Pretextual Traffic Stop, Racial Profiling, Reasonable Suspicion, and Probable Cause
Our law firm defends individuals charged with crimes in Pennsylvania and New Jersey. Many of these criminal allegations pertain to the illegal possession of guns, drugs and narcotics. While some of our criminal cases begin with police investigations, a large majority come to our law firm following a vehicle traffic stop.
Are pretextual traffic stops constitutional? If so, what is the problem?
The United States Supreme Court has already held that pretextual traffic stops are permitted (constitutional) under the Fourth Amendment to the United States Constitution as long as there is probable cause for the stop. Probable cause for the stop in most situations means a violation of the traffic code. While pretextual stops are constitutional, stops based on racial profiling are strictly prohibited.
Racial discrimination requires the defense, however, to establish that race was the motivating factor to initiate the stop. Previous studies conducted by the Attorney General’s office in various states have concluded that whites and African Americans violate traffic laws at almost equal rates. While only 14% of cars on the road had African American drivers, they represent over 73% of those arrested following traffic stops.
To combat this issue Supreme Court established the three part equal protection test to establish the appropriate framework for establishing discrimination based on racial profiling. In the Supreme Court case of Batason v. Kentucky,an individual challenging racial discrimination must offer statistical and circumstantial evidence to create a rebuttal, prima facia case that race was the motivating factor. Once a prima facia case is established, the government (prosecution) must articulate a race neutral reason for its action. It must also identify compelling government interest. If the government meets the burden, the defendant bears the ultimate burden of proving discrimination.
Police traffic stops based on race are illegal
In cases where a stop is based on a specific suspect’s description that relies primarily on race or ethnic background, the Courts will not find proper justification. In Brown vs. City of Oneonta, the Court observed that the description of race in general alone will rarely provide reason of suspicion. The police department in Brown had gone to extraordinary lengths to locate an assailant of an elderly woman and who was able to describe the attacker as only a young black male who possibly had a cut on his hand. Over several days, police questioned and located over 200 African American residents in the city who fit that description.
The Court found that the police had seized several plaintiffs which led to Fourth Amendment claims based on inadequacy of the suspect’s description. Based on this analysis, therefore, police departments may not use race as a motivating factor to arrest someone.
A description which simply identifies a person as simply black, white, or Asian, along with their age is simply insufficient to establish probable cause for a vehicle stop. It will also not establish reasonable suspicion. Reasonable suspicion is a lower form of probable cause. Police need probable caused to stop a car, obtain a search warrant, or arrest an individual for a crime. Police only need reasonable suspicion, however, to detain someone for questioning following a stop.
Racial profiling is an issue which a criminal defense lawyer may sometimes need to address if he or she is representing a member of a minority group such as African American, Hispanic, Asian, or a Native American person. Generally, an individual’s appearance doesn’t provide law enforcement or police with reasonable suspicion of criminality as is required by the Fourth Amendment to the United States Constitution and The Pennsylvania Constitution.
Reasonable Suspicion
Remember, as I’ve written literally thousands of times in my blogs, newsletters and E-Books, reasonable suspicion is lower form of probable cause and requires less articulable facts to justify police (government) intrusion on an individual’s right to privacy. Reasonable suspicion doesn’t allow the police officer to perform a warrantless search of you or your property but does allow further investigation in the form of pat down search (frisk for officer safety) or of items (frisk based on the belief that the item contains contraband (illegal drugs, narcotics, firearms, handguns). Police need probable cause to search and or to arrest a suspect
But there are exceptions to racial profiling
There are exceptions, however, to this general rule. For example, federal courts have found that stops of suspected gang members are justified. In this situation, the federal court (8th Circuit) found that there was a history of street gangs moving narcotics through the airport and this case (US v. Weaver) occurred long before the 9/11 attacks. The US Supreme court has held that border searches based on an individual’s Hispanic appearance alone does not provide reasonable suspicion of criminality (US v. Vrignoni-Ponce). Further, federal courts have ruled that a person’s appearance cannot be considered as a relevant factor where suspicion is required to make a police stop.
What your criminal defense attorney can do about racial profiling in your case
In situations where the defense believes that a police stop was based on a person’s race, the defense can offer statistical and other evidence to create a rebuttable assumption that race is a motivating factor. Once that presumption is established, the government (Commonwealth) must articulate a race neutral reason for the police action or identify a compelling governmental interest for this stop. If the government (Prosecution) meets this burden, the defendant maintains the ultimate burden of proving discrimination (See Batson v. Kentucky -US Supreme Court Case).
If you believe that you are the victim of racial profiling or even suspect it, you must bring it to your defense attorney’s attention for him to raise the issue through a pre-trial motion to suppress evidence. As I have stated in the past, a Motion to Suppress Evidence due to an illegal search and seizure is often the defense’s most powerful tools to overcome charges involving illegal drugs, narcotics, guns, and firearms.
What your criminal defense attorney can do about racial profiling in your case
In situations where the defense believes that a police stop was based on a person’s race, the defense can offer statistical and other evidence to create a rebuttable assumption that race is a motivating factor. Once that presumption is established, the government (State or Commonwealth) must articulate a race neutral reason for the police action or identify a compelling governmental interest for this stop. If the government (Prosecution) meets this burden, the defendant maintains the ultimate burden of proving discrimination (See Batson v. Kentucky -US Supreme Court Case).
What to do if you believe you are the victim of racial profiling
If you believe that you are the victim of racial profiling or even suspect it, you must bring it to your defense attorney’s attention for him to raise the issue through a pre-trial motion to suppress evidence. As I have stated in the past, a Motion to Suppress Evidence due to an illegal search and seizure is often the defense’s most powerful tools to overcome charges involving illegal drugs, narcotics, guns, and firearms.
For more information on illegal search and seizure, I encourage you to keep reading my blog and visit my free download section to obtain free copies of my books.
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