IV. Selective Enforcement
A. Traffic Stops: Driving While Black and Male
More than thirty years ago, the U.S. Supreme Court in Terry v. Ohio placed limitations on the ability of enforcement officers to stop and search individuals without reasonable suspicion that they were engaged in criminal activity. Reasonable suspicion must be based on something more than an inchoate and unparticularized suspicion or hunch. In addition, the Supreme Court held in United States v. Sokolow that police conduct carried out solely on the basis of imprecise stereotypes of what criminals look like, or on the basis of irreverent personal characteristics such as race violates the Fourth Amendment. Law enforcement officers are required to have specific and articuable facts.
Even though these limitations are part of the criminal justice jurisprudence and have been tested repeatedly in court, law enforcement officers use racial profiling as a means to routinely stop and search African-American males. African-American males who are stopped and searched will often allege that the search and seizure violated their Fourth Amendment rights, thus, the evidence seized must be suppressed at trial. Because the standard for an investigatory stop does not require probable cause, but only reasonable suspicion, courts have consistently denied the suppression of such evidence.
The use of racial profiling in the selective enforcement of public laws is most evident in traffic stops by law enforcement officers. It can also be a most humiliating and frightening experience for anyone, especially African-American males who may fear imminent harm from police officers. For example, in Flowers v. Fiore, an African-American male motorist alleged that law enforcement officers engaged in racial profiling when he was stopped, handcuffed, forced to his knees, and had his car searched. According to the police officers, they stopped Flowers because a resident called the police and stated that he received a call from someone who purported to be sending over two black guys with a gun. Shortly thereafter, the police observed Flowers driving past the caller's house. The police stopped him, searched his car, and then released him because there was no evidence that he was sent to harm the resident.
Flowers sued under various federal and state laws, alleging in part that the police engaged in racial profiling, stopping him in violation of his rights under the Equal Protection Clause of the Fourteenth Amendment. The court granted the defendants' motion for summary judgment because in the eyes of the court the search was reasonable. The court stated that innocent victims will be at times subjected to such stops by police officers and suggested that Flowers was entitled to a good explanation and an apology. The court failed to recognize that too often the innocent victims, who were being stopped and humiliated by law enforcement officers were African-American males.
The court in Washington v. Lambert acknowledged the following: In this nation, all people have a right to be free from the terrifying and humiliating experience of being pulled from their cars at gunpoint, handcuffed, or made to lie face down on the pavement when insufficient reason for such intrusive police conduct exists. However, too often African-American males are treated in this manner by law enforcement officials, without conscious of, or concerns about their constitutional rights.
One of the most egregious examples of racial profiling of African-American males occurred in 1998 when two New Jersey Troopers stopped and fired eleven times at a van traveling on the New Jersey Turnpike, wounding three of the passengers. The van was occupied by three African-American males and a Hispanic male, all from New York, who were en route to North Carolina to try out for a baseball team. The shooting brought national attention to the practice of stopping African-Americans, particularly African-American males, without probable cause or reasonable suspicion that they were engaged in a criminal activity.
Similarly, in State v. Soto, a superior court judge in Gloucester County, New Jersey, granted the defendant's motion to suppress evidence seized after being stopped on the New Jersey Turnpike. The court held that the seventeen minority defendants who were African-Americans, the majority of whom were males, established a case of selective enforcement based on race. In Soto, the defense conducted a study to determine if law enforcement officers were engaged in racial profiling. The study revealed that an adult black male was present in 88% of the cases where the gender of all occupants could be determined and that where gender and age could be determined, a black male 30 or younger was present in 63 of the cases.
Other examples of racial profiling include an incident involving the Maryland State Police, which settled a lawsuit following the discovery of an internal memo that encouraged state troopers to target African-American males driving east on I-68. The profile of the Maryland State Police suggested that being black plus male and driving on I-68 equaled criminal activity.
During the past five years, a number of studies support the conclusion that the race and color of drivers has been the basis for state law enforcement officers to stop and search cars driven by African-Americans, particularly African-American males. One of the most comprehensive and widely circulated studies on racial profiling was conducted in 1999 to determine whether the state police in New Jersey engaged in racial profiling on the New Jersey Turnpike. The study concluded that minorities were disproportionately stopped and treated differently than white motorists. Officials of the United States Department of Justice and the State of New Jersey ultimately signed a consent decree to prohibit and prevent racial profiling by New Jersey State Police.
Further, a study in Maryland revealed that during a three-year review of motorists stopped on I-95, African-Americans represented seventy percent of individuals stopped by the police, even though African-Americans make up only about seventeen percent of motorists. A similar study of traffic stops in Missouri also revealed that African-Americans were disproportionately stopped and searched. Additionally, a study by the Orlando Sentinel concluded that African-Americans and Hispanics represented a small percentage of motorists on a particular Florida highway, however they represented almost seventy percent of individuals stopped and eighty percent of those whose cars were actually searched. Lastly, in parts of Oklahoma, African-Americans are disproportionately stopped and convicted of traffic violations.
Similar studies of city law enforcement officials find that minorities are also disproportionately stopped. For example, the Salt Lake Tribune conducted a study of traffic tickets issued by the Salt Lake City Police Department. The survey revealed that African-Americans were twice as likely as white drivers to receive a traffic ticket. Another study, conducted by the San Diego Police Department, revealed that between January and December 2000, African- and Hispanic-Americans were more likely than whites, and Asian-Americans to be stopped.
These incidents support the suspicions held by African-American males, that their rendezvous with the police have not occurred by chance, but instead because of the darkness of their skin and their gender. Police officers may allege there is a legitimate reason for stopping African-American males, which in reality is a pretext to discrimination. An officer, for example, may use a state car seat belt law as a pretext to stop African-American males who may not use seat belts to the extent of white motorists. Officers also cite the failure to signal when changing lanes, or following too closely, as a basis for a stop, and ultimately a search.
Incidents of racial profiling of African-American men continue to be reported, as law enforcement officials exercise their authority to stop and search law-abiding African-American male motorists in a discriminatory manner. This was illustrated in testimony given by Rossano Gerald, a decorated sergeant of the Gulf War. Sergeant Gerald testified before a subcommittee of Congress on the End of Racial Profiling Act of 2001. Sergeant Gerald testified how he was handcuffed and humiliated by a State Trooper while driving with his son in Oklahoma. Sergeant Gerald filed suit against the Oklahoma Highway Patrol after he was stopped twice in the same day. During the second stop he was detained for almost two hours while officers searched his car for drugs. Finding no drugs, he was given a warning ticket for failure to signal when changing a lane. The case subsequently settled for $75,000.
Ironically, there is evidence that the use of racial profiling is also used by white police officers to stop African-American male police officers who are off-duty. There is also evidence that African-American male officers who refuse to engage in racial profiling may also face reprisal, including termination. Even more troubling is that there is evidence that the white officers pretend they don't know the African-American male officer, even though they may have worked together as partners.
The United States Supreme Court decision in Whren v. United States practically legitimizes the use of racial profiling by police officers. In Whren, two African-American males, driving a dark Pathfinder truck with temporary license plates, were pursued by plainclothes vice-squad officers after the driver failed to give a turning signal and sped off at an unreasonable speed. When the driver stopped at a red light, the officer approached the driver's door, and observed two large plastic bags of what appeared to be crack cocaine in the driver's hand. Both individuals were arrested and subsequently charged with violating various federal drug laws.
The petitioners challenged the legality of the stop and the seizure of the drugs. The district court denied the suppression motion and they were convicted. The court of appeals affirmed the convictions.
After reviewing a series of Fourth Amendment cases, the Supreme Court stated:
[W]e think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.
The Whren decision sanctions law enforcement officers to stop and question any motorist, ostensibly for an insignificant traffic violation, and subsequently charge them with other serious crimes, even though they have no reasonable cause to suspect the individual was engaged in a felony. It is irrelevant that the officer may have an ulterior motive or had subjective intention when making the stop. Even though it is difficult to prove, often the real reason for the stop is based on stereotypical biases that an African-American male is engaged in illegal drug activities. In Kearse v. State, Judge Griffen, in a concurring opinion denying the motions to suppress evidence seized at the stop, stated in part:
For countless African-American and Hispanic drivers, the prospect of being stopped for a traffic offense and asked to consent to a search of their vehicles has become part of the preparation for driving. . . . I hope that police agencies will voluntarily discontinue the highly disturbing practice of suspecting that African-American and Hispanic motorists are more likely to be drug dealers and couriers so as to warrant being stopped for traffic offenses[,] so that their vehicles can be searched and their cash seized.
Often, African-American males who are stopped based on a reasonable suspicion of a traffic violation are lined up along the highway, humiliated, and searched without probable cause. Such actions should undoubtedly be considered a violation of their Fourth Amendment rights. Furthermore, if the law enforcement officer detains the motorist longer than necessary to determine whether a traffic violation has occurred, or searches the car without consent or probable cause, the Fourth Amendment may be violated.
Unfortunately, the Whren decision can be compared with the Supreme Court's decision in Dred Scott v. Sanford. The Dred Scott decision resulted in African-Americans being denied their constitutional rights as citizens. Even though the cases are more than a hundred years apart, the impact of Whren on African-American males may be the same as Dred Scott. In Dred Scott, Judge Taney stated that a [black man] had no rights which the white man was bound to respect. The United States Supreme Court decision in Whren raises questions of whether African-American men have certain constitutional rights.