Raising the Claim of Racial Profiling at the Pre-Trial Stage

David S. Mejia's Louisville Criminal Defense Blog

Posted 2012-06-26

Raising the Claim of Racial Profiling at the Pre-Trial Stage in a Motion to Quash Arrest and to Suppress Evidence

This article originally appeared in the March 2003 issue of The Advocate.

Bias, intolerance, prejudice and bigotry in the criminal justice system, as a reflection of its existence in our society as a whole, was the subject of two monthly publications last year in The Advocate (vol. 24, issues No. 3 and 7, May and November 2002). The general topic of racism and the specific subject of racial profiling were discussed in stories, antidotes and articles. See, "Race, Cops, and Traffic Stops," 51 University of Miami Law Review 425 (1997). It is illegal in our Commonwealth, as formally recognized in Kentucky state law in Kentucky's Racial Profiling Act, KRS 15A.195(1), which provides that no police officer "shall stop, detain, or search any person when such action is solely motivated by consideration of race, color, or ethnicity." [emphasis added] In his November 2002 Advocate article, Ernie Lewis presented a general overview of our Racial Profiling Act, the federal civil rights laws, the United States and Kentucky Constitutions as well as general Fourth Amendment principles and the Exclusionary Rule to pre- trial motions in drug cases (volume 24, No. 7). This article presents an alternative approach, one almost exclusively based upon the Fourteenth Amendment, Equal Protection Clause. It is called the "Batson approach." Batson v. Kentucky, 476 U.S. 79 (1986).

Whren v. United States, 517 U.S. 806 (1996), implicitly allows racially motivated traffic stops so long as there exists a second, objectively reasonable ground for the stop e.g. speeding, weaving, broken tail light. The existence of such proof, under Whren, effectively eliminates racial bias as the "sole motivation" for the traffic stop and the subsequent search and seizure. Thus, the Whren decision has been universally seen as a ruling that condones racial profiling in police practice on Fourth Amendment grounds so long as there exists another, objective reason to justify a police stop, arrest and subsequent search. For example, so long as a violation of traffic law occurs, the subjective motivation, agenda or racially motivated bias of the law enforcement officer is reduced to an irrelevancy. Whren states, "The fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Citing United States v. Robinson, 436 US at 136. Thus, Whren virtually closed the door on claims of racially motivated police behavior, subterfuge, pretext or other illegal police conduct so long as any objective reason, such as broken tail light, is produced by the prosecution to justify the stop and subsequent police action. While closing the door on strict Fourth Amendment grounds, the Supreme Court left open the possibility of a different approach, one predicated upon Equal Protection: "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 [Fourteenth Amendment] Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in an ordinary, probable-cause Fourth Amendment analysis (116 SCt at 1769)."

In view of the foregoing language, the purpose of this article shall be to introduce a different way to litigate a claim of racial profiling, called the "Batson approach." Batson v. Kentucky, 476 US 79 (1986). This approach is inspired by the above language of Whren and a number of law review articles: Harris, Profiles in Injustice (New Press 2002); Buckman and Lamberth, "Challenging Racial Profiles: Attacking Jim Crow on the Interstate" (1999); Hall, "Challenging Selective Enforcement of Traffic Regulations After the Disharmonic Convergence: Whren v. United States, United States v. Armstrong, and the Evolution of Police Discretion," 76 Tex L Rev 1083 (1998); Larrabee, "DWB and Equal Protection: The Realities of an Unconstitutional Police Practice," 6 J L & Policy 291 (1997). A discussion of this authority and reasoning was presented at the recent NLADA conference I attended in Milwaukee, by Kenneth M. Mogill and Delphia T. Simpson entitled "Litigating Claims of Racial Profiling in Defense of a Criminal Charge _ A Batson-Inspired Approach." (November 15, 2002).

When taking on the defense of a criminal prosecution, where it is evident that a traffic stop or arrest is racially motivated, it should be remembered that the fundamental guarantee of the Constitution, particularly the warrant requirement, is to serve as a protection between citizens and the illegality of police. The basic function of a warrant is not to stop police officers from relying on common sense but rather to require that normal inferences "be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting crime." Quoting Justice Jackson in the case of Johnson v. United States, 333 US 10 at 14 (1948). Police historically have not enjoyed the discretion granted to prosecutors or judges. Instead, police discretion has always been the subject of constitutional limits and protections. Protections against unreasonable searches and seizures as enforced by the Exclusionary Rule Mapp v. Ohio, 367 U.S. 643 (1961). The above-cited law review commentators have articulated a legal approach to racial profiling that brings such misconduct back into the ambit of a claim of "selective enforcement" under the Fourth Amendment as a superior means of attacking racially discriminatory police activity. The Fourth Amendment guarantees citizens protection from unreasonable searches and seizures. Unreasonableness encompasses protections guaranteed by the Fourteenth Amendment's Equal Protection Clause. As such, the law recognizes that systematic racial discrimination falls within the complete set of harms against which the Fourth Amendment's reasonableness standard should guard. Police practices that disproportionately affect individuals on the basis of race or ethnicity are appropriate for stringent Fourth and Fourteenth Amendment Constitutional examination, irrespective of the existence of probable cause or collateral objective grounds for the initial stop, arrest and search. See, Larrabee, "DWB and Equal Protection: The Realities of an Unconstitutional Police Practice," 6 J L & Policy 291 (1997).

Racism and racially motivated behavior is not always conscious. "Empirical evidence suggests that race is frequently the defining factor in pretextual traffic stops." See, "Race, Cops, and Traffic Stops," 51 University of Miami Law Review 425 (1997). Thus, raising a claim of racial profiling in the defense of a criminal prosecution, based upon an allegation that the law enforcement officer's conduct was motivated by race or color, does not amount to a change that the prosecutor or police officer is a racist. Race matters. It always has. We live in a society that has historically never disregarded race or ethnicity. It is a part of who we are as Americans. This is shown in statistical studies that prove again and again that systems of within law enforcement, such as police arrests, narcotics prosecutions, jury verdicts, imposition of the death penalty, as just some examples, disproportionately affect citizens of color. In her discussion of unconscious racism in the criminal justice system, Sheri Lynn Johnson discussed unconscious racism in criminal procedure and examined why unconscious racism on the part of well-intention people is ignored in criminal decisions. See, 73 Cornell Law Review 1016 (1988).

In his Milwaukee presentation at the NLADA conference, Mr. Mogill discussed applying Batson v. Kentucky to such police conduct urging that just as it became necessary for the Supreme Court in Batson to outlaw racial discrimination in the course of a prosecutor's exercise of peremptory challenges during jury selection, the same approach can be taken to challenge police officers' race-based decision making in the course of traffic stops and street level arrests. The broad discretion given to law enforcement in open society and the fact that police conduct carries such an enormous potential for abuse offers broader instances and opportunities for attacking racially motivated choices in the street than in the case of jury selection in the court. See Atwater v. City of Lago Vista, 532 US 318 (2001); and United States v. Mesa, 62 F3d 159 (6th Cir 1995). In both Atwater and Mesa courts discussed the breadth of traffic laws in this country, the regularity of their violation, and the reality that a police officer can find a valid reason to stop a vehicle traveling on the highway at almost any time, at any place, for virtually any reason. The reality is if local police strictly enforced all traffic laws, they would arrest half the driving population on any given morning. How common is the occurrence of police abuse of traffic laws to justify highway stops of motorists? A Florida traffic study demonstrated that, in the period of accumulating such data, 1% of drivers stopped on Interstate 95 received a traffic ticket. See, Larrabee, 6 J L & Policy at 297-298; and the dissent of Chief Justice Lay, in United States v. McKines, 933 F2d 1412 at 1436 (8th Cir 1991) where it was said:

"We have no reliable statistical numbers telling us how many innocent people are stopped, questioned, and sometimes searched by law enforcement officers proceeding on little more than intuition. Testimony from drug agents in some airport stop cases, however, shows that only a small percentage of travelers stopped are ever arrested. Cloud, "Search and Seizure by the Numbers The Drug Courier Profile and Judicial Review of Investigative Formulas," 65 B U L Rev 843, 876 & n 135 (1985). In one case, the district court calculated that the DEA agent involved had arrested only three to five percent of the airport suspects he stopped." United States v. Moya, 561 F Supp 1, 4 (ND IL 1981), affd 704 F2d 337 (7th Cir 1983).

Life's experiences and the awareness that a police officer's broad discretion, exercised daily in the course of performance of duties, compels an understanding that such discretion exercised on the basis of race or color, carries constitutional significance. Racial Profiling occurs when the officer's choice of who to stop, who to remove from their car, who to ask to consent to a vehicle search or a search of their person and possessions, is driven by a conscious or unconscious belief that African Americans or Hispanics are more likely to be transporting drugs, contraband, open alcohol or other physical evidence of criminality. Such conduct by police, even subjectively well intentioned, is debasing, humiliating and repulsive. It "undermines public confidence in the fairness of our system of justice." See Batson, 476 US at 87. As lawyers, one might ask, how will we know when this has occurred?

The answer lies in our clients' lives; in their stories of the facts and circumstances surrounding their arrest. It can be found in the stories of the witnesses, perhaps other vehicle passengers, who experienced the event. Racial Profiling by its nature is not an isolated event. Rather, it is a pattern. Incidents of selective law enforcement are found, again and again, in the communities where our clients either live or the communities they are visiting or passing through. Studies confirm that racial profiling typically occurs on major interstate highways arteries, in low income communities viewed by police as "high crime," in public locations of mass transportation such as airports, bus stops, terminals. Where racial profiling yields evidence, police will establish patterns of such race-based tactics. These patterns, proof of race-based disproportionate police traffic stops and arrests, lie waiting in the records of police departments. Sometimes, they can be found in the personnel files of individual police officer's whose conduct yields citizen complaints.

The starting point to this Batson approach is to allege race-based police exercise of discretion in the course of police-citizen contacts in the enforcement of [traffic] laws. Batson requires first an allegation of purposeful conduct in an officer's exercise of discretion. An accused "may make out a prima facie case of purposeful discrimination by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson, 476 US at 93-94. In traffic stops, Kenneth Mogill urges, the Batson statistical base is the inverse of what takes place in race-based jury selection. There, it is impermissible for the commonwealth attorney, in the prosecution of an African American, to strike African Americans in order to obtain a jury of twelve that is disproportionately white, resulting in substantial under- representation of the defendant's race. In a traffic stop challenge, the approach is reversed where the incidence of those stopped (African Americans) results in a statistical over-representation of that minority population. Proof, is in the fact that the accused is African American and police department traffic stop statistics showing that, for example, African Americans are 7% of the population of the community yet are 25% of all traffic stops...irrespective of whether the stops lead to an arrest and prosecution. In alleging discrimination in jury selection, it has been said, "The prima facie case method [...] was `never intended to be rigid, mechanized, or ritualistic. Rather, it is merely a sensible, orderly way to evaluate the evidence in light of common experience as it bears on the critical question of discrimination.'" United States Postal Service v. Aikens, 460 US 711, 715 (1983) (cite omitted).

The second phase of the Batson approach, and here's the good part, as in the case of a Batson Challenge during voir dire, once a prima facie case is made, the burden shifts to the Commonwealth to offer a race- neutral explanation for the traffic stop. By application of the Batson procedure to racial profiling in the police officer's discretion to stop the defendant, here: "The State cannot meet this burden by mere general assertions that it's officials did not discriminate or that they properly performed their official duties... Rather, the State must demonstrate that `permissible racially neutral selection criteria and procedures have produced the monochromatic result.'" Batson, 476 US at 93-94 (cites omitted). Significantly, the prosecutor, as in a Batson challenge during jury selection, cannot rebut the defendant's allegation by denying a racial motive, alleging good faith or claiming that the officer in fact saw a traffic violation committed while on patrol. As Batson stated "if these general assertions were accepted as rebutting defendant's prima facie case, the Equal Protection Clause would be but a vain and illusory requirement. The prosecutor [here, the arresting police officer] therefore must articulate a neutral explanation related to the particular case.... The trial court then will have the duty to determine if the defendant has established purposeful discrimination." Batson at 98, cites omitted.

The third and last step in the Batson approach is for the trial court to determine whether the evidence has established purposeful racial discrimination by a preponderance of the evidence. Significant here, as in a Batson challenge mounted during jury selection, is whether the prosecution's evidence refutes the inference of discriminatory purpose and whether, if established, the arresting officer's pattern of traffic stops, in light of his testimony, proves "discriminatory purpose". Keep in mind, this approach is not that like those made in charges of "selective prosecution." See e.g. United States v. Armstrong, 517 US 456 (1996). Rather, the present approach is the police officer's, not the prosecutor's, abuse in his exercise of discretion. It is, at its core, unconstitutional selective police enforcement based upon race or ethnicity.

The attached is a form motion to suppress that is based upon facts from an actual case that I litigated several years ago. The name of the defendant, the city, the state and the date have been changed. It was filed and litigated in federal court prior to my having become aware of the "Batson Approach" discussed in this article. As additional grounds for the motion, I have included the Kentucky Racial Profiling Act as well as the Fourth and Fourteenth Amendments.

Discovery of police records, data and statistics are no doubt indispensable to the defendant's making his proof. Subpoenas or discovery requests specifically focusing on the kind of information relevant to developing racial profiling should be served and filed before the evidentiary hearing on the motion to quash arrest or to suppress evidence. A defendant is entitled to law enforcement records material and relevant to pre-trial allegations. Alderman v. United States, 394 US 165, 182-185 (1969), discussed in United States v. Apple, 915 F2d 899 (4th Cir 1990). See also United States v. Wright, 121 FSupp2d 1344 (D Kan 2000) (as to discovery relevant to Fourth Amendment challenge to lawfulness of electronic surveillance). If information is obtained indicating that the particular police officer has engaged in a pattern of race-based conduct, that officer's personnel file, which may include reports made by persons complaining of such conduct, may be sought as exculpatory or impeaching material. See, Denver Policemen's Protective Assn v. Lichtenstein, 660 F2d 432 (10th Cir 1981); and Kallstrom v. City of Columbus, 136 F3d 1055 (6th Cir 1998).

At the evidentiary hearing conducted on a motion to suppress predicated upon a claim of racial profiling, Kentucky Rules of Evidence, Rule 104(b) and 611 (a) and (b) apply as rules of "inclusion" rather than of "exclusion" favoring the admissibility of all evidence offered by the accused to advance his theory and to meet the burden of proof applicable to such proceedings. Huddleston v. United States, 485 US 681, 691- 692 (1988); and see also Kroger Co. v. Willgruber, Ky., 90 S.W.2d 61 (1996); Turner v. Commonwealth, Ky., 914 S.W.2d 343 (1996). In the context of hearings on pre-trial motions, it can be argued that materiality is not meant to include only evidence that is directed at an element of the prosecuted defense, but also testimony and evidence that establish a pattern of racially motivated incidence relevant to an officer's "motive" or "common scheme" or "design" under Kentucky Rules of Evidence, Rule 404(b). See United States v. Crowder, 87 F. 3d 1405, 1410 (D.C. Cir., 1996); Commonwealth v. English, Ky., 993 S.W.2d 941, 944 (1000); Bell v. Commonwealth, Ky., 875 S.W.2d 882 (1994); State v. Lough, 889 P.2d 487 (Wash 1995). Thus, Police Department records can be found admissible as relevant, and material at a suppression hearing alleging a Fourteenth Amendment violation by racial profiling in the officer's abuse of police discretion in his enforcement of traffic laws.