STATE HIGH COURT HOLDS KEY TO PROFILING CHARGES

Five years have passed since Flagstaff defense attorney Lee Phillips first
alleged that officers with the Arizona Department of Public Safety use race
as a reason to make traffic stops in search of drugs.

DPS officials deny the allegation.

In the subsequent years, dozens of drug trafficking cases filed in Coconino
County, Yavapai County and in federal courts have raised the issue of
racial profiling in defense of the charges. The different courts have made
a variety of rulings about the issue without ever having had to answer the
central question: Are DPS officers using, or are they not using, race-based
policing?

Phillips also filed a class-action lawsuit against DPS and the state of
Arizona, making the same allegation of racial profiling that infringed on
the constitutional rights of black and Hispanic motorists traveling through
Arizona. That lawsuit, which died in U.S. District Court in Arizona and was
reborn in the 9th Circuit Court of Appeals, is now nearing settlement.

The settlement includes DPS taking proactive measures to improve collection
of traffic-stop information for statistical analysis. DPS officials have
publicly stated the settlement is a result of the agency having difficulty
producing information that would statistically disprove the allegation.

That difficulty became apparent in Coconino County.

Drug Case Dismissals Appealed

In March 2003, Coconino County Superior Court Judge Charles Adams dismissed
drug trafficking charges against several defendants when DPS failed to turn
over traffic-stop records that Phillips sought in order to prove, through a
statistical analysis, the allegation of racial profiling.

Ed Russo, deputy Coconino County attorney, said Adams' decision was
appealed to the state appellate court on the grounds that the judges
hearing the case abused their discretion to order DPS to turn over those
records because initial statistical studies used to show that selective
enforcement might be happening was flawed.

In addition, Adams abused his discretion to dismiss the cases as a
punishment for DPS failing to turn over the records.

"Our position is that the court abused its discretion at all three stages,"
Russo said.

If the appellate court overturns Adams' decision, the cases could be
reinstated. And Russo said that what would happen next would depend on how
the state supreme court ruled in a related case out of Yavapai County.

Civil, Not Criminal, Matter

In February 2004, Yavapai County Superior Court Judge Janis Sterling ruled
in criminal cases defended by Phillips that even if DPS officers made
traffic stops based on race, the issue had no bearing in criminal matters.

Racial profiling constituted a violation of civil rights, and the proper
way to address the issue was by suing DPS.

Phillips appealed Sterling's decision, and judges at the Arizona Supreme
Court agreed to hear the case.

Sterling's view that the only remedy for a defendant who believes his or
her civil rights were violated is to sue is in error, Phillips said.

"That decision, I believe, is contrary to 200 years of case law in the
United States and in Arizona," Phillips said.

A large body of case law states, Phillips said, if evidence is obtained in
a criminal case as a result of unconstitutional conduct by the government,
the remedy is to either dismiss the criminal case or to suppress the
evidence that was illegally obtained.

"The danger of adopting the Yavapai County approach is there is no
deterrent to keep the government from violating people's constitutional
rights, and leaving only a civil suit as a remedy will greatly discriminate
against poor people."

Criminal Cases On Hold

"Right now, everything in the criminal cases is on hold pending the supreme
court's decision in the Yavapai County cases," Phillips said. "The supreme
court's going to either foreclose the issue to the courts if they say
evidence of racial profiling can't be used in criminal cases, or they're
going to correct the mistake that was made in Yavapai County and follow
that long line of constitutional cases."

If the supreme court denies Phillips' appeal, racial profiling will be a
dead issue in Arizona, Phillips said.

"But if the supreme court rules in our favor, then we're prepared to go
forward with a number of racial profiling claims in cases all over the
state," Phillips said.

He and prosecutors will be armed with new statistical studies that have
been completed by scholars at Northern Arizona University and the
University of Cincinnati.

"We will finally, hopefully, have a chance for both sides to present their
evidence and for judges all over the state to decide whether or not racial
profiling is in fact occurring," Phillips said.

Of the impending supreme court decision, Russo said, "I do believe the
supreme court is aware that these selective enforcement claims are being
filed all over the country."

He added that law enforcement agencies are voluntarily submitting to
improving their ability to compile statistics in order to proactively
address, at the administrative and training levels, the question of
selective enforcement.

"I think the courts will keep that in mind when they decide what the remedy
should be in criminal cases," Russo said.

As a prosecutor, he agrees with Judge Sterling that the remedy to the
problem of selective enforcement lies in a civil context. He also said he
believes that any law enforcement officer found guilty of violating the
civil rights of a defendant should face prosecution at the federal level.

And, in "egregious cases" of selective enforcement with "direct evidence,"
a possible remedy would be for the court to dismiss the case as an as
incentive to keep the offending agency from behaving in a similar manner in
the future.

"I'm optimistic about this issue in the state of Arizona, because I'm aware
of the effort DPS has made voluntarily in collecting the data necessary to
determine if selective enforcement is occurring," he said, referring to the
lawsuit settlement agreement.

Such effort will give DPS the ability to defend itself against unfounded
claims, and will allow defendants the opportunity to prove such a claim.