Professors Gabriel J. Chin and Charles J. Vernon
83 Geo. Wash. L. Rev. 882
In Whren v. United States, the Supreme Court held, unanimously, that
Fourth Amendment analysis was so radically objective that an otherwise legitimate
search or arrest would not be invalidated even if an officer’s decision to
act was based on race. Although the Court has adhered to the view that the
Fourth Amendment is applied objectively, the controversy over Whren’s practical
legitimation of racial profiling has only grown over time. This Article
argues that it has become clear that Whren was wrongly decided, for reasons
courts and scholars have not previously articulated. First, the Court never
explained why it created a rule making motivation absolutely irrelevant when
there was a readily available alternative, namely applying the standard applicable
to review of prosecutorial discretion. Prosecution decisions are unassailable,
unless they are based on unconstitutional grounds. The Court did
not have to approve racial profiling to preserve the broad scope of legitimate
law enforcement discretion. Second, since Whren, the Court has elaborated
the reasons for an objective approach; these include grounds such as holding
officers to objectively high standards and promoting even-handed law enforcement.
The Court’s aims would be promoted by prohibiting race-based
searches whereas they are undermined by allowing them.
Most fundamentally, searches or arrests motivated by race are “unreasonable”
under the Fourth Amendment. First, based on the Court’s precedents,
other provisions of the Constitution inform Fourth Amendment reasonableness.
A search based on motives violating other parts of the Constitution is
therefore unreasonable. Second, under the fruit of the poisonous tree doctrine,
a search is unreasonable if it rests on an antecedent constitutional violation.
Unless the Equal Protection Clause is a distinctly unimportant part of
the Constitution, a proposition the Court has rejected, its violation should
trigger application of the doctrine, just like violations of other provisions. Application
of these principles would minimally affect police discretion, and it
would remain difficult to prove that police engaged in illegal racial profiling.
But, it would also eliminate Whren’s unfortunate and influential statements
that racial discrimination is constitutionally reasonable.
