Unconstitutional Police Searches and Collective Responsibility

Bernard E. Harcourt, Columbia Law School


Jon Gould and Stephen Mastrofski document astonishingly high rates of unconstitutional police searches in their forthcoming article Suspect Searches: Assessing Police Behavior Under the U.S. Constitution to be published in Criminology & Public Policy (2004). By their conservative estimate, 30 percent of the 115 police searches they studied violated the Fourth Amendment. The vast majority of the unconstitutional searches were invisible to the courts, having resulted in no arrest, charge, or citation. Focusing exclusively on stop-and-frisk searches, an even higher proportion – 46 percent – was unconstitutional. Moreover, 84 percent of the searches involved African-American suspects.

The new study paints a troubling picture of police practices and raises a number of difficult questions about discretionary policing. The findings have a disturbingly familiar ring to them, and are likely to ignite policy debates that will also, in all probability, have a familiar ring to them as well. The debates have been rehearsed in a number of policing controversies – including stop-and-frisk policing on New York City streets, racial profiling on the nation's highways, and drug-courier profiling at airports and borders.

The positions in our public policy debates are familiar – if anything, a bit too familiar. In this essay, I reframe the debates by focusing on one particularly troubling cavity search described in the research. I raise questions about our ethical obligations as social scientists and I focus specifically on the dirty hands dilemma. In the process, I explore our own responsibility as observers, as social scientists, as commentators, as policy makers, and as public citizens. I probe our own participation in these unpleasant and unconstitutional police searches.