Christopher Slobogin (Vanderbilt University – Law School) has posted Equality in the Streets: Using Proportionality Analysis to Regulate Street Policing (American Journal of Law & Equality) on SSRN. Here is the abstract:
The racially disparate impact and individual and collective costs of stop and frisk, misdemeanor arrests, and pretextual traffic stops have been well documented. Less widely noticed is the contrast between Supreme Court caselaw permitting these practices and the Court’s recent tendency to strictly regulate technologically-enhanced searches that occur outside the street policing setting and that—coincidentally or not—happen to be more likely to affect white people and the middle class. If, as the Court has indicated, electronic tracking and searches of digital records require probable cause that evidence of crime will be found, stops and frisks should also require probable cause that a crime has been committed (in the case of stops) or that evidence of crime will be found (in the case of post-detention searches). This equalization of regulatory regimes not only fits general notions of fairness. It is also mandated by the Fourth Amendment’s Reasonableness Clause and the Court’s cases construing it, which endorse a “proportionality principle” that requires that the justification for a search or seizure be roughly proportionate to its intrusiveness.
Applying the probable cause requirement to the streets would not prevent police from carrying out investigative detentions when they believe criminal activity “may be afoot.” Rather, it would limit such detentions and subsequent searches to situations where they observe or have other good basis for believing that a person has engaged or is engaging in an attempted crime as defined by the law of the jurisdiction. While Terry v. Ohio and some of the Supreme Court’s other stop cases would still come out the same way under this formulation, judicial decisions that have permitted stops of people simply because they avoided the police, fit a “profile,” acted in a “furtive” manner, or appeared out of place would not. The equalization of street and technological policing would bring even more significant changes to the law governing searches incident to arrest, which could occur only when police have probable cause to believe the person has a weapon or possesses evidence of crime (although, given the fact that an arrest has been made, handcuffing would be permitted). Imposing the probable cause standard developed in technological search cases on street policing can promote equality without sacrificing public safety.