POLICE PROFILING OF 'SUSPECTS' TARGETING MINORITIES

One hot summer afternoon in 1998, 37-year-old Sgt. 1st class Rossano Gerald
and his young son drove across the Oklahoma border into "the twilight
zone." A highly decorated veteran of Desert Storm, career soldier, and a
black man of Panamanian descent, SFC Gerald was unable to travel more than
30 minutes without twice being stopped by two different patrol cars.

On the second stop, troopers placed both father and son in a closed car
with a police dog for two and a half hours. The air conditioning was off
and fans spewed hot air. They were warned the dog would attack if an escape
was attempted. Halfway through the ordeal, the Oklahoma troopers shut off
the patrol car's video evidence camera. Rossano and Gregory Gerald were
victims of a discriminatory practice called racial profiling.

Profiling is a tool used by law enforcement to investigate and stop
criminal activity in its infancy. A profile is a composite of
characteristics thought by law enforcement officials to be typical of
people who commit particular crimes. This composite is then used to
investigate particular individuals who fall within its parameters for the
possibility they have, or may currently be committing that particular
crime. It is not investigating people who fit descriptions of known criminals.

In its infancy, profiling seemed to focus on behavioral characteristics
associated by law enforcement officials with particular criminal activity.
In the 1970s, the Drug Enforcement Administration developed a drug courier
profile for use at the Detroit Metropolitan Airport. The profile was
entirely based on behavioral characteristics. Is the person nervous? Did he
pay for his ticket in large bills? Did he arrive from or go to a drug capital?

Profiling seemed to be a way for every officer to benefit from the
experience of all officers in interpreting behavior while patrolling their
beat. Behavioral profiling also seemed to fit the idea of "probable cause"
or "reasonable suspicion." Under this scheme, a person's activities single
him out as a target for further police surveillance or investigation. The
problems of late are due to the alleged introduction of nonbehavioral
factors, such as race, and the increased tolerance for pretextual traffic
stops based on profiles.

A core principal of the Fourth Amendment is that police cannot stop and
detain an individual without a reason - probable cause - to believe he is
engaged in criminal activity. The Supreme Court's insensitivity to Fourth
Amendment rights has unintentionally supported the law enforcement practice
of profiling. In 1996, the Supreme Court was faced with the question of
whether a pretextual traffic stop - using a minor traffic violation as an
excuse to stop and investigate a car and its passengers - was
constitutional. The court ruled any traffic offense committed by a driver
was a valid and legitimate basis for a stop, regardless of the officer's
true intent. Thus, routine traffic stops became a legitimate tool in
expanding the use of profiling. When a law enforcement officer targets a
person for search based on a profile, he need only wait until the driver
commits a traffic violation, however minor.

Champions of racial profiling charge opponents with mischaracterization.
Instead, the practice is defended as a legitimate tool for investigating
suspected lawbreakers. However, suspicion turns not on behavior, but on the
color of someone's skin.

Insistence that non-behavioral factors, such as race, be allowed for use in
profiling is based on the premise more crimes are committed by minorities,
or a greater percentage of minorities commit crimes. Proponents of race
note young black males are more likely to be criminals than young white
males. Additionally, statistical evidence is offered to support those
positions. However, one cannot simply accept the statistics without
wondering whether the data itself is tainted by racially influenced
policing. It is a chicken-and-egg scenario.

Presently, the ACLU has eight lawsuits against police departments in
various states for alleged use of racial profiling leading to a
disproportionate number of traffic stops against African-Americans and
other minorities. The debate is fueled by similar allegations against the
New York City Street Crime Unit, and the admitted use of profiling by New
Jersey State Troopers.

The use of profiles involving behavioral characteristics seems a tolerable
practice. Its effectiveness should be studied and debated among
professionals in law enforcement. However, the introduction of race and
other nonbehavioral characteristics is simply intolerable. Stopping someone
because of their race is reminiscent of harassment and intimidation of
innocent citizens practiced by Southern police organization in the 1950s
and 1960s. It is an idea we should have abandoned with those very practices.

Steven M. Nunez is an attorney with the Bakersfield law firm of
Chain-Younger, Cohn & Stiles.