DRIVER LOSES COURT CLAIM OF RACIAL BIAS IN DRUG BUST

There is no question that Ronald C. Foreman had a kilo of cocaine in
the back of his truck when a state trooper stopped him on U.S. 13, an
Eastern Shore corridor widely used as a drug pipeline to Hampton Roads.

Foreman had long battled drug addiction. His criminal record lists 35
convictions. The trooper knew none of that.

But it took nearly 2 1/2 years for Foreman's case to reach its
conclusion as judges and attorneys argued over whether the Virginia
State Police had employed racial profiling and other unfair tactics in
finding the cocaine in Foreman's truck that day.

Foreman, who is black, lost that fight in the federal appeals court.
He pleaded guilty to the charge and on Tuesday was sentenced to 75
months in prison.

Questions about the State Police tactics remain, however. While the
agency defends the way its troopers handle traffic stops, U.S.
District Judge Rebecca B. Smith is convinced that she was right when
she ruled that the stop was unfair and suppressed the evidence.

Foreman, an auto mechanic , is a Norfolk native .

In sentencing Foreman on Tuesday, Smith commented that she was giving
him near the minimum so he would have a chance to pull his life
together when he gets out.

"You've done enough damage to yourself," she said. "With you, at age
45, it' s now or never."

Foreman was unemployed and in the throes of a serious drug addiction
in the summer of 2002 , when he drove to New York City to pick up a
kilo, or 2.2 pounds, of cocaine.

He drove to the Bronx with $24,000 in cash and exchanged it for a
brick of cocaine, which he wrapped in a towel and shoved in a cargo
hold, according to court records.

At about 7 a.m. on June 5, 2002, Trooper C.S. Wade, who is white, was
finishing a search of one car on U.S..13 in Northampton County when
Foreman drove by in a 1997 Mercury Mountaineer.

Wade, in an unmarked patrol car, was part of a special interdiction
unit, searching for drug dealers, gun runners and other criminals.

The trooper was walking back to his car when he saw the Mountaineer
approach and pass. Wade noticed that the driver appeared "tense" and
thought it suspicious that the man was holding the steering wheel with
both hands and staring straight ahead.

The lack of eye contact and the tense posture, Wade would later
testify, were "key indicators" of possible criminal activity.

"The big reason was because of the fact that he didn't look over at us
when he went by," Wade testified during a hearing in Norfolk federal
court on Jan. 16, 2003.

Wade said he also noticed a Norfolk city sticker on the vehicle. "Mr.
Foreman was from across the bay," Wade said, indicating another reason
for the stop.

Wade followed the driver and paced him at 64 mph in a 55-mph zone. The
trooper also noticed air fresheners hanging from the rear-view mirror,
a violation of Virginia law when they obstruct the view out the windshield.

He acknowledged that he used those violations as a "pretext" to search
for more serious criminal activity and that he follows virtually the
same procedures for every traffic stop.

He pulled Foreman over and walked up to the driver's-side window. He
would later testify that he could notice Foreman's "pulse beating
through his T-shirt."

"The carotid artery on the side of his neck was throbbing more
noticeably than usual on other people, the thousands of people I have
stopped in the past," Wade said in court.

Wade initially testified that he noticed a "large wad of bills" on the
center console, later acknowledging that it was $42.

He asked Foreman for his license and registration, both of which were
valid. He took Foreman to the patrol car and began questioning his
travel plans. He told Foreman of the problems of drug- and gun-running
along U.S. 13.

Foreman was sweating and shaking, but after a few minutes of
conversation he seemed to calm down, Wade said. Foreman's lawyer later
pointed out that the region was in the midst of a heat wave.

Temperatures that day were in the 90s.

Foreman told the trooper that he had gone to New York for the day to
help his brother, who had just been evicted. Wade testified that he
thought this story was suspicious.

"There were a lot of indicators to say that there was certainly a
reasonable possibility that some criminal activity was afoot,"
Assistant U.S. Attorney Laura Everhart told the judge.

The questioning lasted seven minutes. After Wade handed him his papers
and issued him a warning, Foreman began walking back to his vehicle.

Wade stopped him and asked if he would mind if the trooper searched
the truck.

"No, no, no. I don't want anybody searching my car," Foreman said.

By then, another trooper with a drug-sniffing dog had already pulled
up. Wade told Foreman that without the consent, he would have to let
the dog sniff around the car.

The dog, Tank, became agitated during the search, an indication that
he smelled drugs.

That, coupled with the initial suspicions, gave the troopers probable
cause to open the truck and search, the government argued.

Smith disagreed.

"In this case the detention had ended. The officer had clearly said to
Mr. Foreman, 'You are free to go,'" she said in her ruling.

Smith said she was also disturbed by inconsistencies in Wade's
testimony and by the fact that a video camera filming the incident
suddenly lost sound as the conversation between the officer and
Foreman began.

She ruled that the government could not use the cocaine, or another
small bag of crack, as evidence against Foreman. The government would
be forced to drop the case.

The U.S. Attorney's Office appealed the ruling to the 4th U.S. Circuit
Court of Appeals. In a 2-1 decision, the court overturned Smith,
holding that Wade 's suspicions were enough to warrant bringing in the
drug-sniffing dog.

"In our opinion, the factors cited by the United States eliminate a
substantial portion of innocent travelers and, therefore, amount to
reasonable suspicion that Foreman was engaged in drug trafficking,"
the majority said.

The dissenting judge, Roger L. Gregory of Richmond, who is black,
couldn't hide his skepticism at Wade's reason for noticing Foreman -
that both hands were on the wheel and he was staring straight ahead.

"I was not familiar with the notion that compliance with the letter of
textbook driver's education instructions would trigger police
suspicion," he wrote.

The Virginia State Police has had a written policy against bias -based
policing for years.

Although highway patrols in other states, including Maryland, North
Carolina and New Jersey, were found to have significant
racial-profiling issues in the 1990s, no such evidence was ever
uncovered in Virginia.

"We don't profile, and we don't advocate or participate in bias-based
policing," said Lt. Kimberly S. Lettner, who recently took command of
Wade's interdiction squad.

Training on cultural diversity and racial bias in policing is also an
integral part of the department's in-service training, according to a
2002 state report on racial profiling.

Frank W. Dunham Jr., the federal public defender whose assistant,
Walter Dalton, represented Foreman, said he thought about taking the
case to the U.S. Supreme Court but figured he didn't have much of a
chance.

"A late-model car driven by a black male was the real reason the man
was stopped," Dunham said. He said he wonders how often these kinds of
stops occur, especially in rural areas such as the Eastern Shore.

"Had he not had a kilo in the truck, you never would have learned
about it," he said.

"How many people get stopped with two hands on the wheel looking
straight ahead?" Dunham added. "You never hear about those. You have
no idea what's actually going on out there."