It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs donât make a right.
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Writing only for myself, and drawing on my professional experiences, I would add that unlawful âstopsâ have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officersâ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.
Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wantsâso long as he can point to a pretextual justification after the fact.
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The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your âconsentâ to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand âhelpless, perhaps facing a wall with [your] hands raised.â If the officer thinks you might be dangerous, he may then âfriskâ you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may ââfeel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.ââ
The officerâs control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or âdriving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.â At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to âshower with a delousing agentâ while you âlift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.â Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the âcivil deathâ of discrimination by employers, landlords, and whoever else conducts a background check.
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By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are âisolated.â They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.
They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
I dissent.
