Safeguarding equal protection rights: the search for an exclusionary rule under the equal protection clause.

• Author: Holland, Brooks

1. INTRODUCTION

   Law enforcement exercises tremendous discretion in deciding whom to investigate for suspected violations of the law.(1) In perhaps no setting does law enforcement possess greater discretion than in the decision to conduct a traffic stop of an automobile, or to engage someone in a "street-level" encounter, short of a "Terry stop."(2) This discretion necessarily allows, if not requires, law enforcement officers to make subjective choices about which persons to target for such intrusions.

   Commonly, these subjective choices reflect innocuous decision-making by law enforcement, such as prioritizing certain problems over others due to resource limitations or other concerns. But these subjective choices sometimes reflect a desire to investigate a suspect based on a suspicion wholly unrelated to the proffered basis for the stop, which represents a mere "pretext" for law enforcement to investigate this other suspicion. These subjective choices sometimes reflect a discriminatory intent to target a person for investigation due to his or her race. Indeed, several recent studies suggest the routine role that race plays in law enforcement decision-making regarding whom to investigate.(3)

   Nonetheless, the United States Supreme Court held in Whren v. United States(4) that a law enforcement official's "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."(5) Rather, "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action."(6) The Court thus eliminated any Fourth Amendment basis for a criminal defendant to claim that objectively supported law enforcement conduct--such as a routine traffic stop--represents a pretext to investigate the defendant due to his or her race.(7) Moreover, many street-level investigative practices do not implicate the Fourth Amendment at all.(8) Irrespective of Whren's holding, therefore, the subject of such an encounter similarly possesses no remedy under the Fourth Amendment for any invidious intent that motivated the officer's investigation.

   In Whren, however, the Supreme Court left open another door to challenging the subjective motives behind law enforcement investigative practices: "[T]he Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment."(9)

   Demonstrating a race-based equal protection violation in law enforcement investigative practices, however, can prove quite challenging, despite the fact that "[t]here is no shortage of anecdotal evidence regarding the use of race in the decision to perform ... stops."(10) To establish that law enforcement violated a defendant's equal protection rights, the defendant must establish not just a discriminatory effect from the law enforcement practice, but also a specific discriminatory intent.(11) Clearing this evidentiary hurdle in the individual case can prove enormously difficult.(12) The reluctance of many judges to brand law enforcement with the stigma of a racially discriminatory purpose compounds this difficulty.(13)

   But even for a defendant who can prove that law enforcement intentionally targeted the defendant due to his or her race, or upon some other invidious basis,(14) neither in Whren nor elsewhere has the Supreme Court clarified whether a defendant may seek the exclusion of evidence in a criminal proceeding as a remedy under the Equal Protection Clause.(15) Nor has the Court suggested what scope such a remedy might take or the breadth of law enforcement conduct from which it would offer constitutional protection. This Article examines whether and to what extent the Equal Protection Clause offers a viable remedial alternative to the Fourth Amendment when law enforcement engages in discriminatory investigative practices.

   Section II of this Article considers the constitutional bases and policies supporting the exclusionary rule under the Fourth Amendment, and examines whether they extend to the Equal Protection Clause in the criminal context. Section II.A focuses on the textual basis for the exclusionary rule, and the deterrence and judicial integrity rationales that underlie it. Section II.B reviews a series of opinions on this subject from the United States Court of Appeals for the Sixth Circuit. These opinions strongly suggest creating an equal protection exclusionary rule remedy, and would extend a broad scope to this remedy when law enforcement engages in racial discrimination, covering "consensual" encounters and "pre-contact" investigations that do not implicate Fourth Amendment interests.

   Section III argues that the Sixth Circuit's opinions propose a sound and workable doctrine for an equal protection exclusionary rule. The Article concludes by suggesting that the Equal Protection Clause should provide a broad remedial alternative to the Fourth Amendment's exclusionary rule, particularly because of the demanding showing of intentional discrimination that such a claim requires. Furthermore, when an equal protection claim extends to demonstrable racial or other invidious discrimination, the scope of an equal protection exclusionary rule should reach beyond the parameters of Fourth Amendment privacy interests, to encompass any situation in which law enforcement exploits a citizen's race to obtain evidence.(16)

2. THE EQUAL PROTECTION CLAUSE AND THE EXCLUSIONARY RULE

   Under Whren, a law enforcement official's subjective choices regarding whom to target for investigation generally do not affect the legality of a subsequent investigation, so long as a sufficient objective basis exists for the initial intrusion.(17) But when a law enforcement officer's subjective choice to target someone for a traffic stop or street-level encounter involves improper "considerations such as race,"(18) the Equal Protection Clause can take over where the Fourth Amendment leaves off.(19)

   The unanswered question is whether the Equal Protection Clause can provide the same remedy of suppression that the Fourth Amendment offers. In United States v. Armstrong,(20) the Supreme Court cautioned that it had "never determined whether dismissal of the indictment, or some other sanction, is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of race."(21)

   Stanford Law School Professor Pamela Karlan, however, has identified "four conventional remedies for violations of criminal procedure protections[:] exclusion of evidence; reversal of conviction (which normally permits retrial); dismissal of indictments in egregious cases; and separate civil damages actions."(22) Professor Karlan argues that "the exclusionary rule, a traditional criminal procedure remedy, may often be superior to traditional equal protection remedies for remedying equal protection violations in the criminal procedure context."(23) In so concluding, Professor Karlan focuses on both "the role suppression plays in fully vindicating individuals' fights against police misconduct,"(24) and on closing the gaps that the other remedies leave open.

   Civil remedies such as injunctions and civil damages suits, Professor Karlan notes, prove largely ineffective and impractical for most victims of law enforcement misconduct? "[I]f injunctions are unavailable and damages are likely to be small, suppression is left as the only effective remedy. Suppression creates a powerful reason for a criminal defendant to litigate an equal protection challenge vigorously."(26)

   Professor Karlan also highlights how a selective-prosecution dismissal of criminal charges may not prove appropriate in many cases that nonetheless involve discriminatory investigation by law enforcement:

   If ... the proper remedy for a discriminatory traffic stop is to dismiss outright all charges that are based on evidence acquired during such a stop, then exclusion would be at most a lesser included remedy of dismissal, and defendants would be indifferent as to its existence. But notice that such a position draws heavily on Fourth Amendment causation principles: it sees the evidence introduced as fruit of the poisonous tree, namely, the unconstitutional stop.... To the extent that dismissal is the appropriate remedy for selective law enforcement ... the state would be barred from prosecuting James L. Brown (Whren's codefendant, and the actual driver) for [traffic infractions]-the offense for which the police concededly had probable cause in Whren--if he could establish that the decision on whom to stop was based on race. But the link to the charges on which he was in fact prosecuted is a bit more tenuous. Suppose, for example, that the police can show that every time they observe individuals with the amount of crack that Whren and Brown possessed, they arrest them. Then the prosecution for drag possession does not itself involve "selective enforcement of the law based on considerations such as race."(27) A discriminatory investigation by law enforcement thus will not necessarily translate a selective prosecution claim into dismissal of the criminal charges. As a consequence, "suppression becomes a pointed remedy for the equal protection violation."(28)

   Other commentators, however, have opined that doctrinally, "it is far from clear that the exclusionary rule applies to an equal protection violation."(29) Indeed, "[a]lthough the Equal Protection Clause has been applied, as in Armstrong, to claims of selective prosecution, the police, unlike prosecutors, have generally not been held to answer to equal protection claims."(30) Professor Karlan herself noted, "As far as I can tell, with the exception of two New Jersey state court cases that antedate Whren...