Policing Black bodies serves at the forefront of the American policing system. Black bodies are subject to everlasting surveillance through institutions and everyday occurrences. From relaxing in a Starbucks to exercising, Black bodies are deemed criminals, surveilled, profiled, and subjected to perpetual implicit bias when participating in mundane activities. Black people should have the same protections as white people and should possess the ability to engage in everyday, commonplace, and routine activities.

The Fourth Amendment was not drafted with the intention of protecting Black bodies. In fact, Black bodies were considered three-fifths of a person at the drafting of the United States Constitution during the Constitutional Convention in 1787. During the period of Reconstruction in 1868, the Fourteenth Amendment was ratified to remedy racial injustices and to provide Black people with equal protection under the law.

The Supreme Court’s jurisprudence on whether the Fourteenth Amendment’s Due Process Clause selectively incorporates basic freedoms and rights outlined in the Bill of Rights is nearly incomprehensible. For example, the Supreme Court, in a piecemeal fashion, has found that the Due Process Clause of the Fourteenth Amendment should be construed to require police and the judiciary to acknowledge and respect basic rights found in the amendments, such as the Fourth and Eighth Amendments. Yet, for over fifty years after the ratification of the Reconstruction Amendments, the Court refused to acknowledge that the Due Process Clause was designed to protect the rights of individuals against the state.

The Black Fourth Amendment will repair and remedy the discriminatory policing of Black bodies. The Black Fourth Amendment will repair and remedy the Court’s Fourth Amendment jurisprudence by creating a rebuttable presumption, making prosecutors and the state prove that the officer had an actual reasonable suspicion or probable cause basis to arrest a Black person, instead of mere subjective ideas and preconceived notions. Through this measure, the Black Fourth Amendment will carry out what the Fourteenth Amendment’s enigmatic Due Process Clause was intended to do—to incorporate substantive due process rights, such as those rights outlined in the Fourth Amendment, and to guarantee equal protection to Black people through the Fourteenth Amendment’s Equal Protection Clause.

The proliferation of marijuana legalization has changed the relationship between driving and marijuana use. While impaired driving remains illegal, marijuana use that does not result in impairment is not a bar to operating a motor vehicle. Scientists have yet to find a reliable way for law enforcement officers to make this distinction. In the marijuana impairment context, there is not a scientifically proven equivalent to the Blood Alcohol Content standard nor are there reliable roadside assessments. This scientific and technological void has problematic consequences for marijuana users that get behind the wheel and find themselves suspected of impaired driving. Without a marijuana breathalyzer or reliable Field Sobriety Tests, law enforcement officers are forced to find another way to determine impairment. Searching the vehicle for evidence of recent marijuana use can be an attractive option. However, the Fourth Amendment prohibits “search first, find probable cause later” policing. A roadside vehicle search violates a driver’s Fourth Amendment rights if sufficient evidence of impairment is lacking. Until law enforcement can reliably determine marijuana impairment at the roadside, drivers need protection from these unconstitutional searches. This Note addresses how states can disincentivize potential Fourth Amendment violations.

To provide context for this discussion, this Note begins by outlining the history of marijuana’s legal status and summarizing the relevant Fourth Amendment case law. Next, it contrasts the challenges of determining marijuana impairment with the relative ease of testing for alcohol impairment during motor vehicle stops. This Note then presents case studies of three states that each have a distinct legal approach to determining marijuana impairment amongst drivers. Finally, this Note provides prescriptive recommendations for states that have legalized or plan to legalize marijuana. Ultimately, this Note provides the reader with a primer on an important legal issue: how the inability to reliably establish marijuana impairment during a traffic stop creates an incentive for the police to search the vehicle first and find probable cause later.