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73 Fla. L. Rev. 413 (2021)
Race and Reasonable Suspicion

handle is hein.journals/uflr73 and id is 413 raw text is: RACE AND REASONABLE SUSPICION

Ric Simmons*
Abstract
The current political moment requires society to rethink the ways that
race impacts policing. Many of the solutions will be political in nature,
but legal reform is necessary as well. Law enforcement officers have a
long history of considering a suspect's race when conducting criminal
investigations. The civil rights movement and the progressive criminal
justice decisions of the Warren Court mitigated the explicit use of race as
a factor, but there is ample evidence that many modern police officers
still openly or implicitly use race to guide their investigative decisions.
This Article examines and critiques how courts have historically
analyzed the question of race in the context of determining reasonable
suspicion or probable cause. There are two constitutional provisions that
regulate whether and how the police can use race as a factor to meet the
legal standards: the Fourth Amendment and the Equal Protection Clause.
Under the Fourth Amendment, police can only use race as a factor if race
is relevant to the likelihood that the suspect is engaged in criminal
activity. In theory, there could be a relationship between race and
criminal activity in a narrow subset of cases. But in reality, police and
courts rely on dubious anecdotal data to support this relationship and
conduct flawed statistical analysis to calculate the strength of the
relationship. Also, much of the data that exists is tainted by decades of
biased policing and prosecuting. Because there is a small subset of cases
in which a correlation between race and crime may exist, this country
needs a legal reform that requires prosecutors to demonstrate the
existence and strength of the correlation through empirical data rather
than through the subjective experiences of law enforcement.
Under the Equal Protection Clause, police officers may only explicitly
use race to support individualized suspicion if the use of race is narrowly
tailored to serve a compelling state interest and there is no race-neutral
factor that would also satisfy that interest. Although one would expect
this standard to severely limit the use of race in criminal investigations,
courts have allowed police to use race in a surprising number of cases. In
many cases, courts do not even find that the explicit use of race triggers
strict scrutiny. In other cases, when so-called race neutral factors trigger
disparate impact, the evidentiary burden shifts to criminal defendants to
* Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of
Law, Moritz College of Law, The Ohio State University. Thanks to Chris Slobogin, Hadar
Avarim, Jessica Eaglin, Eisha Jain, Susan Klein, Kay Levine, Jocelyn Simonson, Seth Stoughton,
Charles Weisselberg, Nancy King, Terry Maroney, Ruth Colker, Laurent Sacharoff, and Angela
Lloyd. Thanks also to Erin Hassett, Kristen Eby, and Madison Hill, who provided invaluable
research assistance on this project.

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