Michael Cricchi

—

The U.S. Supreme Court’s monumental ruling in Terry v. Ohio[1] permanently shifted Fourth Amendment jurisprudence in a significant way.[2] Instead of analyzing whether an officer’s warrantless seizure of a person was obtained with or without probable cause, Terry expanded an officer’s discretion by allowing officers to conduct warrantless stops and searches of a person based off reasonable suspicion.[3]

An officer has “reasonable suspicion” when the officer is “able to point to specific and articulable facts, which taken together with rational inferences from those facts, warrant that intrusion.”[4] Courts analyze the constitutionality of temporary seizures based on an officer’s reasonable suspicion by using a balancing test[5] where courts balance the gravity of the government interest in making the seizure against the intrusion on the individual’s privacy.[6] This balancing test requires a court to consider the totality of the circumstances, or “ [the] whole picture,”[7] to justify an officer’s reasonable suspicion.[8]

This Note analyses how race is (or is not) considered in the totality of the circumstances analysis when courts determine whether an officer acquired reasonable suspicion. This analysis is important because it sheds light on how courts inconsistently analyze a seized person’s race when reviewing whether an officer acquired reasonable suspicion. As a result, searches and seizures cause greater harm to members of minority communities.[9] The recent downpour of police killings of minorities caught on film has resulted in a call for increased police accountability.[10] This Note seeks to increase police accountability by suggesting that all courts consider analyzing race as a factor in the reasonable suspicion totality of the circumstances analysis.

Part I of this Note outlines the background of the reasonable suspicion analysis. Part II illustrates the issue, that courts inconsistently consider race in a reasonable suspicion analysis, by providing examples and articulating the disparities between the various decisions that considered race as a factor and opinions that did not. Part III provides solutions and proposes a policy change suggesting all courts consider analyzing race as a factor to explore in reasonable suspicion analysis. 

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

---

[1] Terry v. Ohio, 392 U.S. 1, 13 (1968) (holding that police officers may briefly “stop and frisk” someone without probable cause provided the encounter is justified by reasonable articulable suspicion).

[2] Joshua Dressler, Alan C. Michaels, Understanding Criminal Procedure Volume 1: Investigation, 261 (Matthrw Bender ed., 6th ed. 2013).

[3] Id. at 262.

[4] Terry, 392 U.S. at 21.

[5] Id.

[6] Brown v. Texas, 443 U.S. 47, 50 (1979).

[7] United States v. Cortez, 499 U.S. 411, 417 (1981).

[8] Commonwealth v. Basinger, 982 A.2d 121, 125 (Superior Court of PA 2009).

[9] David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L. J. 659, 660 (1994).

[10] V. Noah Gimbel, Body Cameras and Criminal Discovery, 104 Geo. L.J. 1581, 1582 (2016); see also Eliott C. McLaughlin, Woman streams aftermath of fatal officer-involved shooting, CNN (Jul. 8, 2016), http://www.cnn.com/2016/07/07/us/falcon-heights-shooting-minessota/ (detailing the situation in Minnesota, where Philando Castile was fatally shot by a police officer after being pulled over for a mere broken taillight. Philando’s girlfriend livestreamed the incident when Philando told the officer he had a weapon, and the officer fatally show Philando.); see also Kathy Finn, Black man shot by Louisiana police mourned in Baton Rouge, Reuters (Jul. 15, 2016), http://www.reuters.com/article/us-usa-police-idUSKCN0ZV24J (detailing the situation in Louisiana, where body cameras and witnesses filmed the shooting of Alton Sterling in a parking lot during an altercation with two police officers after they tried restraining him).