ordinary people can understand the conduct prohibited and so that arbitrary and discriminatory enforcement is not encouraged." United States v. McLamb, 985 F.2d 1284, 1291 (4th Cir. 1993).
304. One such study is Patricia Funk's study of voting patterns in Sweden. See Patricia Funk, Is There an Expressive Function of Law? An Empirical Analysis of Voting Laws with Symbolic Fines, 9 AM. L. & ECON. REV. 135 (2007). Funk found that, after the legal duty to vote during the elections was canceled, voter percentages declined, despite the fact that the law had been underenforced for many years; Funk concludes that deterrence stemmed from the law's symbolic value. ID.
305. See, e.g., Edmund S. Howe & Thomas C. Loftus, Integration of Certainty, Severity, and Celerity Information in Judged Deterrence Value: Further Evidence and Methodological Equivalence, 26 J. APPLIED SOC. PSYCHOL. 226, 238-39 (1996).
306. Harold G. Gramsick & Robert J. Bursik, Conscience, Significant Others, and Rational Choices: Extending the Deterrence Model, 24 LAW & SOC'Y REV. 837, 839-40 (1990).
307. Id. at 840.
308. This concern stems from historical examples in which underenforcement, or difficulty in enforcement, was an important factor in subsequent decriminalization or legalization. One example is the Wolfenden Report, which referred to the challenges of enforcing prohibition on sexual acts between consenting adults as one reason for their legalization. See WOLFENDEN REPORT, supra note 197, at 23, 43.
309. Compare, e.g., CAL. VEH. CODE § 23152(b) (West 1987) (defining unlawful "driving under the influence" as driving while having a blood alcohol percentage of 10% or more), with CAL. VEH. CODE §23152(b) (West 2008) (defining the same crime as driving while having a blood alcohol percentage of .08% or more). For further information, see SENTENCING REFORM IN OVERCROWDED TIMES 249 (Michael Tonry & Kathleen Hatlestad eds., 1997).
310. See, e.g., JONATHAN SIMON, GOVERNING THROUGH CRIME 22 (2007).
311. See FRANKUN E. ZIMRING, THE GREAT AMERICAN CRIME DECUNE I (2007); Douglas Thompson & Anthony Ragona, Popular Moderation Versus Governmental Authoritarianbm, 33 CRIME & DEUNQ. 337, 351(1987).
312. STANLEY COHEN, VISIONS OF SOCIAL CONTROL: CRIME, PUNISHMENT, AND CLASSIFICATION 49-56 (1985).
313. The Wolfenden Report is a good illustration of this argument. See WOLFENDEN REPORT, supra note 197, at 79.
314. For the police's reliance on regulations, see SKOGAN & FRYDL, supra note 6, at 184, and Walker, supra note 233.
315. See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 161-62 (1990).
316. See id. at 105; Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 LAW & SOC'Y REV. 513 (2003).
317. TOM R. TYLER & E. ALLAN LIND, THE SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 64 (1988); TOM R. TYLER ET AL., SOCIAL JUSTICE IN A DIVERSE SOCIETY 85-86 (1998).
318. Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 OHITO ST.3 J. CRIM. L. 231, 250 (2008).
319. Id. at 264.
320. Id. at 267.
321. See GEORGE L. KELUNG & CATHERINE COLES, FIXING BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES 257 (1996).
322. See PACKER, supra note 3.
323. See Hadar Aviram, Humonetarianbism: The New Correctional Disourse of Scarcity, 7 HASTINGS RACE 4 POVERTY L.J. 1 (2009).