SUITS CHALLENGE 'ROUTINE' TRAFFIC STOPS

Critics Decry Racial Profiling As Police Tool

Rosano Gerald vividly recalled that summer afternoon in Oklahoma --
the drive across the state line, two highway stops by state troopers,
and an aggressive search of his car that left his frightened son in
tears.

Gerald was convinced that he had been pulled over and targeted for the
humiliating search in August 1998 solely because, as a black man, he
fit a departmental racial profile for potential drug couriers.

When the decorated Army sergeant recently sued the Oklahoma Department
of Public Safety for the fruitless search, he joined a growing number
of litigants across the country challenging the use of "routine"
traffic stops as a pretext to look for evidence of a larger crime.

Police frequently point to an arrest on another stretch of Oklahoma
highway as a dramatic example of how well the practice can work. If a
state trooper had not noticed Timothy McVeigh's missing license plate
as he sped north out of Oklahoma City on that chilly, spring day in
1995, the notorious bomber might have vanished after the worst act of
terrorism on U.S. soil.

But civil libertarians counter that minorities such as Gerald, rather
than whites such as McVeigh, are the most likely targets for traffic
stops. What police defend as a valuable crime fighting tool cannot be
maintained at the expense of an important civil liberty, they argue.

Lawsuits similar to Gerald's are pending in California, Indiana, New
Jersey and Maryland. Bills requiring police departments to keep
detailed records of traffic stops, including the ethnicity of those
pulled over, have been filed in both houses of Congress, and the issue
is tentatively scheduled for hearings before a Senate subcommittee
this month.

California Gov. Gray Davis set off a firestorm last month when he
vetoed a bill that would have issued a similar mandate for every
police agency in his state, requiring police to compile statistics on
the race and ethnicity of people selected for traffic stops. He said
he finds racial profiling "abhorrent", but does not believe the state
government should mandate more work for local jurisdictions to combat
it.

Gray did order the California Highway Patrol to begin keeping such
data and asked for voluntary compliance from local police departments.
Cities such as San Diego and San Francisco are already preparing
systems to keep racial data on traffic stops. But critics say the
departments that most need to be monitored -- Los Angeles, for example
- -- are unlikely to meet a request for voluntary compliance.

"It's not an issue that's gone away (and) it's not just identified
with Rodney King," argues Elaine Elinson of the Northern California
American Civil Liberties Union. "It's an issue that happens to people
daily, on the freeways, and around town."

Since there is no national system in place to measure the frequency
that minorities are subjected to traffic stops, the charges of racial
bias are based on individual, though widespread, complaints. The ACLU
has helped set up hot lines to allow people who believe they have been
targeted because of their race to report their traffic stops, and some
of the calls have led to lawsuits.

There are smaller snapshots available, however. The Orlando Sentinel
studied a drug interdiction program along a busy stretch of I-95 in
Florida, where some of the deputies' cars involved in related traffic
stops were equipped with video cameras.

The newspaper obtained videotapes from almost 1,100 stops, showing
that about 70 percent of the drivers who were pulled over were
African-American on a stretch of highway on which 5 percent of the
drivers were black.

"I think there is an emerging public consensus that that kind of use
of race is wrong," said UCLA law professor David Sklansky, an expert
in criminal procedure. When allegations of racial profiling surface,
Sklansky said, few police officials argue that race should be used as
a measure of suspicion.

For example, New Jersey Gov. Christine Todd Whitman fired state police
superintendent Carl Williams last spring after he said he did not
condone racial profiling, but believed minorities were responsible for
most of the drug trade.

However, the question of race is firmly imbedded in the larger
question of all traffic stops arranged as a ruse to investigate
possible criminal activity.

Critics say a disproportionate number of minorities will continue to
be subject to traffic stops, the so-called offense of "driving while
black or brown," as long as police agencies are allowed carte blanche
in pulling over and searching vehicles on the pretext of some minor
traffic or vehicular infraction.

The International Association of Chiefs of Police, representing a
large consortium of police administrators, decries the practice of
racial profiling, but supports the continued use of so-called
"pretextual" traffic stops. They oppose an unfunded national mandate
forcing local police departments to collect ethnic data, but do
recommend federal funding to support state and local databases that
could feed a national system.

More guns are taken off the streets through traffic stops than any
other tactic, argues the chiefs' association. The Drug Enforcement
Agency estimates 40 percent of all drug arrests are the outgrowth of
traffic stops.

A report by the ACLU issued in June charged that the "war on drugs" of
the past two decades has unfairly legitimized the notion that
minorities are more likely to violate drug laws. A 1986 Drug
Enforcement Agency program called "Operation Pipeline" has helped
institutionalize racial profiling, the report charges, by training
about 27,000 police officers across the nation to use "pretextual"
traffic stops as a means to thwart drug trafficking on the nation's
highways.

Ten years later, the Supreme Court ruled in Whren vs. U.S. that any
traffic offense committed by a driver was a legitimate basis for a
stop, even if the officer's real motivation was to fish for evidence
of criminal activity. The court unanimously said that it would not
presume to interpret an officer's motivation.

"The Supreme Court in the Whren case said you can do whatever you damn
well please," complained Seattle attorney Jeff Steinborn, who
frequently represents the National Association of Criminal Defense
Lawyers on constitutional search and seizure issues. Since 1996
there's been an astronomical increase in "pretextual" traffic stops,
he said, adding, "You know how it's used. It's used racially."

"Of course if you run a dragnet through society, you're going to catch
criminals," Steinborn said. "But this is America, folks. That's why
you had a revolution."

Steinborn's home state of Washington this summer became the first in
the nation to outlaw "pretextual" stops. The Washington Supreme Court
ruled 5-4 that the state constitution contained "substantially
greater" protections than the Fourth Amendment prohibitions against
illegal search and seizure.

But in a dissenting opinion, Washington Justice Barbara Madsen
reiterated the same point underpinning the U.S. Supreme Court's
decision in Whren -- that the court has no business peering into the
mind of an officer to judge his motivations for pulling someone over.

Seattle Police Chief Norm Stamper railed against the decision on the
opinion page of the Post-Intelligencer newspaper saying that an
officer's "sixth sense" has been responsible for some of the best
arrests in the history of policing.

But since the Washington case turned on a state constitutional issue,
it has no applications for any other state and cannot be appealed to
the U.S. Supreme Court. Legal experts say that since the U.S. Supreme
Court rejected in Whren the argument that pretextual traffic stops
violate the Fourth Amendment, it will probably take a lawsuit seeking
protection for minority drivers under the Fourteen Amendment's equal
protection clause to get the issue back before the high court.

Anecdotes about criminals such as McVeigh and Ted Bundy caught at
traffic stops are common police lore. "So lots of police departments,
for years, have been telling their officers when you stop a car, don't
just view this as a traffic stop -- view it as an opportunity,"
explained Sklansky, the UCLA law professor.

The primary author of the ACLU report on traffic stops told the
Congressional Black Caucus last fall that the "bland rhetoric" of the
Whren decision hides a disturbing reality for every American, but
particularly for members of minority groups.

"Virtually all drivers violate some provision of the vehicle code at
some time during a short drive," said author David Harris, a professor
at the University of Toledo College of Law. "No driver is perfect; a
violation, even a technical one, cannot be avoided. This means that
all drivers are subject to being pulled over almost any time, as long
as police are willing to follow them for a short distance."