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Alberto B. Lopez, Racial Profiling and Whren: Searching for Objective Evidence of The Fourth Amendment on the Nation's Roads, 90 Kentucky Law Journal 75-122, 79-84, 120-122 (2001-2002) (271 Footnotes)

During the 1980s, the nation initiated a "war on drugs" that not only increased penalties for violations of narcotics laws, but also created the need to build more prisons amid the cries for more punishment of crime in general. As an effort to wage a war on drugs, federal police authorities turned to profiling as a method to enhance their chances of catching drug smugglers. Knowing that drug couriers often used air travel to transport drugs, the Drug Enforcement Agency ("DEA") used information from both local law enforcement agencies and airline personnel to create a probabilistic picture of those most likely to smuggle drugs on airlines based upon shared characteristics of past offenders. The DEA utilized the drug courier profile by stationing plainclothes agents at various places within airports. The agents then observed travelers to see if any of them matched the characteristics of the profile. If any of the travelers matched some of the profile's traits, in the eyes of the patrolling officer, the officer then scrutinized their behavior more closely and could approach sufficiently suspicious individuals for brief questioning. In short, the profile allowed police officials to focus on individual travelers who matched predetermined criteria while largely ignoring most of the flying public.

Although intended to identify those most likely to commit drug trafficking offenses, the malleable nature of the drug courier profile allowed officers to use a great deal of discretion when matching travelers to the profile. In United States v. Van Lewis, the first case to discuss the drug courier profile, the characteristics that aroused the suspicion of federal agents included: "(1) the use of small denomination currency for ticket purchases; (2) travel to and from major drug import centers, especially for short periods of time; (3) the absence of luggage or use of empty suitcases on trips which normally require extra clothing; and (4) travel under an alias." As the number of court challenges increased, the number of characteristics in the undocumented profile expanded because of their discussion and favorable treatment by the courts. Travelers aroused the suspicion of agents by being the first to deplane, being the last to deplane, being nervous during an investigative stop, being calm during an investigative stop, traveling alone, having a traveling companion, buying a round trip ticket, buying a one-way ticket, carrying a small bag of luggage, carrying a medium bag of luggage, or carrying large pieces of luggage, among a number of other factors. In addition to these traits associated with travel, other characteristics not associated with travel, such as being African-American and Hispanic, also caught the attention of ever vigilant agents. In sum, the "informal, apparently unwritten, checklist" of all-encompassing factors that comprised the drug courier profile gave police authorities unbridled discretion to stop and investigate anyone traveling by air.

Bolstered by court approval and alleged statistical success in airports, the DEA decided to implement the profiling technique on the nation's highways, thereby bringing the war on drugs to the streets and individual motorists. To interdict drugs on the highway, in contrast to the profile used in airports, police chiefly used broad racial descriptions as a basis to suspect individual motorists of involvement in drug trafficking. For example, one profile used to identify potential drug couriers using the highways of Florida during the 1980s, listed among other racial categories, African-American males, twenty to fifty years old; Colombian males, twenty-five to thirty-five years old; and African-Americans and Colombians wearing "lots of gold." In Colorado, one sheriff's department implemented a profile of those likely to be drug traffickers that included being African-American or Hispanic as one of its key factors.

Police officials justify the connection between race and drug trafficking activities without individualized suspicion because, according to the former Superintendent of the New Jersey State Police, "it's most likely a minority group that's involved with that." In the minds of many police officers, suspecting minorities of drug-related crimes is not racism, but "an unfortunate byproduct of sound police policies." Thus, police culture embraces the vague racial descriptions that indiscriminately place minority drivers under a generalized web of suspicion for drug trafficking in the name of continuing the war on drugs.

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A fine line exists between the exercise of police discretion in the pursuit of criminal law enforcement and transgressing the protection bestowed upon citizens by the Fourth Amendment. Racial profiling crosses that line by subjecting individual minority drivers to unreasonable searches based upon the race of the individual driver. Indeed, the practice is called "racial profiling" for a reason--because race is the determinative factor in the alchemy of investigative traffic stops. However, an individual's race is insufficiently correlated with narcotics violations to justify placing all minority drivers under suspicion of drug-related crimes without individualized suspicion of wrongdoing. Statistics show that minorities do not use drugs to a larger extent than their demographic makeup would predict, which suggests that the suspicion levied upon minority drivers is unwarranted. Nevertheless, the legitimacy of the traffic code masks the illegitimate use of race and its alleged link to criminality in search decisions by providing police officers with a justifiable reason to stop vehicles whether or not the officers normally enforce the given traffic code provisions. Moreover, the Court's totality of circumstances test further blurs the reasonableness determination because it neither accounts for the initial objective facts upon which an officer bases his suspicion nor the compulsion inherent in a police- minority encounter. To provide one or more pieces of evidence to be weighed among the "totality of circumstances" in the individual case, the New Jersey Consent Decree requires that officers document the facts that they used prior to the search that led them to suspect an individual motorist of criminal wrongdoing. A record of the facts patrols the fine line between justifiable police discretion and Fourth Amendment violation by making an individual officer more accountable for the exercise of discretion during an individual traffic stop and the damage thereof.

As a corollary to the benefits accruing to individuals who possess a record of the facts upon which an officer based suspicion prior to the search, evidence of unreasonable searches in individual cases serves as a foundation to challenge the practice of racial profiling as a general investigative tool. Armed with evidence recorded prior to searches, minority groups could ban together to bring a class-action suit against police departments and states utilizing racial profiling to identify potential criminals on the highways. In fact, the American Civil Liberties Union recently filed a class-action suit alleging that the Maryland State Police use racial profiling to target minorities along one particular Maryland interstate. In each case, police found no evidence of criminal wrongdoing in the minority driven vehicles. Because the lack of contraband recovery is not the sine qua non of unreasonable searches, a record of the facts used by the officer to justify suspicion provides the trier of fact with a clearer picture of the totality of circumstances involved with the search in the case. In the end, if class-action suits are successful, using documented evidence of suspicion not only strengthens individual challenges to racial profiling, but also removes the incentive for police officers to search minority driven cars following minor, normally unpunished traffic violations without justifiable suspicion. If the fruits of the unreasonable search sour, the desire to pursue the fruits erodes.

On a fundamental level, the failure to hold officers accountable for unreasonable discretionary searches highlights the disparate experiences with criminal law enforcement by the various racial segments of the nation's population. Any police practice where racial disparities in enforcement exist not only serves to heighten the tension between police and minority communities, but also challenges the race-neutral legitimacy of the law. If police search the vehicles of minority drivers for drugs, the numbers of minorities charged with narcotics violations reflect their efforts. In turn, the elevated number of minorities charged with drug-related crimes provides a foundation to continue using the racial profile. As a result, a feedback loop develops where the suspicion of minority drivers on the road not only justifies racial disparities in law enforcement in the eyes of the police, but also generates the general minority perception that the eyes of Justice do not see them as equal citizens. Despite the ostensible success of the civil rights movement, a vast schism remains between theory and reality in the most penal aspect of our body of law. Although Justice is theoretically blind in criminal matters, she sees color--particularly on the road.

[a1]. J.S.D. Candidate, Stanford Law School. J.S.M. 1999, Stanford Law School; J.D. 1998, Indiana University School of Law--Indianapolis; M.S. 1995, University of Notre Dame; B.S. 1991, Rose-Hulman Institute of Technology.