Fourth Amendment Challenges & THE E FFECTS OF R ACE J UVENILE D EFENSE T RAINING A CADEMY G REEN H ILL S CHOOL S EPTEMBER 14, 2018 F ACULTY : J I S EON S ONG , T h o m a s C . G r e y F e l l o w a n d L e c t u r e r i n L a w, S t a n f o rd U n i v e rs i t y C LARENCE H ENDERSO N , J UVENILE U NIT S UPERVISO R , DAC, P IERCE C OUNTY
What does the Fourth Amendment actually say?
1. Expectation of privacy!! 2. S & S must be reasonable 3. Warrants are necessary to justify S & S 4. Prob. cause is necessary for warrant to 5. Warrants have issue to be specific THE CONSTITUTION
Does this apply to children? How to Raise 4 th issues?
DOES RACE MATTER?
SHORTCOMINGS OF THE 4 th AMENDMENT FRAMEWORK 4 th Amend allows pretext stops ( Whren ): Even if motivated by race, stop okay so long as another reason exists Reasonable Person in 4 th Am. context fails to account for race RAS and PC Factors are often proxies for race
Reasonable Person One who possesses the intelligence, educational background, level of prudence, and temperament of an average adult.
HOPE? ADVANCES IN ADOLESCENT DEVELOPMENT & NEUROSCIENCE RESEARCH ADVANCES IN COGNITIVES SCIENCE AND IMPLICIT RACIAL BIAS PUBLIC OUTCRY OVER CONTEMPORARY POLICE-BLACK RELATIONS
Reasonable Child J.D.B. v North Carolina , 564 U.S. 261 (2011) J.D.B. effectively adopted “ reasonable child ” standard for Miranda custody purposes. ◦ a “reasonable child subjected to police questioning will sometimes feel pressured to submit when a reasonable adult would feel free to go.” at 2402-03 ◦ Youth is an unambiguous fact that “generates commonsense conclusions about behavior and perception” at 2043 Defenders should argue that there is a logical extension to the 4 th Amendment (especially for school situations).
SEIZURE NORMED ON REASONABLE PERSON Objective standard: whether the police behavior would have communicated to a “ reasonable person ” that he was not at liberty to walk away ( Michigan v. Chesternut )
RACE AND ADOLESCENCE CONVERGE AT SEIZURE YOUTH RACE ◦ Power imbalance between Vicarious and collective negative child and police experiences with police ◦ Socialized to comply with Black Families transmit norms adults Negative experiences with SROs ◦ Less experience with law and rights Hostile and aggressive on-the-street ◦ Grisso’s research on encounters with police adolescent capacity to decide Community resentment and compliance with authority in law enforcement contex t
US. V. Smi mith, 7 794 F 4 F.2d 6 681 1 (7 th Cir (7 ir. 2 . 2015) Held: Mr. Smith was seized and not free to leave PD Brief: Cited police misconduct studies Highlighted fact that Mr. Smith was black male in urban area Police relations were strained Mr. Smith knew any wrong move could result in death Met officer in dark alley and officer immediate inquired whether he was armed
Consent to Search Police must show that consent was freely given, and not the result of express or implied duress and coercion. Schneckloth v. Bustamonte, 412 US 218, 219 (1973) ◦ Consent analysis not only involves some objective evaluation of the facts and circumstances, but it is also a subjective inquiry that takes into account personal experiences that drive fears and motivate people to act. at 234. ◦ Must also consider the “ possibly vulnerable subjective state of the person who consents. ” at 229
RACE & ADOLESCENCE CONVERGE AT CONSENT Y OUTH Race More deferential to adults Fear Less experience with legal Distrust between police and rights African American communities Part of brain for logical reasoning is last to develop Capacity to identify consequences immature Preference for short term gain
RACE AND REASONABLE ARTICULABLE SUSPICION
Te Terry v v. O Ohio , , 392 392 US 1 ( 1 (196 1968) Fourth Amendment is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest as long as the officer had reasonable suspicion that the person has committed, is committing, or is about to commit a crime and has reasonable belief that the person “may be armed and presently dangerous”
Social and Political Context: Race in Terry v. Ohio POLITICAL/SOCIAL CLIMATE LOCATION (CLEVELAND) Terry arrested in 1963; case decided in 1968 Heart of civil rights movement Cleveland specifically: ◦ School integration ◦ White flight
REASONABLE ARTICULABLE SUSPICION STOP AND FRISK PROXIES FOR RACE High crime area Description of crime involving weapon Failure to respond to police Flight Observation of a weapon Departure upon seeing police Body language consistent with weapon-possession (holding Furtive gestures/Nervousness waistband) Tips from informants Gun shots Casing Bulge in clothing Description match Exchanges b/w individuals Furtive gestures as if searching/concealing weapon Association w/ known offender Temporal/spatial proximity to crime
PROXIES FOR RACE
PROXIMITY OR PRESENCE IN HIGH CRIME AREA Brown v. Texas, 443 U.S. 47, 52 (1979) (noting that an individual’s presence in an area with high levels of narcotics trafficking is insufficient to allow stop or frisk). ◦ “presence in a high crime neighborhood [alone] is a fact too generic and susceptible to innocent explanation to satisfy the reasonable suspicion inquiry.” US v. Montero-Camargo , 208 F.3d 1122, 1138 (9 th Cir. 2000) "the citing of an area as `high- crime' requires careful examination by the court, because such a description, unless properly limited and factually based, can easily serve as a proxy for race or ethnicity ."
ASSOCIATION WITH KNOWN CRIMINALS “ [m]ere association with a known criminal cannot on its own be a basis for ‘reasonable suspicion.’” Ybarra v. Illinois , 444 U.S. 85, 91, 100 S. Ct. 338, 342, 62 L. Ed. 2d 238 (1979) Sibron v. New York, 392 US 40 (1968), officer observed defendant associating with 6-8 known drug addicts over course of 8 hours and talking to 3 more known addicts later on at a restaurant. The officer eventually thrust his hand into the defendant’s pocket and found heroine. The Court noted that “ reasonable suspicion required more than mere association with known criminals or addicts .”
DESCRIPTIONS: BOLOS Race becomes irrelevant when it describes the majority of a population in the area, and a seizure will be unconstitutional when it is based on a description that is too broad and would apply to a large number of youth at a given time. ◦ In re T.L.L., 729 A.2d 334, 340-41 (D.C. 1999) - finding description insufficient to justify seizure when lookout of two black teenagers wearing dark clothing could have fit many, if not most, black young men in the area at the time. ◦ Matter of A.S., 614 A.2d 534, 538 (D.C. 1992) finding description applied to a “potentially staggering number of youths in the quadrant of the city where the arrest took place.”)
DESCRIPTIONS: RACE AND RACIAL INCONGRUITY RAS will not be met if the officer’s suspicion “is based solely on racial incongruity —when a person is seen in a particular geographic area that is predominantly populated with people of a different race.” United States v. Hawthorne , 982 F.2d 1186, 1190 (8 th . Cir. 1992).
SUBJECTIVE INTEPRETATIONS IN EASONABLE ARTICULABLE SUSPICION Temporal/spatial proximity to High crime area crime Failure to respond to police Description of crime involving weapon Flight Observation of a weapon Departure upon seeing police Body language consistent with Furtive gestures/Nervousness weapon-possession (holding waistband) Tips from informants Gun shots Casing Bulge in clothing Description match Furtive gestures as if searching/concealing weapon Exchanges b/w individuals Association w/ known offender
Implicit Racial Bias and Reasonable Articulable Suspicion Implicit Bias Affects Police Attention and Perception of Suspect Behavior Implicit Bias Affects Police Interpretation of Whatever Behavior they Observe Current Commonsense Interpretations of Various Behaviors Fail to Account for Race
RACE AND ADOLESCENCE CONVERGE POLICE PERCEPTIONS OF YOUTH Youth have more contact with police than adults (heightened surveillance) Officers expect youth to be anti- authoritarian Officers have little understanding of adolescent development BUT WHAT ABOUT TAMIR RICE?
IRB RESEARCH: PERCEPTIONS OF YOUTH OF COLOR The general public: Perceived African American felony suspects as 4.53 years older than they actually were Among law enforcement: Also rated African American felony suspects as 4.59 years older than they actually were Among both Perceived white youth as less c culpable le when suspected of a felony than when suspected of a misdemeanor Perceived black felony suspects as significantly more culpable than either white or Latino felony suspects Goff, P.A., et al. (2014). The essence of innocence: Consequences of dehumanizing Black children, Journal of Personality & Social Psychology, 106 , 526-545.
Perceived Innocence / Culpability of Black Youth Subjects perceived: Youth ages 0–9 as equally innocent regardless of race Innocence of Black children age 10–13 equivalent to that of other children age 14–17 Innocence of Black children age 14–17 equivalent to that of non-Black adults age 18–21.
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