* Note Editor, Boston College Third World Law Journal (2000–2001).
1 Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 Harv. L. Rev. 1, 5 (1987).
2 See Brown v. Oneonta, 195 F.3d 111, 116–19 (2d Cir. 1999), amended and vacated by Brown v. Oneonta, 221 F.3d 329, 334–36 (2d Cir. 2000). The tortured procedural history of Brown may itself be indicative of the difficulties and inconsistencies that arise when courts apply race-ignorant analysis to racial profiling claims. See 221 F.3d at 329; 195 F.3d at 111. The District Court in Brown issued four separate opinions after both sides to the dispute made several motions for reconsideration. See 221 F.3d at 335–36 (recounting procedural history leading to amended opinion). On appeal, a three-judge panel of the Second Circuit dismissed the plaintiffs’ § 1983 claims under the Equal Protection Clause and, with regard to several plaintiffs, denied their Fourth Amendment claims. See 195 F.3d at 123. The following year, the panel abruptly reversed itself on several Fourth Amendment claims while adhering to its decision that the police sweep did not involve any discriminatory intent. See 221 F.3d at 336. This Note considers both the original and amended opinions of Brown’s three-judge panel. See discussion infra Parts II, III.
3 See Brown, 221 F.3d at 334.
4 See id.
5 See id.
6 See id.
7 See id.
8 See Brown, 221 F.3d at 334.
9 See id.
10 See id.
11 See id.
12 See id.
13 See Brown, 221 F.3d at 334–35.
14 See id. at 329–37.
15 See id.
16 See id. at 337; Brown, 195 F.3d at 119. I had the opportunity to witness the oral argument on June 4, 1999 before (now) Chief Judge John M. Walker, Jr. (who authored both opinions), Judge James L. Oakes, and the Honorable Richard W. Goldberg of the United States Court of International Trade, sitting by designation. See id. at 111.
17 See Brown, 221 F.3d at 337; Brown, 195 F.3d at 119.
18 See Brown, 221 F.3d at 337; Brown, 195 F.3d at 121–22.
19 See Brown, 221 F.3d at 337. The text of the superseding opinion was virtually identical to the original except for several surgically amended sections of its analysis. See id. Moreover, while the amended opinion was imbued with some new placatory language, the court stubbornly refused to apply the Equal Protection Clause because it found no discriminatory intent in the police investigation in Oneonta. See id. at 336–39.
20 These reactions came on the heels of the court’s original opinion. Compare Brown, 221 F.3d at 337, with Brown, 195 F.3d at 121–22.
21 See Bob Herbert, When Race Defines the Suspects, News & Observer (Raleigh, N.C.), Nov. 5, 1999, at A25. The colloquial phrase “driving while black,” or “DWB” describes the phenomenon of discriminatory traffic stops and is discussed in more detail in Part I of this Note. See discussion infra Part I.
22 See DeWayne Wickham, Appeals Court Decision Props up Institutional Racism, Gannett News Service, Nov. 11, 1999, available at 1999 WL 6978113.
23 See Herbert, supra note 21, at A25.
24 See Katheryn K. Russell, The Racial Hoax as Crime: The Law as Affirmation, 71 Ind. L.J. 593, 597 (1996) (discussing the Charles Stuart hoax in Boston, in which a white man falsely claimed a black man shot him and killed his pregnant wife); Lisa L. Walter, Eradicating Racial Stereotyping from Terry Stops: The Case for an Equal Protection Exclusionary Rule, 71 U. Colo. L. Rev. 255, 260 (2000); Howard Chua-Eoan, Black and Blue, Time, Mar. 6, 2000, at 24 (discussing police brutality and race and the acquitted slaying of Amadou Diallo by four white police in New York). Walter discusses the firing of Colonel Carl Williams, former superintendent of New Jersey’s state troopers. See Walter, supra, at 260. Governor Christine Todd Whitman fired Williams for racist remarks concerning drug crimes and minorities. Id. Williams was quoted as saying, “[C]ocaine and marijuana traffickers were most likely to be members of minority groups.” Id. He denied condoning racial targeting, but said, “[I]t would be naïve to think that race was not an issue in drug trafficking.” Id.
25 See David Harris, Am. Civil Liberties Union, Driving While Black: Racial Profiling on Our Nation’s Highways 1–8 (1999). This report was prepared by the American Civil Liberties Union, “a nationwide nonpartisan organization of 275,000 members dedicated to preserving and defending the principles set forth in the Bill of Rights.” Id. at 1. The author of the report, David Harris, is a Professor of Law at the University of Toledo College of Law. Id. He has authored numerous scholarly articles on the subjects of racial profiling and search and seizure. See id.
26 See id.
27 See id.
28 While my analysis considers the broad experiences and perceptions of people of color in racial profiling cases, it tends to focus on the African-American perspective. There is clear overlap in the histories of all non-white people in America when discussing these perspectives, but an in-depth examination of the entire diaspora of racial and ethnic groups in America is beyond the scope of this Note.
29 See Anthony C. Thompson, Stopping the Usual Suspects: Race and the Fourth Amendment, 74 N.Y.U. L. Rev. 956, 1002–05 (1999) (offering an intricate discussion of the race neutral approach by the judiciary in the context of the Fourth Amendment).
30 See id.
31 See discussion infra Part I and notes 36–120.
32 See discussion infra Part I and notes 36–120.
33 See discussion infra Part II and notes 121–146.
34 See discussion infra Part III and notes 147–276.
35 See discussion infra Part IV and notes 277–304.
36 See Harris, supra note 25, at 8.
37 See id.
38 See id.; Katheryn K. Russell, “Driving While Black”: Corollary Phenomenon and Collateral Consequences, 40 B.C. L. Rev. 717, 720 (1999) (noting the disproportionate impact the DWB phenomenon has had on African Americans who traveled extensively in their cars).
39 See Harris, supra note 25, at 9.
40 See id.
41 See id. at 8–9.
42 See id. at 8.
43 Id. (emphasis omitted).
44 See Harris, supra note 25, at 8.
45 See Chavez v. Ill. State Police, 27 F. Supp. 2d 1053 (N.D. Ill. 1998); Harris, supra note 25, at 27.
46 See Harris, supra note 25, at 27.
47 See id. at 28.
48 See id. at 28–29. The ACLU analysis is based on state field reports filed in 1987 for motorists stopped on Illinois Highways; the data covers eighteen Districts, which includes the drug interdiction unit. See id.
49 See id. at 27–29.
50 See id.
51 See Harris, supra note 25, at 11.
52 See id.
53 See id.
54 See id.
55 See U.S. Const. amend. IV.
56 See Ann Fagan Ginger, The Law, The Supreme Court and the People’s Rights 222–23 (1973). Fagan writes in Chapter ten about the right to security from unreasonable searches as the Framers’ reaction to British oppression of colonists. Id. Fagan makes a valid point:
[S]tandards for police in conducting raids and arrests seem to fluctuate with the daily headlines. When police officials . . . make a few mistakes and break into the wrong house for searching suspects, local citizens and judges tend to demand more care in issuing search and arrest warrants. When an individual or group commits acts of violence against people and property and remains at large for a period of time, public clamor for stern enforcement increases.
Id. at 230–31.
57 See id. at 222.
58 See id. at 222–31.
59 See Thompson, supra note 29, at 998.
60 See Ginger, supra note 56, at 379.
61 Id.
62 See id. at 223.
63 Id.
64 See Weeks v. United States, 232 U.S. 383, 398 (1914); Ginger, supra note 56, at 223.
65 See Ginger, supra note 56, at 223.
66 See Mapp v. Ohio, 367 U.S. 643, 660 (1961); Ginger, supra note 56, at 223.
67 See id.
68 See Terry v. Ohio, 392 U.S. 1, 30 (1968).
69 See id.
70 See, e.g., Florida v. Bostick, 501 U.S. 429, 439 (1991); Brown v. Oneonta, 195 F.3d 111, 121 (2d Cir. 1999).
71 See Terry, 392 U.S. at 4–6.
72 See id.
73 See id.
74 See id. at 6–7.
75 See id. at 7.
76 See Terry, 392 U.S. at 27.
77 See id.
78 Id. (emphasis added). The issue here is not the Court’s focus on police safety, but rather it is the Court’s omission of racial dynamics in the police encounter. See id.
79 See id.
80 See id.; Thompson, supra note 29, at 998–1005.
81 See Terry, 392 U.S. at 14, 27.
82 Id. at 19.
83 See Thompson, supra note 29, at 973.
84 See Whren v. United States, 517 U.S. 806, 813 (1996); Thompson, supra note 29, at 973.
85 Thompson, supra note 29, at 962.
86 See Brown v. Oneonta, 221 F.3d 329, 340 (2d Cir. 2000). A § 1983 claim is a civil rights claim brought under federal statutes or under the U.S. Constitution for direct invasions of the person. 42 U.S.C.A. § 1983 (2000); Dan B. Dobbs & Paul T. Hayden, Torts and Compensation 57 (1997). A federal cause of action arises under 42 U.S.C.A. § 1983 when a person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States, or other persons within the jurisdiction thereof, to the deprivation of any rights, privileges, or immunities secured by the U.S. Constitution and laws. Id. Such a person shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 42 U.S.C.A. § 1983.
87 See Brown, 221 F.3d at 339–40.
88 See id. at 340.
89 See id.
90 See Whren v. United States, 517 U.S. 806, 813 (1996). Led by Justice Scalia, the Supreme Court held that prior jurisprudence foreclosed any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of individual officers. Id. at 808, 813.
91 Id. at 808; Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. Miami L. Rev. 425, 432–33 (1997) (describing the facts of Whren).
92 See Whren, 517 U.S. at 808.
93 See id. at 809.
94 See id.
95 See id.
96 See id.
97 See Whren, 517 U.S. at 809.
98 See id. at 810–11.
99 Id. at 810.
100 See id.
101 Id. at 812.
102 See Whren, 517 U.S. at 812–13. The Court cited prior jurisprudence in which infringing police behavior was not deemed unconstitutional under the Fourth Amendment, discussing United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (holding an otherwise valid warrantless boarding of a vessel by customs officials not rendered invalid because customs officers were accompanied by a Louisiana state policeman and were following an informant tip), and United States v. Robinson, 414 U.S. 218, 236 (1973) (holding a traffic-violation arrest not rendered invalid by fact that it was pretext for narcotics search). Id.
103 See id.
104 See id.
105 Id.
106 See id.
107 See Whren, 517 U.S. at 812–13.
108 See Harris, supra note 25, at 12; Davis, supra note 91, at 432–33 (noting that the Whren Court dismissed the issue of police using pretextual stops to discriminate “in a single sentence”); Thompson, supra note 29, at 998.
109 See Harris, supra note 25, at 12.
110 See Davis, supra note 91, at 427. There are several ways for a plaintiff to plead intentional discrimination that violates the Equal Protection Clause, and a showing of discriminatory intent/animus is a key component of a successful claim. See Brown, 221 F.3d at 337. Professor Davis highlights the difficult burden of proof facing victims of pretextual stops who, under Whren, are forced to turn to the Equal Protection Clause rather than the Fourth Amendment for relief. See Davis, supra note 91, at 427.
111 See Davis, supra note 91, at 427.
112 See Whren, 517 U.S. at 813.
113 See Thompson, supra note 29, at 991. As Thompson states, contrary to the Supreme Court’s assumptions in Terry and its declaration in Whren, the subject of race cannot be treated as wholly divisible from the assessment of whether an officer had probable cause for an arrest or warrantless search or reasonable suspicion for a stop and frisk. Id. Many of the perceptions and judgments an officer reports on a witness stand—for example, the commission of a “furtive gesture,” an “attempt to flee,” “evasive” eye movements, “excessive nervousness”—will not be accurate renditions of the suspect’s actual behavior but rather a report that has been filtered through and distorted by the lens of stereotyping. Id.
114 See id.
115 See id.
116 See id.
117 See Brown v. Oneonta, 221 F.3d 329, 338–39 (2d Cir. 2000) (holding plaintiffs failed to show discriminatory animus in police investigation); Thompson, supra note 29, at 991.
118 See Brown, 221 F.3d at 340 (reversing outcome of several Fourth Amendment claims); Thompson, supra note 29, at 991.
119 Thompson, supra note 29, at 998.
120 See id.
121 Compare Brown, 221 F.3d at 341–42 (vacating original opinion and restating denial of equal protection claim), with Brown, 195 F.3d at 121–23 (denying Fourth Amendment and Equal Protection claims to several plaintiffs).
122 Compare Brown, 221 F.3d at 339–42, with Brown, 195 F.3d at 121–23.
123 Brown, 195 F.3d at 115.
124 See id. at 123.
125 See id. at 120.
126 See id. at 122.
127 See id. Ricky Brown is a 1999 graduate of Boston College Law School.
128 See Brown, 195 F.3d at 122.
129 See id.
130 See id. at 115.
131 See id. at 116.
132 See id. at 118–20.
133 See Brown, 195 F.3d at 118 (citing City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985)).
134 See id. (citing Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999)).
135 See id. at 119 (citing Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886)).
136 See id. (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264–65 (1977)).
137 See id. at 120.
138 See Brown, 195 F.3d at 119.
139 See id. Judge Walker wrote: “In short, plaintiffs’ factual premise is incorrect: they were not questioned solely on the basis of their race. They were questioned on the altogether legitimate basis of a physical description given by the victim of a crime.” See id.
140 Id.
141 See id. at 120; Thompson, supra note 29, at 998–99 (discussing race-neutrality).
142 See id.
143 See Brown, 195 F.3d at 120; Harris, supra note 25, at 8–9; Tracey Maclin, “Black and Blue Encounters”—Some Preliminary Thoughts about Fourth Amendment Seizures: Should Race Matter?, 26 Val. U. L. Rev. 243, 250, 252–61, 265–70 (1991), reprinted in Yale Kamisar et al., Basic Criminal Procedure at 117 (9th ed. 1999).
144 See Terry v. Ohio, 392 U.S. 1, 14, 27 (1968) (focusing on police safety, despite recognizing minority complaints of wholesale harassment); Brown, 195 F.3d at 120.
145 See Brown, 195 F.3d at 120–22.
146 See id.
147 See id. at 118–21.
148 See id. at 120–22.
149 See id. at 120.
150 See Brown, 195 F.3d at 120. The court’s initial opinion merely stated that it was not blind to the sense of frustration felt by the minority plaintiffs, urging police to be mindful of this phenomenon. Id.
151 See id.
152 See Barbara Flagg, “Was Blind but Now I See”: White Race Consciousness and the Requirement of Discriminatory Intent, in Power, Privilege and Law, A Civil Rights Reader 196–97 (Leslie Bender & Daan Braveman eds., 1995); Thompson, supra note 29, at 998.
153 See Brown, 221 F.3d at 339–42; Thompson, supra note 29, at 998.
154 See Washington v. Davis, 426 U.S. 229, 239–41 (1976) (reasoning discriminatory intent needed to show violation of Equal Protection Clause); Flagg, supra note 152, at 199.
155 Flagg, supra note 152, at 199.
156 See id. at 197.
157 See id.; Sylvia R. Lazos Vargas, Deconstructing Homo[geneous] Americanus: The White Ethnic Immigrant Narrative and Its Exclusionary Effect, 72 Tul. L. Rev. 1493, 1493–1502 (1998). Vargas says that judges continue to assume homogeneity while eschewing the heterogeneity that has become a part of the modern American landscape. See id. at 1502.
158 See Vargas, supra note 157, at 1501.
159 See id. at 1502.
160 See Brown v. Oneonta, 221 F.3d 329, 338 (2d Cir. 2000).
161 See id.
162 See id.; Vargas, supra note 157, at 1525.
163 Vargas, supra note 157, at 1506.
164 See 501 U.S. 429, 436–38 (1991).
165 See id. at 431.
166 See id. at 432 (recalling disputed facts recorded by the Florida Supreme Court).
167 See id.
168 See id.
169 See Bostick, 501 U.S. at 439.
170 Id. at 435.
171 See id. at 436.
172 See id. (citing INS v. Delgado, 466 U.S. 210, 218 (1984)).
173 See Delgado, 466 U.S. at 212.
174 See id. at 218.
175 See Bostick, 501 U.S. at 436.
176 See id. at 438 (citing Michigan v. Chesternut, 486 U.S. 567, 574 (1988)). Terrance Bostick relied on Chesternut’s indication that a seizure occurs when a reasonable person would believe that he or she is not “free to leave.” Id. However, Justice O’Connor raised an interesting tension in the case by noting that Chesternut states that the reasonable person standard ensures that the scope of Fourth Amendment protection does not vary with the subjective state of mind of the particular individual being approached. See id.
177 See id.
178 See id. Justice O’Connor thus concluded that Bostick’s argument that he must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs “cannot prevail because the ‘reasonable person’ test presupposes an innocent person.” Id.
179 See id.; Randall Kennedy, The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255, 1259–60 (1994).
180 See Bostick, 501 U.S. at 438.
181 Compare Bostick, 501 U.S. at 434 (reinforcing race-neutrality of Terry v. Ohio, 392 U.S. 1, 27 (1968)), with Brown v. Oneonta, 221 F.3d 329, 338 (2d Cir. 2000) (discussing role reversal syllogism).
182 See Brown, 221 F.3d at 338.
183 See Flagg, supra note 152, at 199 (suggesting so-called colorblindness operates as an unthinking imposition of white norms and expectations).
184 See id.
185 See id.
186 See id.
187 See id.
188 Flagg, supra note 152, at 197.
189 See id.
190 See id.
191 See id.
192 See id.
193 See Brown v. Oneonta, 221 F.3d 329, 338 (2d Cir. 2000); Harris, supra note 25, at 36; Flagg, supra note 152, at 197.
194 See Brown, 221 F.3d at 338–42; Harris, supra note 25, at 36–37.
195 See Brown, 221 F.3d at 338–42.
196 See Russell, supra note 24, at 600.
197 Compare Harris, supra note 25, at 12, with Russell, supra note 24, at 600 (describing how hoaxes help create racial division).
198 See Russell, supra note 24, at 600; Vargas, supra note 157, at 1525–28.
199 See Russell, supra note 24, at 600; Vargas, supra note 157, at 1525–28.
200 See Russell, supra note 24, at 600.
201 See id.
202 See id. at 599–600.
203 See id. at 600. In the comment cited, Professor Russell notes that studies show that blacks are more likely to believe race-related government conspiracy theories, while whites more readily perceive blacks as a criminal menace. See id. She discusses the trend in the context of hoaxes and their effect on society and the criminal justice system. See id.
204 See id. (citing Patricia A. Turner, I Heard It Through the Grapevine: Rumor in African American Culture (1993); Lydia Saad & Leslie McAneny, Black Americans See Little Justice for Themselves, Gallup Poll Monthly, Mar. 1995, at 32).
205 See Russell, supra note 24, at 594–95.
206 See id.
207 See id.; Howard Chua-Eoan, supra note 24, at 24 (describing the aftermath of the Diallo trial).
208 See Russell, supra note 24, at 594–95.
209 See David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 Sup. Ct. Rev. 271, 314 n.203 (1997) (citing Bureau of Justice Statistics, U.S. Dep’t of Justice, Sourcebook of Criminal Justice Statistics–1995, at 133 (GPO 1996)).
210 See id.
211 See id.
212 See id.
213 Russell, supra note 24, at 600.
214 See Sklansky, supra note 209, at 314 n.203, 325–26.
215 See Brown v. Oneonta, 195 F.3d 111, 120 (2d Cir. 1999) (failing to discuss racial perceptions and bias in police investigation); Sklansky, supra note 209, at 314 n.203, 325–26.
216 See Brown, 195 F.3d at 120; Sklansky, supra note 209, at 314 n.203, 325–26.
217 See Brown, 195 F.3d at 120; Russell, supra note 24, at 605; Sklansky, supra note 209, at 314 n.203. Sklansky writes that, based on hearings held in six cities across the country, a 1995 study by the National Association for the Advancement of Colored People (NAACP) concluded that police officers have increasingly come to rely on race as the primary indicator of suspicious conduct and dangerousness, and that verbal abuse and harassment seem to occur almost every time a minority citizen is stopped by a police officer. See id. The NAACP found that law-abiding black parents warn their children about the police, and that the average African-American family does not know whether they should call the police, stop for the police, or help the police—all for fear of becoming a target of police misconduct themselves. See id.
218 See Brown, 195 F.3d at 120; Flagg supra note 152, at 197.
219 See Brown, 195 F.3d at 120.
220 See Harris, supra note 25, at 36.
221 See id. at 14–22.
222 See id.
223 See id.
224 See Russell, supra note 24, at 600.
225 See Flagg, supra note 152, at 197; Russell, supra note 24, at 600.
226 See Brown v. Oneonta, 221 F.3d 329, 341 (2d Cir. 2000).
227 See id. at 339.
228 Compare Brown, 221 F.3d at 340–42, with Brown v. Oneonta, 195 F.3d 111, 121–23 (2d Cir. 1999). A comparison of the amended and original opinions in Brown reveals a dramatic reversal in the three judge panel’s analysis of the plaintiffs’ Fourth Amendment claims. Compare Brown, 221 F.3d at 340–41, with Brown, 195 F.3d at 122. For Ricky Brown’s claim, Judge Walker’s original opinion stated, “While it is a closer case than some, we agree with the district court that no seizure occurred . . . .” Brown, 195 F.3d at 122. In contrast, Judge Walker’s amended opinion concluded that “a reasonable person in Brown’s position—directed to return by one of the police officers who, just moments before, had encircled him—would not have felt free to leave. Brown, 221 F.3d at 341 (emphasis added). Although Chief Judge Walker authored both opinions, he offered scant reasoning to support the court’s dramatic reversals on the Fourth Amendment claims. See id. While it is possible that the amended opinion implicitly incorporated the racial dynamics of the police encounter, the court made no mention of such perceptions. See id.
229 See Brown, 221 F.3d at 336–39 (upholding denial of Equal Protection claim).
230 See id. at 336–42(omitting discussion of racial perceptions or bias).
231 See id. at 342.
232 Id. at 338–39.
233 See Brown v. Oneonta, 235 F.3d 769, 789 (2d Cir. 2000) (dissenting against denial of rehearing en banc).
234 Id. at 789.
235 Id. at 791.
236 See id.; Brown v. Oneonta, 221 F.3d 329, 339–42 (2d Cir. 2000).
237 See Florida v. J.L., No. 98–1993, 2000 WL 309131, at *4–5 (2000); David G. Savage, Supreme Court Curbs Police Power to Stop, Search Based on Tips, Boston Globe, Mar. 29, 2000, at A3.
238 See J.L., 2000 W.L. 309131, at *5.
239 See id. at *2.
240 See id.
241 See id.
242 See id.
243 See J.L., 2000 WL 309131, at *2.
244 Id. at *3.
245 See id. at *3–4.
246 See id. at *4; Terry v. Ohio, 392 U.S. 1, 30 (1968).
247 Savage, supra note 237, at A3 (quoting Justice Ginsburg).
248 See J.L., 2000 WL 309131, at *4.
249 See id. at *5.
250 See id.
251 See id.
252 See id.
253 See J.L., 2000 WL 309131, at *3–5.
254 See id.
255 See id. (citing cases from Terry v. Ohio, 392 U.S. 1 (1968) to Alabama v. White, 496 U.S. 325, 332 (1990)).
256See Savage, supra note 237, at A3.
257 See id.
258 See id.
259 See Terry, 392 U.S. at 23–24 n.21 (noting that it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties).
260 See J.L., 2000 WL 309131, at *2–6; Savage, supra note 237, at A3.
261 See J.L., 2000 WL 309131, at *2–6; Savage, supra note 237, at A3.
262 See J.L., 2000 W.L. 309131, at *4 (recognizing danger of firearms).
263 See 392 U.S. at 22–23.
264 See Kennedy, supra note 179, at 1259.
265 Id.
266 See id.; Sklansky, supra note 209, at 314 n.203.
267 See Harris, supra note 25, at 1–8.
268 See Russell, supra note 24, at 600.
269 See id.
270 See id.
271 See Walter, supra note 24, at 265–66.
272 See id.
273 Id. at 266.
274 See id.
275 See id. at 265–66.
276 Kennedy, supra note 179, at 1258.
277 See discussion supra Parts II, III.
278 See Flagg, supra note 152, at 203.
279 See id.
280 See id.
281 See id.
282 See id.
283 See Flagg, supra note 152, at 203; Kennedy, supra note 179, at 1258; Russell, supra note 24, at 600.
284 See Whren v. United States, 517 U.S. 806, 813 (1996); Terry v. Ohio, 392 U.S. 1, 24–27 (1968); Brown v. Oneonta, 195 F.3d 111, 119 (2d Cir. 1999), amended and vacated by Brown v. Oneonta, 221 F.3d 329, 338 (2d Cir. 2000).
285 See Flagg, supra note 152, at 203; Kennedy, supra note 179, at 1258; Russell, supra note 24, at 600.
286 See Whren, 517 U.S. at 813; Terry, 392 U.S. at 24–27; Brown, 195 F.3d at 119.
287 See Whren, 517 U.S. at 813; Terry, 392 U.S. at 24–27; Brown, 221 F.3d at 341–43.
288 See Flagg, supra note 152, at 197–99; Kennedy, supra note 179, at 1258–59; Russell, supra note 24, at 600; Thompson, supra note 29, at 956–99.
289 See Flagg, supra note 152, at 197–99; Kennedy, supra note 179, at 1258–59; Russell, supra note 24, at 600; Thompson, supra note 29, at 956–99.
290 See Flagg, supra note 152, at 197–99; Kennedy, supra note 179, at 1258–59; Russell, supra note 24, at 600; Thompson, supra note 29, at 956–99.
291 See Flagg, supra note 152, at 197–99; Kennedy, supra note 179, at 1258–59; Russell, supra note 24, at 600; Thompson, supra note 29, at 956–99.
292 See Brown, 221 F.3d at 341–42.
293 See Whren v. United States, 517 U.S. 806, 813 (1996); Terry v. Ohio, 392 U.S. 1, 27 (1968); Brown, 221 F.3d at 341–42; Flagg, supra note 152, at 199–203.
294 See Flagg, supra note 152, at 199–203.
295 See id.
296 See Vargas, supra note 157, at 1495.
297 See Flagg, supra note 152, at 203; Vargas, supra note 157, at 1495.
298 Vargas, supra note 157, at 1505.
299 See Flagg, supra note 152, at 197.
300 See id. at 201. Flagg’s sophisticated inquiry could be vulnerable to overzealous application. See id.
301 See id.
302 See id.
303 See id. at 203.
304 See Flagg, supra note 152, at 203.