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American Journal of Law and Equality

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proportionality analysis, street policing, Fourth Amendment


Fourth Amendment | Law | Law Enforcement and Corrections


The racially disparate impact and individual and collective costs of stop and frisk, misdemeanor arrests, and pretextual traffic stops have been well documented. Less widely noticed is the contrast between Supreme Court case law permitting these practices and the Court's recent tendency to strictly regulate technologically enhanced searches that occur outside the street policing setting and that--coincidentally or not--happen to be more likely to affect the middle class. If, as the Court has indicated, electronic tracking and searches of digital records require probable cause that evidence of crime will be found, stops and frisks should also require probable cause that a crime has been committed (in the case of stops) or that evidence of crime will be found (in the case of post-detention searches). This equalization of regulatory regimes not only fits general notions of fairness. It is also mandated by the Fourth Amendment's Reasonableness Clause and the Court's cases construing it, which endorse a "proportionality principle" that requires that the justification for a search or seizure be roughly proportionate to its intrusiveness.



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