The Role of Race in Law Enforcement: Racial Profiling or Legitimate Use? - Legal Digest

Richard G. Schott

On May 14, 2001, three young African-American males were pulled over by the Indianapolis, Indiana, Police Department. According to one of the passenger's stepfather, the stop was a blatant example of racial profiling. (1) According to the officers on the scene, it was a legitimate traffic stop for failure to signal a turn. Which one of these characterizations was correct? Were both viewpoints arguable?

Few issues in society today generate as much controversy as the issue of racial profiling. It was a recurrent topic of debate during the 2000 presidential campaign, and racial profiling remains a frequently debated and divisive issue in many local communities. The highway traffic practices of New Jersey and Maryland State Police troopers have been called into question as racially discriminatory. As a result, both departments have been required to compile exhaustive statistics on all future traffic stops. Other states have passed legislation requiring all law enforcement agencies within that state to maintain similar statistics. (2) But, what is racial profiling? Are there legitimate uses for racial characteristics during an investigation or other law enforcement activity? It is critically important for law enforcement officers to understand the difference between legitimate and illegitimate uses of race in their law enforcement activities to maintain credibility within their communities.

This article explores the historical perspective of the use of race in the law, examines the constitutional challenges available to victims of racial profiling, and offers suggestions to rebut allegations of improper racial profiling.

It is important to define what is meant by racial profiling in this article and also to distinguish between the legitimate use of profiling and unlawful racial profiling. Profiles based on officers' training and experience are legitimate tools in police work. For example, the "drug courier profile" (3) has long been recognized as an investigative technique used by narcotics investigators. (4) This "drug courier profile" has been described as "the collective or distilled experience of narcotics officers concerning characteristics repeatedly seen in drug smugglers." (5) Courts have held that matching a profile alone is not the equivalent of reasonable suspicion or probable cause necessary to conduct an investigative detention or arrest; (6) but, police officers are entitled to assess the totality of the circumstances surrounding the subject of their attention in light of their experience and training, which may include "instruction on a drug courier profile." (7) Therefore, profiles, combined with other facts a nd circumstances, can establish reasonable suspicion or probable cause.

On the other hand, while race or color may be a factor to consider during certain police activity, (8) race or color alone is insufficient for making a stop or arrest. (9) Therefore, for purposes of this article, the term "racial profiling" refers to action taken by law enforcement officers solely because of an individual's race. As the following discussion makes clear, this type of profiling has no place in law enforcement.

HISTORICAL PERSPECTIVE

Historically, there have been two broad legal attacks upon laws on the basis of race. First, citizens have attacked statutes that clearly treat people differently on the basis of their race. Second, citizens have challenged laws that, on their face, are racially neutral, but are enforced in a way that causes an adverse impact upon only one racial group.

Laws that are clearly aimed at particular racial (or other protected classifications, such as sex or religion) groups are subject to exacting, strict scrutiny by the courts. The Supreme Court has said that "[l]egal restrictions which curtail the civil rights of a single racial group are immediately suspect." (10) Unless the government can show that distinguishing among racial groups serves a compelling governmental interest, the distinction is unconstitutional. This is the general principle that courts apply when examining the validity of laws that impact individuals of one race differently than members of other races. The Supreme Court has recognized, however, that "not all such restrictions are unconstitutional. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can."(11)

For example, in the World War II-era case of Korematsu v. United States, (12) Fred Korematsu challenged an exclusion order, promulgated pursuant to an Executive Order, (13) which directed that after May 9, 1942, all persons of Japanese ancestry were to be excluded from certain military areas on the West Coast of the United States for security reasons. After being convicted for violating the exclusion order, Korematsu (an American of Japanese descent) challenged his conviction on the grounds that, among other things, the order denied him the equal protection of the laws implicit in the due process clause of the Fifth Amendment to the Constitution. (14) The Supreme Court denied Korematsu's challenge, holding that the exclusion order had a "definite and close relationship to the prevention of espionage and sabotage," (15) and recognizing it as necessary at the time it was made and when Korematsu violated it. (16) In other words, during times of national crisis, such as war, preventing espionage and sabotage is i mportant enough to permit the government to make distinctions based on race.

Statutes and orders like that challenged in the Korematsu case are extremely rare today. By far, the majority of today's claims of racially motivated police actions are based on two constitutional provisions: the reasonableness requirement of the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment. The essence of these claims is that while the laws being enforced by the police are facially race neutral, the way the police are enforcing them has an adverse impact on members of a particular race. Each of these claims will be examined in turn.

CONSTITUTIONAL CHALLENGES

The Fourth Amendment

The Fourth Amendment to the Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated...." (17) To prove that a law enforcement action violates the Fourth Amendment, there must be either a search or a seizure as defined by the Supreme Court, (18) and the search or seizure must be unreasonable. To be reasonable, a seizure must be justified by facts and circumstances known to the officer that give rise to either a reasonable suspicion that criminal activity is afoot in the case of an investigative detention; (19) or, in the case of an arrest, probable cause to believe that the person seized has committed, or is committing, a crime. (20) An investigative detention or arrest made without the requisite factual basis violates the Fourth Amendment, and any evidence obtained as a result of the illegal seizure may be suppressed. In addition, individual officers may face civil liability if the violat ions are intentional.

Many police seizures are challenged as being racially motivated. Clearly, officers who detain or arrest someone solely on the basis of race have violated the Fourth Amendment to the Constitution. (21) Seizures of people should be based on what they do and not who they are. A more difficult case arises under the Fourth Amendment when the claim is made that an officer's objectively reasonable seizure (i.e., a seizure based upon probable cause or reasonable suspicion) was only a pretext for racial profiling. The Supreme Court addressed the issue of pretextual seizures in a case decided in 1996.

In Whren v. United States, (22) Whren challenged a legitimate (i.e., one based upon probable cause) traffic stop as a pretextual one made only because the officer suspected the driver of having narcotics in his vehicle. In upholding the actions of the officer, the Supreme Court recognized that it had "never held, outside the context of inventory search or administrative inspection, that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment." (23) Quite the contrary, the Court has "been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers." (24) The decision in Whren stands for the proposition that the subjective motivation of a law enforcement officer does not invalidate an objectively reasonable seizure. The fact that an officer has probable cause on which to base a traffic stop makes that seizure reasonable for Fourth Amendment purposes. As discussed below, this does not mean that there is no viable constitutional cha llenge to the seizure. It simply means that a challenge based on the Fourth Amendment will fail.

Many police searches also are attacked as racially motivated. The Supreme Court has held that a reasonable Fourth Amendment search is one conducted with a search warrant based upon probable cause to believe evidence of a crime is present or is justified by a recognized exception to the search warrant requirement. (25) As with seizures, searches conducted without probable cause, but solely because of the race of the person searched or the race of the property owner, clearly violate the Fourth Amendment. However, like Fourth Amendment seizures, the courts will not inquire into the subjective motivation of the police as long as their searches are objectively reasonable.

Claims of racial profiling most often arise from two warrantless police searches justified by exceptions to the Fourth Amendment's search warrant requirement. (26) It is the abuse of, not the exceptions themselves, that are challenged. These two exceptions are the consent search (27) and the search incident to a lawful arrest. (28)

The only legal requirement for a valid consent search is the voluntary consent of a person authorized to give it. (29) There is no warrant requirement nor any requirement that officers have probable cause to believe the person has committed a crime or that there is evidence of a crime present. (30) Consequently, the officer's motivation for asking for consent is irrelevant. As Justice Scalia recognized in the Whren case, even if officers ask for consent to search only because of the person's race, there is no Fourth Amendment violation. (31)

Another warrantless search often cited as racially motivated police action is the search incident to arrest. The only legal justification for the search incident to arrest is a lawful, custodial arrest. (32) An arrest is lawful when based on probable cause to believe the person arrested has committed or is committing a crime. The seizure also must be custodial to justify the search; mere temporary detention is insufficient. (33) As with other Fourth Amendment searches, the underlying motivation of the officer is irrelevant to the issue of lawfulness of the search incident to arrest provided the arrest itself was constitutional.

The officer's authority to search incident to arrest extends to minor criminal offenses. (34) In Atwater v. City of Lago Vista, (35) the Supreme Court ruled that the Fourth Amendment does not forbid a warrantless arrest for a "minor criminal offense," such as a misdemeanor seatbelt violation punishable only by a fine. (36) This affirmation of an officer's authority to search incident to any custodial arrest, even arrests for relatively minor offenses, raised concerns regarding racially motivated police action. In a dissenting opinion after acknowledging that a very broad range of conduct falls into the category of fine-only misdemeanors, including many traffic violations, (37) Justice Sandra Day O'Connor confronted the issue of racial profiling. Justice O'Connor wrote, "as the recent debate over racial profiling demonstrates all too clearly, a relatively minor traffic infraction often may serve as an excuse for stopping and harassing an individual. After today, the arsenal available to any officer extends to a full arrest and the searches permissible concomitant to that arrest." (38) Her dissenting opinion pointed out that "[s]uch unbounded discretion carries with it grave potential for abuse." (39)

It is important to put the preceding discussion in perspective. The Supreme Court has made it clear that as long as the government can show that police searches and seizures are objectively reasonable (i.e., based on probable cause or reasonable suspicion), they do not violate the Fourth Amendment, regardless of the officer's subjective (actual) motivation for the search or seizure. That does not mean, however, that objectively reasonable searches and seizures can never violate the Constitution. Officers motivated by prejudice who lawfully search or seize only members of certain racial, ethnic, religious, or gender groups are still subject to claims of constitutional violations. As Justice Scalia wrote in the Whren decision: "...the Constitution prohibits selective enforcement of the law based on considerations, such as race. But the constitutional basis for objecting to intentionally discriminatory application of the laws is the Equal Protection Clause, not the Fourth Amendment." (40)

The Fourteenth Amendment

The concept that laws must be applied equally to all races has been embedded in the Constitution since 1868. The Fourteenth Amendment guarantees that states shall not deny any person the equal protection of the law. (41) The Fourteenth Amendment's Equal Protection Clause, rather than the Fourth Amendment, is likely to be the basis of a successful constitutional challenge to discriminatory racial profiling by police. The basic requirement of the Equal Protection Clause is that "every state govern impartially." (42) However, treating people differently is not always unconstitutional. The Supreme Court recognizes that states may distinguish among people and groups as long as he distinction bears some rational basis to a legitimate governmental purpose. (43) Distinctions made on the basis of certain characteristics, however, will be given closer attention by the courts and will be judged by the "strict scrutiny" standard. (44) Distinctions on the basis of race are among those suspect classifications that courts w ill examine closely.

Courts have recognized three types of equal protection claims. The first is governmental adoption of a law or policy that intentionally classifies people on the basis of race or other basis. (45) The second is governmental enforcement of a facially neutral statute in an intentionally discriminatory manner. (46) The third is that a facially neutral statute has an adverse impact on certain groups and that the statute was enacted with discriminatory intent. (47) Most often, allegations of equal protection violations involving police activity fall into the second category.

As early as 1886, the Supreme Court recognized that laws and ordinances can be enforced in such a way that they have an unequal effect on certain groups of people. In Yick Wo v. Hopkins, (48) a man named Yick Wo challenged his imprisonment for violating a San Francisco municipal ordinance regulating laundries. The ordinance required the consent of the board of supervisors to operate a laundry out of a wooden building. The restriction did not apply to laundries housed in brick or stone buildings. Of the 320 laundries in San Francisco at the time, approximately 240 were owned and operated by Chinese individuals, with the vast majority in wooden structures. The statistics presented by Yick Wo to challenge the ordinance revealed that approximately 200 Chinese laundry operators applied for permission to continue operating their laundry businesses in wooden structures. All of these applications were denied. Meanwhile, all but one of the approximately 80 applications from non-Chinese owned laundries operated in wood en structures were granted. Yick Wo was imprisoned when he continued to operate his laundry without the permit and failed to pay the $10 fine imposed on him.

In spite of the clearly race-neutral language of the ordinance, Yick Wo challenged the enforcement of the permit requirement as a violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court upheld Yick Wo's challenge and directed that he be released from custody. In a strongly worded opinion by Justice Stanley Matthews, the Court found that the enforcement of the ordinance had been undertaken "with a mind so unequal and oppressive as to amount to a practical denial by the state of that equal protection of the laws...which is secured...by the broad and benign provisions of the Fourteenth Amendment to the Constitution of the United States." (49) Matthews recognized that although "the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equa l justice is still within the prohibition of the Constitution." (50) The Supreme Court struck down the local ordinance, which, on its face, certainly treated members of all races the same.

Courts have recognized that objectively reasonable police actions, such as lawful searches and seizures conducted with the requisite probable cause or reasonable suspicion, still may be challenged under the Constitution's Equal Protection Clause if they are used to selectively target individuals because of their race or other protected status. In other words, if police lawfully seize (arrest or detain) or lawfully search a disproportionately large number of persons from one group, they are open to claims of selective enforcement of the law or unequal protection of the law. As one New Jersey court has put it, objectively reasonable police action is subject to constitutional challenge if a department has "embarked upon an officially sanctioned de facto policy of targeting minorities for investigation and arrest." (51)

When bringing this type of equal protection challenge--that facially neutral laws are being enforced in an intentionally discriminatory manner--the Supreme Court has developed a threshold standard to prevail on the challenge. In U.S. v. Armstrong, (52) two black defendants alleged that the prosecuting attorney had singled them out for prosecution because of their race. To prevail on their selective prosecution claim, the Court held that the defendants would have to "produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not...." (53) Thus, victims of alleged racial profiling must argue that they are being subjected to police action or prosecution when members of other races are not, even though they could be.

This threshold burden has made statistical data an important component in most racial profiling challenges. The absence of data to support or defend many of these challenges has created the need to compile detailed statistics of everyday police actions. A 1995 federal court case demonstrates the importance of statistical analysis in equal protection cases.

In U.S. v. Travis, (54) the U.S. Court of Appeals for the Sixth Circuit faced a claim that police violated the Equal Protection Clause by targeting a woman for questioning because of her race. A detective, assigned to the Cincinnati/Northern Kentucky Airport, focused his investigative attention on a flight arriving from Los Angeles because numerous passengers from the same flight had been arrested for drug possession in the past. The detective examined the list of passengers for anyone connecting to a city known for drug distribution. While reviewing the list, his interest was piqued by the name "Angel Chavez" because, according to his testimony, of the unusual first name coupled with a common surname. He denied selecting the name because it was Hispanic. The detective then determined that Chavez's ticket was one-way from Los Angeles to Cleveland, and it was purchased 5 hours before departure from a travel agency which the detective recognized as one located within the Los Angeles airport that had sold ticket s to several drug couriers arrested in prior cases. When no one got off the flight whom he believed to be Chavez, he went to the boarding gate for the Cleveland flight. He saw two women traveling alone. Both were African-American. After eliminating one woman, the detective approached the defendant. He identified himself as an airport police officer. She identified herself as "Angela Chavez" and produced an Ohio driver's license in the name of Angela Travis. The detective informed her that he was looking for narcotics or narcotics proceeds and asked for permission to look in her bags. She consented and officers found cocaine in her purse and arrested her. Travis sought suppression of the evidence on the ground that police had targeted her for a consensual encounter because of her race. Her argument rested on statistics compiled from incident reports prepared by the Airport Police Task Force.

The court first noted that there was no Fourth Amendment search and seizure issue in the case. All parties agreed that both the encounter with Travis and the search of her bags was consensual. Consequently, the detectives did not need reasonable suspicion or probable cause to justify their actions. (55)

However, both the government and Travis agreed, and the court ruled that consensual encounters and searches based solely on race may violate the Equal Protection Clause of the Fourteenth Amendment without a showing of a compelling governmental interest, even absent a Fourth Amendment violation. (56) To prove this type of claim, defendants must produce facts or statistics showing that they were targeted solely because of their race. The burden then shifts to the police to show that they did not act solely on the basis of the defendant's race or that they had a compelling reason for the race-based encounter. Where police motives for the consensual encounter are mixed (include both race and nonrace reasons), there is no equal protection violation, according to the Sixth Circuit. (57) The court did not address the appropriate remedy for equal protection violations because it found no violation in this case.

The defendant (Travis) lost her challenge because the government showed that the police had several reasons for questioning her independent of race. They included the purchase of a one-way ticket from Los Angeles to Cleveland, a city known for drug trafficking; the authorities' past experience of arresting several drug traffickers on this flight; her ticket purchase only 5 hours prior to departure from a travel agency that had sold tickets to drug traffickers in the past; and the name "Angel Chavez" appearing on the ticket. Because Travis had not been selected solely because of her race (in fact, the detective testified race was not an issue at all), the court found no equal protection violation.

In an interesting concurring opinion, one judge agreed with the result of the case but found this equal protection analysis flawed. Judge Alice M. Batchelder noted that officers need "no reason whatever to approach citizens for the purpose of engaging in consensual encounters." (58) Thus, she was "mystified" that the majority would hold that while a consensual encounter with a nonminority individual requires no basis for suspecting that individual of wrongdoing, a consensual encounter with a member of a minority race must be based on some articulable or particularized suspicion of a nonracial nature. (59) She argued that because there is no constitutional right not to be encountered by police, there can be no equal protection violation in such consensual encounters.

It is important to note that like most claims of equal protection violations, the defendant in Travis relied on statistics to support her allegation. She presented numbers gathered from incident reports generated by the Airport Police Task Force. On the surface, the numbers seemed to support her claim. The appellate court pointed out, however, that the statistics used were misleading. The reports recorded only encounters that ended in arrest or were otherwise suspicious enough to merit a report. Not all consensual encounters at the airport were reported. Additionally, the statistics only related to task force encounters at the airport, not all police encounters at the airport. Many of the reports did not include the race of the person encountered. Finally, the reports used by the defendant focused on the race of airline passengers encountered at the airport on various routes; there was no information regarding the racial makeup of passengers traveling the particular route at issue. The lesson is clear for law enforcement. Statistics can be misleading. For this reason, all claims of racial profiling based on statistics must be closely examined.

LEGITIMATE USE OF RACE

An important question not addressed in cases discussed thus far is whether race ever can be a valid consideration when conducting law enforcement activity.

Race can be a legitimate consideration for police officers. In the Travis (60) opinion, the majority concluded that "race or ethnic background may become a legitimate consideration when investigators have information on this subject about a particular suspect." (61) Clearly, this consideration is not only constitutional but efficient and logical as well. A recent U.S. Second Circuit Court of Appeals case is illustrative.

In Brown v. City of Oneonta, (62) a 77-year-old woman was attacked near Oneonta, New York. The victim reported to the New York State Police that her assailant was a young black male and that he had cut his hand with his knife during the attack. A police canine unit tracked the assailant's scent from the scene of the crime toward the nearby campus of the State University of New York College at Oneonta ("SUCO"). Only 2 percent of the SUCO students were black. Based on this information, the police contacted SUCO and obtained a list of all black male students. They then attempted to locate and question every black male student at SUCO. When this effort produced no suspects, the police conducted a "sweep" of Oneonta. They questioned nonwhite persons on the streets and inspected their hands for cuts. Several people questioned, as well as those on the SUCO list, brought a civil action against various police departments, individual officers, and others. Their claims for damages included allegations that their rights under both the

Fourth and Fourteenth Amendments were violated. (63)

Using traditional Fourth Amendment analysis, the Second Circuit found that individuals seized, for Fourth Amendment purposes, had viable claims if the seizures were executed without the requisite reasonable suspicion or probable cause. (64) In other words, those seized solely because of their race were seized in violation of the Fourth Amendment. However, very few of the plaintiffs were actually seized; most answered police questioning during consensual encounters.

The appeals court found, furthermore, that the actions of the police did not deprive the plaintiffs of their right to equal protection under the law. The plaintiffs' argument that they had been denied equal protection by a law or policy that expressly classified persons on the basis of race was rejected. The court stated that the plaintiffs had not been "questioned solely on the basis of their race. They were questioned on the altogether legitimate basis of a physical description given by the victim of a crime." (65) It is clear that not all consideration of race when investigating crime is unconstitutional. (66)

CONSEQUENCES OF RACIAL PROFILING

It is important to note that the Brown case was a civil lawsuit brought by the plaintiffs against various police departments and individuals for monetary damages. If a person is intentionally denied constitutional (most likely his Fourteenth Amendment Equal Protection) rights by a police practice amounting to discriminatory racial profiling, that department and the individual officers engaging in the practice may well be subject to civil liability under a traditional Section 1983 lawsuit. (67) A successful Section 1983 lawsuit, of course, requires the plaintiff to allege and prove an intentional constitutional violation. Intentional racial profiling is a denial of one or more constitutional rights, subjecting those involved in the violation to civil liability.

CONCLUSION

The issue of racial profiling is one of great concern for law enforcement agencies throughout the country. Expensive statistical compilations have been mandated for some departments; many others have begun compiling records voluntarily. The same statistics can sometimes be interpreted by those on either side of a debate to support conflicting arguments. When claims of equal protection violations are made, statistical evidence is almost always used to support or defend the case.

Fourth Amendment challenges are analyzed in traditional terms to determine the reasonableness of a search or seizure. Depending on the circumstances of a particular seizure, police are required to possess either reasonable suspicion or probable cause. To conduct a valid search under the Fourth Amendment, either a warrant or an exception to the warrant requirement is necessary. The Supreme Court has consistently held that the subjective motivations of individual police officers do not make objectively reasonable Fourth Amendment searches and seizures unconstitutional. For this reason, few claims of racial profiling, even if race is the motivating factor of the officers involved, violate the Fourth Amendment. Only if actions are taken without the requisite reasonable suspicion, probable cause, warrant, or exception to the warrant requirement, will a search or seizure not pass Fourth Amendment muster.

Racially motivated police actions can be challenged using a Fourteenth Amendment Equal Protection clause argument. Individuals alleging an equal protection violation will have to produce evidence that they were subjected to police actions that were not initiated against similarly situated members of other races. This evidence usually comes in the form of statistics. However, statistics should not be accepted as definitive proof until they have been analyzed and put into the context in which they are being used. Many departments have begun compiling their own statistics to defend claims based on a different batch of statistics.

Training individual officers on the legal and practical issues involved with claims of racial profiling is of paramount importance. Preventing the improper use of race in policing is critical. It will not only help maintain credibility within the community, but it also may prevent civil liability on the part of the department and individual officers.

Special Agent Schott is a legal instructor at the FBI Academy.

Endnotes

(1.) M.T. Sprinkles letter to Editor, The Indianapolis Star, May 19, 2001.

(2. )See, e.g., Missouri R.S. 5 90.650:

2. Each time a peace officer stops a driver of a motor vehicle for a violation of any motor vehicle statute or ordinance, that officer shall report the following information to the law enforcement agency that employs the officer:

1) The age, gender, and race or minority group of the individual stopped.

(3.) See, e.g., Florida v. Royer, 460 U.S. 491 (1983). Royer defined the "drug courier profile" as an abstract of characteristics found to be typical of persons transporting illegal drugs, note 2.

(4.) Id.

(5.) Florida v. Royer, 460 U.S. at 525, note 6 (Rehnquist, J., dissenting).

(6.) See, e.g., Reid v. Georgia, 448 U.S. 438 (1980) and Royer at 525, note 6.

(7.) Florida v. Royer, 460 U.S. at 525, note 6. See, also, Terry v. Ohio, 392 U.S. 1 (1968).

(8.) United Slates v. Brignoni-Ponce, 422 U.S. 873, 887 (1975).

(9.) Brignoni-Ponce, 422 U.S. at 886-887 (1975) (appearance of Mexican ancestry alone is insufficient to justify a stop or arrest under the Fourth Amendment); United Slates v. Bautista, 684 F.2d 1286, 1289 (9th Cir. 1982) (race or color alone is not a sufficient basis for making an investigatory stop); Rodriguez v. California Highway Patrol, 89 F. Supp. 2d 1131 (N.D. Cal. 2000) (race or appearance alone is insufficient to justify a stop or arrest, FN5).

(10.) Korematsu v. United States, 323 U.S. 214, 216 (1944).

(11.) Id.

(12.) Korematsu, 323 U.S. at 214.

(13.) Executive Order No. 9066, 7 Fed. Reg. 1407, which declared that "the successful prosecution of the war requires every possible protection against espionage and against sabotage...."

(14.) U.S. Const. amend.v, which states, in pertinent part, "No person shall be...deprived of life, liberty, or property, without due process of law."

(15.) Korematsu, 323 U.S. at 218.

(16.) Id. at 218-219.

(17.) U.S. Const. amend. IV.

(18.) A Fourth Amendment search is a governmental invasion into a person's reasonable expectation of privacy. See, e.g., Oliver v. US., 466 U.S. 170 (1984). A Fourth Amendment seizure occurs when, in view of all of the circumstances surrounding an incident, a person reasonably believes he or she is not free to leave an encounter with a governmental official. See, e.g., Michigan v. Chesternut, 486 U.S. 567 (1988).

(19.) Terry v. Ohio, supra note 7.

(20.) Beck v. Ohio, 379 U.S. 89 (1964).

(21.) Supra note 9.

(22.) 517 U.S. 806 (1996).

(23.) Id. at 812.

(24.) Whren, 517 U.S. at 813.

(25.) Katz v. United States, 398 U.S. 347 (1967). The five exceptions to the search warrant requirement recognized by the Supreme Court are the consent search (Schneckloth v. Bustamonte, 412 U.S. 218 [1973]); the search incident to arrest (US. v. Robinson, 414 U.S. 218 [1973]); the emergency or exigent circumstances search (Warden v. Hayden, 387 U.S. 294 [1967]); the motor vehicle search (Carroll v. US., 267 U.S. 132 [1925]); and the inventory search (South Dakota v. Opperman, 428 U.S. 364 [1976]).

(26.) U.S. Const. amend. IV, states in pertinent part, "...no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

(27.) See, e.g., Schneckloth v. Bustamonte, supra note 25.

(28.) See, e.g., Chimel v. California, 395 U.S. 752 (1969).

(29.) Ohio v. Robinette, 519 U.S. 33 (1996).

(30.) Schneckloth v. Bustamonte, supra note 25.

(31.) Whren, supra note 22 at 812-813.

(32.) US. v. Robinson, supra note 25.

(33.) Knowles v. Iowa, 525 U.S. 113 (1998).

(34.) Atwater v. City of Logo Vista, 121 5. Ct. 1536 (2001).

(35.) Id.

(36.) Atwater, supra note 34 at 1541.

(37.) Atwater, supra note 34 at 1566.

(38.) Atwater, supra note 34 at 1567.

(39.) Atwater, supra note 34 at 1567.

(40.) Whren, supra note 22 at 813.

(41.) U.S. Const. amend. XIV provides, in pertinent part, "[N]or shall any State...deny to any person within its jurisdiction the equal protection of the laws."

(42.) Craig v. Boren, 429 U.S. 190, 211 (1976).

(43.) Heller v. Doe, 509 U.S. 312 (1993); Board of Trustees of the University of Alabama, et. al. v. Garrett, 531 U.S. 356 (2001).

(44.) Romer v. Evans, 517 U.S. 620 (1996).

(45.) Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).

(46.) Yick Wo v. Hopkins, 118 U.S. 356 (1886).

(47.) Village of Arlington Heights v. Metropolitan Housing Development Authority, 429 U.S. 252 (1977).

(48.) Yick Wo, supra note 46.

(49.) Yick Wo, supra note 46 at 373.

(50.) Yick Wo, supra note 46 at 373-374.

(51.) State v. Kennedy, 588 A.2d 834 (N.J. Super. 1991).

(52.) 517 U.S. 456 (1996).

(53.) Id. at 469.

(54.) 62 F.3d 170 (6th Cir. 1995).

(55.) Id. at 173.

(56.) Travis, 62 F.3d at 173-174.

(57.) Travis, 62 F.3d at 174.

(58.) Travis, 62 F.3d 170, 176 (Batchelder, J., dissenting).

(59.) Id.

(60.) Travis, supra note 54.

(61.) Id. at 174.

(62.) 195 F.3d 111 (2nd Cir. 1999).

(63.) Id. at 116.

(64.) Brown v. City of Oneonta, 195 F.3d at 121-122.

(65.) Id. at 119.

(66.) On June 4, 2001, the Supreme Court refused a writ of certiorari from a Fifth Circuit Court of Appeals case in which the plaintiffs in a civil lawsuit alleged that they had been held and questioned solely because they are black. The lower federal courts, had thrown out the $30 million civil rights lawsuit on the grounds that the officers had the discretion to make the arrests and were immune from suit. Bibbs v. Lubbock, 69 U.S.L.W. 3673 (No. 00-1550).

(67.) 42 USCA 1983.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

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