Search Me: Fourth Amendment Rights in Jeopardy
I AM THE COPS. I pull you over on the road at night. You didn’t signal when changing lanes, I say. What I’m thinking is: you’re black. During the stop I shine a light into the car and spot some dope. I arrest you. Legal?
Legal. In Whren v. United States (1996), plainclothes narcotics officers in an unmarked car—not the types who spend their time enforcing stop signs and speed limits—pulled over a young black driver for making a turn without signaling. They found cocaine in the passenger’s seat. The Supreme Court held the stop to be perfectly legitimate, rejecting the defendant’s argument that the elaborate traffic code allows police to target almost any driver. The Court’s Fourth Amendment precedents, Justice Scalia wrote for the unanimous Court, “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” This formalistic reasoning essentially dismissed the serious social issue of racial profiling. Driving while black, Scalia seemed to say, is not our problem.
Stephen Schulhofer, an eminent Fifth Amendment scholar at NYU Law School, deplores the Whren decision. He writes in his book that Whren removed most limits on police officers’ discretion on streets and highways. “For every instance involving a drug courier,” Schulhofer writes, “there are countless police actions that never make the newspapers or the criminal court docket—instances in which law-abiding citizens guilty of nothing more than a traffic infraction are subjected to an intrusive but ultimately fruitless roadside search.” More Essential Than Ever is a concise and engaging survey of Fourth Amendment law, although its warnings about the Amendment’s demise are hotter than they need to be.
With its prohibition of “unreasonable searches and seizures,” and its requirement that judges issue warrants only “upon probable cause,” the Fourth Amendment restrains police activity with judicial oversight: if probable cause exists, the police must apply to a judge or magistrate for a search or arrest warrant in most circumstances. Schulhofer returns to this framework again and again in his book. A liberal, Schulhofer disdains wooden originalism but is a strong believer in first principles: warrants and probable cause are written directly into the Fourth Amendment, and they matter. Instead of interpreting the Constitution based on what the founders supposedly intended at the time—the dubious and results-driven method favored by some conservatives—Schulhofer interprets it based on the touchstones written into the document itself. If a judge is not overseeing a police officer, he wants to know why. Call it big-picture originalism.