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55 Harv. C.R.-C.L. L. Rev. 467 (2020)
Stop-and-Strip Violence: The Doctrinal Migrations of Reasonable Suspicion

handle is hein.journals/hcrcl55 and id is 477 raw text is: Stop-and-Strip Violence: The Doctrinal Migrations of Reasonable Suspicion Devon W. Carbado* ABSTRACT In 1968, the U.S. Supreme Court decided Terry v. Ohio. Writing for the Court, Chief Justice Earl Warren ruled that police officers may stop-and-frisk people whom they have reasonable suspicion to believe are armed and danger- ous. The reasonable suspicion standard was an exception to the Fourth Amend- ment's probable cause requirement, one that the Chief Justice maintained would be narrowly tailored to circumstances under which police officers fear for their safety or the safety of others. Over the past forty years, that exception has metas- tasized across Fourth Amendment law, beyond the Terry stop-and-frisk context, to justify a range of governmental intrusions. This Article describes that devel- opment. In particular, the Article highlights a demeaning and intrusive practice that reasonable suspicion now authorizes at the United States border. There, the Court allows governmental officials to mobilize reasonable suspicion to subject people not simply to stop-and-frisk, but to a more invasive form of search and seizure fairly termed stop-and-strip violence. Today, at the border, the Supreme Court's reasonable suspicion standard permits law enforcement to conduct significantly more intrusive seizures and searches than the stop-and-frisk practice out of which the standard emerged.1 There, reasonable suspicion acts almost like a warrant with respect to the kinds of intrusions it authorizes. In particular, armed with only reasonable suspicion, the government may subject individuals to stop-and-strip, a lengthy detention in which government agents question and strip search a person in the context of seizing them.2 To appreciate the ease with which border agents can target a person to stop-and-strip, imagine that Tanya is returning to the United States from a * The Honorable Harry Pregerson Professor of Law, University of California, Los Angeles (UCLA), School of Law. This Article is part of a broader scholarly project on race, the Fourth Amendment, and police violence. See, e.g., Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 CAL. L. REv. 125 (2017); Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 GEO. L.J. 1479 (2016); Devon W. Carbado, From Stop and Frisk to Shoot and Kill: Terry v. Ohio's Pathway to Police Violence, 64 UCLA L. REV. 1508 (2017); Devon W. Carbado, Predatory Policing, 85 UMKC L. REV. 548 (2017). For conversations about or feedback on this Article, I thank: Paul Butler, Beth Colgan, Kimberld Crenshaw, Justin Hans- ford, Cheryl Harris, Priscilla Ocen, Andrea Ritchie, Joanna Schwartz, and Sherod Thaxton, as well as participants at the African American Policy Forum's Writer's Retreat. Rachel Gill-Stine, Brad Zukerman, and Kanwalroop Kaur Singh provided invaluable research assistance, as did UCLA Law's Hugh and Hazel Darling Research Library. All errors are my own. ' See, e.g., United States v. Vega-Barvo, 729 F.2d 1341, 1343-44, 1350 (11th Cir. 1984) (finding that the non-forced x-ray of an individual internally carrying cocaine at the border was reasonable). 2 See id at 1345.

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