Pretext stops and racial profiling after Whren v. United States: the New York and New Jersey responses.

• Author: Abramovsky, Abraham

1. INTRODUCTION

   In the last two years of the twentieth century, the practice of racial profiling--targeting individuals for police investigation based on their race alone--came to the forefront of public consciousness in New York and New Jersey. In New Jersey, the foundations of law enforcement were shaken in 1999 after state police commanders admitted to using racial drug-courier profiles to stop motorists on the New Jersey Turnpike and the Garden State Parkway.(1) In New York, as well, incidents such as the beating and sodomizing of Abner Louima by Pohce Officer Justin Volpe,(2) and the police shooting of Amadou Diallo on the steps of his Bronx apartment building,(3) have focused public attention on the relationship between law enforcement and minority communities.

   In both states, governmental agencies reacted to these incidents by promising to investigate and, if necessary, rectify minority concerns. Within days of admitting to the use of racial profiles, the New Jersey police commissioner resigned under pressure, and the Governor appointed a successor who promised to eliminate race-motivated traffic stops.(4) In New York, the Louima and Diallo incidents prompted measures such as the appointment of a task force to evaluate racism in law enforcement(5) and the transformation of the controversial Street Crimes Unit from a plainclothes force to a uniformed one.(6)

   Contemporaneously with these incidents, however, the federal judiciary was curtailing or eliminating many of the resources available to criminal defendants in combating racial profiling in the courts. Among the most far-reaching of these federal decisions was Whren v. United States,(7) in which the United States Supreme Court held that a police officer's subjective motivation for stopping a motorist on the highway was irrelevant as long as an objectively reasonable basis--such as a traffic violation existed for making the stop.(8) In other words, the Whren Court validated one of the most common methods by which racial profiles are put into effect--the pretext stop. Pretext stops, which occur when police officers ostensibly stop motorists for traffic violations but are in fact motivated by the desire to obtain evidence of other crimes,(9) are a frequently used means of investigating suspected drug couriers on the highways and are often conducted in conjunction with race-based courier profiles. Although Whren reaffirmed that racially-motivated traffic stops were invalid,(10) it "espoused a standard that would effectively ban examination of such motives."(11)

   In addition to the Supreme Court's curtailment of judicial investigation of racially-motivated inquiries, a recent Second Circuit decision expanded the permissible use of race in law enforcement investigations. In the October 1999 decision of Brown v. City of Oneonta,(12) the Second Circuit held that in an area with few minority residents, a description consisting solely of race and gender is not equivalent to a racial profile and, therefore, could be used to justify an investigatory stop.(13) Thus, acting on a description provided by an elderly white robbery victim, the police were constitutionally permitted to stop every black male in town in their search for the culprits.(14)

   The judicial response to these federal decisions by the courts of New York and New Jersey, however, has been mixed. In New York, at least one department of the Appellate Division has rejected Whren outright, holding that the New York State Constitution provides greater protection to motorists than the Fourth Amendment.(15) In New Jersey, where Whren has been adopted as a state standard, courts have also expressed their distrust of racial profiling, but have been limited in doing so to cases where the defendant can meet the more stringent standard of selective prosecution.(16)

   Accordingly, this Article will compare and contrast the efficacy of the New York and New Jersey judicial responses to racial profiling. Part II will discuss the methods by which racial profiling may be challenged in court and the effect of Whren on the availability of these methods.(17) Parts III and IV will discuss the New York(18) and New Jersey(19) courts' responses to Whren, with an emphasis on the validity or invalidity of pretext stops. Finally, Part V concludes that the rejection of Whren by the First Department of the New York Appellate Division better preserves the constitutional rights of minority motorists, which are otherwise largely dependent on executive grace.(20) In addition, this Article will recommend that the New York courts also adopt a state constitutional rule rejecting Brown, thus restoring equal protection to minority citizens at home and in public places as well as on the highway.

2. RACIAL PROFILING AND THE EFFECT OF WHREN

   It is well-established that "[t]emporary detention of individuals ... even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons' within the meaning of [the Fourth Amendment]."(21) Although a police officer may conduct an investigatory stop based upon less than probable cause,(22) he must still have at least reasonable suspicion that the defendant has committed or is about to commit a crime.(23)

   There is no one list of factors that gives rise to reasonable suspicion, as the varieties of suspicious behavior are as diverse as the types of activity punishable under the criminal law. However, reasonable suspicion may not be based upon race alone.(24) Even if members of a certain racial or ethnic group commit a disproportionate number of criminal acts, an investigation that is commenced based upon the suspect's race without more violates the Equal Protection Clause.(25) Accordingly, evidence obtained as the result of a racially-motivated investigative stop is subject to suppression.(26)

   Two methods exist by which racially-motivated investigations may be challenged in court. The first is by claiming selective prosecution--that is, by showing that members of the defendant's racial or ethnic group were unfairly targeted by law enforcement.(27) However, in order to prove such a claim, the defendant must show via objective evidence--such as statistics--that members of other races were not prosecuted,(28) or that members of his own racial group were prosecuted disproportionately.(29) Thus, proof of selective prosecution depends upon the ability to produce extensive factual evidence concerning cases other than the defendant's own. Moreover, since state criminal discovery laws frequently do not provide for discovery of information about other cases, a defendant attempting to develop a selective prosecution defense must either gather such evidence on his own or rely upon the discretion of the court to order additional discovery.(30)

   The second method by which racially-motivated investigations may be challenged is by claiming that the defendant was stopped pursuant to a racial profile.(31) A racial profile is an explicit policy, either written or unwritten, of targeting suspects for search and arrest on the basis of race.(32) If a defendant can prove that the agency responsible for his arrest had such a policy, he need not demonstrate statistically that members of his racial or ethnic group were disproportionately targeted for enforcement.(33) Rather, because the policy itself establishes a direct connection between the racial classification and the defendant's search and arrest, the policy is automatically subjected to strict scrutiny under the Equal Protection Clause--that is, it will only be upheld if it is narrowly tailored to fulfill a compelling state interest.(34)

   In order to obtain suppression of evidence based on a racial profile, however, a litigant must prove that such a profile exists.(35) Until 1996, the means of accomplishing this was clear: to request a hearing at which counsel could inquire of the arresting officer as to whether his stop was based on particularized reasonable suspicion or was conducted on a mere pretext.(36) In 1996, however, the Supreme Court --while reaffirming the principle that racially-based stops are unlawful(37)--issued a decision that effectively stripped many criminal defendants and civil plaintiffs of the ability to prove such racial motivation.(38) That decision was Whren v. United States.(39)

   The defendants in Whren were two motorists who were charged with drug offenses after being stopped by officers of the District of Columbia Metropolitan Police.(40) On the night of the arrest, the police officers observed the defendants' vehicle stopped at an intersection for "what seemed an unusually long time."(41) The officers became suspicious that drug activity might be taking place,(42) and made a U-turn toward the vehicle--which then "turned suddenly to its right, without signaling, and sped off at an 'unreasonable' speed."(43) The officers followed and pulled the vehicle over after a short distance.(44) Upon approaching the vehicle, the officers saw in plain view two bags of crack cocaine in the passenger's hands.(45) The defendants were placed under arrest and further drugs were discovered upon subsequent search of the vehicle.(46)

   During pretrial motions, the defendants claimed that the arresting officers' stated reason for pulling over their vehicle--the alleged traffic violation--was merely pretextual and that they had in fact been motivated by an unfounded suspicion of drug activity.(47) The district court denied their motion; subsequently, they were convicted, and their conviction was affirmed by the District of Columbia Circuit.(48)

   The issue before the Supreme Court in Whren was whether investigatory stops by police officers should be judged by an "objective" or "subjective" standard.(49) In other words, the issue involved whether a police officer could stop a suspect whenever there was reasonable cause to believe that he had committed any offense, or only when there was reasonable suspicion that he had committed the actual...