Fourth Amendment Challenges &

THE EFFECTS OF RACE

J UVENILE D EFENSE T RAINING A CADEMY

G REEN H ILL S CHOOL

S EPTEMBER 14 , 2018

FAC U LT Y: J I S E O N S O N G , T h o m a s C . G r e y F e l l o w a n d L e c t u r e r i n L a w, S t a n f o r d U n i v e r s i t y C L A R E N C E H E N D E R S O N, J U V E N I L E U N I T S U P E R V I S O R , D A C , P I E R C E C O U N T Y

mailto:jssong@law.stanford.eduhttps://drive.google.com/a/law.stanford.edu/file/d/17LxyiC02I3J4ReubYMm-yf_fMRTkrK_N/view?usp=drive_webmailto:clarence.henderson@piercecountywa.gov

What does the Fourth Amendment actually say?

THE CONSTITUTION

1. Expectation of privacy!!

2. S & S must be reasonable

3. Warrants are necessary to justify S & S 4. Prob. cause

is necessary for warrant to issue5. Warrants have

to be specific

How to Raise 4thissues?

Does this apply to children?

DOES RACE MATTER?

SHORTCOMINGS OF THE 4thAMENDMENT FRAMEWORK

4th Amend allows pretext stops (Whren): Even if motivated by race, stop okay so long as another reason exists

Reasonable Person in 4th Am. context fails to account for race

RAS and PC Factors are often proxies for race

Reasonable Person One who possesses the intelligence, educational background, level of prudence, and temperament of an average adult.

HOPE?

ADVANCES IN ADOLESCENT DEVELOPMENT & NEUROSCIENCE RESEARCH

ADVANCES IN COGNITIVES SCIENCE AND IMPLICIT RACIAL BIAS

PUBLIC OUTCRY OVER CONTEMPORARY POLICE-BLACK RELATIONS

Reasonable ChildJ.D.B. v North Carolina, 564 U.S. 261 (2011)

J.D.B. effectively adopted “reasonable child” standard for Miranda custody purposes.◦ a “reasonable child subjected to police questioning will sometimes feel pressured to submit

when a reasonable adult would feel free to go.” at 2402-03

◦ Youth is an unambiguous fact that “generates commonsense conclusions about behavior and perception” at 2043

Defenders should argue that there is a logical extension to the 4th Amendment (especially for school situations).

SEIZURE NORMED ON REASONABLE PERSON

Objective standard: whether the police behavior would have communicated to a “reasonable person” that he was not at liberty to walk away (Michigan v. Chesternut)

RACE AND ADOLESCENCE CONVERGE AT SEIZURE

YOUTH◦ Power imbalance between

child and police◦ Socialized to comply with

adults◦ Less experience with law and

rights◦ Grisso’s research on

adolescent capacity to decide and compliance with authority in law enforcement context

RACE

Vicarious and collective negative experiences with police

Black Families transmit norms

Negative experiences with SROs

Hostile and aggressive on-the-street encounters with police

Community resentment

US. V. Smith, 794 F.2d 681 (7th Cir. 2015)

Held: Mr. Smith was seized and not free to leave

PD Brief:

Cited police misconduct studies

Highlighted fact that Mr. Smith was black male in urban area

Police relations were strained

Mr. Smith knew any wrong move could result in death

Met officer in dark alley and officer immediate inquired whether he was armed

Consent to SearchPolice must show that consent was freely given, and not the result of express or implied duress and coercion. Schneckloth v. Bustamonte, 412 US 218, 219 (1973)

◦ Consent analysis not only involves some objective evaluation of the facts and circumstances, but it is also a subjective inquiry that takes into account personal experiences that drive fears and motivate people to act. at 234.

◦ Must also consider the “possibly vulnerable subjective state of the person who consents.” at 229

RACE & ADOLESCENCE CONVERGE AT CONSENT

YOUTH

More deferential to adults

Less experience with legal rights

Part of brain for logical reasoning is last to develop

Capacity to identify consequences immature

Preference for short term gain

Race

Fear

Distrust between police and African American communities

RACE AND REASONABLE ARTICULABLE SUSPICION

Terry v. Ohio, 392 US 1 (1968)

Fourth Amendment is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest as long as the officer had reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has reasonable belief that the person “may be armed and presently dangerous”

POLITICAL/SOCIAL CLIMATE

Terry arrested in 1963; case decided in 1968

Heart of civil rights movement

Cleveland specifically:◦ School integration◦ White flight

LOCATION (CLEVELAND)

Social and Political Context: Race in Terry v. Ohio

REASONABLE ARTICULABLE SUSPICION STOP AND FRISK PROXIES FOR RACE

High crime area

Failure to respond to police

Flight

Departure upon seeing police

Furtive gestures/Nervousness

Tips from informants

Casing

Description match

Exchanges b/w individuals

Association w/ known offender

Temporal/spatial proximity to crime

Description of crime involving weapon

Observation of a weapon

Body language consistent with weapon-possession (holding waistband)

Gun shots

Bulge in clothing

Furtive gestures as if searching/concealing weapon

PROXIES FOR RACE

PROXIMITY OR PRESENCE

IN HIGH CRIME AREABrown v. Texas, 443 U.S. 47, 52 (1979) (noting that an individual’s presence in an area with high levels of narcotics trafficking is insufficient to allow stop or frisk). ◦ “presence in a high crime neighborhood [alone] is a fact too generic and

susceptible to innocent explanation to satisfy the reasonable suspicion inquiry.”

US v. Montero-Camargo, 208 F.3d 1122, 1138 (9th Cir. 2000) "the citing of an area as `high-crime' requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity."

ASSOCIATION WITH KNOWN CRIMINALS

“[m]ere association with a known criminal cannot on its own be a basis for ‘reasonable suspicion.’” Ybarra v. Illinois, 444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L. Ed. 2d 238 (1979) Sibron v. New York, 392 US 40 (1968), officer observed defendant associating with 6-8 known drug addicts over course of 8 hours and talking to 3 more known addicts later on at a restaurant. The officer eventually thrust his hand into the defendant’s pocket and found heroine. The Court noted that “reasonable suspicion required more than mere association with known criminals or addicts.”

DESCRIPTIONS: BOLOSRace becomes irrelevant when it describes the majority of a population in the area, and a seizure will be unconstitutional when it is based on a description that is too broad and would apply to a large number of youth at a given time. ◦ In re T.L.L., 729 A.2d 334, 340-41 (D.C. 1999) - finding description insufficient to justify

seizure when lookout of two black teenagers wearing dark clothing could have fit many, if not most, black young men in the area at the time.

◦ Matter of A.S., 614 A.2d 534, 538 (D.C. 1992) finding description applied to a “potentially staggering number of youths in the quadrant of the city where the arrest took place.”)

DESCRIPTIONS: RACE AND RACIAL INCONGRUITY

RAS will not be met if the officer’s suspicion “is based solely on racial incongruity—when a person is seen in a particular geographic area that is predominantly populated with people of a different race.”

United States v. Hawthorne, 982 F.2d 1186, 1190 (8th. Cir. 1992).

SUBJECTIVE INTEPRETATIONS IN EASONABLE ARTICULABLE SUSPICION

High crime area

Failure to respond to police

Flight

Departure upon seeing police

Furtive gestures/Nervousness

Tips from informants

Casing

Description match

Exchanges b/w individuals

Association w/ known offender

Temporal/spatial proximity to crime

Description of crime involving weapon

Observation of a weapon

Body language consistent with weapon-possession (holding waistband)

Gun shots

Bulge in clothing

Furtive gestures as if searching/concealing weapon

Implicit Racial Bias and Reasonable Articulable Suspicion

Implicit Bias Affects Police Attention and Perception of Suspect Behavior

Implicit Bias Affects Police Interpretation of Whatever Behavior they Observe

Current Commonsense Interpretations of Various Behaviors Fail to Account for Race

RACE AND ADOLESCENCE CONVERGEPOLICE PERCEPTIONS OF YOUTH

Youth have more contact with police than adults (heightened surveillance)

Officers expect youth to be anti-authoritarian

Officers have little understanding of adolescent development

BUT WHAT ABOUT TAMIR RICE?

IRB RESEARCH:PERCEPTIONS OF YOUTH OF COLOR

The general public:Perceived African American felony suspects as 4.53 years

older than they actually wereAmong law enforcement:Also rated African American felony suspects as 4.59 years

older than they actually wereAmong bothPerceived white youth as less culpable when suspected of a

felony than when suspected of a misdemeanorPerceived black felony suspects as significantly more

culpable than either white or Latino felony suspects

Goff, P.A., et al. (2014). The essence of innocence: Consequences of dehumanizing Black children, Journal of Personality & Social Psychology, 106, 526-545.

Perceived Innocence / Culpability of Black Youth

Subjects perceived:Youth ages 0–9 as equally innocent regardless of race Innocence of Black children age 10–13 equivalent to that of other children age 14–17Innocence of Black children age 14–17 equivalent to that of non-Black adults age 18–21.

Implicit Racial BiasHOSTILITY, NERVOUSNESS, FURTIVE GESTURES

Several studies have found that individuals are more likely to interpret ambiguous behavior by blacks as◦ more aggressive and ◦ consistent with violent intentions

while interpreting the same behavior by whites as harmless.

Implicit Racial Bias Research: PERCEPTIONS OF HOSTILITY

Study: Participants viewed brief movie clip in which a target’s facial expression morphed from unambiguous hostility to unambiguous happiness and vice versa in a second clip. ◦ Participants with higher levels of implicit bias took longer to perceive black

faces change from hostile to friendly, but not white faces. ◦ In the second clip, participants perceived the onset of hostility much earlier for

black faces than white faces. Kurt Hugenberg & Galen V. Bodenhausen, Facing Prejudice: Implicit Prejudice and the Perception of Facial Threat, 14 PSYCH SCI 640-643 (2003).

IRB RESEARCH: WEAPONS PERCEPTION

Study: Participants viewed series of black or white faces and then determined whether the faint outline of an ambiguous object that slowly emerged on the screen was crime-related or neutral. ◦ Participants were quicker to see a crime-related object when

associating the object with a black face than with a white face.

Jennifer L. Eberhardt, et al., Seeing Black: Race, Crime, and Visual Processing, 87 J. PERSONALITY & SOC. PSYCHOL. 876, 881(2004)

IRB RESEARCH: Misremembering Facts in Racially

Biased Ways

IRB causes people to misremember and recall facts in racially biased ways.

Study: When asked to recall facts from a fictional story, mock jurors were significantly more likely to recall the fictional defendant as being aggressive when he was black than when he was white or Hawaiian.

Justin D. Levinson, Forgotten Racial Equality: Implicit Bias, Decisionmaking, and Misremembering, 57 DUKE L.J. 345, 347-50 (2007).

RACIAL BIAS & WHRENWhren v. United States (1996) 517 U.S. 806 (Scalia, J.)

- Police can use a traffic or other criminal law violation as a pretext for an intentionally discriminatory search.

- “[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."

RACE MIGHT STILL BE RELEVANT IN WHREN

Race-based facts are relevant to officer reliability on the facts relied upon for stop/search

Even when officer credible, implicit bias may affect objective basis claimed by officer, by ◦ Subconsciously distorting officer’s “observation” of “facts” on

scene and◦ Impacting officer recollection of those facts at the

suppression hearing

COMMON SENSE JUDGEMENTS ABOUT THE MEANING OF BEHAVIOR

Illinois v Wardlow, 528 US 119, 125 (2000) that “the determination of reasonable suspicion must be based on commonsense judgments and inferences about human behavior,”

J.D.B. v. North Carolina, as discussed above that a child’s age: “generates commonsense conclusions about behavior and perception.”

FLIGHTWardlow, J. Stevens concurrence, 528 U.S. at 132:

“Among some citizens, particularly minorities…there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart from any criminal activity associated with the officer's sudden presence. For such a person, unprovoked flight is neither “aberrant” nor “abnormal.” Moreover, these concerns and fears are known to the police officers themselves, and are validated by law enforcement investigations into their own practices… The probative force of the inferences to be drawn from flight is a function of the varied circumstances in which it occurs.”

FLIGHTCommonwealth v. Warren,

475 Mass. 530 (Mass. 2016).Held: Defendant Jimmy Warren did not behave in an inherently suspicious manner by attempting to evade that interaction when approached by police for report of a break-in.

◦ Cited Boston Police Department data & ◦ 2014 ACLU of Massachusetts report on

racially discriminatory department practices that disproportionately targeted Black and Latino communities.

RACE AND ADOLESCENCE CONVERGE AT FLIGHT

YOUTH

Less experience with legal rights

Part of brain for logical reasoning is last to develop

Capacity to identify consequences immature

Preference for short term gain

Peer influence – one kid runs, they all run

RACE

Fear

Distrust between police and African American communities

Statement of resistance to a perceived corrupt law enforcement system

IRB and the RecordIn moving or reply papers, attach scientific studies regarding implicit bias.

If time and money permit, call experts as witnesses.◦ Psychologists, sociologists, legal theorists, cultural experts

Using IRB in cross-examination of police officer:◦ IRB affects how we later remember facts

Using IRB in oral argument◦ Trial courts should consider IRB when determining officer’s credibility

and memory of what justified the stop, frisk or search◦ Argue that officer is filling in details when defendant is black

PUTTING RACE ON THE RECORD

Race of your client

Race of the police officer

Heavily policed neighborhood.

Percentage of population black

Percentage of population incarcerated

Percentage of population below poverty line

Pattern of policing by this particular police officer or unit (i.e., gang unit)

Recent event (i.e., Mario Woods, Oscar Grant)

RACE & ADOLESCENCE CONVERGE

YOUTH

More deferential to adults

Less experience with legal rights

Part of brain for logical reasoning is last to develop

Capacity to identify consequences immature

Preference for short term gain

RACE

Fear of harm

Distrust between police and African American communities

Fourth Amendment Challenges

& THE EFFECTS OFRACE

Fourth � Amendment Challenges & the Effects of Race�What does the Fourth Amendment actually say?THE CONSTITUTION How to Raise 4th issues?DOES RACE MATTER?SHORTCOMINGS OF THE 4th AMENDMENT FRAMEWORKReasonable Person HOPE? Reasonable ChildSEIZURE NORMED �ON REASONABLE PERSONRACE AND ADOLESCENCE CONVERGE AT SEIZUREUS. V. Smith, 794 F.2d 681 �(7th Cir. 2015)Consent to SearchRACE & ADOLESCENCE �CONVERGE AT CONSENTRACE AND REASONABLE ARTICULABLE SUSPICION�Terry v. Ohio, �392 US 1 (1968)Slide Number 17�REASONABLE ARTICULABLE SUSPICION �STOP AND FRISK PROXIES FOR RACEPROXIES FOR RACEPROXIMITY OR PRESENCE �IN HIGH CRIME AREAASSOCIATION WITH KNOWN CRIMINALSDESCRIPTIONS: BOLOSDESCRIPTIONS: RACE AND �RACIAL INCONGRUITY�SUBJECTIVE INTEPRETATIONS IN EASONABLE ARTICULABLE SUSPICION �Implicit Racial Bias and �Reasonable Articulable SuspicionRACE AND ADOLESCENCE CONVERGE�POLICE PERCEPTIONS OF YOUTHIRB RESEARCH:�Perceptions of Youth of ColorPerceived Innocence / Culpability of Black Youth�Implicit Racial Bias�HOSTILITY, NERVOUSNESS, FURTIVE GESTURES�Implicit Racial Bias Research: �PERCEPTIONS OF HOSTILITYIRB RESEARCH: �WEAPONS PERCEPTIONIRB RESEARCH: �Misremembering Facts in Racially Biased WaysRACIAL BIAS & WHRENRACE MIGHT STILL BE RELEVANT IN WHRENCOMMON SENSE JUDGEMENTS ABOUT THE MEANING OF BEHAVIORFLIGHTFLIGHTRACE AND ADOLESCENCE CONVERGE AT FLIGHTIRB and the RecordPUTTING RACE ON THE RECORDRACE & ADOLESCENCE CONVERGE Fourth � Amendment Challenges