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PRETEXTUAL TRAFFIC STOPS
INJUSTICE FOR MINORITY DRIVERS

 KATHLEEN M. O'DAY
Annotated Bibliography
The University of Dayton School of Law
Spring 1998 


Introduction

 
Pretextual traffic stops are often used by law enforcement as a method to initiate a stop and search of automobiles suspected to involve criminal activity. A pretextual traffic stop involves a police officer stopping a driver for a traffic violation, minor or otherwise, to allow the officer to then investigate a separate and unrelated, suspected criminal offense. Pretextual traffic stops allow police officers wide discretion in whom they choose to stop, and for what reasons they use to justify the traffic stop. By law, police officers must observe a legitimate traffic violation in order to stop an automobile. Police officers, however, have come under fire from individuals who charge that police officers stop their automobiles based on race rather than any supposed traffic violation. 

In response, police officers repeatedly deny they use the passengers' race as a determining factor in stopping an automobile, and claim that they had legitimate reasons for stopping the automobile. Police officers also support their automobile investigative methods knowing they have the courts on their side. Courts have held, in most situations, that pretextual traffic stops as an effective tool to find and confiscate illegal drugs. By using a "legitimate" traffic violation as a pretext to eventually search an automobile that an officer suspects is involved in illegal activity, such as transporting drugs, he is able to make numerous traffic stops to catch a few criminals who may have otherwise gone undetected. While the government may have a compelling interest in fighting the war on drugs, by ignoring certain citizens' claims of constitutional violations by police officers, the government virtually conveys to these citizens that their rights will be compromised whenever this country needs quick solutions to its problems. 

Because automobiles and traffic flow are so heavily regulated, police officers have wide discretion as to who they stop for a traffic violation. Not only are police officers able to make traffic stops based on countless offenses, they also hold the decision-making power as to whom they will ticket for traffic offenses. It would be impossible to issue citations for every citizen, nor would citizens want tickets issued for every possible traffic offense. While allowing police officers discretion in whom they stop and ticket may be common and legal, this power may also be abused, especially when the police officer allows race to help determine whom he will or will not stop for a traffic violation. This annotated bibliography will show several articles in both legal journals, as well as newspapers, discussing the controversy surrounding pretextual traffic stops based on race. The legal issues and the community outcry will be illustrated in the following citations.



The following articles are included in this bibliography:
 
The Impact of the War on Drugs on Procedural Fairness and Racial Equality

Driven to Extremes

The Drug Courier Profile: "All Seems Infected That Th' Infected Spy, as All Looks Yellow to the Jaudic'd Eye

The Drug Courier Profile and Airport Stops: Reasonable Intrusions or Suspicionless Seizures?

Sheriff Rescinds Order to Stop Blacks in White Areas

Color of Driver Is Key to Stops in I-95 Videos

Race and the Decision to Detain a Suspect

Wilkins v. Maryland State Police, Complaint filed in U.S. District Court for the District of Maryland 

Driven to Extremes: Black Men Take Steps to Avoid Police Stops

 The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses
 

 


Annotation

 David Rudovsky, The Impact of the War on Drugs on Procedural Fairness and Racial Equality, 1994 U. Chi. Legal F. 237. 

The author compares the "War on Drugs" with other previous wars in the United States, which also violated individuals' constitutional rights in the name of compelling war interests. For instance, World War II was a time of unconstitutional actions against Japanese Americans in the name of security during the war. Looking back, America realized what a tragedy it was to intern Japanese Americans and ruin their lives because of the scare of spies. However, it did not keep the government from imprisoning Japanese Americans unjustly, based on their race. The same can be said for ignoring blatent constitutional violations currently with African Americans and other minorities during this "War on Drugs."



 Michael A. Fletcher, Driven to Extremes, Wash. Post, Mar. 29, 1996 , at A1. 

The city of Reynoldsburg, Ohio settled with a man who sued the city after he claimed a group of white police officers calling themselves the "Special Nigger Arrest Team" targeted him for arrest because he was an African-American. Successful lawsuits come by way of settlements, which often involve some court ordered change to policing management and enforcement. When a case comes before court, it is usually difficult to win because the person in court in normally guilty of some charge, and his defense is a constitutional violation. The court is less likely to let a guilty person go because of a constitutional violation. So settlements normally indicate a knowledgeable plaintiff with a good case against the police. 

 



Charles L. Becton, The Drug Courier Profile: "All Seems Infected That Th' Infected Spy, as All Looks Yellow to the Jaudic'd Eye," 65 N.C. L. Rev. 417, 427 (1987).

A prime example of masking racial generalities and stereotypes behind a legitimate investigative tool is the "drug courier profile" used to articulate a police officer's reasonable suspicion during traffic stops. The drug courier profile was developed by the Drug Enforcement Agency, ("DEA"), as a tool to identify and stop drug couriers transporting narcotics. Courts appear to accept drug courier profiles when determining reasonable suspicion based on the totality of the circumstances; the courts will look at all the characteristics that the police officers, based on their observations and experience, deemed as "suspicious." When courts sanction the use of drug courier profiles, they permit any otherwise "innocent" trait to be considered suspicious if it fits within police officers' profiles included in the totality of circumstances. Therefore, police officers are able to easily mask their racial motivations for the search behind other equally-innocent profile characteristics. 

 



Joseph P. D'Ambrosio, The Drug Courier Profile and Airport Stops: Reasonable Intrusions or Suspicionless Seizures?, 12 Nova L. Rev. 273, 296 (1987). 

Race is sometimes held to be a legitimate drug courier profile characteristic used to support an officer's reasonable suspicion for a pretextual traffic stop and subsequent search. For instance, police officers in Eagle County, Colorado admitted that "being Black or Hispanic was and is a factor in their drug courier profile on which they decide who to stop and search." Also, a court has held a stop to be "reasonable" when a DEA agent admitted he was initially interested in stopping the men because they were black men from New York. Even more alarming, a group of police officers in Reynoldsburg, Ohio called themselves the "Special Nigger Arrest Team" and admitted to targeting African-Americans for traffic stops and arrests. 

 



J. Michael Kennedy, Sheriff Rescinds Order to Stop Blacks in White Areas, L.A. Times, Dec. 4, 1986, at 18. 

A Sheriff commented, "if you live in a predominantly white area and two blacks are in a car behind you, there's a pretty good chance they're up to no good." However after making this statement, the next day he apologized to those who found his comments offensive and stated that deputies would only stop people for probable cause. Police officers may openly discuss targeting African- Americans and other minorities for traffic stops. Only when police officers learn theat their actions and comments may be constitutional violations do they rescind their comments and support their stops with legitimate probable cause reasons. 

 



Jeff Brazil & Steve Berry, Color of Driver Is Key to Stops in I-95 Videos, Orlando Sentinel, Aug. 23, 1992, at A1. 

An example of video cameras revealing police abuse is the lawsuit filed by African-American and Hispanic travelers along interstate I-95 in Volusia County, Florida. The videotapes revealed that nearly seventy percent of motorists stopped were African-American or Hispanic, which is clearly disproportionate to the total number of minority drivers that travel this highway. Of the cars stopped, over eighty percent of those searched belonged to blacks or Hispanics. The average time spent to investigate minority drivers was nearly 12.1 minutes, while only 5.1 minutes were spent investigation Caucasian drivers. While the police officers claimed their stops were for legitimate traffic violations, only nine of the 1.084 detained motorists received traffic citations. 

The Volusia County Police department would not initially release the videotapes, denying they even existed. Police are not required to keep record of initial stops, while every other step of an arrest or detainment process is recorded. Here, there were videotapes that showed these stops, and the scenes shown were terribly race-motivated traffic stops. More alarming were the comments and actions made by the police officers themselves. For instance, a white driver was stopped and was asked by the officer how he was doing; when the driver replied, "not very good," the officer said, "could be worse-could be black." 

 



Sheri L. Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214, 240 (1983). 

Constitutional violations can be extremely difficult to prove in court. Not only are police departments not required to keep records of who and why they stop automobiles, but they also are able to, in hindsight, support their stops with legitimate reasons rather than racial prejudices. Should the DEA reveal its arrest statistics, courts would not know whether those statistics reflected racially selective investigation by the DEA or the asserted disproportionate racial involvement. Who knows how many traffic stops it takes to get the statistics to support a "successful" fight on the "War on Drugs." Since there is no record, the illustrations through the videotapes and settlement hearings show a scary scene: thousands of racially motivated traffic stops to find those numbers that would support a finding of success on the "War on Drugs." 

 



Wilkins v. Maryland State Police, Complaint filed in U.S. District Court for the District of Maryland (as discussed in several law review articles as an illustration of a successful settlement action after a tragic racially-based traffic stop). 

A clear example of an innocent victim who took the right steps toward a successful claim against a police department is Mr. Robert Wilkins. While returning to Washington, D.C. from a funeral in Chicago, Robert Wilkins was stopped by a Maryland State Police officer. After citing Mr. Wilkins' cousin, Scott El-Amin, for allegedly driving sixty miles an hour in a forty mile an hour zone, the officer attempted to gain consent to search the vehicle and the passengers refused. The police officer claimed there had been problems with "rental cars coming up and down the highway with drugs," but the family still refused to a search. The officer then made the family wait for a narcotics dog and made the family wait in the rain while the dog sniffed the car and found nothing. 

Mr. Wilkins is a graduate of Harvard Law School and a staff attorney at the Public Defender Service for the District of Columbia, and unlike most citizens, was not simply relieved just to be out of the officer's wrath. While he attempted to inform the officer that he could not detain them unless there was a reasonable, articulable suspicion that there were drugs in the car, the officer nevertheless continued to keep the family. Mr. Wilkins filed a lawsuit, and the Maryland State Police settled with Mr. Wilkins, and as part of the settlement, the department agreed to stop using race-based drug courier profiles as a law enforcement tool. The settlement also mandated that the police officers be required to keep a record of the automobiles stopped, the time, location, search, driver's race, the make of the car, and other such relevant facts. Mr. Wilkins was very knowledgeable about the law and his rights. Unfortunately, the common citizen is not this sure of himself, nor is powerful enough or knowledgeable enough to be this effective, even though most citizens are as equally affected in such a way. 

 



 Michael A. Fletcher, Driven to Extremes: Black Men Take Steps to Avoid Police Stops, Wash. Post, Mar. 29, 1996, at A1. 

Unfortunately, because many African-Americans feel they have been repeatedly harassed by the police, they do not know when their rights have been legitmately or unlawfully violated. This article discusses police tactics against minority citizens, and the few number of successful suits against police officers. Minorities have so often felt cheated by the mostly white judicial system, that they are less likely to go through the court system to remedy the injustices against them. The article illustrates several instances of minority drivers' actions to change their driving "styles" rather than fight police in court. For instance, many minority male drivers will not drive fancy, expensive cars, even when they can afford them, because the number of times they are stopped in fancy cars is not worth the trouble. They also will try to drive in certain clothes, to look less "thuggish." 

 



 Barbara C. Salken, The General Warrant of the Twentieth Century? A Fourth Amendment Solution to Unchecked Discretion to Arrest for Traffic Offenses, 62 Temp. L. Rev. 221, 223 (1989). 

This article discusses the near impossibility of not having violated a traffic offense at one time or another, as traffic is so heavily regulated. Therefore, police officers can not only use hindsight to "pick" a traffic violation to use as reason to support their stopping a black motorist, but they can almost likely find something wrong with the car at the moment of the stop. Therefore, police officers can easily mask their racially-motivated traffic stop with a legitimate reason, and the courts support them one-hundred percent. Some traffic offenses for which a police officer may issue a citation include: a string hanging from a rearview mirror; following too closely behind the car in front of you; going one or two miles an hour over the speed limit; headlights being too bright; and failing to signal.