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Criminal Justice Magazine
Fall 2000
Volume 15, Issue 3

Fourth Amendment Background Principles

There are four basic principles of Fourth Amendment jurisprudence to keep in mind.

First, the Fourth Amendment requires reasonable searches and seizures based on individualized suspicion (and, in some cases, a warrant). This means that before police are legally justified in arresting or detaining a person—even briefly—they must be able to articulate facts that legitimately give rise to suspicion that the person is involved in criminal activity. These facts, taken together, must raise inferences of criminal activity. ( See United States v. Sokolow, 490 U.S. 1, 10 (1989).) Similarly, before police can search, they must have facts sufficient to give rise to suspicion that evidence of a particular crime will be found in a particular place. There are exceptions to the requirement of individualized suspicion, but they are generally not present in profiling situations.

Second, not only must police have individualized suspicion, but it must rise to a certain level. For an arrest or a full-blown search, police need probable cause, which exists when "the facts and circumstances within their knowledge and of which they have reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief" that the suspect is engaged in criminal activity or that evidence will be found in a particular place. ( Carroll v. United States, 237 U.S. 132, 162, (1925).) For less intrusive actions, such as a brief detention or a pat down of outer clothing, the facts need not rise to the level of probable cause, but they must support "more than an inchoate and unparticularized suspicion or hunch." ( Illinois v. Wardlow, 120 S. Ct. 673, 676 (2000), quoting from Terry v. Ohio, 392 U.S. 1, 26 (1968).) The kinds of facts that sustain these levels of individualized suspicion include a person’s behavior or clothing and (in some circumstances) physical characteristics. Taken together, these facts become a sort of "guilt calculus." Courts defer to inferences that police draw from such facts, because "the officer is entitled to assess the facts in light of his experience" in detecting crime. ( United States v. Brignoni-Ponce, 422 U.S. 873, 885, (1975).)

Third, despite judicial deference to police, courts have insisted that a person’s race or ethnicity usually is not a fact that raises legitimate suspicion, unless such a fact is part of an eyewitness description of a suspect. In Brignoni-Ponce, the Supreme Court held that U.S. Border Patrol officers could not stop a car simply because the occupants appeared to be of Mexican descent. (422 U.S. at 886.) Although the Court suggested that ethnic heritage might properly be used as one factor among others in determining reasonable suspicion, later cases concluded that membership in a particular race or ethnic group includes so many people that it does not contribute to the "guilt calculus" and should not be used as a factor. A recent Ninth Circuit case, United States v. Montero-Camargo, (208 F.3d 1122 (9th Cir. 2000), provides a good example. Border agents, looking for illegal aliens, stopped a car based on a number of factors, including the Hispanic appearance of the occupants. The court held that Hispanic appearance "is of little or no use" because "in an area in which a large number of people share a specific characteristic, that characteristic casts too wide a net to play any part in a particularized reasonable suspicion determination." (208 F.3d at 1134.) It also suggested that the use of race and ethnicity is so stigmatizing that it is inappropriate in any analysis. (208 F.3d at 1135.)

Fourth, under the federal Constitution, police can stop individuals for pretextual reasons, so long as they can articulate facts sufficient to raise the required level of suspicion. In traffic stops, police can identify (or fabricate) probable cause to show that almost any driver is committing a minor traffic offense. One study found traffic violations in over 90 percent of the vehicles along a stretch of I-95 in Maryland (a percentage that did not vary according to the race of the driver). (See Report of John Lamberth, Ph.D., www.aclu.org/ court/lamberth.html.) As a result, an officer can stop virtually any vehicle, and the stop will satisfy the Fourth Amendment even if the officer’s subjective intention is to target for scrutiny or harassment drivers of a particular race or ethnic background. ( Whren v. United States, 517 U.S. 806 (1996).) To put this another way, the subjective intention of police is irrelevant to Fourth Amendment analysis.

—Margie Paris

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