The New Jim Crow_ Mass Incarceration in the Age of Colorblindness - Michelle Alexander [38]
Courts and scholars agree that the Fourth Amendment governs all searches and seizures by the police and that the amendment was adopted in response to the English practice of conducting arbitrary searches under general warrants to uncover seditious libels. The routine police harassment, arbitrary searches, and widespread police intimidation of those subject to English rule helped to inspire the American Revolution. Not surprisingly, then, preventing arbitrary searches and seizures by the police was deemed by the Founding Fathers an essential element of the U.S. Constitution. Until the War on Drugs, courts had been fairly stringent about enforcing the Fourth Amendment’s requirements.
Within a few years after the drug war was declared, however, many legal scholars noted a sharp turn in the Supreme Court’s Fourth Amendment jurisprudence. By the close of the Supreme Court’s 1990-91 term, it had become clear that a major shift in the relationship between the citizens of this country and the police was underway. Justice Stevens noted the trend in a powerful dissent issued in California v. Acevedo, a case upholding the warrantless search of a bag locked in a motorist’s trunk:In the years [from 1982 to 1991], the Court has heard argument in 30 Fourth Amendment cases involving narcotics. In all but one, the government was the petitioner. All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Court upheld the constitutionality of the search or seizure. In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive’s fight against crime.8
The Fourth Amendment is but one example. Virtually all constitutionally protected civil liberties have been undermined by the drug war. The Court has been busy in recent years approving mandatory drug testing of employees and students, upholding random searches and sweeps of public schools and students, permitting police to obtain search warrants based on an anonymous informant’s tip, expanding the government’s wiretapping authority, legitimating the use of paid, unidentified informants by police and prosecutors, approving the use of helicopter surveillance of homes without a warrant, and allowing the forfeiture of cash, homes, and other property based on unproven allegations of illegal drug activity.
For our purposes here, we limit our focus to the legal rules crafted by the Supreme Court that grant law enforcement a pecuniary interest in the drug war and make it relatively easy for the police to seize people virtually anywhere—on public streets and sidewalks, on buses, airplanes and trains, or any other public place—and usher them behind bars. These new legal rules have ensured that anyone, virtually anywhere, for any reason, can become a target of drug-law enforcement activity.
Unreasonable Suspicion
Once upon a time, it was generally understood that the police could not stop and search someone without a warrant unless there was probable cause to believe that the individual was engaged in criminal activity. That was a basic Fourth Amendment principle. In Terry v. Ohio, decided in 1968, the Supreme Court modified that understanding, but only modestly, by ruling that if and when a police officer observes unusual conduct by someone the officer reasonably believes to be dangerous and engaged in criminal activity, the officer “is entitled for the protection of himself and others in the area” to conduct a limited search “to discover weapons that might be used against the officer.”9 Known as the stop-and-frisk