AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 2 | 2022

AMERICAN JOURNAL
of LAW and EQUALITY

EQUALITY IN THE STREETS
Using Proportionality Analysis to Regulate Street Policing

Christopher Slobogin*

The racially disparate impact and individual and collective costs of stop and frisk, misde-
meanor arrests, and pretextual traﬃc stops have been well documented. Less widely noticed
is the contrast between Supreme Court case law 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
the middle class. Wenn, 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, welche
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 another good basis for believing that a person has engaged or is en-
gaging 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 un-
der 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

*Christopher Slobogin, Milton Underwood Professor of Law, Vanderbilt University.

© 2022 Christopher Slobogin. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0
International license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00031

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EQUALITY IN THE STREETS

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.

In Terry v. Ohio1 the Supreme Court held that, despite the Fourth Amendment’s reference
to “probable cause,” police may subject a person to a brief seizure (a stop) on a lesser
“reasonable suspicion” showing that “criminal activity may be afoot” and then may con-
duct a pat-down (a frisk) if they develop reasonable suspicion that the person is armed and
dangerous. The Terry Court gave two reasons for its invention of the reasonable-suspicion
standard. Erste, stops and frisks are less intrusive than arrests and full searches and there-
fore can take place on less than the probable cause required to take people into custody or
to search them for evidence.2 Second, police need some mechanism, short of arrest, Das
allows them to nip crime in the bud and protect themselves and others while doing so.3
These explanations notwithstanding, critics have claimed that Terry is not supported by
the Fourth Amendment’s language and history,4 hands too much power to the police,5 Und
opens the door to laxer standards whenever government can argue that individual inter-
ests are weaker or government interests stronger than in the typical case.6

Terry has been particularly controversial among those concerned about racialized
policing, who have lambasted the decision’s relaxation of the probable-cause standard
as an invitation for police to harass people of color. The available data back up these
Ansprüche. In many American cities, tens of thousands of Black people are subjected to stops

1
2

Terry v. Ohio, 392 UNS. 1 (1968).
Id. bei 27 (“Petitioner’s reliance on cases which have worked out standards of reasonableness with regard to
‘seizures’ constituting arrests and searches incident . . . assumes that the interests sought to be vindicated and
the invasions of personal security may be equated in the two cases, and thereby ignores a vital aspect of the
analysis of the reasonableness of particular types of conduct under the Fourth Amendment.”).
Id. bei 24 („[W]e cannot blind ourselves to the need for law enforcement oﬃcers to protect themselves and other
prospective victims of violence in situations where they may lack probable cause for an arrest.”).
Two scholars who question whether Terry can be squared with Fourth Amendment history are David A.
Sklansky, The Fourth Amendment and Common Law, 100 COLUM. L. REV. 1739, 1804–05 (2000), and George
C. Thomas III, Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the
Fourth Amendment, 80 NOTRE DAME L. REV. 1451, 1514–16 (2005).
Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View, 74 MISS. L.J. 423, 458–59 (2004) („[T]he Terry
outcome focused only on the crime prevention issue and ignored the problems associated with the exercise of the
enormous power the Court in Terry bestowed on the police.”).
Scott Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 MINN. L.
REV. 383, 403 (1988) (“The problem with the middle position of reasonable suspicion is that it invariably sounds
reasonable because its essence is a compromise between the government’s need to intrude and the individual’s
privacy interest.”).

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AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 2 | 2022

jedes Jahr, well out of proportion to their presence in the city’s population or their en-
gagement in illegal activity.7 Yet in cities like New York during the height of its stop-and-
frisk campaign, the percentage of the millions of stopped people who were found to have a
gun was well below one percent, the percentage of those arrested for any crime after a stop
was well below ten percent, and these “hit rates” were signiﬁcantly lower for Black people
than for white people.8

While stopping and frisking pedestrians is the aspect of street policing most maligned
by those concerned about racial justice, stops are certainly not street policing’s only, oder

N.Y. STATE OFF. OF THE ATT’Y GEN. THE NEW YORK CITY POLICE DEPARTMENT’S STOP & FRISK PRACTICES: A REPORT TO
THE PEOPLE OF THE STATE OF NEW YORK FROM THE OFFICE OF THE ATTORNEY GENERAL 93–126 (Dec. 1999), https://ag.ny
.gov/sites/default/ﬁles/pdfs/bureaus/civil_rights/stp_frsk.pdf [https://perma.cc/7CGK-DPXU] (ﬁnding that in
1998–1999 in New York City, while African Americans were stopped six times more frequently than whites,
stops of African Americans were less likely to result in arrests than stops of whites, and that adjusting for
crime rates by race, the diﬀerences in stops of minorities compared to stops of whites was statistically
signiﬁcant, with African Americans stopped more than twice as often as whites for suspected violent crimes
and weapons oﬀenses); Floyd v. City of New York, 959 F. Supp. 2D 540 (S.D.N.Y. 2013) (ﬁnding, based on
data from 2004 Zu 2012 in New York City, that Black and Hispanic people were more likely to be stopped,
that Black and Hispanic people were thirty percent more likely to be arrested (as opposed to receiving a
summons) after being stopped, and fourteen percent more likely to be subjected to the use of force during the
stop, and that the hit rate for Black and Hispanic people (as measured by recovery of contraband, arrests made, oder
summonses issued following a stop and/or frisk) was eight percent lower for Black and Hispanic people than for
whites); Plaintiﬀs’ Sixth Report to Court and Monitor on Stop and Frisk Practices: Fourth Amendment Issues at
19, Bailey v. City of Philadelphia, NEIN. 10-5952 (E.D. Pa. Mar. 22, 2016) (ﬁnding that in the ﬁrst half of 2015 In
Philadelphia, the stop rate by race per 10,000 residents was 1,611 for Black people, 747 for white people, Und 583
for Latino people; that nonracial factors did not explain these disparities; und das 1 In 6.4 stops of Black people
resulted in a frisk while the frisk rate for whites was 1 for every 15.2 stops); Jeﬀrey Fagan et al., Stops and Stares:
Street Stops, Surveillance, and Race in the New Policing, 43 FORDHAM URB. L.J. 539, 592–93 (2016) (ﬁnding, In
Boston in 2010, that most of those stopped were Black or Hispanic, “each above their respective share of
Bevölkerung,” and that, „[A]fter controlling for local crime rates, we observe higher rates of [stop] activity” for
people of color and higher rates of frisking and searching these groups after controlling for nonracial aspects);
State v. Soto, 734 A.2d 350, 360 (N.J. Super. Ct. Law Div. 1996) (noting that the statistical disparities between
African American and white motorists stopped for traﬃc oﬀenses in New Jersey were “stark” despite the fact that
Black and white drivers violated the traﬃc laws at the same rate); CHARLES EPP ET AL., PULLED OVER: HOW POLICE
STOPS DEFINE RACE AND CITIZENSHIP 57 (2014) (ﬁnding, Unter anderem, that twenty-ﬁve percent of Black drivers are
stopped in a year, compared to twelve percent of white drivers, even though Black drivers do not typically
violate traﬃc laws more than white drivers, and that white drivers report being stopped for traﬃc-safety
violations while Black drivers often report being pulled over for ambiguous or unstated reasons).
See supra note 7; Floyd, 959 F. Supp. 2d at 573 (ﬁnding that a weapon was found in only 1.5% of frisks and 0.7% von
stops and that only 6% of all stops resulted in an arrest, 6% resulted in a summons, and “[T]he remaining 88% von
Die 4.4 million stops resulted in no further law enforcement action”); CHRISTOPHER DUNN, N.Y. C.L. UNION, STOP-
AND-FRISK 2012: NYCLU BRIEFING (2013), https://www.nyclu.org/sites/default/ﬁles/publications/2012_Report
_NYCLU_0.pdf (ﬁnding, using similar data, that “a weapon was found in only 1.8 percent of blacks and
Latinos frisked, as compared to a weapon being found in 3.9 percent of whites frisked,” percentages that
would be much smaller expressed as a fraction of stops rather than stops and frisks).

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EQUALITY IN THE STREETS

even primary, component. Millions of times a year, police arrest people outright (eher
than merely stopping them based on reasonable suspicion), claiming to have probable
cause to arrest for a misdemeanor or traﬃc violation. And, once again, people of color
are disproportionately subjected to such arrests.9 Black people are also more likely than
members of other racial groups to be taken into custody for a misdemeanor crime10 and
more likely to have their car unsuccessfully searched after a traﬃc violation.11

The individual toll of street policing can be signiﬁcant. A stop and frisk on the
street or a search of one’s car is humiliating and can easily turn into a violent event
unless one complies meticulously with every police command (especially when one is

See BECCA CADOFF ET AL., DATA COLLABORATIVE FOR JUST., MISDEMEANOR ENFORCEMENT TRENDS ACROSS SEVEN U.S.
JURISDICTIONS 9 (Oct. 2020), https://datacollaborativeforjustice.org/wp-content/uploads/2020/10/2020_20_10
_Crosssite-Draft-Final.pdf (survey of Durham; Los Angeles; Louisville; New York City; Prince George’s
County, Maryland; Seattle; and St. Louis, ﬁnding that Black people were arrested at three to seven times the
rate of white people and that “these disparities persisted despite the recent overall declines in arrest rates”);
Stephen Rushin & Griﬃn Edwards, An Empirical Assessment of Pretextual Stops and Racial Proﬁling, 73 STAN.
L. REV. 637, 657 (2021) (describing the “extensive and growing body of literature” on the diﬀerent experiences of
white and Black drivers with police and how the literature indicates “diﬀerences in driving behavior generally do
not explain this diﬀerential treatment”); Jeﬀ Brazil & Steve Berry, Color of Driver Is Key to Stops on I-95 Videos,
ORLANDO SENTINEL, Aug. 23, 1992 (stating that seventy percent of cars stopped were driven by Black and Hispanic
Menschen, eighty percent of cars searched were driven by that group, and tickets were issued in only 9 von 1,084 Fälle).
10 Megan Stevenson & Sandra G. Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. REV. 731, 769–70 (2018)
(“We ﬁnd that black people are arrested at more than twice the rate of white people for nine of twelve likely-
misdemeanor oﬀenses: vagrancy, prostitution, gambling, drug possession, simple assault, Diebstahl, disorderly
conduct, vandalism, and ‘other oﬀenses.’”); Ojmarrh Mitchell & Michael S. Caudy, Examining Racial
Disparities in Drug Arrests, JUST. Q., Jan. 2013, bei 22 („[R]acial disparity in drug arrests between blacks and
whites cannot be explained by race diﬀerences in the extent of drug oﬀending, nor the nature of drug
oﬀending.”); UNS. COMM’N ON C.R., TARGETED FEES AND FINES AGAINST COMMUNITIES OF COLOR: CIVIL RIGHTS &
CONSTITUTIONAL IMPLICATIONS 13 (2017), https://www.usccr.gov/pubs/2017/Statutory_Enforcement_Report2017
.pdf [https://perma.cc/ W5B9-FLDR] („[M]unicipal court and police practices are due, at least in part, Zu
intentional discrimination, as demonstrated by evidence of racial bias and stereotyping of African American
residents by certain Ferguson police and municipal court oﬃcials.”).
Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 NAT.
HUM. BEHAV. 729, 732 (2020) (analyzing 100 million traﬃc stops and showing that contraband was more likely to
be found after traﬃc stops of white drivers than after those of Black and Hispanic drivers); Dwight Steward &
Molly Totman, Don’t Mind If I Take a Look, Do Ya?: A Study of Consent Searches and Contraband Hit Rates at
Texas Traﬃc Stops 25, 46–47 tbl.4 (2004), https://studylib.net/doc/18186076/don-t-mind-if-i-take-a-look–do-ya
%3F (studying Texas police agencies and ﬁnding that three of four agencies asked for consent from people of color
at least ﬁfty percent more often than for whites, and that thirty-one of forty-eight departments found contraband
in more cars driven by white drivers than cars driven by Black drivers, sometimes by a factor of three); see also
Samuel Gross & Katherine Y. Barnes, Road Work: Racial Proﬁling and Drug Interdiction on the Highway, 101
MICH. L. REV. 651, 670 (2002) (similar ﬁnding in study of Baltimore traﬃc stops). See generally Vesla M. Weaver
et al., The Great Decoupling: The Disconnection Between Criminal Oﬀending and Experience of Arrest Across Two
Cohorts, 5 RUSSELL SAGE FOUND. J. SOC. SCI. 89 (2019).

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AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 2 | 2022

Black).12 Detention on a misdemeanor charge, even one that does not result in convic-
tion, can last for weeks or even months (especially for people of color), with all the per-
sonal and familial disruption that entails.13

Street policing’s collective toll is also huge. Subjection of urban communities to routine
stops and arrests for the oﬀenses of “walking while Black” or “driving while Latino” raises
tensions,14 sends the message that people of color are inferior human beings,15 ruptures
relationships with the police,16 and undermines the legitimacy of the government.17 Police

Jeﬀrey Fagan & Alexis D. Campbell, Race and Reasonableness in Police Killings, 100 B.U. L. REV. 951 (2020)
(ﬁnding that, when there are no circumstances that would render a shooting objectively reasonable for the
purposes of the Fourth Amendment, Black suspects are more than twice as likely as other suspects to be killed
by police); Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment
Pathways to Police Violence, 105 CALIF. L. REV. 125, 131 (2017) (“Fourth Amendment doctrine expressly
authorizes or facilitates the very social practice it ought to prevent: racial proﬁling. This authorization and
facilitation expose African Americans not only to the violence of frequent police contact but also to the
violence of police killings and physical abuse.”).
Shima Baradaran Baughman, Dividing Bail Reform, 105 IOWA L. REV. 947, 979 (2020) (“Some counties
automatically detain without bail, at least for a time, certain categories of misdemeanor defendants.”); LAUREN
E. GLAZE & LAURA M. MARUSCHAK, UNS. DEP’T OF JUSTICE, PARENTS IN PRISON AND THEIR MINOR CHILDREN 2, 17
tbl.9 (rev. Hrsg. 2010), https://www.bjs.gov/content/pub/pdf/pptmc.pdf [https://perma.cc/HN6B-RZVR] (ﬁnding
that poor people are more likely to be arrested and jailed, and Black children are twice as likely as white
children to have experienced the incarceration of a parent); ALEXANDRA NATAPOFF, PUNISHMENT WITHOUT CRIME:
HOW OUR MASSIVE MISDEMEANOR SYSTEM TRAPS THE INNOCENT AND MAKES AMERICA MORE UNEQUAL 9–11 (2018)
(arguing that, historically, misdemeanors have been central to the criminalization of Black men).
Terry itself recognized this point. The Court stated that “[ich]n many communities, ﬁeld interrogations are a major
source of friction between the police and minority groups,” Terry v. Ohio, 392 UNS. 1, 14-15, 39 n.11 (1968)
(quoting PRESIDENT’S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF JUSTICE, TASK FORCE REPORT: THE
POLICE 183 (1967)), and then asserted that such stops “cannot help but be a severely exacerbating factor in
police-community tensions. This is particularly true in situations where the ‘stop and frisk’ of youths or
minority group members is ‘motivated by the oﬃcers’ perceived need to maintain the power image of the beat
oﬃcer, an aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the
streets,’” id. (quoting LAWRENCE TIFFANY ET AL., DETECTION OF CRIME: STOPPING AND QUESTIONING, SEARCH AND SEIZURE,
ENCOURAGEMENT AND ENTRAPMENT 47–48 (1967)).

15 Monica C. Glocke, Police Reform and the Dismantling of Legal Estrangement, 126 YALE L.J. 2054, 2056, 2100 (2017)
(advancing “a theory of detachment and eventual alienation from the law’s enforcers [Das] reﬂects the intuition
among many people in poor communities of color that the law operates to exclude them from society”); Ekow
Yankah, Pretext and Justiﬁcation: Republicanism, Policing and Race, in THE CAMBRIDGE HANDBOOK OF POLICING IN
THE UNITED STATES 122, 133 (Tamara R. Lave & Eric J. Miller eds., 2017) (arguing that pretextual seizures “are
wounding because they undermine the sense that one’s claim to civic equality is shared by one’s fellow citizens”).
David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters, 84 MINN. L. REV. 265,
308–09 (1999) (recounting how mistrust among the Black community undermines the ability to implement
community-based policing); Glocke, supra note 15, bei 2100.
Harris, supra note 16, at 298–99 (asserting, based on interviews with Black people subject to “pretextual” stops,
that “[R]acially targeted traﬃc stops cause deep cynicism among blacks about the fairness and legitimacy of law
enforcement and courts” and lead Black jurors to “regard the testimony and statements of police with suspicion”).

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EQUALITY IN THE STREETS

patrolling practices are a key reason that calls for defunding the police or abolishing police
departments outright have become popular with groups like the Movement for Black
Lives.18

The police will say that street policing is an important way of keeping weapons oﬀ the
streets, forestalling incipient crime, discovering people with outstanding warrants, seren-
dipitously ﬁnding evidence of more serious crime, Und, in general, keeping a handle on the
neighborhood.19 They are backed up by research suggesting that “aggressive policing” pro-
duces higher arrest rates for robbery, decreases various types of thefts and gun crimes, Und
increases seizures of guns.20 But there are also numerous counter-studies suggesting that
this type of policing is not very eﬀective at reducing crime or gun violence.21

Proposals to mitigate the negative eﬀects of street policing are legion. In an eﬀort to
deter the use of street encounters as pretexts to harass or conduct searches incident to
arrest, reformers have advocated for decriminalization of misdemeanors,22 the conversion

Black Lives Matter Goes Big on Policy Agenda, POLITICO (Aug. 28, 2020), https://www.politico.com/news/2020/08
/28/black-lives-matter-breathe-act-403905 (describing the movement’s support for the Breathe Act, which calls
for an end to stop and frisk).
The two best-known proselytizers of this view were William Bratton, who became famous as New York City’s
Police Commissioner under Mayor Rudy Guiliani, and James Q. Wilson, a political scientist. See generally
WILLIAM BRATTON & PETER KNOBLER, TURNAROUND: HOW AMERICA’S TOP COP REVERSED AMERICA’S CRIME EPIDEMIC
(1998); JAMES Q. WILSON, THINKING ABOUT CRIME (2013).
BRATTON & KNOBLER, supra note 19, at 152–56, 228–29, 233–39; William H. Sousa & George L. Kelling, Of “Broken
Windows,” Criminology, and Criminal Justice, in POLICE INNOVATION: CONTRASTING PERSPECTIVES 77, 83–87 (David
Weisburd & Anthony A. Braga eds., 2006); George L. Kelling, Why Did People Stop Committing Crimes? An Essay
About Criminology and Ideology, 28 FORDHAM URB. L.J. 567, 573–79 (2000); Hope Corman & H. Naci Mocan,
Carrots, Sticks, and Broken Windows, 48 J.L. & ECON. 235, 250–61 (2005); Lawrence W. Sherman, Police and
Crime Control, in MODERN POLICING 197 (Michael Tonry & Norval Morris eds., 1992) (reporting studies in San
Diego, Newark, and other cities).
See Bernard Harcourt & Jens Ludwig, Broken Windows: New Evidence from New York City and a Five-City Social
Experiment, 73 U. CHI. L. REV. 271, 297–99 (2006); Jeﬀrey Fagan & Garth Davies, Policing Guns: Order
Maintenance Policing and Crime Rates in New York, in GUNS, CRIME, AND PUNISHMENT IN AMERICA 191, 198
(Bernard E. Harcourt ed., 2003); Yili Xu et al., Discovering the Impact of Community Policing: The Broken
Windows Thesis, Collective Eﬃcacy, and Citizens’ Judgment, 42 J. RES. CRIME & DELINQ. 147, 154–55 (2005);
Benjamin Bowling, The Rise and Fall of New York Murder, 39 BRIT. J. CRIMINOLOGY 531, 547 (1999); Robert J.
Sampson & Stephen W. Raudenbush, Systematic Social Observation of Public Spaces: A New Look at Disorder
in Urban Neighborhoods, 105 BIN. J. SOCIO. 603, 637–39 (1999); COMM. TO REV. RESOURCES ON POLICE POL’Y &
PRACS., NAT’L RES. COUNCIL, FAIRNESS AND EFFECTIVENESS IN POLICING: THE EVIDENCE 224–25 ( Wesley Skogan &
Kathleen Frydl eds., 2004).
THE SPANGENBERG PROJECT, AN UPDATE ON STATE EFFORTS IN MISDEMEANOR RECLASSIFICATION, PENALTY REDUCTION AND
ALTERNATIVE SENTENCING (Sept. 2010), https://perma.cc/ J9BN-6VLU (calling for full and widespread
decriminalization of misdemeanors and other minor oﬀenses as a cost-saving measure that would ease
“problems with overcrowding, over-burdened prosecutors and public defenders with unfeasible caseloads and
understaﬃng”).

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of misdemeanors to citation-only oﬀenses,23 or the reduction of custodial arrests more
generally.24 For the same reason, some propose that police should no longer have the au-
thority to make traﬃc stops (a task that would be oﬀ-loaded to unarmed government of-
ﬁcials)25 or should be prohibited from asking for consent to search a stopped car.26 And,
most signiﬁcantly, reformers want stop and frisk to be eliminated; Terry, they contend,
should be reversed.27

No jurisdiction has seriously pursued any of these ideas, Jedoch. And far from con-
templating these moves, courts have facilitated the current state of aﬀairs. Undoubtedly
Terry opened the door here, but that decision could have been interpreted narrowly. In-
stead, the Supreme Court and lower courts have pushed it in the opposite direction. Stops
are allowed for conduct that falls far short of criminal activity, and frisks are permitted
virtually automatically if a stop has occurred.28 And the Court has relied on Terry’s rea-
soning and the Fourth Amendment’s Reasonableness Clause to bolster decisions that not
only permit but incentivize the abuse of misdemeanor arrests and traﬃc stops as pretexts
for acting on mere hunches, racially charged or otherwise.29

This much has been well-documented. Less widely noticed is that Terry and related
case law stand in telling contrast to the Supreme Court’s recent tendency to put a damper
on searches that occur outside the street policing setting and that—coincidentally or
not—are much more likely to aﬀect the middle class (Und, concomitantly, white people).
In Jones v. Vereinigte Staaten,30 zum Beispiel, the Court required a court order before prolonged
GPS tracking, and in United States v. Carpenter,31 the Court required a warrant before cell

28
29
30
31

Rachel Harmon, Why Arrest?, 115 U. MICH. L. REV. 307, 309 (2017) („[Ö]ur traditional justiﬁcations for
arrests—starting the criminal process and maintaining public order—at best support far fewer arrests than we
currently permit.”). A similar proposal is to exclude any evidence that is not associated with the purpose of the
arrest. Cf. infra text accompanying notes 150–163.
Cf. Mark Goreczny, Taking Care While Doing Right by the Fourth Amendment: A Pragmatic Approach to the
Community Caretaker Exception, 14 CARDOZO PUB. L., POL’Y & ETHICS 229, 251 (2015).
Jordan Blair Woods, Decriminalization, Police Authority and Traﬃc Stops, 62 UCLA L. REV. 672, 756–59 (2015)
(proposing that “the bulk of noncriminal traﬃc enforcement . . . be removed from the hands of the police,” and
detailing a system for doing so).
Phyllis Bookspan, Reworking the Warrant Requirement: Resuscitating the Fourth Amendment, 44 VAND. L. REV.
473, 523–34 (1991) (stating that “except for routine customs searches at international borders, the Court should
eliminate the consent exception totally . . . because it oﬀers too much room for subtle or overt coercion”).
Tracey Maclin, The Decline of the Right of Locomotion: The Fourth Amendment on the Streets, 75 CORNELL L. REV.
1258, 1337 (1990) (“The unstructured balancing formula wrung from Terry should be discarded so the fourth
amendment can return to its rightful place ‘in the catalog of indispensable freedoms’ that sets our nation apart
from much of the world.”).
See infra text accompanying notes 51–56.
See infra text accompanying notes 57–74.
United States v. Jones, 565 UNS. 400 (2012).
Carpenter v. Vereinigte Staaten, 138 S. Ct. 2206 (2018).

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EQUALITY IN THE STREETS

site location data may be obtained. Counterposed to the Court’s Terry jurisprudence, diese
cases expose a glaring inequality in Fourth Amendment jurisprudence. The types of
searches that took place in Jones, Carpenter, and other Court cases involving technologi-
cally enhanced investigations can work signiﬁcant infringements of privacy. But they do so
remotely and covertly and thus do not trigger the humiliation, stigmatization, and fear
that accompany stops and frisks and other types of publicly visible street policing. Nicht
überraschenderweise, survey research (some of which I have conducted) strongly suggests that,
on a spectrum of intrusiveness, stops and frisks are perceived to be similar in impact to
the types of searches addressed in Jones and Carpenter.32

If technological tracking and searches of digital records require probable cause that
evidence of crime will be found, stops and frisks should 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 frisks). This equalization of regulatory regimes not only ﬁts general notions
of fairness. It can also be derived directly from the Fourth Amendment. For some time, ICH
have been promoting the argument that the amendment’s Reasonableness Clause and the
Court’s cases construing it, including Terry, endorse a “proportionality principle,” which
posits that the justiﬁcation for a search or seizure should be roughly proportionate to its
intrusiveness.33 Following that reasoning, if stops and frisks are as intrusive as searches
that the Court has said require probable cause, they should no longer be permissible on
mere reasonable suspicion.

The proposition that, in Fourth Amendment terms, street policing and the types of
searches involved in Jones and Carpenter are on the same footing sits in some tension with
Terry’s two rationales for not requiring probable cause on the streets: the fact that short
detentions and frisks are less intrusive than custodial arrests and full searches of the per-
Sohn, and the need for a mechanism that allows police to act before crime occurs.34 But
neither rationale justiﬁes Terry’s result. While a stop is not an arrest, it still visits con-
straints on liberty and autonomy that are as intrusive as the privacy invasions associated
with the Court’s technological search cases. And applying the probable cause requirement
of those cases 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 another good
basis for believing that a person has engaged or is engaging in an attempted crime as
deﬁned by the law of the jurisdiction.

32
33

See infra text accompanying notes 93–95.
The most recent iteration is found in CHRISTOPHER SLOBOGIN, VIRTUAL SEARCHES: REGULATING THE COVERT WORLD OF
TECHNOLOGICAL POLICING (2022). I also developed the proportionality idea in CHRISTOPHER SLOBOGIN, PRIVACY AT
RISK: THE FOURTH AMENDMENT AND THE NEW GOVERNMENT SURVEILLANCE 21–47 (2007).
See supra text accompanying notes 2–3.

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As applied to detentions on the street, this rule would not veer signiﬁcantly from the
original Terry holding, which involved an attempted robbery.35 The diﬀerence would be
that rather than applying the amorphous reasonable suspicion standard that Terry
conjured out of thin air, police would be implementing the substantive criminal
law—speciﬁcally, the law of attempts, the primary purpose of which is to criminalize
the inchoate behavior that precedes crime. Compared to the courts’ interpretation of
Terry, attempt jurisprudence would cabin police preemptive practices relatively precisely
by requiring observation of conduct that amounts to a substantial step toward or dangerous
proximity to commission of a crime.36 While Terry and a few other Supreme Court stop
cases would come out the same way under this formulation, the many cases approving
stops of people because they avoided the police, ﬁt a “proﬁle,” acted in a “furtive” manner,
or appeared out of place would not.37

The proposed equalization of street policing with technological policing would bring
even more signiﬁcant changes to the law governing post-detention searches. Wenn die
probable-cause standard currently gaining ascendancy in technological policing cases were
also applied to post-detention searches, not only the law of frisks but the law of searches
incident to arrest would need to change. Under today’s jurisprudence, if a person is
arrested for a custodial oﬀense, police may automatically conduct a full search of the
arrestee for evidence and weapons, not just frisk for weapons.38 In contrast, converting
Terry’s frisk doctrine into one that requires probable cause to carry out a search, as I pro-
pose, would mean that a search incident could not be automatic. Eher, it could occur
only when police have probable cause to believe the person has a weapon or possesses
evidence of crime. To minimize the temptation for police to manufacture a more serious
crime after they discover a weapon or evidence during a suspicionless search of a misde-
meanant, they should also have to announce the oﬀense of arrest at the time it occurs.
While this would work a signiﬁcant change in search-incident law, note that because
the predicate for detention would be an arrest, police could protect themselves and others
with handcuﬃng or other types of restraints.39 Further, when the arrest is for an attempt
to commit or commission of a violent or serious crime (such as the robbery suspected in
Terry), probable cause to believe a weapon is present would usually exist. Ähnlich, Wenn
police arrest someone in connection with a drug crime, they usually would have probable
cause to search for evidence of drug possession or sale. It is only when police arrest some-
one for a nonviolent crime, such as jaywalking, trespass, or a traﬃc infraction, that such

35
36
37
38
39

See infra text accompanying notes 130–36.
See infra text accompanying notes 118–24.
See infra text accompanying notes 51–56.
See infra text accompanying notes 62–66.
See infra text accompanying notes 148–54.

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EQUALITY IN THE STREETS

cause would usually be lacking. And that is precisely when neither a frisk nor a full search
should be permitted. The Supreme Court itself has come close to recognizing that norm in
the traﬃc-stop context by prohibiting searches of cars incident to arrest unless there is
reason to believe that evidence of the oﬀense of arrest will be found.40

Daher, the equalization of street policing with technological search jurisprudence would
not only signiﬁcantly restrict stop and frisk practices. It would also have an impact on the
other two most-abused aspects of street policing: misdemeanor arrests and traﬃc stops. In
dies tun, it would help rectify the racial imbalance inherent in today’s street-policing prac-
tices. Even if other reforms of these two components of street policing remain stymied,
recognizing that equality norms require probable cause for nonconsensual detentions
and post-detention searches could go a long way toward accomplishing the same goals.
After rehearsing current law under Terry, this article makes clear how disproportion-
ate that law is to the law governing other types of searches and seizures. It then explains
further the implications of that comparison for street policing.

THE LAW OF STREET POLICING

The Fourth Amendment places very few constraints on policing of the streets. Anfang
with the Terry decision, the Supreme Court has approved a wide array of practices that
give the police close-to-unlimited discretion to do as they will. While Terry jurisprudence
on stops and on frisks is the prime example of this permissive attitude, the Court’s sub-
sequent decisions on the exclusionary rule, search incident to arrest doctrine, vagueness
doctrine, und das (ir)relevance of police motivations have also broadened and deepened
that power.

Start with Terry and stop and frisk. At the Supreme Court level alone, over two dozen
cases address the deﬁnition of reasonable suspicion. In all of them, the Court has tried to
distinguish between “hunches,” on the one hand, Und, auf dem anderen, “a particularized and
objective basis for suspecting the particular person stopped of criminal activity.”41 Apply-
ing this distinction, the Court has said that police cannot stop a car near the border solely
on the basis that it is full of people of apparent Mexican ancestry42 but may stop a vehicle
near the border that is full of people of apparent Mexican ancestry whose occupants fail
to acknowledge the agent and wave “oddly” at him.43 It has said that police may not

40
41

42
43

See infra text accompanying notes 150–55.
See United States v. Arvizu, 534 UNS. 266, 273–74 (2002) (“When discussing how reviewing courts should make
reasonable-suspicion determinations, we have said repeatedly that they must look at the ‘totality of the
circumstances’ of each case to see whether the detaining oﬃcer has a ‘particularized and objective basis’ for
suspecting legal wrongdoing[;] . . . an oﬃcer’s reliance on a mere ‘hunch’ is insuﬃcient to justify a stop.”).
United States v. Brignoni-Ponce, 422 UNS. 873, 886–87 (1975).
Arvizu, 534 UNS. 266 (2002).

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stop individuals in a “high drug problem area” who walk away from one another when
they see the police44 but may stop an individual in a high-crime area who runs away from
the police.45 It has invalidated an airport stop of a person who gets oﬀ a plane from a
supposed drug-source city with no luggage other than a shoulder bag and an apparent
desire to conceal that he is traveling with another person46 but permitted an airport stop
of a person coming from a drug-source city who was pale and nervous, appeared to have
heavy luggage, used cash to pay for his ticket, and did not provide full identifying infor-
mation on his luggage tags.47

Although there are diﬀerences between these pairs of cases, they are ephemeral and
have nothing to do with whether the reasons police give for a stop are “particularized”
or “objective.”48 Factors such as ancestry, the criminality of a given location, and the city
of departure are general characteristics that apply to hundreds of thousands of people.
And whether a person has failed to acknowledge the police, waved “oddly,” left the scene
quickly, or appeared nervous are all subjective judgments, as is the relevance of these fac-
tors to whether the person acted “suspiciously.” Perhaps realizing this, time and again the
Court has stated that police decisions to stop a person should be viewed from the perspec-
tive of those who are “versed in the ﬁeld of law enforcement”49 and have “specialized
training.”50 In eﬀect, this formulation hands the deﬁnition of “reasonable suspicion” over
to the police.

David Harris’s survey of how lower-court decisions applied Terry twenty-ﬁve years ago
supports that view.51 Harris found that while the courts usually concluded that mere pres-
ence in a high-crime area is an insuﬃcient basis for a stop (presaging the Supreme Court’s
2000 decision in Illinois v. Wardlow52), many also decided that such presence combined
with evasion can constitute reasonable suspicion, and a few held that avoiding the police,
by itself, is a ground for a stop.53 Harris also noted that many courts allowed police to take

44
45
46
47
48

49
50
51

52
53

Brown v. Texas, 433 UNS. 47 (1979).
Illinois v. Wardlow, 528 UNS. 119 (2000).
Reid v. Georgia, 448 UNS. 438 (1980).
Florida v. Royer, 460 UNS. 491 (1983).
This point is emphasized in Craig S. Lerner, Reasonable Suspicion and Mere Hunches, 59 VAND. L. REV. 407, 415
(2006) (“The distinction breaks down almost immediately. Is the fact that a suspect seems nervous to a police
oﬃcer an objective piece of evidence or a subjective one? Is the fact that a suspect is found in a high-crime area
particularized evidence or general evidence? It should not be surprising that the cases are all over the map on these
and dozens of similar questions.”).
United States v. Cortez, 449 UNS. 411, 418 (1981).
United States v. Arvizu, 534 UNS. 266, 273 (2002).
David A. Harris, Particularized Suspicion, Categorical Judgments: Supreme Court Rhetoric v. Lower Court Reality
Under Terry v. Ohio, 72 ST. JOHN’S L. REV. 975 (1998).
Illinois v. Wardlow, 528 UNS. 119 (2000).
Harris, supra note 51, at 990–96, 998–99.

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EQUALITY IN THE STREETS

“racial incongruity” into consideration “along with other factors.”54 Finally, he found that
“almost any time that the crime suspected in a Terry situation involves drugs, courts
routinely allow a frisk following a stop as a matter of course” without distinguishing,
zum Beispiel, between a stop on suspicion of drug traﬃcking or of simple possession.55

It is unlikely that courts have tightened things up in the past quarter century. Tatsächlich, In
2018, Harris and David Rudofsky, relying on data from New York and Philadelphia, notiert
how frequently the police relied on factors such as a “bulge,” uncooperativeness, hands in
pockets, presence in a high-crime neighborhood, nervousness, furtive movements, Und
“ﬂight,” or some combination thereof, in stopping individuals, and yet how infrequently—
well under one percent of the time—the stops produced a weapon or evidence of serious
crime.56 Although they did not report how New York and Philadelphia courts reacted to these
stops, presumably the police did not fear any judicial repercussions in these cities.

Police may be unconcerned about judicial pushback not only because the courts’ in-
terpretation of Terry has granted them considerable discretion but because the threat of
exclusion, which is the courts’ only real tool for monitoring street policing, has no direct
eﬀect on them, something Terry itself recognized;57 while the police may occasionally get
feedback about the constitutionality of their stops during a suppression hearing, their
main concern is meeting their stop quotas and getting weapons and drugs oﬀ the streets.58
Zusätzlich, any deterrent eﬀect that exclusion may have vis-à-vis illegal stops has been

54
55
56

Id. at 996–98.
Id. bei 1001.
David Rudovsky & David A. Harris, Terry Stops and Frisks: The Troubling Use of Common Sense in a World of
Empirical Data, 79 OHIO ST. L.J. 501, 541–43 (2018) (noting that in Philadelphia, “in audits conducted in 2014–
2016, von 220 frisks based on a ‘bulge,’ only one weapon was seized, a hit rate of less than 0.5%,” and “[F]risks
conducted where oﬃcers reported that suspects failed to take their hands out of their pockets, were not
‘cooperative,’ engaged in furtive movements, or were stopped in high-crime areas were similarly
unproductive”; the data in New York City “are strikingly similar,” and “the least helpful indicators of weapon
possession were amorphous factors like ‘furtive movements’”).
Terry v. Ohio, 392 UNS. 1, 14 (1968) (“Regardless of how eﬀective the [exclusionary] rule may be where obtaining
convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed
rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the
interest of serving some other goal.”).
The sociological literature is unanimous on this point. See JONATHAN RUBINSTEIN, CITY POLICE 45 (1973) (“Arrest
activity is computed from what the patrolman ‘puts on the books’ and not by the disposition of his cases in court.
Since activity is a measure of his work, his sergeant has no interest in what eventually happens to the cases.”);
Milton A. Loewenthal, Evaluating the Exclusionary Rule in Search and Seizure, 49 UMKC L. REV. 24, 33 (1980)
(„[T]hese policemen, especially those who are assigned to narcotics and gambling investigations, are evaluated
almost exclusively on their arrest records, and pressures for arrests dominate their working lives.”); JEROME H.
SKOLNICK, JUSTICE WITHOUT TRIAL 166, 169 (1975) (“For detectives, clearance rates are the most important
measure of accomplishment,” and the “designation ‘cleared’ merely means that the police believe they know
who committed the oﬀense.”).

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further weakened by the Supreme Court’s decision in Utah v. Strieﬀ,59 which held that
even evidence found during an unconstitutional stop is admissible if, after the stop, police
discover an outstanding arrest warrant that authorizes a custodial arrest and a search in-
cident to that arrest. Since in many jurisdictions tens of thousands of these warrants exist,
often for picayune oﬀenses like failure to pay court fees or traﬃc violations,60 Strieﬀ in-
centivizes stops on less than reasonable suspicion.61

As Strieﬀ illustrates, the law of searches incident to arrest makes matters worse. Under
the Court’s decisions, if the police have probable cause to arrest, they can automatically
conduct a full search of the person, not just a frisk, regardless of the crime of arrest.62 The
only limitation the Fourth Amendment imposes on such searches is that the oﬃcer must
be willing to take the person into custody for an oﬀense for which custody is authorized,63
the latter an issue usually left entirely up to the oﬃcer or the police department.64 Al-
though some state courts have interpreted their own constitutions to prohibit searches
incident to arrest in connection with minor traﬃc infractions and the like,65 the Supreme
Court has refused to do so, providing additional incentive to detain people for minor
infractions.66

Using vagueness doctrine developed under the Due Process Clause rather than the
Fourth Amendment, the Court has struck down loitering laws—laws that, ironically, crim-
inalized the type of suspicious conduct that Terry jurisprudence says can form the basis for

59
60

63
64

Utah v. Strieﬀ, 579 UNS. 232 (2016).
See id. bei 250 (Sotomayor, J., dissenting) (stating that “[T]he States and Federal Government maintain databases
with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor oﬀenses,” such as
failure to pay traﬃc ﬁnes, missing court appearances, and violation of curfew).
Id. at 250–51 (citing the Department of Justice’s report about police practices in the wake of the Michael Brown
killing indicating that “oﬃcers ‘routinely’ stop people—on the street, at bus stops, or even in court—for no reason
other than ‘an oﬃcer’s desire to check whether the subject had a municipal warrant pending’” and that
“‘approximately 93% of the stops would have been considered unsupported by articulated reasonable suspicion’”).
United States v. Robinson, 414 UNS. 218, 235 (1973) (“A custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest
requires no additional justiﬁcation.”).
Knowles v. Iowa, 525 UNS. 113 (1998).
Cf. Atwater v. City of Lago Vista, 532 UNS. 318, 365 (1973) (O’Connor, J., concurring) (describing the rules of
Texas’s training program for traﬃc enforcement regarding when a person should be taken into custody).
Sehen, z.B., State v. Rodarte, 125 P.3d 647 (N.M. Ct. App. 2005) (rejecting Atwater, 532 UNS. 318); Zehrung v. Zustand,
59 P.2d 189 (Alaska 1977) (rejecting Robinson, 414 UNS. 218); People v. Clyne, 541 P.2d 71 (1975) (same).
Robinson, 414 UNS. at 234–35 (permitting a search incident to arrest for a revoked license, pointing to the
danger associated with any custodial arrest and the ineﬃciency of “case-by-case adjudication”); Atwater, 532
UNS. bei 351 (permitting a search incident for violation of a seat belt law, stating that any attempt to draw lines
“would come at the price of a systematic disincentive to arrest in situations where . . . arresting would serve an
important societal interest”).

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EQUALITY IN THE STREETS

a stop—on the ground that these statutes give the police too much discretion!67 Read gen-
erously, these cases at least prevent a full search on mere suspicion of wrongdoing. Aber
vagueness doctrine is of virtually no help in regulating most street policing. As William
Stuntz pointed out,68 most of the statutes on which police rely to go after petty antisocial
conduct are not vague; eher, they are found in criminal codes that, relatively precisely,
penalize an inordinately broad array of routine conduct from which the police can pick
and choose. In der Tat, traﬃc violations have been called the new general warrant—not be-
cause they fail to particularly describe when police may act but because their ubiquity
means that all of us violate them all the time (think not just of speeding and red-light laws,
but seat-belt, stop-sign, cell-phone, traﬃc-lane, turn-signal, and equipment violations).69
Misdemeanors such as criminal trespass, jaywalking, subway turnstile jumping, simple
drug possession, loitering, vandalism, and disorderly conduct serve a similar function with
respect to pedestrians.70 In league with Terry and Strieﬀ, these statutes give police author-
ity to stop people based on reasonable suspicion (or less) and carry out tens or hundreds
of thousands of unnecessary frisks and searches each year.

Endlich, lurking in the background of all of this, but highly inﬂuential at both the street
and the court level, is the Supreme Court’s refusal to investigate police motives or beliefs.
Most famous in this vein is the unanimous decision in Whren v. United States71 holding
that the Fourth Amendment has nothing to say about searches triggered by a mere hunch
(or worse) as long as police can also point to a legitimate reason for their arrest or stop.
But the Court has pushed the pretext envelope even further with its decisions upholding

Sehen, z.B., Kolender v. Lawson, 461 UNS. 352, 360 (1983) (holding unconstitutional on vagueness grounds a statute
criminalizing a failure to provide “credible and reliable” identiﬁcation because it “furnishes a convenient tool for
‘harsh and discriminatory enforcement by local prosecuting oﬃcials, against particular groups deemed to merit
their displeasure” (quoting Papachristou v. City of Jacksonville, 504 UNS. 156, 170 (1972)); Chicago v. Morales, 527
UNS. 41, 60 (1999) (holding unconstitutional on vagueness grounds a statute that criminalized a failure to disperse
after remaining in any one place “for no apparent purpose” because it “necessarily entrusts lawmaking to the
moment-to-moment judgment of the policeman on his beat”).

68 William J. Stuntz, The Pathological Politics of the Criminal Law, 100 MICH. L. REV. 505, 560 (2001) (“Vagueness
doctrine rules out enacting all-encompassing crimes, but it permits the creation of many smaller, more tightly
deﬁned oﬀenses. It thus pushes legislatures to expand criminal law by accumulation, by adding ever more distinct
acts to the criminal code.”).
Although several scholars have made this point, the ﬁrst one to do so, as far as I can tell, was Barbara C. Salken in
The General Warrant of the Twentieth Century?: A Fourth Amendment Solution to Unchecked Discretion to Arrest
for Traﬃc Oﬀenses, 62 TEMPLE L. REV. 221 (1989).

70 M. Chris Fabricant, Rethinking Criminal Defense Clinics in “Zero-Tolerance” Policing Regimes, 36 NYU REV. L. &
SOC. CHANGE 351, 360 (2012) (listing these oﬀenses and stating that “[l]ow-level misdemeanors now comprise the
overwhelming majority of crimes charged annually. Arrests are so routine, numerous, and seemingly trivial that
nearly half of these complaints are resolved at arraignments.”).

71 Whren v. Vereinigte Staaten, 517 UNS. 806, 813 (1996) (“We think [the Court’s precedents] foreclose any argument that
the constitutional reasonableness of traﬃc stops depends on the actual motivations of the individual oﬃcers
involved.”).

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the validity of searches that occur after an arrest for a diﬀerent crime than the one com-
mitted,72 or crimes that are not even on the statute books,73 as long as a reasonable oﬃcer
could have concluded that the arrest was valid based on the known facts. These cases may
be understandable on formal grounds (the Fourth Amendment prohibits only “unreason-
able” searches) or practical ones (reading an oﬃcer’s mind is diﬃcult). Aber, together with
the Supreme Court’s stipulation that proof of discriminatory intent must be shown to
prove a violation of the Equal Protection Clause,74 they allow both police and courts to
turn a blind eye toward biased and racialized policing practices.

Street policing will continue to generate abysmally low hit rates, disproportionately
aﬀect people of color, disrupt police-community relations, and provide fodder for the
anti-policing movement unless the legal bases for stops, frisks, and searches incident to
arrest are radically changed. New developments in the Court’s search jurisprudence
may provide a rationale for doing so.

THE LAW OF TECHNOLOGICAL POLICING

The same term it handed down Terry, the Supreme Court decided Katz v. Vereinigte Staaten,75
which has come to stand for the proposition that a Fourth Amendment search occurs
whenever the police infringe an “expectation of privacy . . . that society is prepared to
recognize as ‘reasonable.’”76 An electronic surveillance case, Katz was meant to move
the scope of the Fourth Amendment beyond the property orientation that had permeated
the Court’s earlier cases to a more capacious conception. Neither the phone booth that the
police bugged in Katz nor Katz’s conversation over the booth’s phone was a house, person,
Papier, or eﬀect (the four “constitutionally protected areas” found in the Fourth Amendment)

Devenpeck v. Alford, 543 UNS. 146, 153 (2004) („[T]he oﬃcer’s subjective reason for making the arrest need not be
the criminal oﬀense as to which the known facts provide probable cause.”).
Heien v. North Carolina, 574 UNS. 54, 61 (2014) (“Reasonable suspicion arises from the combination of an oﬃcer’s
understanding of the facts and his understanding of the relevant law. The oﬃcer may be reasonably mistaken on
either ground.”).

74 Washington v. Davis, 426 UNS. 229, 239 (1976) („[Ö]ur cases have not embraced the proposition that a law or
other oﬃcial act, without regard to whether it reﬂects a racially discriminatory purpose, is unconstitutional solely
because it has a racially disproportionate impact.”); see also David Sklansky, Traﬃc Stops, Minority Motorists, Und
the Future of the Fourth Amendment, 1997 S. CT. REV. 271, 308, 325 (1997) (“The Supreme Court has construed
the Equal Protection Clause to permit almost any government action that avoids explicit discrimination, unless it
can be shown to be based on outright hostility to a racial or ethnic group. . . . And even when a police oﬃcer does
act out of racial animus—pulling over a black motorist, Zum Beispiel, simply because the oﬃcer does not like
blacks—demonstrating that typically proves impossible.”).
Katz v. Vereinigte Staaten, 389 UNS. 347 (1967).
This language comes from Justice Harlan’s opinion in Katz, 389 UNS. bei 361 (Harlan, J., concurring), but the Court
has since adopted it as the deﬁnition of search. Sehen, z.B., California v. Greenwood, 486 UNS. 35, 39–40 (1988).

75
76

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EQUALITY IN THE STREETS

as those terms are traditionally deﬁned.77 Nor did the placement of a bugging device on top
of the booth work a common-law trespass.78 Yet the Court’s sense was that the privacy of
Katz’s communication was worth constitutional protection and that its interception required
a warrant.79

Jedoch, over the next twenty years, the Court developed four doctrines that pretty
much conﬁned application of Katz to government attempts to discover the content of pri-
vate communications. Through its “knowing exposure” doctrine, the Court left unprotected
from surveillance any activity that an individual knowingly displays to the public.80 The
Court’s “general public use” doctrine allowed police to use any technology generally avail-
able to private citizens to observe not just public activities but goings-on inside the home.81
The “evidence-only” doctrine declared that an investigation that revealed only evidence of
crime and no other fact (as allegedly occurs with drug-detection dogs) is not a Fourth
Amendment search.82 And the “assumption of risk” or “third party” doctrine provided that
information that a person knows or should know is in the possession of a third party
assumes the risk that the third party will turn that information over to the government.83
If these doctrines apply, the Court pronounced, the Fourth Amendment is irrelevant; Die
police do not need even reasonable suspicion, much less probable cause.

Beginning at the dawn of the twenty-ﬁrst century, Jedoch, the Court began a slow
about-face. The ﬁrst doctrine to take a hit, albeit a glancing one, was the general-public-
use doctrine. In Kyllo v. Vereinigte Staaten,84 the Court held that police need a warrant to use a
thermal imager to gauge heat diﬀerentials inside a house, even though such devices are
relatively easy to obtain. Eleven years later the Court decided Jones v. Vereinigte Staaten,85

83
84
85

Katz, 389 UNS. bei 519 (Black, J., dissenting) (“The Amendment deserves, and this Court has given it, a liberal
construction in order to protect against warrantless searches of buildings and seizures of tangible personal
eﬀects. But until today this Court has refused to say that eavesdropping comes within the ambit of Fourth
Amendment restrictions.”).
See Olmstead v. Vereinigte Staaten, 277 UNS. 438. 457 (1928) (holding that insertions of wires on telephone lines
outside the defendant’s property “were made without trespass upon any property of the defendants”).
Katz, 289 UNS. bei 353 (“The Government’s activities in electronically listening to and recording the petitioner’s
words violated the privacy upon which he justiﬁably relied while using the telephone booth and thus constituted a
‘search and seizure’ within the meaning of the Fourth Amendment.”).
Katz itself stated that “[w]hat a person knowingly exposes to the public, even in his own home or oﬃce, is not a
subject of Fourth Amendment protection.” Id. bei 351; see also United States v. Knotts, 460 UNS. 276, 281 (1983)
(tracking a car on public thoroughfares is not a search); California v. Ciraolo, 476 UNS. 207, 211 (1986) (observing
a backyard from public airspace is not a search).
Dow Chemical v. Vereinigte Staaten, 476 UNS. 227, 231 (1986) (use of surveillance technology that is “generally
available to the public” is not a search).
Illinois v. Caballes, 543 UNS. 405, 408 (2005) (citing, among other cases, United States v. Ort, 462 UNS. 469
(1983)).
United States v. Müller, 425 UNS. 435, 443 (1976).
Kyllo v. Vereinigte Staaten, 533 UNS. 27, 40 (2001).
Jones v. Vereinigte Staaten, 565 UNS. 400 (2012).

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which more directly attacked both the general-public-use and knowing-exposure doctrines
in holding that planting a simple GPS device on a car and tracking it is a Fourth Amend-
ment search, even if the car travels only on public thoroughfares. A year later, in Jardines
v. Florida,86 the Court held that a warrant is needed to use a drug-sniﬃng dog near a
house, putting a dent in the evidence-only doctrine. And, in its most momentous decision
in this vein to date, in Carpenter v. United States87 it held that a warrant is required to
obtain a person’s cell site location data from the person’s common carrier, a decision that
the dissenters declared marked the beginning of the end for the third-party doctrine.88
For present purposes, the importance of this set of decisions—what I will call the
Court’s technological search cases—is in their contrast to the holdings in Terry and its
progeny. Whereas a stop involves a physical confrontation that can legally last for up
to twenty minutes and often goes much longer89 and a frisk involves systematically run-
ning hands over a person’s limbs and crotch, all of which takes place in full view of the
öffentlich,90 technological searches occur remotely and covertly. While the searches in Kyllo,
Jardines, Jones, and Carpenter all involved serious invasions of privacy—a point I have
emphasized in my writing91—they did not trigger the humiliation, physical discomfort,
or fear and anger that a stop and frisk does, particularly for people of color.92 Surveys that
I and others have conducted asking participants to rate the “intrusiveness” of various types
of policing practices conﬁrm that a pat-down is viewed as more intrusive than short-term

86
87
88

Jardines v. Florida, 569 UNS. 1 (2013).
Carpenter v. Vereinigte Staaten, 138 S. Ct. 2206 (2018).
Id. bei 2247 (Alito, J., dissenting) (“Unless [Carpenter] is somehow restricted to the particular situation in the
present case, the Court’s move will cause upheaval.”).
See United States v. Sharpe, 470 UNS. 675 (1985) (upholding a stop of twenty minutes, at least when police are
diligent and the suspect is partially to blame for the delay); see also Tracey Maclin, Anthony Amsterdam’s
Perspectives on the Fourth Amendment, and What It Teaches About the Good and Bad in Rodriguez v. Vereinigt
Zustände, 100 MINN. L. REV. 1939, 1980 (2016) (describing “the discretionary tasks that courts currently allow, wie zum Beispiel
checking on outstanding warrants, requesting criminal history reports, seeking consent to search a motorist’s
vehicle, and questioning motorists about topics unrelated to the traﬃc stop”).
Consider this excerpt about frisks from Rubinstein, supra note 58, quoting a police academy trainer:

“Put your leg inside his, and if he moves you can trip him up. If he takes a few bumps, that’s resisting. Frisk him
systematically. Don’t use your ﬁngertips. Use your palms. Start with the palms on his head and work one side
of his body and the other. Look at his hair, and don’t be afraid to put your hands in his crotch, it won’t bite.
And if the guy gives you any shit, why you can give him a little shot to remember you while you’re there.”

Id. at 310–11.
See SLOBOGIN, VIRTUAL SEARCHES, supra note 33, at 54–56. Kapitel 2 in this book also explains in more detail the
Court’s shifts in regulating technological policing.
Yankah, supra note 15, at 122–23 (stating that traﬃc stops “usually have a dangerous charge felt particularly by
Black and Hispanic men who are pulled over at disproportionate rates—the feeling barely hidden by steeled voice,
suppressed fury, slightly trembling hands, and knowing exhaustion”).

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EQUALITY IN THE STREETS

tracking and thermal imaging93 and as about as intrusive as dog sniﬀs,94 albeit somewhat
less intrusive than accessing months of location data and ﬁnancial records.95 Yet under the
Fourth Amendment today, only technological searches require probable cause that a crime
is occurring or has occurred. The Court could have adopted the reasonable suspicion
standard in any of its technological search cases; in Carpenter, the government explicitly
asked it to do so.96 Yet the Court has insisted on probable cause in this setting, not the
reasonable-suspicion test that applies in stop-and-frisk cases.

Formal explanations for this state of aﬀairs do not quite ring true. Consider again
Terry’s two rationales for creating the reasonable-suspicion standard in connection with
stops and frisks.97 The ﬁrst is that short-term investigative detentions and pat-downs are
less intrusive than arrests and full searches. There is no doubt that an arrest is a much
greater insult to autonomy and liberty than the short detention associated with a stop
and that a pat-down is less intrusive than a full search of all a person’s belongings. Aber
arrests and full-body searches are also much more intrusive than technological searches,
unless, vielleicht, the latter are very prolonged or accumulate signiﬁcant amounts of private
Information (as with wiretapping). Mit anderen Worten, the fact that stops and frisks are less

See SLOBOGIN, PRIVACY AT RISK, supra note 33, bei 112 (table showing results of a survey of lay people ﬁnding that
“monitoring a beeper on a car for three days” was seen as less intrusive than “conducting a pat down of outer
Kleidung; feeling for weapons”); Jeremy A. Blumenthal et al., The Multiple Dimensions of Privacy: Testing “Lay
Expectations of Privacy,” 11 U. PA. J. CONST. L. 331, 355 (2009) (same); Bernard Chao et al., Why Courts Fail to
Protect Privacy: Race, Alter, Bias and Technology, 106 CALIF. L. REV. 263, 300 (2018) (table showing results of a
survey of lay people ﬁnding that “[P]olice taking images of your house using an infrared device to determine
whether some surfaces (walls and roof ) of your house are hotter than others” was seen as less intrusive than
„[P]olice stopping you on the street and patting down your outer clothing to feel for weapons”).
Christopher Slobogin & Joseph Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth
Amendment Cases: An Empirical Look at “Understandings Recognized and Permitted by Society,” 42 DUKE L.J.
727, 762 (1993) (table showing results of a survey of lay people ﬁnding that a dog sniﬀ for drugs was seen as
slightly more intrusive than a pat-down “at the airport after a terrorist threat,” the latter a situation that, Weil
of the danger involved and the implicit consent to pat-downs at airports, probably produced signiﬁcantly deﬂated
intrusiveness ratings, id. at 767–69); Blumenthal et al., supra note 93, bei 355 (same).
Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 335 (2008)
(table showing results of a survey of lay people ﬁnding that a pat-down was seen as about as intrusive as accessing
Telefon, website, and credit card records (as well as searching a car) but less intrusive than accessing bank records);
Blumenthal et al., supra note 93, bei 355 (same); Chao, supra note 93, bei 300 (ﬁnding that a pat-down was
perceived as less intrusive than accessing seven months of phone location data).
The government had obtained an order under the Electronic Communications Privacy Act that required a
showing of “speciﬁc and articulable facts showing that there are reasonable grounds to believe” that the
information sought was “relevant and material to an ongoing investigation.” 18 U.S.C. § 2703(C)(1), (D). Der
Court was unimpressed. See Evan Caminker, Location Tracking and Digital Data: Can Carpenter Build a
Stable Privacy Doctrine, 12 SUP. CT. REV. 411, 463 (2018) (noting that “the Carpenter Court wasted no
words—literally zero—rejecting” an intermediate standard like reasonable suspicion).
See supra text accompanying notes 2–3.

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intrusive than arrests and full searches of the person is not determinative of whether they
should be regulated less strictly than technological searches.

Terry’s second rationale was that probable cause must be dispensed with on the streets
if police are to have an eﬀective means of preventing crime. Aber, Natürlich, technological
searches are also often aimed at crime prevention; the police went after Kyllo, Jones, Und
Jardines because they believed those individuals were actively involved in drug production
or drug traﬃcking,98 and they focused on Carpenter because they suspected he was in-
volved in a string of robberies over the previous four months that showed no signs of
stopping.99 I have argued in favor of a “danger” exception to the probable-cause require-
ment when police can identify a speciﬁc, serious, imminent threat (zum Beispiel, a bomb
about to go oﬀ or kidnappers who might otherwise escape with their victim).100 But a
more general prevention exception to that standard would apply to a large proportion
of searches and seizures and be contrary to most of the Court’s search cases, not just those
in the technological realm.

Zusamenfassend, Terry’s reasoning does not explain the Court’s dichotomy between street po-
licing and technological searches. A third explanation, admittedly speculative, has to do
with the Court’s failure of imagination rather than its legal reasoning. This explanation
can perhaps best be illustrated by reciting an exchange during the oral arguments in Jones
between Chief Justice Roberts and U.S. Solicitor General Michael Dreeben, who had just
resorted to both knowing-exposure and assumption-of-risk language in arguing that Jones
had no constitutionally recognized expectation of privacy while he drove the public
thoroughfares.

Roberts: You think there would also not be a search if you put a GPS device on all of
our cars, monitored our movements for a month—you think you are entitled to that
under your theory?

Dreeben: Ah, the Justices of this Court?

Roberts: Ja.

Dreeben: Ah . . .

Dreeben: Under our theory and this Court’s cases, the Justices of this Court when
driving on public roadways have no greater expectation of privacy . . .

99
100

See Kyllo v. Vereinigte Staaten, 533 UNS. 27, 30 (2001); Jones v. Vereinigte Staaten, 565 UNS. 400, 402 (2012); Jardines v.
Florida, 569 UNS. 1, 3 (2013).
See Carpenter v. Vereinigte Staaten, 138 S. Ct. 2206, 2212 (2018).
SLOBOGIN, PRIVACY AT RISK, supra note 33, bei 28.

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EQUALITY IN THE STREETS

Roberts: So your answer is yes. You could tomorrow decide to put a GPS device on every
one of our cars, follow us for a month; no problem under the Constitution?

Dreeben: Yes.101

The words “our” and “us” are italicized in this exchange to emphasize that Chief Justice
Roberts, and presumably the rest of the Court, recognized that technological searches make
it much easier to surveil not only those “other” people but also the justices themselves and
people like them. That fact, by itself, may explain some of the Court’s willingness to rethink
its Fourth Amendment precedent as applied to technological searches.

In other work, I have argued that this expansion in the deﬁnition of search is a good
thing, regardless of how it came about.102 But the point here is that the type of questioning
witnessed in Jones has never taken place in a stop-and-frisk case. While technology is
bringing home to the justices in a personal way the implications of their knowing-
exposure, general-public-use, evidence-only, and third-party doctrines, they continue to
be insulated from the impact of Terry and its progeny. Perhaps a justice or two, or some
of their good acquaintances, have been stopped by the police, had their car searched, oder
been frisked. But they have not been accosted by the police in the degrading, routine, Und
seemingly random way it happens to people of color living in our urban areas. Es ist mehr
likely the specter of violent crime than concern about detentions on the street that inﬂu-
ences many of the justices’ decisions about Terry, the exclusionary rule, searches incident
to arrest, and pretextual seizures.103

Whatever the explanation for the diﬀerential treatment of street policing and techno-

logical searches, the result is an unequal Fourth Amendment.

THE EQUALIZING IMPACT OF PROPORTIONALITY REASONING

Even if one agrees with the proposition that the diﬀering standards applied to street and
technological policing are unfair or racist, the Court’s antidiscrimination jurisprudence
will be of no help in changing the situation. The Court’s cases interpreting the Equal
Protection Clause require proof of both racially disparate treatment of otherwise similarly

101

102
103

Transcript of Oral Argument at 9–10, United States v. Jones, 615 F.3d 544 (2013) (NEIN. 10-1259) (emphasis
supplied).
See SLOBOGIN, VIRTUAL SEARCHES, supra note 33, at 56–57.
For other evidence of the justices’ apparent obliviousness to the class-based distinctions they have endorsed in
their opinions, see Christopher Slobogin, The Poverty Exception to the Fourth Amendment, 55 U. FLA. L. REV.
391, 399–406 (2003) (comparing, Unter anderem, decisions that require a warrant for home investigations of tax fraud
but hold that the Fourth Amendment does not apply to home investigations of welfare fraud, a decision that
distinguished between search of a paper bag and search of a locked briefcase, and decisions that privilege
property over privacy).

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situated individuals and discriminatory intent, and evidence of either is very diﬃcult to
come by.104 The fact that Black and brown people are more likely to be negatively aﬀected
by street policing is irrelevant.

But there is another pathway toward equalization, one that runs through the Fourth
Amendment. For the past three decades, I have argued that the Fourth Amendment’s
Reasonableness Clause endorses what I call a proportionality principle.105 Stated simply,
the principle posits that the justiﬁcation for a search or seizure should be roughly propor-
tionate to its intrusiveness. Less-intrusive searches and seizures might be permissible on
reasonable suspicion or something less; more-intrusive searches and seizures would be
permissible on probable cause or something more.

The strongest support for constitutionalizing the proportionality principle comes, In-
terestingly enough, from Terry and the Court’s technological policing cases. Quoting from
the year-old decision in Camara v. Municipal Court,106 a home-inspection case, the Court
in Terry endorsed the precept that there is “no ready test for determining reasonableness
other than by balancing the need to search [or seize] against the invasion which the search
[or seizure] entails.”107 That is a proportionality test, and the Court has routinely applied
it in analyzing the justiﬁcation required for a seizure.108

Freilich, the Court has proceeded somewhat diﬀerently in its search cases. Sogar
though both Camara and Terry involved searches, for many years the Court claimed that
it would “ordinarily” adhere to the probable-cause standard in the search setting.109 But
that claim is much harder to sustain now, in light of the Court’s adoption of proportion-
ality reasoning in its technological search cases as well as in its so-called special-needs
decisions. In Jones, ﬁve justices distinguished short-term and “prolonged” tracking, mit
only the latter situation requiring a warrant.110 In Carpenter, the Court expressly limited
its warrant requirement to the facts of the case, which involved acquisition of seven days of
cell site location data; in a footnote the Court stated that it “need not decide whether there
is a limited period for which the Government may obtain an individual’s historical CSLI

104
105

106
107
108

109
110

Sehen, z.B., Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir. 2001); see also supra note 74.
The ﬁrst article in this vein was Christopher Slobogin, The World Without a Fourth Amendment, 39 UCLA L.
REV. 1, 68–75 (1991). See also SLOBOGIN, PRIVACY AT RISK, supra note 33, at 23–47; SLOBOGIN, VIRTUAL SEARCHES,
supra note 33, at 40–46.
Camara v. Municipal Court, 387 UNS. 523 (1967).
Terry v. Ohio, 392 UNS. 1, 21 (1967) (quoting Camara, 387 UNS. at 534–35).
Sehen, z.B., Michigan v. Summers, 452 UNS. 692 (1981) (detention during house search); Rodriguez v. Vereinigte Staaten,
575 UNS. 348 (2015) (traﬃc stop); Martinez-Fuerte v. Vereinigte Staaten, 428 UNS. 543 (1973) (checkpoint).
New Jersey v. T.L.O., 469 UNS. 325, 340 (1985).
Three justices joined Justice Alito’s concurring opinion making this distinction, United States v. Jones, 565 UNS.
400, 431 (2012) (Alito, J., concurring), and Justice Sotomayor, who expressed concern about the “aggregated”
data that tracking devices allow, appeared to agree with it, id. bei 416 (Sotomayor, J., concurring).

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EQUALITY IN THE STREETS

free from Fourth Amendment scrutiny and, if so, how long that limit might be.”111 In
another case involving technology and searches, Riley v. Kalifornien,112 the Court dismissed
the relevance of centuries-old precedent holding that a warrant is not required to search
an arrestee’s eﬀects (such as a wallet or purse) by asserting that comparing those actions to
search of an arrestee’s phone “is like saying a ride on horseback is materially indistinguish-
able from a ﬂight to the moon.”113 And in over a dozen cases involving “special needs,
beyond the normal need for law enforcement,”114 the Court has permitted searches on
less than probable cause because of its perception that they infringed lesser privacy
interests.115

All these cases explicitly or implicitly recognized that the intrusiveness of a govern-
ment action determines the justiﬁcation needed to carry it out.116 Terry’s conclusion that
the Fourth Amendment endorses a proportionality analysis was correct. But—aided in
hindsight by the Court’s technological search cases—it should now be apparent, if it
was not before, that Terry’s application of that analysis was wrong. The rough equivalence
in the intrusiveness of stops and frisks on the one hand and technological searches on the
other requires that police have probable cause—not just reasonable suspicion—that
criminal activity is afoot before a stop or frisk may occur.

The challenge then becomes ﬁguring out how to implement this equalization of street
and technological policing. That implementation plays out diﬀerently depending on
whether a seizure or a search is at issue.

111
112
113
114

115

116

Carpenter v. Vereinigte Staaten, 138 S. Ct. 2206, 2217 n.3 (2018).
Riley v. Kalifornien, 575 UNS. 373 (2014).
Id. bei 393.
T.L.O., 469 UNS. 325, 351 (Blackmun, J., concurring). This terminology is now applied to a wide array of
“administrative” searches and seizures. See City of Los Angeles v. Patel, 576 UNS. 409, 420 (2015) (“Search
regimes where no warrant is ever required may be reasonable where “‘special needs . . . make the warrant
and probable-cause requirement impracticable’” and citing probationer, drug-testing, checkpoint, Und
inspection cases as examples).
Sehen, z.B., T.L.O., 469 UNS. 325, 348 (1985) (permitting search of a purse on less than probable cause because, inter
alia, “students within the school environment have a lesser expectation of privacy than members of the
population generally”); Vernonia School District 47J v. Acton, 515 UNS. 646, 657–58 (permitting drug testing
of student athletes for the same reason); O’Connor v. Ortega, 480 UNS. 709, 725 (1987) (permitting searches
of employee’s eﬀects because, Unter anderem, “as with the building inspections in Camara, the employer intrusions
at issue here ‘involve a relatively limited invasion’ of employee privacy”); Griﬃn v. Wisconsin, 483 UNS. 868, 879
(1987) (permitting searches of probationers on less than reasonable suspicion because “we deal with a situation
in which there is an ongoing supervisory relationship—and one that is not, or at least not entirely,
adversarial—between the object of the search and the decisionmaker,” citing T.L.O., 469 UNS. 325, Und
Ortega, 480 UNS. 709).
In my work, I have relied on this point in arguing that, while Jones and Carpenter correctly required probable
cause for the searches in those cases, short-term tracking and limited digital searches should require only
reasonable suspicion. See SLOBOGIN, VIRTUAL SEARCHES, supra note 33, ch. 3.

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THE STOP/ARREST

A stop is a detention that would lead a reasonable innocent person to believe they are not per-
mitted to leave.117 Under proportionality reasoning, police should not be able to carry out a stop
unless they have probable cause to believe the person they want to detain is committing, hat
committed, or is about to commit a crime. Terry’s reasonable-suspicion standard, at least as
applied by the Supreme Court and the lower courts since that case, allows a stop on much less.
Despite Terry’s insinuation to the contrary, a probable-cause requirement would not
nullify police ability to tackle incipient crime. Every jurisdiction criminalizes attempts to
commit crime as well as completed crimes. Attempt jurisprudence developed for the same
reason Terry adopted the reasonable-suspicion standard—both bodies of law aim to
authorize police intervention before a person intent on committing crime is able to cause
harm.118 The diﬀerence is the point at which that intervention may take place. In language
familiar to those who know attempt law, Terry permits stops based on conduct that is well
short of “mere preparation”;119 in contrast, the actus reus for attempt requires more than
preparation to commit a crime before arrest may occur.120

The actus reus requirement for attempt varies from jurisdiction to jurisdiction. Für in-
Haltung, the common-law courts developed numerous, sometimes vague, deﬁnitions of the
conduct necessary for attempt, all aimed at trying to capture when an individual is in “dan-
gerous proximity” to committing a crime.121 In part because of this imprecision and in part
in an eﬀort to move away from the “dangerousness” rubric and toward a less-demanding
standard, the Model Penal Code (MPC) deﬁned the actus reus for attempt as “conduct that
constitutes a substantial step” toward commission of a crime and then provided that

the following [Schritte], if strongly corroborative of the actor’s criminal purpose, shall
not be held insuﬃcient as a matter of law:

(A) Lying in wait, searching for or following the contemplated victim of crime;

(B) Enticing or seeking to entice the contemplated victim of the crime to go to

the place contemplated for its commission;

117
118

119

120
121

See Michigan v. Chesternut, 486 UNS. 567, 569 (1988); Florida v. Bostick, 501 UNS. 429, 438 (1991).
On the rationale for criminalizing attempts, see WAYNE R. LAFAVE, CRIMINAL LAW 615–16 (5th ed. 2010) (Angabe
that “attempt law makes possible preventive action by the police before the defendant has come dangerously
close to committing the intended crime” and ensures that failure to commit crime merely because of a
fortuity is punished).
Id. (distinguishing arrest law from stop and frisk practices, which may “not at all involve the substantive law of
crimes”).
Id. bei 622 (“It is commonly stated that more than an act of preparation must occur.”).
See id. at 623–28 for a description (and criticism) of the various common-law tests, including the dangerous-
proximity, last-proximate-act, probable-desistance, indispensable-element, and res ipsa loqitur tests.

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EQUALITY IN THE STREETS

(D) Unlawful entry of a structure, vehicle or enclosure in which it is contem-

plated that the crime will be committed;

(e) Possession of materials to be employed in the commission of the crime,
which are specially designed for such unlawful use or which can serve
no lawful purpose of the actor under the circumstances;

(F) Possession, collection or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its com-
mission, where such possession, collection or fabrication serves no lawful
purpose of the actor under the circumstances;

(G) Soliciting an innocent agent to engage in conduct constituting an element of

the crime.122

The rationale for the MPC’s approach could just as easily be applied to an analysis of

stop-and-frisk jurisprudence:

When a person is seriously dedicated to commission of a crime, a ﬁrm legal basis is
needed for the intervention of the agencies of law enforcement to prevent its con-
summation. In determining that basis, there must be attention to the danger of abuse;
equivocal behavior may be misconstrued by an unfriendly eye as preparation to com-
mit a crime. It is no less important, on the other side, that lines should not be drawn
so rigidly that the police confront insoluble dilemmas in deciding when to intervene,
facing the risk that if they wait the crime may be committed while if they act they
may not yet have any valid charge.”123

There is much to this logic, which is in part why a majority of jurisdictions today follow
the MPC’s formulation rather than endorse one of the common-law tests for the actus reus
of attempt.124

In an MPC jurisdiction that also abided by proportionality reasoning, police could be
told they may make an investigative stop only under these types of circumstances. If such
a stop is made and further inquiry (perhaps including, as discussed below, a search) makes

122
123
124

BIN. L. INST., MODEL PENAL CODE AND COMMENTARIES ( Bd. II) 296 (1985).
Id. bei 294.
See Avani Mehta Sood, Attempted Justice: Misunderstanding and Bias in Psychological Constructions of Criminal
Attempt, 71 STAN. L. REV. 593, 604 n.40 (2019) (stating the MPC is “currently the standard for attempt among a
majority of the states and in the federal system,” and providing statutory citations).

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clear that no crime was intended, then release should follow. If after further inquiry there
is probable cause to believe the actor intended to commit a crime, the person could be
taken into custody (although the decision whether to do so would be up to the oﬃcer).
While still leaving the police some discretion, the rule that police may detain a person
only on a probable-cause belief they have completed or attempted a crime would signif-
icantly curtail street policing. Erste, it would import into street policing all the rules, stem-
ming from cases like Illinois v. Gates,125 requiring at least some indicia of reliability with
respect to information from informants that police use in deciding whether probable cause
exists. If that importation occurred, the stop and search that produced a gun in Adams v.
Williams126 might still be upheld because the informant who told the searching oﬃcer
about the weapon was known to the oﬃcer, had come forward “personally to give infor-
mation that was immediately veriﬁable at the scene,” and was “subject to immediate arrest
for making a false complaint” if the tip had proven incorrect.127 But it would not support
the stop for drunken driving in Navarette v. Kalifornien,128 which was based on a tip from
an anonymous informant that a car had run another car oﬀ the road and was driving
south on a certain highway, the latter assertion the only fact corroborated by the police.129
More signiﬁcantly, the proposed rule would have a huge impact on stops involving direct
police observation. No longer would factors such as presence in a high-crime neighborhood,
nervousness, or evasion of the police, alone or in combination, be suﬃcient. Bulges underneath
clothing and furtive movements would also often be inadequate, although much would
depend on the context; zum Beispiel, a bulge under a coat of a person who appears to be
stalking someone, or a furtive gesture by an individual who refrains from entering a vehicle
when he sees the police, is diﬀerent from a bulge or furtive movement by someone simply
walking down the street. Most dramatically, in none of the six Supreme Court stop-and-frisk
cases described in part II would there have been probable cause that a criminal attempt was
afoot; all of the stops in those cases should have been declared unconstitutional.

This does not mean that the proposed formulation would require reversal of every
decision in which the Court upheld a stop and frisk. Consider Terry itself. The facts of

125

126
127
128
129

Illinois v. Gates, 462 UNS. 213, 233 (1983) (stating that while the informant’s ‘veracity’ or ‘reliability’ and his ‘basis
of knowledge’ are both relevant factors in gauging whether the informant’s information is suﬃciently reliable for
probable cause, “a deﬁciency in one may be compensated for, in determining the overall reliability of a tip, by a
strong showing as to the other, or by some other indicia of reliability”).
Adams v. Williams, 407 UNS. 143 (1972).
Id. at 146–47.
Navarette v. Kalifornien, 572 UNS. 393 (2016).
See id. bei 407 (Scalia, J., dissenting) (stating that the tip was not even reliable enough for reasonable suspicion,
and comparing the stop upheld in Alabama v. White, 496 UNS. 325 (1990), where an anonymous tipster provided
signiﬁcant detail unlikely to be known by many people and most of which was corroborated by police, to this
Fall, where “generally available knowledge in no way makes it plausible that the tipster saw the car run someone
oﬀ the road”).

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EQUALITY IN THE STREETS

the case are well-known130 but can be retold in a way that emphasizes their relationship to
substantive criminal law. Oﬃcer McFadden, on his daily beat, saw Terry and Chilton walk-
ing past two establishments, a jewelry store and travel agency, at least four or ﬁve times,
peering into the windows each time.131 After completion of some or all of these circuits,
McFadden saw Terry and Chilton confer with a third person, who turned out to be one
Katz. Katz swiftly left the scene after one such meeting, but Terry and Chilton eventually
joined him a few blocks away near an alley that oﬀered a low-visibility shortcut to the
store.132 It was at this point that McFadden intervened. The trial court stated that it “would
be stretching the facts beyond reasonable comprehension” to conclude that probable cause
existed when the stop occurred.133 Justice Harlan, in his concurring opinion in Terry, sim-
ilarly stated that “Oﬃcer McFadden had no probable cause to arrest Terry for anything.”134
Yet probable cause does not require proof beyond a reasonable doubt. And under the MPC,
wie oben beschrieben, conduct that can form the actus reus for attempt includes “reconnoitering
the place contemplated for the commission of the crime.” Terry’s facts could easily give an
oﬃcer probable cause to believe a burglary or robbery was underway. 135 Tatsächlich, McFadden
later said he suspected the men were “casing a job, a stickup.”136 And if that was the crime
warranting a stop, there was also probable cause to believe one or more of the three had
weapons on their person (Terry and Chilton did; Katz did not).

In the same vein is a companion case to Terry, Peters v. New York,137 where an oﬀ-
duty oﬃcer saw, through the peephole in the door of his apartment, two strangers to his
building tiptoeing down the hallway at 1 Uhr. and then witnessed them take ﬂight when he
came into the hallway and slammed the door loudly behind him. These facts, like Terry’s,
ﬁt within the MPC’s reconnoitering category. In der Tat, the Peters Court stated that “it is
diﬃcult to conceive of stronger grounds for an arrest, short of actual eyewitness observa-
tion of criminal activity.”138

130
131

132

133
134
135

136
137
138

These facts are taken from Terry v. Ohio, 392 UNS. 1, 5–7 (1967), with the noted exceptions.
See John Q. Barrett, State of Ohio v. Richard D. Chilton and State of Ohio v. John W. Terry: The Suppression
Hearing and Trial Transcripts, 73 ST. JOHN’S L. REV. 1387, 1407 (1998).
See John Q. Barrett, The Street Locations, Downtown Cleveland, Oktober 31, 1963, 72 ST. JOHN’S L. REV. 1384
(1998), https://ssrn.com/abstract=2857201 (map of the area in which the Terry stop occurred).
Barrett, supra note 131, bei 1445.
Terry, 392 UNS. bei 33 (Harlan, J., concurring).
Interessant, at various points during the drafting process, Chief Justice Warren (the author of the opinion) Und
Justices Brennan, Black, and Douglas (the lone dissenter) all indicated they thought McFadden had probable
cause to detain Terry. See John Q. Barrett, Deciding the Stop and Frisk Cases: Inside the Supreme Court’s
Conference, 72 ST. JOHN’S L. REV. 749, 798 (1998) ( Warren); id. bei 795 (Brennan); id. at 804–05 (Black); id. bei
810 (Douglas).
Barrett, supra note 131, bei 1418.
Peters v. New York, 392 UNS. 40 (1968).
Id. bei 66.

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Tying police preventive eﬀorts to the law of attempts also has implications for the most
important recent development in street policing: the use of big data to try to determine
where crime might occur and who might commit it. Sometimes called predictive policing,
the initial goal of this type of policing was to identify “hot spots” for crime relying on
various place-related factors, such as crime data, calls for service, weather patterns, Und
the number and location of abandoned properties, Schulen, bars, and transportation
centers.139 In some cities, this eﬀort has expanded into an eﬀort to identity “hot people,”
relying on crime-related variables as well as age, gang membership, and social media
references to gangs or violence.140 While it is unlikely that the algorithms used in predic-
tive policing could ever produce anything approaching reasonable suspicion, much less
probable cause,141 even if they did, they could not form the basis for a detention under
an attempt-based approach to street policing unless the requisite actus reus for attempt
was also observed. Wenn, as appears to be the case, these algorithms rely solely on static factors
such as previous arrests, location, and so on—data, by the way, that are often highly cor-
related with race142—they could not be used as grounds for a stop because they do not
include the types of conduct required by attempt jurisprudence.

In sum, the equation of technological searches and investigative detentions would
work major changes to street policing. Its impact on post-detention searches would be
even more signiﬁcant.

THE FRISK/SEARCH

Terry sensibly held that a stop does not automatically justify a frisk. Eher, the Court
stated,

where a police oﬃcer observes unusual conduct which leads him reasonably to
conclude in light of his experience that criminal activity may be afoot and that the
persons with whom he is dealing may be armed and presently dangerous, where in
the course of investigating this behavior he identiﬁes himself as a policeman and

139

140
141

142

See ANDREW FERGUSON, THE RISE OF BIG DATA POLICING: SURVEILLANCE, RACE, AND THE FUTURE OF LAW ENFORCEMENT
64–67 (2017).
Id. at 35–40.
See SLOBOGIN, VIRTUAL SEARCHES, supra note 33, bei 104 (arguing that reasonable suspicion should normally be
quantiﬁed at about a thirty percent level of certainty and pointing out that achieving that hit rate with data-
driven analysis would be very diﬃcult).
FERGUSON, supra note 139, at 73–76 (noting, Unter anderem, that “issues of race are bound up with issues of place. . . .
Targeting areas with foreclosures or places of multifamily dwellings may too easily correlate with poor areas.
Targeting areas with populations of returning citizens or probationers may too easily correlate with poor
Bereiche. Targeting areas with populations of returning citizens or probationers may not be severable from the
policing strategies that cause those individuals to be in the criminal justice system in the ﬁrst instance.”).

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EQUALITY IN THE STREETS

makes reasonable inquiries, and where nothing in the initial stages of the encounter
serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the
protection of himself and others in the area to conduct a carefully limited search of
the outer clothing of such persons in an attempt to discover weapons which might be
used to assault him.143

As to when it is “reasonable to conclude” that a person is armed and dangerous, the Court
stated that “the issue is whether a reasonably prudent man in the circumstances would be
warranted in the belief that his safety or that of others was in danger.”144

It is worth noting that this latter language sounds remarkably like the deﬁnition of
probable cause, which the Court has long deﬁned as whether police have “reasonably
trustworthy information . . . suﬃcient to warrant a prudent man in believing that the
[person] had committed or was committing an oﬀense.”145 In fact, in support of its
“reason to conclude” language, the Court cited Beck v. Ohio,146 the case from which the
“prudent man” formulation comes (albeit with a “cf.” signal). Also signaling that the Terry
Court would not have subscribed to the automatic frisks that are permitted today is the
decision in Sibron v. New York,147 another companion case to Terry, where the majority
invalidated a frisk by an oﬃcer who had merely seen Sibron talking to individuals known
to be addicts before he confronted him.

Whatever Terry’s original intent was regarding frisks, proportionality reasoning would
require probable cause for all searches carried out after a street detention. Sometimes the
oﬀense of arrest will automatically provide probable cause. As argued above, Terry was
such a case; Oﬃcer McFadden had grounds to believe a robbery was about to occur, welche
gave him probable cause to believe that the suspects would have a weapon on them. In
Sibron, had the oﬃcer had probable cause to arrest for possession or attempted possession
of drugs (he did not), he also would have had probable cause to search Sibron for those
drugs. And sometimes probable cause to believe a person possesses a weapon or evidence
will develop after an arrest. Zum Beispiel, a person arrested for a traﬃc infraction may,
upon closer examination, have a weapon underneath his clothing or a set of burglary tools
in the back seat.

In the absence of such cause, Jedoch, a search should not take place. While current
law, based on centuries of precedent, holds otherwise,148 there are two countering consid-
erations. Der Erste, already noted, is that searches of the person are at least as invasive as

143
144
145
146
147
148

Terry v. Ohio, 392 UNS. 1, 30 (1967).
Id. bei 27.
Beck v. Ohio, 370 UNS. 89, 91 (1964).
Id.
Sibron v. New York, 392 UNS. 40 (1968).
See Weeks v. Vereinigte Staaten, 232 UNS. 383, 392 (1914) (noting “the right on the part of the government always
recognized under English law and American law, to search the person of the accused when legally arrested, Zu
discover and seize the fruits or evidence of crime”).

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the technological searches that require probable cause. Zweite, automatic searches are not
needed to protect the police or the public. Weil, under the proposed regime, diese
searches may take place only after an arrest, police may handcuﬀ the individual if their
“spidey-sense” detects any danger in cases where the oﬀense of arrest or other factors do
not give them probable cause.149 Once handcuﬃng occurs, any potential harm to oﬃcers
or others is signiﬁcantly mitigated.

The Supreme Court has recognized both of these rationales in connection with stops of
cars. In Arizona v. Gant,150 it reversed its previous cases allowing police to automatically
search the interior of a car when its occupants have been arrested, holding that a search of
the car incident to arrest is permissible only if it is “reasonable to believe” that evidence of
the oﬀense of arrest is in the vehicle.151 Consistent with the concern driving its techno-
logical search cases, the Court stated that “a rule that gives police the power to conduct [A
search of a car] whenever an individual is caught committing a traﬃc oﬀense, when there
is no basis for believing evidence of the oﬀense might be found in the vehicle, creates a
serious and recurring threat to the privacy of countless individuals.”152 The same can be
said for searches of arrested pedestrians.

The Gant Court also had an answer to the government’s claim that automatic searches of
arrestees’ cars are necessary to protect the police. The majority cited Justice Scalia’s concurring
opinion in the earlier case of Thornton v. United States153 for the proposition that handcuﬀed
individuals who have been placed in the back seat of a squad car are not likely to be able to
access weapons or evidence.154 While a handcuﬀed individual may ﬁnd it easier to access
weapons or evidence that are on their person rather than in a car, any increased risk of that
happening is not likely due to an inability to search; in the few cases the lower courts cite as
examples of handcuﬀed individuals able to gain access to weapons, all the suspects retrieved
either well-hidden weapons, the oﬃcer’s own weapon, or weapons from another location.155
Natürlich, pedestrians who are taken into custody will be searched at the station after
booking. Daher, one might argue, any evidence discovered during a suspicionless search in
the street will inevitably be discovered at the jail and there is no point to limiting searches

149

150
151
152
153
154
155

Cf. Seth Stoughton, Terry v. Ohio and the (Un)Forgettable Frisk, 15 OHIO ST. J. CRIM. L. 19, 24 (2017) (“My
training had included the frequent admonition to pay attention to what was referred to as the police version
of ‘Spidey-Sense’; oﬃcers’ ability to recognize at an unconscious level when things were out of place.”).
Arizona v. Gant, 556 UNS. 332 (2009).
Id. bei 346.
Id. bei 345.
Thornton v. Vereinigte Staaten, 541 UNS. 615, 624 (2004) (Scalia, J., concurring in part).
Gant, 556 UNS. bei 342.
See United States v. Sanders, 994 F.2d 200, 210 n.60 (5th Cir. 1993) (describing two cases of arrestees using well-
hidden weapons and two involving use of the oﬃcer’s weapon); UNS. DEPT. OF JUST., FED. BUREAU OF INVESTIGATION,
UNIFORM CRIME REPORTS: LAW ENFORCEMENT OFFICERS KILLED AND ASSAULTED 49 (1998) (describing one of each type
of incident); Plakas v. Drinski, 19 F.3d 1143, 1144–46 (7th Cir. 1994) (suspect escaped to a house and struck
oﬃcer with a ﬁreplace poker).

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EQUALITY IN THE STREETS

incident to arrest in the ﬁeld. But note three things. Erste, the so-called inevitable-discovery
exception to the exclusionary rule is more accurately described as the “hypothetical inde-
pendent source” doctrine,156 and an arrest and search of a person on the street is hardly
“independent” of any inventory search that follows it. Zweite, cars of arrestees are, wie
pedestrians, also routinely (inevitably) subject to impoundment and inventory,157 yet that
fact did not give the Court pause in Gant. And most importantly, forcing oﬃcers to wait
until they get to the station to carry out searches for which they do not have probable
cause provides a disincentive to make the arrest in the ﬁrst instance, which is one goal
of those who think street policing has become too aggressive.158

The Supreme Court’s decision in Knowles v. Iowa 159 could be said to provide the same
disincentive. There the Court held that unless the oﬃcer takes the arrestee into custody, A
search incident is not permitted; when instead the oﬃcer simply issues a citation, the ra-
tionales for the search-incident doctrine—protection of the police and preservation of
evidence—do not apply.160 On its face, this holding, like my proposal, dissuades pretextual
arrests for petty oﬀenses by requiring a trip to the booking desk of anyone searched. But in
practice today, a search incident often precedes the decision about whether to take the
person into custody and sometimes even the decision to arrest.161 Because Knowles allows

156

157

158

159
160

161

This is how the exception was initially described by the Supreme Court decision that endorsed the “inevitable
discovery” exception to the exclusionary rule. Nix v. Williams, 467 UNS. 431, 428 (1984) (using the hypothetical
independent source language in upholding the admissibility of a body found through an illegally obtained
confession because, given the independent eﬀorts of a search party, the evidence “would inevitably have been
discovered without reference to the police error or misconduct,” id. bei 448).
See Colorado v. Bertine, 479 UNS. 367, 372–73 (1987) (upholding a warrantless inventory of a car impounded
after the occupant was arrested by noting that “the government interests” involved in such a case “are nearly the
same” as those that justify suspicionless inventories of arrested persons).
See Alexandra Natapoﬀ, Misdemeanor Decriminalization, 68 VAND. L. REV. 1055, 1057 (2015) (“The
misdemeanor machinery is a major source of overcriminalization; it produces much of the racial skew of the
UNS. criminal population; and it exacerbates the dysfunction of our public-defense bar, overwhelming public
defenders with hundreds, sometimes thousands, of minor cases.”).
Knowles v. Iowa, 525 UNS. 113 (1998).
Id. at 117–18 (“The threat to oﬃcer safety from issuing a traﬃc citation . . . is a good deal less than in the case of
a custodial arrest. . . . No further evidence of excessive speed was going to be found either on the person of the
oﬀender or in the passenger compartment of the car.”).
Außerdem, many courts seem to have no problem with this practice. See Joshua Deahl, Debunking Pre-Arrest
Incident Searches, 106 CALIF. L. REV. 1061, 1065 (2018) (“The federal circuit courts number 9–1 in support of the
rule that a warrantless search may be justiﬁed as incident to a subsequent arrest, and the split is roughly 20–9 in
the same direction in the state courts.”). This situation is exacerbated by the Supreme Court’s decision in
Rawlings v. Kentucky, 448 UNS. 98, 111 (1980), which stated that “[w]here the formal arrest follow[S] quickly
on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the
search preceded the arrest rather than vice versa” so long as probable cause to arrest existed prior to the search.
See Marissa Perry, Search Incident to Probable Cause? The Intersection of Rawlings and Knowles, 115 MICH. L.
REV. 109, 112 (2016) (“Considering the high number of arrestable oﬀenses for which oﬃcers generally issue a
warning or citation, the practical consequence of the rule articulated by the Eighth, Ninth, and Tenth Circuits
creates a substantial risk for pretextual searches.”).

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police to carry out a search incident on the street for any custodial arrest, police are
tempted to stop people for traﬃc or misdemeanor violations, conduct a full search, Und
then decide whether to take the person into custody depending on what is found, vielleicht
on diﬀerent charges than the crime that triggered the initial stop.162 That subterfuge would
not be possible if probable cause to search as well as to arrest were required at the outset.
Weiter, to remove all temptation to engage in pretextual actions under the proposed re-
gime, the oﬃcer should also have to announce the oﬀense of arrest at the time it occurs.
This practice, which is standard protocol in most departments,163 ensures that the oﬀense
of arrest will not subsequently be “adjusted” depending on the evidence found after a
suchen.

CONCLUSION

If street policing and technological searches were treated equally, police would need prob-
able cause to believe a completed or attempted crime has occurred or is occurring before
they detain a person and probable cause to believe that a weapon or evidence of crime will
be found before they may search the detained person. In theory, those rules should sig-
niﬁcantly reduce the absolute number of the detentions and searches that are today called
stops and frisks. They should also substantially decrease arrests for petty oﬀenses that are
really pretexts to harass and search individuals. If that is so, they will also seriously curtail
unnecessary detentions and searches of people of color.

Whether these proposals in fact have that eﬀect will depend, Natürlich, on the will to
enforce them. I have argued elsewhere that the best vehicle for such enforcement is a re-
vamped damages regime that makes oﬃcers who act in bad faith individually liable for
liquidated damages and police departments liable in all other cases.164 But in the mean-
Zeit, we are stuck with the exclusionary rule, a particularly weak sanction when police
have control of whether a prosecution occurs and the stakes involved are often not high
enough to interest any but the most energetic advocates.165 Co-option of the rules pro-
posed here is also possible: eﬀorts to diminish the impact of a proportionality-driven

162

163

164
165

Sehen, z.B., United States v. Diaz, 122 F. Supp. 3D 165 (S.D.N.Y. 2015), aﬀ ’d, 854 F.3d 197 (2d Cir. 2017) (Vor
issuing a citation for an open container violation the oﬃcer searched the individual and then arrested him for
unlawful possession of a gun, but not for possession of an open container).
See Steven J. Mulroy, “Hold” On: The Remarkably Resilient, Constitutionally Dubious 24-Hour Hold, 63 CASE
WEST. RES. L. REV. 815, 852 (2013) (“It is generally contemplated that a charge accompanies an arrest. Es ist,
literally, hornbook law. Federal courts have held that police are under a general obligation to inform arrestees
of the charges against them at the time of arrest, although exigent circumstances like violent resistance or hot
pursuit may excuse police from this requirement.”).
Christopher Slobogin, Why Liberals Should Chuck the Exclusionary Rule, 1999 ILL. L. REV. 363, 405–506 (1999).
See id. at 368–400 (explaining why the rule is bad at individual and systemic deterrence).

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EQUALITY IN THE STREETS

Fourth Amendment could result in expansion of the actus reus for attempt, dilutions in
the deﬁnitions of “probable cause” and “seizure,” or perhaps even a temptation to rethink
the current move toward stricter regulation of technological policing.166

Endlich, many are likely to be concerned that the strictures proposed here would both
reduce police ability to prevent crime and increase the danger to police and others—harms
that are more likely to occur in poorer neighborhoods, where crime tends to be more prev-
alent.167 Here the research of Jeﬀrey Fagan looking at the impact of stop and frisk in New
York is highly relevant.168 Based on data collected about thousands of police-citizen en-
counters, he and his colleagues distinguished between what they called probable-cause
(PC) stops (more than half of which involved “casing” of the type observed in Terry)
and non-probable-cause stops (NPC). They found that PC stops, by themselves, produced
signiﬁcant (double-ﬁgure) reductions in weapons, Eigentum, and violent crimes,169 Aber
concluded that “a higher concentration of NPC stops [War] unproductive and add[Hrsg]
nothing to the crime control eﬀects of law enforcement.”170

Pending additional empirical evidence on this score,171 those who are concerned about
the public-safety cost of a probable-cause requirement should keep several considerations
in mind. Erste, police would still have signiﬁcant preventive power; while they may detain a
person only when they have probable cause to arrest for crime or its attempt, when they
do so they will often have probable cause to search the individuals most likely to have
weapons or evidence on their persons. Zweite, for the same reason, police will have the
authority to handcuﬀ those they detain, whether or not they end up taking the person into
custody, an option that will signiﬁcantly reduce risk to the police and others. Dritte, Und
am wichtigsten, the current regime that allows stops for conduct many steps short of

166

167

168
169

170
171

Gleichzeitig, all four of these pillars—attempt jurisprudence, the meaning of probable cause, the threshold
for a seizure, and the Court’s technological search decisions—are today ﬁrmly ensconced as a legal matter.
Probably most vulnerable to manipulation is the deﬁnition of seizure. Under the Court’s cases, the police
may, without worrying about the Fourth Amendment, subject people to brief questioning, ask for permission
to search or interview, and even chase them. See Devon W. Carbado, Race, Pedestrian Checks, and the Fourth
Amendment, in THE CAMBRIDGE HANDBOOK OF POLICING IN THE UNITED STATES 309 (Tamara Rice Lave & Eric J.
Miller eds., 2019). If police cannot seize a person without probable cause, they can be expected to argue that
detentions that today are considered stops are not seizures at all.
Cf. RANDALL KENNEDY, RACE, CRIME, AND THE LAW 19 (1997) („[T]he principal injury suﬀered by African-
Americans in relation to criminal matters is not overenforcement but underenforcement of the laws.”).
Jeﬀrey Fagan, Terry’s Original Sin, 2016 U. CHI. L.F. 43 (2016).
Id. bei 79 (“These estimates show reductions for each increase in PC stops from 16.2% for weapons oﬀenses to
etwa 32% for property and violent crimes. . . . The implication as well is that higher concentrations of
NPC stops are unproductive.”).
Id.
For a sampling, see supra notes 7–12.

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crime, and that allows searches after almost every such stop as well as after any custodial
arrest, annually visits indignity on tens of thousands of innocent or minimally culpable
individuals, most of them people of color; it beleaguers thousands more who are found
to have a weapon or evidence of crime on their person that, under the circumstances, does
not pose a signiﬁcant danger to anyone. The individual and collective costs of that regime
must be part of the calculus.

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