Racial Profiling and the Exclusionary Rule

The Sixth Circuit Court of Appeals filed an interesting and potentially important decision this week in U.S. v. Nichols, 2008 WL 123815 (6th Cir., Jan. 15 2008). Charged with possession of a firearm, Nichols claimed “racial profiling” when the police conducted a warrant check on him, but the Fourth Amendment could provide no remedy even if the claim was true because Nichols had not been searched or seized yet. Nichols therefore asked that the court suppress the challenged evidence under the Equal Protection Clause.

Very little case law exists on this question of whether the Equal Protection Clause includes a suppression remedy, and Nichols represents the first federal appellate decision squarely to address it. Relying heavily on the Supreme Court’s recent proclamation in Hudson v. Michigan that suppression is a remedy of “last resort,” the Sixth Circuit decided that it would not recognize suppression as an equal protection remedy, absent evidence that civil remedies will not safeguard against equal protection violations.

If the Sixth Circuit's decision signals an upcoming judicial trend here, claims of racial profiling may yield little to no benefit to defendants in criminal proceedings. The question is whether they should, or whether an equal protection exclusionary rule  would constitute an unwarranted extension of that remedy beyond its accepted and justifiable applications. The New Jersey Supreme Court adopted an equal protection exclusionary rule in 2002 in State v. Segars, but beyond Segars, Nichols and a bit of lower court dicta, the judiciary has remained notably quiet on this important question.