Can the police use race when deciding who to stop?

If dozens are committing a crime, can the police use race, gender or other factors in selecting who to arrest?  Professor Daniel Capra of Fordham Law School examines the troubling issue of "PRETEXTUAL ARRESTS."


 Professor Daniel Capra is a professor at Fordham Law School. He is a nationally recognized expert on evidence and criminal procedure.

Can the police use race when deciding who to stop?  Brief Transcript

Daniel Capra: A young black man is driving on a highway. He’s going 63 in a 55 mile per hour zone. Cars are passing him going 72, 74, 75. The officer selects this young black driver, pulls him over, gives him a ticket, and turns out under the rules of the jurisdiction, that person can be arrested for a traffic violation, which is actually the case in many jurisdictions. So during this arrest, the officer does a search of the passenger compartment, a search of the defendant, and the question is—is any of this permissible because the officer has in his mind a racially selective motive? The answer is, unfortunately, that there’s nothing wrong with this under the 4th Amendment as determined by the Supreme Court. And to explain this, I’m here, Dan Capra, Fordham Law School, and I’m here for TalksOnLaw.

Why can this be correct? Well because what the Supreme Court said in a case called Whren v. United States, and this was a unanimous 9-0 opinion. The 4th Amendment does not look at the subjective motivations of the police officer. The question is whether the police officer has probable cause to arrest or reasonable suspicion to stop, and that’s based on objective factors. In the case in the example that I just started with, there was probable cause to pull the person over, to give him a ticket, and, if state law permits, custodially arrest that person, and that is because he was speeding. The fact that other people were speeding past him is not a relevant point. There’s probable cause to arrest him. If the officer were deposed, in his heart of hearts, he would probably say I did this for some racially selective purpose, but that’s not relevant because the officer’s subjective motives don’t count. The question would be one not of what the officer’s motives were but whether the state law authorizes an arrest in this particular situation. These are very narrow details and have nothing to do with the broader question of whether any of this is correct. But the Supreme Court has so held, and the Supreme Court has also held that if state law allows, officers can arrest people, put them into custody, and so they go down and they get fingerprinted, they get searched thoroughly for minor arrests such as seatbelt violations or turning right on red when you’re not supposed to turn right on red. All of these things are permissible under the 4th Amendment for the reason that we don’t look to the subjective state of mind of the officer. And that’s the problem, but with a unanimous opinion of the Supreme Court anchoring this whole doctrine, it’s a doctrine that’s unlikely to change. With this sad news, I’m professor Dan Capra and I’m here on behalf of TalksOnLaw.