Can a Traffic Offense Be: D.W.B. (Driving While Black)?

BOSTON - In 1693, court officials in Philadelphia
authorized the constables and citizens of the city to "take up"
any Negro seen "gadding abroad" without a pass from his or
her master. Of course, this judicial order to stop and imprison
any Negro found on the street did not distinguish between free
and enslaved blacks. In 1738, militiamen in colonial Virginia
were given powers to arrest blacks whose presence excited
suspicion and to detain any slave found off his master's
property without a pass.

Today, as part of the war on drugs, police officers across
the nation have targeted black motorists in a manner
reminiscent of the slave patrols employed in colonial America.
In places as diverse as Volusia County, Fla., Woodbury, N.J.,
Eagle County, Colo., and along stretches of Interstate 95 in
Maryland, evidence indicates that officers have targeted black
motorists for traffic stops.

Once motorists are stopped, officers often "discover"
evidence justifying a search of the car for drugs or "request"
permission from the motorist for a search. In some places, if
permission to search is denied, a drugsniffing dog will be
brought to the scene. Of course, police officials have denied
charges of discrimination, but, for many blacks, this practice is
so widespread it has its own street label: D.W.B."Driving
While Black."

A Florida report illustrates the extent of the problem for
minority motorists. Police videotapes of traffic stops by the
Volusia County Sheriff's Department found that 70% of drivers
stopped by officers on Interstate 95 were black or Latino, and
more than 80% of the cars searched were driven by blacks
and Latinos. Yet, the report also found that the vast majority of
drivers on Interstate 95 are white.

The 4th Amendment, which protects against unreasonable
governmental searches and seizures, was designed to check
the power of the police. As Justice Tracey Maclin, a professor
at Boston University School of Law, teaches constitutional law
and criminal procedure.

William O. Douglas wrote, "Power is a heady thing, and
history shows that the police acting on their own cannot be
trusted." Today, too many black motorists have firsthand
knowledge that this is still the case.

A generation ago, blacks and others concerned with this
type of police abuse would have turned to the U.S. Supreme
Court to halt such practices. Ironically, the current court has
made it easier for the police to continue these arbitrary and
discriminatory intrusions without constitutional restraint.

Last year, two black defendants argued that Washington
narcotics officers had conducted a pretext stopthat is, used
the existence of a traffic violation as an excuse to stop their car
when the officers lacked evidence of a crime. The court ruled
that the 4th Amendment did not bar the police from conducting
pretext stops, despite the fact that the officers violated
departmental rules by making a traffic stop while in
plainclothes.

In another case, the court saw no reason to restrain the
practice of an Ohio officer who routinely asks motorists
detained for traffic violations for permission to search their
cars, even in the absence of criminal activity. The officer
candidly testified in one case that he asked for consent because
"I need the practice" of convincing drivers to allow a search.
The court rejected the argument that motorists stopped by
police should be informed of their right to leave the scene
before being questioned about the contents of their cars and
asked to allow a search.

Finally, a few weeks ago, in a Maryland case, the court
gave police the additional discretion to order passengers out of
the cars they stop for routine traffic violations, even when an
officer has no reason to suspect that a passenger has
committed a crime or threatens the officer's safety. A decade
ago, the court ruled that officers could, without suspicion,
order a driver out of a car during a routine stop, and the
current court was not convinced that passengers should be
treated any differently from drivers.

The impact of these rulings is easy to see: Because every
motorist will sometime commit a traffic violation, a curious
officer who lacks evidence of criminal conduct will always have
a reason to stop a careven when a reasonable officer would
not make such a stop. Any occupant can be ordered out of the
vehicle and interrogated about anything the officer wishes.
After the reasons for the traffic stop are resolved, an officer is
not required to inform the motorist he is free to leave, or
required to tell the motorist he need not consent to a search of
his car.

Another consequence is that minority motorists will now be
subjected to more aggressive and arbitrary police intrusions.
What is my proof? Listen to the comments of lawenforcement
officials:

A Flint, Mich., officer admitted he stopped the defendants
for a traffic offense because "there were three young black
male occupants in a car."

A Utah trooper stated that, as a result of a training seminar,
whenever he observed a Latino driver, he wanted to stop the
car, and whenever he stopped a Latino driver, 80% of the time
he requested permission to search the vehicle.

A prosecutor in Wilmington, Del., defended the racial
targeting of black motorists by noting, "Everyone knows that
the drug trade in Chester and Philadelphia and in Wilmington,
Del,, is controlled by blacks. It's a truism."

To be sure, police officials assert that officers often
discover illegal narcotics during vehicle stops. But officials
won't tell the public how many innocent motorists are stopped,
interrogated and searched without any drugs being found,
simply because some within law enforcement associate
minority drivers with the drug trade.

The 4th Amendment rights of black motorists do not
depend on the predilections of police officers. When defining
the scope of the 4th Amendment, the court helps define the
type of society we live in. The amendment recognizes that
society controls police power. One day, hopefully soon, the
rest of the nation may understand what so many blacks already
know, and halt the arbitrary procedures now commonplace on
the nation's roads.

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