Pretext Stops and Racial Profiling after Whren V. United States: The New York and New Jersey Responses
Abramovsky, Abraham, Edelstein, Jonathan I., Albany Law Review
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.
II. 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 crime of which the officer hoped to obtain evidence. In support of their argument for a subjective standard, the defendants contended:
[T]he use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants.(50)
The Supreme Court, however, disagreed. Citing prior cases in which the Court had held that law enforcement officers' objectively reasonable acts were not invalidated by improper motives, the Whren Court stated that "these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved."(51) Rather, "[s]ubjective intentions play no role in ordinary ... Fourth Amendment analysis."(52) Thus, the Court held that an investigatory stop is valid, regardless of the actual motivation of the police officers, whenever an objectively reasonable basis, such as a traffic violation, exists.(53) In fact, the Court noted that such a stop would be valid even if the police officer admits to using the traffic violation as a pretext to investigate another offense.(54)
To be sure, the Whren Court "agree[d]... that the Constitution prohibits selective enforcement of the law based on considerations such as race."(55) However, by removing the subjective motivation of the arresting officer from the Fourth Amendment calculus, the Whren Court effectively stripped defendants of their ability to establish that unlawful considerations such as race played a part in the decision to stop and arrest them.(56) In other words, if a police officer followed a black motorist for several miles before observing him violate a stop sign, the decision in Whren would not permit the trial court to inquire any further once the objective traffic violation was established.
Thus, in practical terms, the Whren decision legitimizes police stops of motor vehicles for any reason. Despite the fact that the Supreme Court gave short shrift to the defendants' argument that "total compliance with traffic and safety rules is nearly impossible,"(57) their point was well taken. Courts as well as scholars have noted that "[i]n the most literal sense, no driver can avoid violating some traffic law during a short drive, even with the most careful attention."(58) Thus, the Whren doctrine "makes any citizen fair game for a stop, almost any time, anywhere, virtually at the whim of the police.... Simply put, ... [the Fourth Amendment] no longer applies when a person drives a car."(59) In practical terms, an officer's subjective motivation in conducting a traffic stop can no longer be the subject of federal constitutional inquiry--and even though race-based stops remain constitutionally impermissible, this is of little benefit to defendants who now have no mechanism for proving that such motivation exists.
III. THE NEW YORK RESPONSE
The Whren decision changed the law swiftly in those states that had not already adopted its rationale.(60) In only one state, New York, did any intermediate appellate court reject Whrenand hold that subjective analysis plays a role in determining the reasonableness of traffic stops, and even then, not all courts in the state were in agreement.(61) The First Department of the New York Appellate Division, particularly, has reaffirmed the continuing validity of the comprehensive subjective standard that has long been established in New York.(62) An examination of this standard is necessary to illustrate the resources that are available to fight racially motivated traffic stops in New York--and to illustrate what the rest of the country has lost.
A. The New York Rule
Prior to the Supreme Court's decision in Whren, New York courts had a well-established rule that pretext stops were constitutionally invalid.(63) While police may stop a motorist for a traffic infraction, New York courts have long recognized that "a traffic violation may not be utilized as a pretext to investigate [a] defendant on an unrelated matter."(64) Suspicions of criminal activity unrelated to the justifiable reason for the stop can only be investigated if they arise after the initial seizure.(65) For example, an inquiry beyond the scope of the traffic violation may be permissible pursuant to the plain view doctrine(66) or upon observation of the defendant's subsequent behavior.(67) However, if the stop would not have occurred absent the motive to pursue unfounded suspicions, then a traffic violation cannot be used to subterfuge the constitutional protections against arbitrary police conduct.
Ironically, for such a well-developed and constitutionally important body of law, the prohibition on pretext stops was entirely a creation of the Appellate Division. Although intermediate appellate courts in New York have relied on the Court of Appeals' dicta in People v. Ingle(68) that stops which are the product of "mere whim, caprice or idle curiosity" are prohibited,(69) New York's highest court has never explicitly stated that pretext stops are unlawful.(70) However, all four departments of the Appellate Division, prior to Whren, agreed that pretextual stops of automobiles were impermissible, and that a traffic stop could not justify investigation of another offense unless independent evidence presented itself.(71)
In the absence of a standard articulated by the Court of Appeals, the departments of the Appellate Division collectively developed a comprehensive body of law setting forth the factors to be considered in determining whether a traffic stop is an impermissible pretext stop--such as whether the officers followed normal traffic stop procedures,(72) observed the vehicle for an extended period of time prior to making the stop,(73) or made traffic stops as part of their regular duties.(74)
A predominant and compelling factor in demonstrating an ulterior police motive is the failure to follow normal traffic procedures. Particularly, courts have considered whether the stopping officers questioned the driver about the alleged traffic violation; requested proof of his license, registration, and insurance; issued a traffic summons; or exceeded the bounds of a normal traffic stop. For example, in finding that a stop was pretextual, the Second Department in People v. Roundtree(75) considered the fact that the officer "did not question [the driver] about the [traffic] infraction or issue a traffic summons."(76) Likewise, in People v. Smith,(77) the court suppressed evidence where the arresting officers "did not bother to give the cab driver a summons, or even ask to see his license or registration."(78) In a case where police requested a license and registration, the court nonetheless found the stop to be pretextual where no further inquiry was made into the alleged traffic infraction and a summons was not issued.(79) By the same token, the First Department in People v. Rijo,(80) concluded that the stopping officer's failure to check the driver's license plate number or issue a summons "clearly established that the traffic violation ... was merely a pretext to investigate [the] defendant on an unrelated matter."(81)
Moreover, the mere issuance of a summons does not erase police pretext--as pretext is concerned with the real reason for the stop and not ostensible measures used to create a legal justification. For example, in People v. Lynch(82) the arresting officers issued a summons for running a red light, but made "no inquiry of whether the [driver] was aware that he had run a red light or why he ran the light," and also failed to ask for the driver's license, registration or insurance papers.(83) The court concluded that the stop was pretextual and that the real reason for the stop was "to investigate or substantiate a suspicion."(84)
While "the failure to issue a traffic summons will not, in and of itself, warrant a finding that a stop was pretextual,"(85) the above cases demonstrate that such failure is compelling evidence of an underlying police motive that is unrelated to the traffic infraction especially when accompanied by a failure to question the driver about the alleged traffic violation or request typical information like license and registration. Furthermore, a failure to follow normal traffic procedure may exist where the police, despite investigating the traffic infraction and issuing a summons, exceed the normal parameters of a traffic stop. For example, in People v. Mikel,(86) the court held that the officers "exceeded the bounds of a normal traffic stop by detaining the occupants of the vehicle for an extended period of time in an attempt to obtain information unrelated to the traffic infraction."(87) Similarly, in People v. Camarre,(88) the Fourth Department held that a traffic stop was pretextual where police officers subsequent to the stop transported the defendant to a crime scene unrelated to the traffic arrest, and detained him for thirty to forty-five minutes.(89)
Another factor used by courts in determining pretext, and related to normal traffic procedure analysis, is evidence that the stopping officers followed the vehicle for an extended period prior to or after observing the traffic infraction.(90) This factor surmises that the purpose behind the stop is not enforcement of traffic laws, but investigation into unfounded police suspicions. Thus, in People v. Letts,(91) the Third Department held that "the traffic violation stop was wholly pretextual" where after observing the traffic infraction, the officers did not pull the defendant over immediately, but instead followed his vehicle for six miles "in the hope of observing [an] anticipated drug transaction."(92) Similarly, in People v. Young,(93) the court's finding of a pretextual stop included the fact that the officer "candidly stated that he had become suspicious that defendants' vehicle was stolen, and had watched it for several miles before deciding to postpone the investigatory duties he had originally set out upon" and make the stop.(94) While evidence that police followed a vehicle for an extended period is strong evidence of an ulterior motive, courts have also applied this factor for relatively shorter distances. For example, in Roundtree, part of the court's pretext basis was that after observing the traffic infraction, the stopping officers pursued the vehicle for six city blocks.(95)
Finally, another relevant factor under New York pretextual analysis is whether the particular officers enforced traffic laws as part of their ordinary duties. For example, in Young, the Third Department's pretext decision noted that "[s]ignificantly, [the officer], an investigator and not on traffic duty, admitted that investigators did not ordinarily become involved in this type of enforcement and was not even carrying the forms necessary to issue a traffic ticket."(96) Likewise, in Lynch, the court's determination that an impermissible pretext stop had occurred included evidence that the stop was made by an anticrime officer whose "duties did not include the issuance of traffic summonses" and who "conceded that he does not and did not carry a summons book."(97)
B. The Effect of Whren
The continued applicability of this body of law, however, has been thrown into some doubt by the United States Supreme Court's decision in Whren. At present, the Whren doctrine has been adopted not only as federal law, but as law in almost every state.(98) However, continuing its long-standing silence on the subject, the Court of Appeals has neither adopted nor rejected Whren.(99) Consequently, the intermediate appellate courts of New York have been left on their own to confront the effect of Whren on state law, and have done so in widely disparate ways.(100)
The Third and Fourth Departments have thus far dodged the question of whether Whren supersedes prior state law on pretextual stops. In fact, the Third Department has never even acknowledged Whren--to date, it has consistently affirmed traffic stops under preexisting state precedent without citing the Supreme Court's decision.(101) At least one lower court has concluded that the Third Department's silence indicates that the subjective New York standard is still applicable.(102) However, the more likely interpretation is that the Third Department has simply not found a proper test case involving a stop that is legal under federal but not New York precedent.
The only Fourth Department post-Whren pretext ruling also declined to decide the applicability of Whren in New York where the stop at issue was valid under the more stringent New York standard.(103) However, one trial court within the Fourth Department has issued a forceful reaffirmation of the New York State position. In a case where the arresting officer admitted in a supporting deposition to having stopped the defendant pretextually, the Watertown City Court in People v. Horeth(104) held that the stop was impermissible and suppressed the evidence obtained as a result therein.(105) The Horeth court did not cite Whren, but did refer to--and reject--the prosecution's argument that a stop is valid whenever an objectively reasonable basis exists.(106) Citing pre-Whren Fourth Department precedent, the court instead determined that "`the police may not use their authority to arrest for a mere traffic infraction as a pretext for an otherwise impermissible arrest and search.'"(107) Thus, having determined on the basis of the arresting officer's admission that the stop of the defendant was a "patent" pretext, the court granted her motion to suppress.(108)
Nevertheless, only the First and Second Departments have rendered appellate decisions analyzing Whren, and their rulings reveal a fundamental split of authority in New York jurisprudence. The Second Department has adopted the federal standard, while the First Department has outright rejected Whren.(109) In several decisions decided shortly after Whren, the Second Department apparently continued to apply the long recognized New York rule against pretext stops.(110) However, those decisions did not cite Whren or make any independent finding that a New York state constitutional protection existed against pretextual stops.(111) Subsequently, in 1997, the Second Department affirmed a conviction in People v. McCoy(112) notwithstanding the court's finding that the traffic stop was pretextual in nature.(113) Since McCoy, Second Department decisions have routinely upheld pretext stops on the basis of Whren, without reference to New York State precedent.(114)
Both trial and appellate courts in the First Department, however, have followed a radically different course. The first assault on Whren in New York occurred in a trial court in Bronx County. In a decision handed down only two months after Whren, Judge Richard Price of the Bronx County Criminal Court ruled in People v. Williams(115) that pretextual stops were invalid under the New York State Constitution even though the Fourth Amendment permitted them.(116) Judge Price cited the Court of Appeals' language in People v. Spencer,(117) which stated that "police stops of automobiles in this State are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations or when there exists at least a reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime."(118)
Focusing upon on the Court of Appears specific reference to stops "in this State,"(119) the Williams court concluded that the Court of Appeals in Spencer was interpreting the state constitution, and thereby was exercising its right to provide greater protection to New York motorists than was afforded by the Constitution of the United States.(120) The following year, another Bronx County trial court in People v. Lynch,(121) agreed that the Spencer court's use of the language "in this State" indicated that a state constitutional rule against pretext stops existed in New York.(122)
In January 1998, the First Department removed all doubt concerning its rejection of Whren. In People v. Martinez,(123) the First Department held that the "application of a subjective test for determination of the legality of the stop is in accordance with previous decisions of this Court."(124) Significantly, the Martinez court added that "It]he holding of the United States Supreme Court in Whren v. U.S. does not compel a contrary result."(125)
Following Martinez, the New York County Supreme Court in People v. Dickson(126) further explained the continuing viability of the prohibition on pretext stops. Noting that the Whren decision purported to clarify a rule of law in place since 1973 rather than creating an entirely new constitutional rule, the Dickson court held that Whren did not require a re-examination of the New York standard.(127) Moreover, even if Whren did articulate a new constitutional rule, the Dickson court noted that New York courts "have not hesitated in the past to interpret article I, [sections] 12 of the [New York] State Constitution independently of its Federal counterpart when necessary to assure that our State's citizens are adequately protected from unreasonable governmental intrusions."(128)
Having established its authority to reject Whren, the Dickson court then articulated its policy-based reasons for doing so. Specifically, the court stated:
We also cannot blind ourselves to the dangers inherent in according the police the discretion that Whren seems to permit. If, in fact, the subjective intent of police officers is not to be considered in the face of a credited traffic violation, then we have effectively eliminated the decades-old protection against stops based upon whim, caprice, idle curiosity, hunch, or gut reaction. More troubling still, the inability to look past a proffered broken tail light or speed violation precludes exploration of malevolent motives, such as stops based upon racial profiling. (129)
Thus, the court concluded that "[i]t has never been, and should not now be, the law of our State that we cannot reject offensive, albeit subjective, reasons for police action."(130) Accordingly, since the arresting officer in Dickson had admitted to a pretextual motivation, the court suppressed the evidence obtained as a result of the stop.(131)
The superiority of the First Department standard in combating racially motivated investigations is obvious. By providing a comprehensive list of factors to be used in determining whether a stop is pretextual,(132) the New York standard supplies an effective test for determining whether an investigatory stop is motivated by an impermissible desire to investigate a more serious crime or by an even more constitutionally offensive suspicion based purely on race. Moreover, it provides a forum, in the form of a pretrial hearing, where the arresting officer's motivations may be subjected to the test of cross-examination and where evidence tending to establish an unlawful pretext stop may be presented. Thus, in the First Judicial Department of New York--almost alone among the jurisdictions in the fifty states--a "broken tail light or speed violation" does not preclude effective inquiry into whether an investigatory stop was motivated by race or some other constitutionally impermissible factor.(133)
IV. THE NEW JERSEY RESPONSE
In contrast to New York, the New Jersey courts have adopted the objective standard utilized in Whren--in fact, they did so even before the Whren decision was handed down.(134) Thus, New Jersey courts do not have as wide an arsenal to combat racial profiling as trial courts in New York. Rather, defendants in New Jersey may challenge the racial motivations of arresting officers only if they meet the more stringent selective enforcement standard(135) or show that no objectively reasonable basis existed for stopping them.(136)
To be sure, New Jersey courts have endeavored--sometimes by innovative methods--to combat racially-based investigations. In particular, and possibly the most far-reaching decision to date in New Jersey, is the 1996 Superior Court case of State v. Soto.(137) In Soto, the court entertained a consolidated motion to suppress evidence by seventeen African-American defendants who were arrested after being stopped on the highway by the New Jersey state police.(138) The court allowed discovery concerning the relative incidence of traffic stops by New Jersey state troopers involving various racial groups, and reviewed additional statistical evidence unearthed by defense counsel.(139) The totality of this evidence revealed compelling statistical proof that African-American motorists were disproportionately targeted for traffic enforcement.(140) The court then held a hearing at which experts for both the defense and the prosecution analyzed the statistical evidence, and concluded that the state had failed to rebut the defendants' proof that members of the defendants' race were unfairly targeted for search and seizure.(141) Accordingly, the Soto court found that selective prosecution had taken place and suppressed the evidence used against all seventeen defendants.(142) According to media accounts, hundreds of other African-Americans arrested after New Jersey traffic stops have sought dismissal of the charges against them on similar grounds,(143) especially since top New Jersey police officials admitted to the use of racial profiles in traffic enforcement. (144)
Other New Jersey courts have invalidated suspicious stops by crediting the defendant's testimony that no traffic violation occurred. This credibility determination is pivotal in that without probable cause to believe that the defendant has committed a traffic infraction, or an otherwise objectively reasonable basis for the stop, an investigatory stop violates the Fourth Amendment.(145) This ground was used by the Superior Court in State v. Patterson(146) to invalidate the stop and arrest of an African-American motorist on the New Jersey Turnpike pursuant to a drug courier profile based predominately on race.(147) Specifically, the Patterson court found that the defendant did not commit a traffic violation or engage in any other behavior that would give rise to a reasonable suspicion of criminal activity to justify a stop.(148) Absent an objectively reasonable basis for stopping the defendant, the court concluded that the stop was unconstitutional and suppressed the evidence obtained therein.(149) Another superior court judge in State v. Letts(150) followed a similar course of action, holding that absent an objective traffic violation(151) or other reasonable suspicion of criminal activity, the stopping of the defendant pursuant to a race-based drug courier profile(152) was not "a valid legal basis to make a motor vehicle stop."(153)
However, even though New Jersey courts have demonstrated a willingness to invalidate racially-motivated investigations, they are limited in their ability to do so compared to New York courts.(154) Since any objectively reasonable basis will render an individual traffic stop valid under New Jersey law, defendants are forced to resort to alleging selective enforcement in any case where such a basis exists.(155) This is frequently difficult and time-consuming to prove, requiring the court to resolve complex and voluminous statistical evidence.(156) Moreover, even though statewide police agencies might conduct enough traffic stops to establish a statistical basis for selective prosecution, a small-town police department may not. A black motorist who is stopped by police in a small rural New Jersey town, where few African-Americans reside and where relatively few traffic stops are made each year, may be unable to obtain the necessary statistics to make out a claim of selective prosecution.(157)
In cases where the defendant cannot establish objective evidence of selective prosecution, New Jersey courts can only invalidate racially motivated stops by concluding that no objectively reasonable basis for the stops existed.(158) This frequently requires that the court credit the testimony of the defendant over that of the arresting officer--something courts have frequently been unwilling to do in the context of suppression hearings.(159) Thus, a New Jersey defendant's ability to obtain relief from racial profiling may vary considerably from judge to judge--a far less desirable outcome than the universally applicable New York test.
Ironically, at the same time that the public has become increasingly aware of racial profiling, the federal judiciary has dramatically reduced the ability of many defendants to combat it in the courts.(160) Moreover, despite the near-universal condemnation of racial profiling by politicians, an effective judicial remedy remains critical for several reasons. First, many measures taken by the executive branch to combat racial profiling are cosmetic in nature or are abandoned once the issue recedes from the forefront of public debate. For instance, in the wake of the torture of Abner Louima by New York City police officers, New York City Mayor Rudolph Giuliani established a task force to make recommendations for improving relations between the police and minority communities.(161) However, by the time the task force released its report, the publicity from the Louima case had receded, and Giuliani responded to its findings with dismissal and ridicule.(162) Similarly, even though the Governor of New Jersey responded to the admission of racial profiling by replacing the state police commissioner and promising reforms, (163) there is no guarantee that the next governor will show the same commitment. Thus, in the absence of an effective judicial remedy, the rights of minority motorists are determined by little more than executive grace.
In addition, while the executive and legislative branches of government may combat racial profiling by means of laws and policies, such policies may be violated by individual police officers.(164) If courts are forbidden to inquire into the subjective motivation of police officers in making a stop and arrest, defendants will have no recourse in the event that they are stopped in violation of an anti-profiling policy. Given the fact that civilian complaints against police officers are infrequently upheld,(165) a police officer may be able to escape punishment and obtain a conviction if the sanction of suppression is not available. Accordingly, the heightened New York constitutional standard demonstrated by the First Department of the Appellate Division is not merely more effective, but indispensable in protecting members of minority communities from arbitrary search and seizure.
In fact, heightened state constitutional protection is even more important in the wake of the Second Circuit's decision in Brown, which held that police officers were justified in stopping every black resident of an upstate New York town on the basis of a description that included only race and gender.(166) Citizens at home or on the public streets are just as entitled as motorists to be free of unfair targeting on the basis of their race. In the state constitutional litigation that is now pending in connection with the Brown case, the New York courts should act to ensure that race and gender alone can never be a basis for subjecting an individual to search and detention by the police.
(1) See Thomas Martello, `New Jersey Admits to Racial Profiling,' SUN-SENTINEL (Ft. Lauderdale), Apr. 21, 1999, at 6A (reporting on the New Jersey State Attorney General's acknowledgement that state troopers had used racial profiling in stopping motorists).
(2) See United States v. Volpe, No. 98 CR 196, 1999 WL 1250635, at *1-3 (E.D.N.Y. Dec. 13, 1999) (setting forth the court's factual findings on the beating and sexual assault of Abner Louima).
(3) See Michael Cooper, Officers in Bronx Fire 41 Shots, and an Unarmed Man is Killed, N.Y. TIMES, Feb. 5, 1999, at A1 (reporting on the police shooting of Amadou Diallo).
(4) See Brian Donohue, Whitman Names Dunbar Top Cop: FBI Agent Would Be First Black Leader of State Police, STAR LEDGER (Newark), Sept. 21, 1999, at 1 (stating that the appointment of Carson Dunbar to Superintendent of the New Jersey State Police by Governor Christine Whitman would make Dunbar "the first African-American to head the 2,700-member State Police, which the state admits has engaged in racial profiling on the highways and racial discrimination in the barracks for many years").
(5) See Michael Meyers, Rudy's Self-Made Albatross, N.Y. POST, Feb. 16, 1999, at 29. This task force, however, proved to be an essentially cosmetic measure, as its report was discounted by New York City Mayor Rudolph Giuliani. See id. (commenting that Mayor Giuliani made a political blunder when he dismissed his own multiracial task force on police-community relations, and then "boldly" stated that he would not read the task force's report).
(6) See Matthew Hay Brown, NYPD Protesters Say Their Fight Has Just Begun: Killing of Immigrant Spurs Coalition 's Demand to Overhaul Force, THE HARTFORD COURANT, Apr. 14, 1999, at A1 (commenting that following the police shooting of Amadou Diallo and the ensuing demonstrations, New York City Mayor Rudolph Guiliani and Police Commissioner Howard Safir announced plans to overhaul the city's crime units, hire more minority officers and require that all officers wear uniforms).
(7) 517 U.S. 806 (1996). For a discussion of the facts and holding in Whren, see infra notes 40-59 and accompanying text.
(8) See id. at 813 (holding that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis").
(9) See BLACK'S LAW DICTIONARY 1187 (6th ed. 1990) (defining pretext as a "motive assigned or assumed as a color or cover for the real reason or motive"). See generally Abraham Abramovsky, Pretext Stops of Motorists in New York, N.Y. L.J., Sept. 16, 1998, at 3 (discussing the nature and form of pretextual police traffic stops).
(10) See Whren, 517 U.S. at 813 ("We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.").
(11) People v. Dickson, 690 N.Y.S.2d 390, 396 (Sup. Ct. N.Y. County 1998).
(12) 195 F.3d 111 (2d Cir. 1999). For a complete discussion of the underlying facts of the Brown case, see Gail Donoghue & Jonathan I. Edelstein, Life After Brown: The Future of State Constitutional Tort Actions in New York, 42 N.Y.L. SCH. L. REV. 447, 455-57 (1998).
(13) See Brown, 195 F.3d at 115 (holding that "absent other evidence of discriminatory racial animus," a police investigation does not violate the Equal Protection Clause if based on a criminal suspect description consisting primarily of race and gender).
(14) See id. at 116, 120-21 (describing the police "sweep" of stopping and questioning blacks, and finding as a matter of constitutional law that the police investigation was not "unlawful profiling based on a racial stereotype").
(15) See infra notes 60-133 and accompanying text (discussing New York law prior to and in response to Whren).
(16) See infra notes 134-59 and accompanying text (discussing New Jersey law prior to and in response to Whren).
(17) See infra notes 21-59 and accompanying text.
(18) See infra notes 60-133 and accompanying text.
(19) See infra notes 134-59 and accompanying text.
(20) See infra notes 160-66 and accompanying text.
(21) Whren v. United States, 517 U.S. 806, 809-10 (1995).
(22) See Terry v. Ohio, 392 U.S. 1, 16-22 (1968) (recognizing "that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest"). In Terry, the Court held that investigatory stops are seizures under the Fourth Amendment and therefore subject to the amendment's proscription against unreasonable seizures. See id. at 16-17. The Court rejected that investigatory stops are subject to the Fourth Amendment's warrant clause requiring probable cause. See id. at 19-20. Rather, the appropriate test is the reasonableness of the stop, which requires a balancing of the need to seize the person against the intrusion. See id. at 20-21. "And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21.
(23) See Florida v. Royer, 460 U.S. 491, 498 (1983) (stating that Terry v. Ohio "created a limited exception" to the general requirement of probable cause in holding that "certain seizures are justifiable under the Fourth Amendment if there is articulable suspicion that a person has committed or is about to commit a crime"); United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) ("[T]o accommodate public and private interests some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure." (citing Terry v. Ohio, 392 U.S. 1, 21 & n.18 (1968))).
(24) See United States v. Avery, 137 F.3d 343, 354 (6th Cir. 1997) (holding that race cannot be the sole basis for reasonable suspicion in police investigative detentions).
(25) See id. at 354-55 (refusing to adopt the "concept that the 'likelihood that any given person of African ancestry is involved in drug trafficking is high enough to make African ancestry a relevant fact' in investigating drug trafficking" (paraphrasing similar language in United States v. Brignoni-Ponce, 422 U.S. 873, 886-87 (1975))).
(26) See infra notes 27-34 and accompanying text (discussing means to suppress evidence based upon impermissible racial-based investigations).
(27) See United States v. Armstrong, 517 U.S. 456, 465 (1996) (stating that a selective prosecution claim requires the same showing as an Equal Protection claim--"that the federal prosecutorial policy 'had a discriminatory effect and that it was motivated by a discriminatory purpose"' (quoting Wayte v. United States, 470 U.S. 598, 608 (1985))).
(28) See id. ("To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted.").
(29) See, e.g., State v. Soto, 734 A.2d 350, 360-61 (N.J. Super. Ct. Law. Div. 1996) (suppressing evidence against seventeen African-American defendants based upon unrebutted evidence that African-Americans were disproportionately stopped on New Jersey highways).
(30) Consider for example the stance taken by the New York Court of Appeals in People v. Colavito, 663 N.E.2d 308 (N.Y. 1996). In discussing the statutory discovery boundaries of New York Criminal Procedure Law [sections] 240, the court noted that "[a]t common law, courts were without power to order discovery in criminal cases." Id. at 311. Accordingly, the court held that "[i]tems not enumerated in article 240 are not discoverable as a matter of right unless constitutionally or otherwise specifically mandated." Id. The court did, however, declare that while "[t]he CPL does not expressly compel pretrial discovery of evidentiary material," voluntarily disclosure is encouraged to prevent prejudice and that, "[m]oreover, in the sound exercise of responsible discretion, the trial court may order early prosecutorial disclosure under certain defined circumstances." Id.
(31) See Brown v. City of Oneonta, 195 F.3d 111, 118-19 (2d. Cir. 1999) (stating that an equal protection violation may be premised on racial profiling).
(32) See id. (explaining that racial profiling exists where police investigations utilize an intentional and express classification based on race).
(33) See id. at 119 (distinguishing equal protection claims based on facially neutral policies applied discriminatively from claims based on policies containing express racial classifications).
(34) See id. (stating that express racial classifications require strict scrutiny to determine "whether people of different races are similarly situated with regard to the law or policy at issue"); Able v. United States, 155 F.3d 628, 631-32 (2d Cir. 1998) (discussing the strict scrutiny test).
(35) See Brown, 195 F.3d at 119 (noting plaintiffs' failure to identify a law or policy containing an express racial classification).
(36) See, e.g., People v. Laws, 623 N.Y.S.2d 860, 861 (App. Div. 1st Dep't 1995) (affirming the trial court's suppression of evidence after a pre-trial "Mapp Hearing" indicated the evidence was obtained by means of a pretextual stop); People v. Dickson, 690 N.Y.S.2d 390, 391 (Sup. Ct. New York County 1998) (describing police testimony concerning a pretext stop at a suppression hearing).
(37) See Whren v. United States, 517 U.S. 806, 813 (1996) (noting that while the Court's jurisprudence recognizes racially-based traffic stops as unconstitutional, such protection is afforded under the Equal Protection Clause and not the Fourth Amendment).
(38) See infra notes 60-159 and accompanying text (discussing the practi