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20 Temp. Pol. & Civ. Rts. L. Rev. 29 (2010-2011)
Racial Profiling and a Punitive Exclusionary Rule

handle is hein.journals/tempcr20 and id is 31 raw text is: RACIAL PROFILING AND A PUNITIVE
Racial profiling has become a familiar and ubiquitous expression for
racially-motivated police conduct-a traffic stop, a stop-and-frisk, a line of
questioning, or any other police action targeting an individual for investigation
because of his or her race. ' The law of constitutional criminal procedure, however,
offers criminal defendants little doctrine to challenge evidence obtained through
racial profiling. Most notably, the United States Supreme Court has effectively
excised racial profiling claims from the Fourth Amendment, the traditional
constitutional criminal procedure basis for challenging police investigations.2
Instead, to be cognizable as a constitutional claim, racial profiling must violate the
Equal Protection Clause, requiring litigants to prove intentional discrimination on
the basis of race.3
. Assistant Professor of Law and Gonzaga Law Foundation Scholar, Gonzaga University School of Law.
The author practiced as a public defender in New York City from 1994 to 2005 and currently represents
federal criminal defendants by appointment. Michelle Trombley, Jacquelyn Olson, and Laurel Yecny
supplied excellent research assistance for this article. I am especially grateful to the participants of the
Race and the Criminal Law panel at the 2010 Law & Society Association conference for their
valuable feedback and suggestions.
1. See generally David Rudovsky, Litigating Civil Rights Cases to Reform Racially Biased
Criminal Justice Practices, 39 COLUM. HUM. RTs. L. REV. 97, 102 (2007) ([R]acial discrimination in
policing is often manifested in the use of racial profiling in common police practices such as car and
pedestrian stops, detentions, and searches.). For a comprehensive definition of racial profiling, see
Frank Rudy Cooper, The Un-Balanced Fourth Amendment: A Cultural Study of the Drug War, Racial
Profiling and Arvizu, 47 VILL. L. REv. 851 (2002): Racial profiling is best thought of as requiring three
components: (1) a categorization of people with certain characteristics as a 'race'; (2) a 'profile' that
describes the implications of someone's status as a member of a particular race; and (3) a 'profiler' who
links the racial categorization to a profile and applies the profile to an individual .... Race is thus seen
as a construct, the meaning of which changes over time in keeping with dominant ideologies. Id. at 852
n.9 (internal citations omitted).
2. For a brief overview of traditional Fourth Amendment doctrine, see Illinois v. Gates, 462 U.S.
213, 216 (1983) (addressing the quantum of proof required to establish probable cause under the Fourth
Amendment); Terry v. Ohio, 392 U.S. 1, 4 (1967) (analyzing the role of the Fourth Amendment in the
confrontation on the street between the citizen and the policeman investigating); and Katz v. United
States, 389 U.S. 347, 353 (1967) ([T]he Fourth Amendment governs not only the seizure of tangible
items, but extends as well to the recording of oral statements.).
3. See Whren v. United States, 517 U.S. 806, 813 (1996) ([T]he constitutional basis for objecting
to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth
Amendment.); see also United States v. Armstrong, 517 U.S. 456, 466 (1996) (noting that intent is a
key factor in the equal protection analysis). The Equal Protection Clause states: No State shall make or
enforce any law which shall ... deny to any person within its jurisdiction the equal protection of the

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