Whether the clearly improper use of a person's race by a judge to support a finding of reasonable suspicion justifying a warrantless search and seizure is structural error or whether it is subject to harmless error review

QUESTION PRESENTED At the suppression hearing in this federal criminal case, the district court explicitly relied on Petitioner’s race to conclude that there was reasonable suspicion to support the police’s warrantless seizure and subsequent frisk of his person. On direct appeal, the Fourth Circuit concluded that “the district court’s repeated reference to [Petitioner’s] race during the suppression hearing was clearly improper.” United States v. Kehoe, 893 F.3d 232, 240 (4th Cir. 2018). The Fourth Circuit nevertheless affirmed the district court’s denial of Mr. Kehoe’s suppression motion because, the court of appeals concluded, “the district court’s references to [Petitioner’s] race at the suppression hearing did not prejudice him, and so do not require reversal.” Jd. at 241. This Court has recognized, however, that the right to an impartial judge is so fundamental that a violation thereof is a structural error. The question presented is whether the clearly improper use of a person’s race by a judge to support a finding of reasonable suspicion justifying a warrantless search and seizure is structural error or whether it is subject to harmless error review. i