Car Wars: The Fourth Amendment's Death on the Highway
George Washington Law Review, Vol. 66, No. 3, 1998
36 Pages Posted: 26 Oct 1998 Last revised: 27 Mar 2009
Date Written: May 1998
In just the past few terms, the Supreme Court has issued several decisions that have increased police discretion to stop and question drivers and passengers and search both these persons and their vehicles. These cases are only the latest in a line that has slowly but surely made it ever easier for police to do these things without being concerned with procedural or constitutional obstacles.
This article traces the history of those cases, and argues that, however much protection the Fourth Amendment might accord to an ordinary citizen in his or her home or even walking down the street, it is almost meaningless when applied to one of the most common activities of everyday life in the late twentieth century: driving or riding in a vehicle. Indeed, for a driver or passenger, it is no exaggeration to say that the Fourth Amendment's safeguards against unreasonable searches and seizures simply do not exist in any practical sense. A police officer can follow the law to the letter and at the same time feel quite confident of being able to stop and search almost anyone of interest, regardless of the existence of probable cause or even reasonable suspicion to believe that a crime has been committed. While this regime no doubt benefits law enforcement's ability to ferret out crime, especially drug-related offenses, it also carries substantial unacknowledged costs in the form of searches and seizures of law-abiding persons, many of whom are searched on multiple occasions. Moreover, these costs to innocent persons are not paid by everyone, but instead are distributed based on the race and ethnicity of drivers and passengers. The article discusses these practices and offers four proposals for reform.
Keywords: Fourth Amendment, search and seizure, discrimination, civil rights, police discretion, law enforcement, Whren v. United States, Ohio v. Robinette, Maryland v. Wilson
JEL Classification: K14
Suggested Citation: Suggested Citation