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I. INTRODUCTION Let me make this very clear. The Maryland State police has not, does not, nor will it ever condone the use of race-based profiling in determining which cars to stop on the highway. 1 Chief State Trooper Colonel David Mitchell issued this statement in response to a lawsuit filed against the Maryland State Troopers. The suit was filed on behalf of African-American motorists who alleged that these officers had engaged in a practice of targeting black motorists for traffic stops along the Interstate 95.
To support their claim, the plaintiffs presented statistics that strongly rebutted Mitchells statement relating to the use of race profiling in traffic stops. Using the state troopers own records, a stark pattern of discriminatory law enforcement was presented to the court. From 1995 to 1997, 75 % of drivers who traveled through Maryland along the I- 95 were white, but over 70 % of those who were stopped and searched along this highway were black. 2 This undeniable pattern of race-based stops by the Maryland police is a dilemma that millions of African-American and Latino-American motorists regularly encounter on this countrys highways. This phenomenon has been sardonically dubbed as being pulled over for DWB (Driving While Black or Brown).
This play on words of DWI (Driving While Intoxicated) refers to the commonly employed police practice of using an alleged traffic violation as a pretext to stop any black or Hispanic motorist they suspect of being involved in criminal activity unrelated to driving. These officers have no legal cause for carrying out the stop besides enforcing traffic regulations. Being subjected to a DWB stop is, according to House Representative John Conyers Jr. , an experience that virtually every African-American male has been subjected to. 3 Even African-American actors, athletes, business professionals, and Congressmen, are not immune. 4 In Christopher Dardens book In Contempt, the former Simpson prosecuting attorney accounted his own personal experiences with the Los Angeles Police Department. 5 While driving his Mercedes in Southern California, he estimates that the police stop him five times a year for an assortment of traffic violations. 6 But he rarely receives any tickets, presumably because the officer eventually realizes that the black man in the Mercedes is an Assistant District Attorney for the city of Los Angeles. Dardens explanation is simple. The police are naturally suspicious of a black man driving a Mercedes. 7 The repeated stops of Darden by the Los Angeles Police Department are an illustration of this pervasive police procedure of using traffic stops to investigate motorists for criminal activity. These officers use an alleged traffic violation as a pretext to stop the minority motorist when there is no evidence of any criminal conduct. 8 The true purpose of these stops is not to enforce the local traffic code, but rather to investigate the motorists for potential criminal activity, typically associated with drug activity. 9 The real problem behind this practice is that African-American and other minority motorists are being stopped for these traffic violations solely because of their race. 10 This paper will argue that African-Americans and Latino-American communities need to adopt a Racial Realist view towards solving the problem of police misconduct of race based traffic stops.
Racial Realism is a new movement that Professor Derrick Bell advocates as an alternative to the traditional idea that the courts and the judiciary [are] the vehicle to better the social position of blacks. 11 The Supreme Courts decision in When v. United States demonstrates that the courts in this country will not assist minority motorists in their struggle for equal treatment from law enforcement. In this decision, the police officers used probable cause for a traffic violation as a pretext to investigate possible drug offenses by two young black males driving through a high crime area. Although the stop could be based on racial profiling by the police, an unanimous Supreme Court held that such action was completely constitutional under the Fourth Amendment. The court created the bright-line rule that an officer may stop any driver, regardless of his subjective motivations, as long as probable cause for a traffic violation exists. The reason that such legal rules that harm people of color are created is because of the courts adherence to the objective standards of the Fourth Amendment.
Secondly, the court in When does not provide an adequate solution to discriminated motorists under the Equal Protection Clause of the 14 th Amendment. In dicta, the Supreme Court articulates that an officer who stops a motorist because of his race may be unconstitutional under the Equal Protection Clause. However, those who attempt to bring this type of challenge against race based traffic stops will be confronted with the insurmountable requirement of demonstrating discriminatory intent. Because this court created standard is so difficult to satisfy, the plaintiffs will typically fail in any attempt to bring an Equal Protection Challenge against the police. This failure results largely from the courts reluctance to infer discriminatory intent of the police with statistics. Since an Equal Protection Challenge most likely will be unsuccessful, the legal system cannot resolve the issue of improper police race profiling.
Because of this harmful nature of the court system and its inability to rectify racial equality, Racial Realism has called for a new strategy for combating racism. Although this theory argues that racial equality cannot be achieved, it still wants African-American and Latino-American motorists to continue the struggle against the discriminatory enforcement of traffic stops by police. Under these ideas, Bell promotes the policy of harassing whites. This policy of harassment against the police can be effectively carried out through private lawsuits and greater regulation of local police procedures. These strategies can lead to triumph in overcoming the harm that African-American and Latino-American communities suffer from DWB. II.
RACIAL REALISM Professor Derrick Bells theory of Racial Realism theory embraces a bold belief that many will wish to deny, but none can refute. Black people will never gain full equality in this country. 12 This subordinate status to whites has not resulted from a lack of effort. Bell has recognized how leaders of the black community have urged their people to strive for racial equality... [with the] idea that the courts and the judiciary were the vehicle to better the social position of blacks. 13 This goal shared by many prominent civil rights leaders, is not realistic. 14 Upon examining, the current state of African-Americans in this country it is apparent that greater equality has not been gained as a result of the civil rights movement. Those who shared Martin Luther Kings Dream of equality in the 60 s still find themselves in a racial ordeal of so many blacks suffering in the 1990 s. 15 Bell concludes that African-Americans cannot escape the reality of living in a permanent state of racial domination and subjugation by whites. 16 Accepting this reality, Racial Realism calls for a new and fresh approach to deal with racism in this country. The premise for adopting these revolutionary strategies is based largely on the failure of those ideas exposed during the 60 s, namely using the courts and the judiciaries to effect meaningful change. Within the decision making process of the courts, Bell believes that the judges adhere to abstract legal principles that ultimately lead to rules of law that harm blacks and perpetuate their inferior status. 17 These legal decisions result in the protection of white race-based privilege in this country. 18 Bell illustrates this effect of the courts undermining racial equality in the Supreme Courts case, Regents of the University of California v.
Bakke 438 U. S. 265 (1978). In the decisions reasoning, the court relied heavily on defining equality within the context of the formalistic language of the 14 th Amendment. 19 The majority opinion in Bakke utterly ignored social questions about the inherent advantages that white applicants historically have had, compared to the long history of denial of minority applicants. Because these issues were ignored in defining equality with the Equal Protection Clause, the court held that it was impermissible for an affirmative action policy to unseat white candidates on the basis of their race. 20 By defining equality within the context of traditional 14 th Amendment jurisprudence and ignoring the historical patterns and contemporary statistics of the gross inequality between white and non-white applicants, the court has in effect protected white race based privilege. 21 Besides being a source of harm, the hope that the law, through racial equality, can lift them out of this trap has been unfulfilled. 22 Instead the law and by extension the courts are instruments for preserving the status quo of inequality for minorities. 23 Legal precedents such as Brown vs. Board, once believed to be permanent solution to racism have been overturned, distinguished, or simply ignored. 24 Substituted are increasingly conservative decisions from the Supreme Court which undermine racial equality through the maintenance of white race-based privilege. 25 While the civil rights movements of the 1960 s have been effective at using the legal system to strip away the hated Jim Crow signs, contemporary color barriers still exist. 26 While they be less visible than signs that designated public facilities as Colored or White, these barriers are no less real nor less oppressive. 27 II. RACIAL REALISM AND WHREN V.
UNITED STATES Bells premise for adopting a Racial Realist strategy is based on the belief that the courts and the legislatures are ineffective in eliminating racial inequality. In When v. United States, the Supreme Court was directly confronted with the issue of whether a race-based traffic stop based purely on probable cause of a traffic violation was constitutional under the Fourth Amendment. 28 The Fourth Amendment prohibits the violation of the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. The purpose of the amendment is to safeguard the privacy and security of individuals against arbitrary invasions. 29.
The reasoning of the court in When, based largely on objective standards of the Fourth Amendment, led to courts decision that legally sanctioned race-based seizures of minority motorists. This legitimized law enforcements past and future conduct of targeting African-American and Latino-American citizens along our nations highways. When v. United States The When case involved two plainclothes officers in an unmarked car, patrolling for drug activity in a high crime-area in Southeast Washington D. C. 30 During this patrol, the officers noticed two young black men in a Nissan Pathfinder waiting at a stop sign. The officers observed that the two were looking down at their laps and the driver was not paying full time and attention to his driving. 31 The Pathfinder, which had temporary plates, was motionless at a stop sign for approximately twenty seconds.
Their suspicions aroused, the officers began to follow the car. The Pathfinder then made a right turn with signaling at speeds the officers believed to be unreasonable. 32 Based on this traffic code violation, the officers proceeded to stop the Pathfinder. One of the officers, Ephraim Soto, professing an intention to warn the youths about the dangers of disregarding traffic laws, stepped from the unmarked police car and identified himself as police officer. 33 As Officer Soto approached the drivers window, he immediately observed two large plastic bags of what appeared to be crack cocaine in the drivers hands. 34 Both men were then arrested and quantities of several types of illegal drugs were retrieved from the vehicle. The two passengers in the Pathfinder, Michael When and James Brown, were charged with a four-count indictment with violating various federal drug laws. The petitioners attempted to suppress the evidentiary use of the drugs, arguing that the stop was an unreasonable seizure and thus a violation of their Fourth Amendment rights. The petitioners in this case conceded that probable cause that various provisions of the District of Colombia's traffic code had been violated.
They argued that in the unique context of civil traffic regulations, probable cause of a traffic violation is not enough to fully justify a stop. 35 Since society relies on cars so heavily and complete compliance with a minutely regulated traffic codes is a near impossibility, a police officer has the ability to catch any motorist for a technical violation. 36 This will create the temptation to use traffic stops as a means of investigating other crimes unrelated to the stop. Secondly, the petitioners argued that, in this situation, the police may choose to decide which motorists to stop based on factors such as the race. 37 To avoid these dangers, the court should hold this conduct unreasonable under the Fourth Amendment. A. The objective standards of the Fourth Amendment in When In a unanimous decision, the court in When rejected the petitioners arguments and concluded that their Fourth Amendment rights were not violated by the Washington D. C. police.
The result was the creation of a bright-line rule that permitted a police officer complete discretion in stopping any motorist he wishes, as long as probable cause for any traffic violation exists. 38 Even if the detainment of the motorist is completely racially motivated, the subjective intentions of the police officer are irrelevant in determining the reasonableness of the conduct under the Fourth Amendment. 39 This holding resulted from the courts adherence to the overly objective and formalistic rules of law the Fourth Amendment. The petitioners first contention, that allowing the stop of a car based on only probable cause would be tantamount to giving the state limitless discretion in subjecting any motorist to an invasive police stop, was firmly rejected. The Supreme Court reasoned that the foremost method of enforcing traffic and vehicle safety regulations... is acting upon observed violations. These actual police observations would afford the quantum of individualized suspicion necessary to ensure that police discretion is sufficiently constrained. 40 A balancing test to determine the constitutionality was not required because the officers had probable cause. 41 Since the police officers in When had actual first hand knowledge of observing the unreasonable right turn that the petitioner had made; this was sufficient restraint from allowing indiscriminate seizure of any motorist. Petitioners second contention, that a racially motivated stop by police is unconstitutional under the Fourth Amendment, was also rejected.
In very much the same way that Bell described the reasoning in Bakke, the court in When relied on a formalistic interpretation of reasonableness of police conduct under the Fourth Amendment. The conclusion reached was based on following the prior established laws evaluating police conduct on purely objective standards. The court cited prior case law that supports the idea that an officers state of mind, even assuming racial animus, will not invalidate objective justifiable behavior. 42 In United States v. Robinson, an officer arrested a motorist for operating a car after his permit was revoked. 43 As a part of search incident to the defendants arrest, he patted the defendant Robinson down, and found 14 gelatin capsules of white powder, which proved to be heroin. The court concluded that regardless of the fact that the arresting officer did not have fear that the arrested was armed or he feared for his life, he had the legal right to search anyone after an arrest.
It is the fact of custodial arrest which gives rise to the authority to search regardless of the officers actual intention. 44 The Court has constructed the Fourth Amendment that ignores the real world that police officers and black men interact in. By adhering to the already established prior law regarding search and seizure, the court, as in Bakke, ignored how unreasonable race based traffic stops are. By ignoring the potential subjective racial motivations of the officer, the court following already established legal principles; the law created a rule that will allow the discriminatory application of the law. i) The harm that results from When The effect of the courts holding in When is that probable cause of any legitimate traffic violation is enough justification for the police to stop a travelling motorist.
Because every state has regulated every minute aspect of driving, it is impossible for a motorist to be in complete compliance with every vehicle-related ordinance. In some jurisdictions, police officers had a rule of thumb; the average driver cannot go three blocks without violating some traffic regulation. 45 Each time one of these violations occur, When allows the officer to stop a motorist. The extensive and highly detailed traffic regulations that exist in every state allow law enforcement an almost limitless opportunity to indiscriminately stop any motorist. There is no detail too small, no piece of equipment too insignificant, nor item of automobile regulation too arcane to not be made subject to a traffic offense. 46 Besides the traditional moving violations such as exceeding the speed limit and crossing dividing lines, the police can also enforce a wide variety of equipment violation. 47 These could include driving with a malfunctioning taillight, a rear-tag illumination bulb that does not work properly, or tires without sufficient tread. 48 Vehicle codes even have regulations that seemingly have little to do with actual driving. Some states require drivers to display yearly validation stickers, pollution control stickers, and even safety inspection stickers. 49 Besides being overly regulated, vehicle codes provide ample discretion for the officer to determine if the motorists driving is imprudent and unreasonable. He may decide what is too fast or to slow under certain circumstances.
The use of traffic regulations becomes an even more powerful tool for law enforcement if, as in When, the officers tail a driver for a while. 50 Because of the difficulty to be in complete compliance with the vehicle code, if the officer follows a motorist, a violation that is sufficient to satisfy probable cause will materialize like magic. When is the official blessing of this practice. 51 In the words of Justice Kennedy, the practical effect of the Courts holding in When... is to allow police to stop vehicles in almost countless circumstances. 52 a. This wide discretion allows police officers to target and search African-American and Latino-American motorists. Police officers have long praised the wide discretion they are able to exercise in the use of pre textual traffic stop. With a legitimate traffic violation, the officer can stop a motorist and then attempt to further investigate for any evidence of other criminal activity unrelated to driving.
No probable cause or reasonable suspicion of other non-traffic-related offenses is required for a police officer to issue a seizure of a motor vehicle. The testimony of patrolling police officers in areas with a high incidence of crime, have cited these particular tactics as being extremely effective in enforcing the law. 53 In particular, these stops have produced numerous drug-related arrests and confiscation of narcotics from motorists that may not have occurred. 54 But while law enforcement is winning the war against drugs, these officers deny that they are specifically targeting African-American and Latino-American communities. Police departments, like the already mentioned Maryland State Troopers, vehemently deny using race as a determinative factor in stopping an automobile. 55 Instead, they justify their actions as a part of enforcing the traffic laws of their respective states. 56 The real reason that blacks and Hispanics are subjected to disproportionately higher rates of traffic stops is because the police have profiled these races for involvement in illegal drug activity. This profiling is not based on just pure speculation. Members of law enforcement have admitted that being black of Hispanic was and is a factor in their drug courier profile on which they decide who to stop and search. 57 These stereotypes of African-Americans and Latino-Americans as drug dealers are motivating which motorists on our highways are actually being stopped. Actual accounts of police patrols reveal an undeniable pattern of race-based police stops.
The goal of the Selective Enforcement Team, a group of police officers who patrolled the Interstate 95 in central Florida, was to impede the flow of drug traffickers within the state. 58 Besides drug arrests, the Team was also able to make seizures of cash and vehicles which the department were allowed to keep. 59 Similar to the majority of police agencies in America, the Sheriffs Department of Volusia County kept no actual records of motorists who were stopped and searched but no arrests or seizures were made. 60 But there was an eyewitness to what really happened on this stretch of highway in Florida. Each of the police officers cars was equipped with hidden video cameras. 61 For three years these cameras had been documenting each and every traffic stop made by the Enforcement Team. The Orlando Sentinel Newspaper, pursuant to Floridas Public Record law, were eventually able to obtain this videotape footage documenting police activity along the I- 95. 62 After reviewing these tapes, the newspaper published a summary of over 148 hours of videotape footage of police officer stops along the I- 95. 63 Close to 1, 100 traffic stops by the Florida police were fully documented. The result of this summary was apparent.
The Selective Enforcement Team had been stopping Blacks and Hispanics in far greater numbers than whites. A very small percentage of minority motorists traveled along this particular stretch of the highway, close to five-percent. 64 But the Orlando Sentinel discovered that more than seventy percent of all drivers stopped were either of African-American or Latin-American descent. 65 Even contrasting these numbers to the entire population of Florida the disparate enforcement of the traffic laws is clear. Less than twelve percent of the population in Florida are of African-American descent and Hispanics constitute about nine percent. 66 Besides being stopped in greater percentages than whites, blacks and Hispanics were also detained much longer by the Selective Enforcement Team. The summary published by the newspaper demonstrated that the police stopped whites for about 5. 1 minutes.
In comparison, non-whites were detained for 12. 1 minutes, nearly twice as long. Furthermore, eighty percent of cars searched belong to either African-Americans or Latino-Americans. The experience of these drivers in Florida is a result of the harm that the legal system has created through When. Similar statistical studies have yielded similar results in Tennessee, North Carolina, Georgia, Mississippi, and Texas. 67 Police will use their wide discretion in enforcing the traffic laws to stop any motorist they wish. In Volusia county, the officers were able to point to legitimate traffic violations, ranging from swerving to exceeding the speed limit. 68 These violations are excuses to stop any drivers they believe to be involved in narcotics trafficking.
Because of racial stereotypes and holding in When the police can disproportionately detain black and Hispanic drivers. Once the police officer has legally stopped the vehicle, the harm of being discriminated against unfortunately does not end. Besides being subjected to unwanted delay, the officer now has the opportunity to investigate for evidence of criminal activity completely separate and unrelated to the traffic violation. The entire interior of the car is now exposed to the eyes of the officer, allowing him to discover and seize any objects that are potentially incriminating within his plain view. 69 If a legal arrest of the driver can be made, the arresting officer is justified to conduct a full-fledged body search of the motorist and the entire interior of the car. 70 However, in the majority of cases, the police officer is unable to view anything criminal in plain view or able to find a legal justification for arresting the driver based on the traffic violation. 71 But the probing nature of the officers investigation does not end here. The officer does not issue a ticket or warning and allow the driver to go, but employs a very powerful tool method in obtaining a legal search. He will attempt to obtain consent from the driver to search.
Consent is the most frequently cited basis to justify police intrusion into constitutionally protected areas of privacy. 72 Although drivers are under no legal obligation to consent, many still do. 73 Some consent because the polices authority intimidates them. 74 Motorists simply arent fully aware that they can refuse. 75 The Constitution does not require the police to inform citizens they can freely withhold consent from the officer. 76 Even so, police officer can obtain consent through mental manipulation. During the stop, the police officers may ask several sorts of seemingly innocuous questions. They ask, Where are you coming from? Where are you headed? Whos the person youre visiting? Whos with you in the back seat.
Some of the questions become more personal. 77 These questions are designed to find contradictions that may show that the driver might have something to hide and to put the driver in the frame of mind of responding to the officers authority. 78 According to police officers, this form of sweet talk usually leads to a consensual search. Police departments even teach their officers these psychological techniques to hone their ability in obtaining consent in their patrols. These searches often will leave the motorist feeling anger and harassment for being singled out from the white population for stops and searches. Even more dramatic is that it may explain why there are so many blacks are imprisoned in this country. Although whites use drugs in far greater numbers than African-Americans, African-Americans comprise a disproportionate percentage of drug arrests, convictions, and imprisonment. 79 While blacks represent only twelve percent of this countrys drug users and fewer than thirty-five percent of its crack cocaine users, more than ninety percent of those convicted for trafficking in 1994 were black. 80 Law enforcement agents even concede that drugs are used and sold in middle and upper class neighborhoods and business districts, but instead have focused their law enforcement efforts in urban and inner-city areas which are populated primarily by African-Americans and other people of color.
The When decision has resulted in great harm to the black community, as Bell believed legal decisions in this country create. By allowing a mere traffic violation to justify a traffic stop, the police can use the lengthy vehicle codes to stop almost any motorist. But motorists are selected based on their race as African-Americans and Latin-Americans motorists are being disproportionately stopped. After the stop, the police will attempt to find a justification to investigate these drivers for any drug-related activity.
B. The Inevitable failure of an Equal Protection Challenge to Police Traffic Stops A Racial Realist strategy must be adopted to resist against the discriminatory enforcement of traffic stops against minority motorists. The When decision, which held this police conduct reasonable under the Fourth Amendment, claimed to offer a legal remedy to those motorists stopped for DWB. After declaring that the Fourth Amendment cannot look into the subjective racial motives of an officer, Justice Scalia acknowledged that the selective enforcement of the law based on considerations such as race was impermissible under the Constitution. 81 If the petitioners in When were chosen by the police because of their race, this conduct could be challenged on constitutional grounds within the purview of the Fourteenth Amendments Equal Protection Clause instead of the Fourth Amendment. 82 However, any African-American or Latino-American who hopes to bring this type of challenge against their local police department for the discriminatory enforcement of the traffic laws will inevitably encounter failure and eventual despair.
The Fourteenth Amendment, the constitutional authority that When suggests minority motorists utilize, prevents states from enforcing any law which shall deny to any person within its jurisdiction the equal protection of the laws. The Equal Protection Clause was designed to prevent discrimination within all the States. 83 For a motorist to argue that the police have selectively enforced traffic violations based on his race falls within the Equal Protection Clause because the discriminatory application of the law amounts to a denial of equal justice. 84 The claimant who attempts to establish that his equal protection rights we 36 a
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