PROFILING DIFFICULT TO PIN DOWN

ACLU, State Police Remain At Odds Over Car Stops, Searches

Deborah A. Jeon says little has changed since the American Civil
Liberties Union first sued the Maryland State Police, accusing
troopers of using race as a reason for stopping and searching
minority motorists.

"State police have not taken the problem seriously," the ACLU staff
lawyer maintains.

State Police Superintendent Col. David B. Mitchell argues to the
contrary, pointing to changes his agency has made in the past six
years. "We do not tolerate racial profiling," Mitchell says
emphatically.

Years after two lawsuits were filed on behalf of minority drivers in
federal court, the ACLU and state police remain at odds over what is
happening on Maryland's highways.

A new state law, which becomes effective Sunday, will require all
police agencies to keep statistics on drivers pulled over by
officers, in an effort to eliminate race-based traffic stops.

The requirements are essentially what Maryland State Police officers
have been doing since the 1995 settlement of the ACLU's first lawsuit
over racial profiling.

But the wrangling between lawyers for the ACLU and state police in a
1998 lawsuit, over traffic stops on a stretch of Interstate 95, shows
how difficult it can be to demonstrate racial profiling is occurring.

At the center of the current debate are troopers who patrol 50 miles
of Interstate 95 between Baltimore and Delaware known as the John F.
Kennedy Memorial Highway.

The ACLU alleges in its lawsuit that troopers in the JFK Barracks, in
Cecil County just north of the Susquehanna River, use race when
deciding to search cars driven by minority drivers.

As evidence of continued racial profiling, ACLU lawyers point to
statistics compiled by the state police that show far more minorities
are searched than whites. Last year, black and minority drivers were
three times more likely to be searched than white drivers.

Question of Statistics

But state police dispute that claim, saying statistics do not reflect
the whole story. Independent statisticians say they might be right.

Troopers in the JFK Barracks are finding drugs at roughly the same
rate on blacks and whites - 41 percent vs. 48 percent, respectively,
last year.

If they were discriminating, these statisticians say, the so-called
"find rate" for blacks would be expected to drop.

"It shows they are looking for drugs," said Dwight D. Steward, a
statistician and economics professor with the University of Texas,
who analyzed the data for The Sun. "You can have a search rate that
is out of whack and it's not racial profiling."

Two University of Pennsylvania professors who studied the Maryland
search statistics and published a paper about their findings in
February reached the same conclusion, that the find rate data show
troopers were not racially profiling.

Mitchell and other state police officials point to the high find
rates - much higher than in other states - as evidence that troopers
are good at their jobs. In Texas, for example, police find drugs in
about 10 percent of searches.

Troopers need to keep searching cars, state police say, citing the
need to curtail the flow of heroin and cocaine into Maryland. But the
data show troopers are finding only small amounts of drugs on I-95.

Last year, JFK troopers found a half-pound of heroin, down 93 percent
since 1995. They found 18 pounds of cocaine, down 88 percent since
1995, according to a Sun review of state police data.

They mostly find marijuana - last year, 366 pounds, 210 pounds of
which were confiscated from a white driver.

State troopers at the barracks found 58 percent less marijuana than
they did in 1995.

In most of the successful searches, troopers find trace amounts or
only a few grams of drugs, usually worth less than $100.

State police officials defend the searches, even though troopers are
often forced to leave the road for hours after arresting and
transporting a drug suspect.

"It doesn't matter if we stop users or traffickers," Mitchell said.
"We train our troopers to find drugs."

Though troopers are trained to find drugs, some said they have
received little direction or training about how to prevent racial
profiling.

They said the last time they heard about racial discrimination or
potential issues about race was when they joined the department at
the police academy.

Nor have any supervisors talked to them about their own statistics,
the troopers said.

'I've Never Seen It Happen'

Troopers also dismissed racial profiling as a potential problem,
saying they did not feel troopers ever used race to conduct a search
in any circumstance.

"I don't know anyone who does it," said Tfc. Byram Hunt. "I've never
seen it happen out here."

State police officials contend that troopers are regularly trained
about how to conduct lawful searches and that the agency's legal
section publishes a quarterly newsletter that discusses recent court
decisions.

But the ACLU says that state police need to do a better job of
informing troopers about their own statistics.

"It's troubling," Jeon said. "It's surprising that nobody would have
reviewed the statistics with them."

After each search, state troopers fill out forms that explain why
they decided to search or requested permission to search a car.

The data contain the dates, times, reasons, the race and sex of
motorists, where the cars are registered, the cars' make and model.

Mitchell said it is the troopers' responsibility to know their own
statistics. He found it hard to believe they were unaware of them.

"I find it incredible because they generate the data," he said.

The actual number of searches is small compared with the number of
drivers stopped for such offenses as speeding, not wearing seat belts
or having broken tail lights or cracked windshields.

Last year, troopers at the JFK Barracks stopped 7,727 blacks, 17,609
whites and 1,487 motorists of "other," unspecified races. They
searched 250 cars driven by blacks, 179 driven by whites, 44 driven
by Hispanics and eight driven by people of other races.

As the figures show, black drivers were searched at a higher rate
than white motorists: 3 percent vs. 1 percent.

Looked at another way, of the 481 cars searched, 52 percent were
driven by blacks.

State police say conclusions about the I-95 statistics cannot be
drawn because troopers do not target minority drivers, and make each
decision to search on a case-by-case basis.

The more relevant statistics, they say, are statewide: Last year, 33
percent of the cars searched by troopers in Maryland - excluding
those at the JFK Barracks - were driven by blacks and 4 percent were
driven by Hispanics.

"If we were really the pack of racists everyone says we are, then
those numbers wouldn't be like that," said State Police Lt. Col.
William H. Arrington, head of the agency's field operations.

But the statewide statistics don't tell a complete story. Because
state police don't keep track of the race of drivers they stop
throughout Maryland, it is impossible to know whether they are
searching a disproportionate number of minorities.

All they record are the races of drivers whose cars they search.

On their search forms, state police cite reasons before conducting a
search. They need probable cause - belief that a crime is in progress
- - to search a car without permission.

State police often use a drug-sniffing dog to indicate narcotics
might be in a car or say they smell the odor of burnt marijuana.

If state police do not have probable cause, they can still search the
car - but they must ask for permission. State police commanders say
they require troopers to have a reasonable suspicion of illegal
activity before asking for a driver's consent.

The ACLU wants the state police to sharply limit those searches. The
organization believes that race often plays a role in determining
whether to ask for permission to search cars. Since 1995, 62 percent
of all consent searches were of blacks.

The data also indicate that while troopers might not be using race
they employ something that statisticians call "surrogate values,"
which might have racial implications, in deciding whom to search.

In 210 searches, troopers specifically cited the driver coming from
or going to a "source city" of drugs, such as New York or
Philadelphia, which have large numbers of minority residents. In 83
percent of those cases, the drivers were minorities.

"They may be picking variables that are highly correlated with race
and pointing to that instead of race itself," said John Lamberth, a
professor of psychology at Temple University and the ACLU's
statistician.

Nervous Motorists

In 450 of the 2,320 searches conducted by JFK troopers between 1995
and 2000, troopers specifically cited the nervousness of the driver
as one factor in deciding to search the car.

In 77 percent of those cases, the drivers were minorities.

As the debate about racial profiling continues to rage across the
country, the ACLU and Maryland State Police are still in court.

The ACLU first filed suit against the state police in 1993, alleging
that troopers were using race in deciding to search and detain
motorists. That suit sprang from the traffic stop and hour-long
detention of a black lawyer on Interstate 70.

In 1995, the state police and ACLU settled that lawsuit, with the
state police agreeing to keep statistics on searches and set strong
policies to prevent racial profiling.

A year later, the ACLU filed a motion with a federal judge that
alleged troopers were unfairly targeting minority drivers on I-95.

In 1997, the judge found evidence of a "pattern and practice of
discrimination" and ordered state police to continue gathering search
data.

In 1998, the ACLU filed a second lawsuit on behalf of the Maryland
State Conference of NAACP branches and about a dozen minority
drivers, alleging that troopers on I-95 were unfairly searching and
detaining motorists.

In discussions to settle the current lawsuit, the ACLU wants the
state police to agree to strict limits on certain types of searches,
establishing an independent monitor and improving the training of
troopers on racial issues.

State police say they have done enough and do not see the need for
such a sweeping agreement. But officials say they are confident a
settlement can be reached.

"We've been in intense discussions," said Maureen M. Dove, an
assistant attorney general representing the state police.

"We will come to agreement in some areas."