Reasonable But Unconstitutional: Racial Profiling and the Radical Objectivity of Whren V. United States

61 Pages Posted: 3 Dec 2015

See all articles by Gabriel Jackson Chin

Gabriel Jackson Chin

University of California, Davis - School of Law

Charles Vernon

University of Arizona - James E. Rogers College of Law

Date Written: September 2, 2015

Abstract

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.

Keywords: Whren v. United States, Supreme Court, race discrimination, driving while black

Suggested Citation

Chin, Gabriel Jackson and Vernon, Charles, Reasonable But Unconstitutional: Racial Profiling and the Radical Objectivity of Whren V. United States (September 2, 2015). George Washington Law Review, Vol. 83, No. 3, April 2015, Available at SSRN: https://ssrn.com/abstract=2698443

Gabriel Jackson Chin (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
400 Mrak Hall Dr.
Davis, CA 95616-5201
United States
520-401-6586 (Phone)
530-754-5311 (Fax)

Charles Vernon

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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