Excerpted From: Griffin Edwards and Stephen Rushin, Police Vehicle Searches and Racial Profiling: An Empirical Study, 91 Fordham Law Review 1 (October, 2022) (271 Footnotes) (Full Document)


EdwardRushinOver the last several years, American policing has undergone a racial reckoning. The murder of George Floyd at the hands of Minneapolis police and the ensuing nationwide protests have spurred broader examinations of how the law regulating police behavior has allowed--and in some cases actively facilitated--the marginalization of individuals of color. The subsequent nationwide conversation over policing has exposed long-standing debates about the trade-offs involved in the regulation of officer behavior. Civil rights advocates have pushed for additional oversight and accountability, with some arguing for a narrowing of the scope of policing, defunding, and/or abolition. In response, police chiefs and union leaders have claimed that additional reforms and regulations risk officer safety and impair their ability to fight crime. Although the murder of George Floyd shone a light on these issues, scholars, civil rights advocates, and policing leaders have long debated how to best regulate policing in a manner that balances safety and civil rights.

Few criminal procedure cases better illustrate this tension than the U.S. Supreme Court's 2009 decision in Arizona v. Gant. There, the Court analyzed a rather technical issue of criminal procedure: whether a police officer could automatically search a vehicle incident to the arrest of an occupant of the vehicle. But despite its seemingly narrow scope, the case emerged as a flash point for the broader debate over police regulation. Policing advocates argued that officers needed a clear, bright-line rule that permitted them to search vehicles any time they arrest a vehicle occupant. Any other rule, they argued, would impair officer safety and create an ambiguous, unmanageable standard. But civil rights advocates claimed that a broad rule permitting any search after an arrest of a vehicle occupant violated the Fourth Amendment by allowing officers too much discretion to engage in unnecessary and intrusive searches. Instead, civil rights advocates pushed the Court to adopt a narrower and admittedly more complicated standard--that police could only search vehicles incident to an arrest if the search was necessary to protect officer safety or if the search was necessary to preserve evidence related to the reason for the arrest. Although it was administratively more difficult to employ, civil rights advocates believed that this rule would better protect privacy in a manner consistent with Fourth Amendment requirements. The Court ultimately sided with civil rights advocates in overturning the dominant interpretation of its previous ruling in New York v. Belton and narrowing the opportunities for police to search vehicles incident to arrest. Across a lengthy majority opinion, concurrence, and two dissents, the justices used Gant as an opportunity to debate the trade-offs implicit in this kind of police regulation. Little research has examined the effects of the Gant decision or its broader implications for the discussion and literature on police regulation.

By using traffic stop data from the Stanford Open Policing Project database covering thirteen law enforcement agencies across seven states, this Article presents an empirical evaluation of the effects of shifting doctrines on vehicle searches incident to arrest. Because of the unique jurisdictional variation in laws on searches incident to arrest across these seven states, we estimate the effect of these kinds of doctrinal changes on officer safety, stops, arrests, and searches. We make two findings. First, using data from the Law Enforcement Officers Killed and Assaulted (LEOKA) Data Collection, we fail to find evidence that Gant or Gant-like state equivalent rules endanger officer safety. Jurisdictions that adopted more restrictive rules on searches incident to arrest saw no subsequent increases in officer assaults or deaths relative to jurisdictions with less restrictive rules. These findings are insensitive to various alternative modeling choices, giving us some confidence that Gant-like regulations had minimal effects on officer safety.

Second, we find that Gant was not associated with any statistically significant change in officer behavior in the aggregate. Jurisdictions that moved from the lax Belton doctrine to the more restrictive Gant doctrine saw no statistically significant change in the frequency of searches that co-occurred with arrests during traffic stops. This could suggest that, after Gant, officers simply used alternative means, like inventory searches, to search many of the same vehicles that they would have previously searched under the more expansive Belton doctrine. When we break down our results by race, however, we uncover a more pronounced decline in officer stops, arrests, and searches incident to arrest for individuals of color relative to white individuals after Gant. Although limitations inherent to our models and the limited available data prevent us from making definitive causal conclusions, we hypothesize that this statistical pattern may be attributed to officers previously using the broad discretionary authority granted by Belton to more frequently target drivers of color. By reducing the opportunities for officers to engage in some vehicle searches incident to arrest, Gant may have disincentivized pretextual tactics generally.

Based on this hypothesis, we conclude by considering the implications of these findings for the literature on policing. Our findings refute the officer safety narrative that has pushed courts and policy makers to adopt rules that defer to police discretionary authority. This is not to say that police regulations will never risk officer safety, but it provides evidence that some opposition to police regulation on officer safety grounds may be overstated. Additionally, our findings show that Gant may have had effects that some civil rights advocates at the time did not fully appreciate or predict. At the time of Gant, neither the amici, the petitioner, nor the justices discussed the implications of the decision on communities of color. The findings from this Article are a reminder that seemingly neutral procedural choices by courts in regulating police behavior may have racially disparate effects. Thus, we conclude by arguing for the narrowing of the discretionary authority of police officers as a mechanism for reducing disparities in the criminal justice system.

This Article proceeds in four parts. Part I walks through the history of court doctrines on searches incident to arrest, as well as the reactions to Belton and Gant. Part II discusses the Article's methodology, including the jurisdictional variation and data set that make our analysis possible. Part III presents the results of our modeling. Finally, Part IV evaluates the implications of our findings for the discussion and literature on policing.

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At the time of the decision, Gant served as a flash point for the broader debate over the trade-offs implicit in police regulation. But although the decision spent considerable time considering issues like officer safety, administrability, and stare decisis, there was no substantial discussion of the ways that modern American law enforcement used vehicle searches incident to arrest as part of a broader toolbox of pretextual policing tactics. Nor was there a discussion of how this type of pretextual policing may disproportionately impact communities of color. The results from this study suggest that some scholars and advocates have overlooked the potentially racially disparate effects of vehicle searches incident to arrest. We find that by curbing police power to search vehicles incident to arrest, the Gant decision may have reduced the frequency of coercive police actions against individuals of color, including stops, searches, arrests, and vehicle searches incident to arrest, without impairing the discovery of contraband. We further find that this regulation of police discretionary authority was not associated with any increase in officer assaults during traffic stops, as predicted by some law enforcement groups. The totality of this evidence is a reminder that seemingly neutral criminal procedure rulings can have disparate effects on communities of color. These results suggest that rules granting officers significant discretionary authority may advance administrability at the expense of inequality.

Griffin Edwards is an Associate Professor at the University of Alabama at Birmingham. He has a Ph.D. in Economics from Emory University.

Stephen Rushin is the Judge Hubert Louis Will Professor of Law at Loyola University Chicago School of Law. Ph.D. and J.D., University of California, Berkeley.