The Poverty Exception to the Fourth Amendment

Abstract

This essay, written for the Sixth Annual LatCrit conference, explores the subterranean motifs of current rules regulating searches and seizures by the police. More specifically, it investigates whether and to what extent alienage, race and poverty influence the warrant and individualized suspicion rules purportedly governing police investigation. The essay begins by showing that, contrary to the assertion of other conference participants, Supreme Court doctrine has not created a "Mexican exception" to the Fourth Amendment (as distinguished from an "illegal alien" exception, which does seem to exist). The main focus of the article, however, is an examination of whether the Court's caselaw has established a "poverty exception" to the Amendment. Based on cases dealing with the Fourth Amendment threshold, car searches, consent searches, arrests, stops, and a variety of other contexts, the essay concludes that relative wealth plays a major role in determining whether a person's interests are protected by the Amendment. The essay also takes issue with Professor William Stuntz' article, The Distribution of Fourth Amendment Privacy, which, based on similar observations, concluded that Fourth Amendment strictures should be relaxed as a means of easing the cost of investigating the well-to-do. Stuntz is probably wrong in his assertion that the reason police pick on the poor is because that group is easier to search without violating search and seizure rules. In any event, his recommendation that we replace privacy with coercion as the touchstone of Fourth Amendment analysis fails to address the inequality problems that both he and I perceive, and his notion that we should refashion constitutional rules to neutralize the advantage that wealth confers would have several perverse effects.