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. …