facts
Guys, don’t argue over what happens in traffic stops. Actually, I have far more data than I could possibly bog the forum with – I litigate, on average, half a dozen traffic stop cases each month, as well as teaching constitutional criminal law, so I have a tremendous amount of resources regarding traffic stops. This is not all that surprising, as traffic stops, one of the most common police – citizen contacts, has been subjected to considerable scrutiny and study over the last ten years. The original impetus for this involved issues of race. For anyone who is seriously interested in this issue, I can provide a number of state studies in PDF form. These are studies by the individual states. Be warned that these are pretty lengthy and rather dry – North Carolina’s study, for example, runs between 400 and 500 pages; Minnesota’s is over 250 pages. I can also refer you to a reading list of recent texts examining constitutional issues and drug interdiction, which was one of the term paper subjects this fall semester. Traffic stops figure prominently in this area. For that matter, I could send you some pretty good term papers.
Most studies found significant statistical variance indicating problems in traffic stops.
The study by the Minnesota Supreme Court, for example, summarized:
“A basic pattern emerges from our analysis of traffic stop data collected by the sixty-five law enforcement jurisdictions that voluntarily participated in this racial profiling study:
Law enforcement officers stopped Black, Latino, and American Indian drivers at greater rates than White drivers, searched Blacks, Latinos, and American Indians at greater rates than White drivers, and found contraband as a result of searches of Blacks, Latinos, and American Indians at lower rates than in searches of White drivers. Conversely, law enforcement officers stopped and searched White drivers at lower rates than drivers of color and found contraband in searches of White drivers at a greater rate than in searches of drivers of color.”
“For example, in Minneapolis, Blacks were stopped 152% more often than expected and once stopped, subjected to discretionary searches 52% more often than expected. 11% of searches of Blacks produced contraband compared to 13% of searches of Whites. If Minneapolis officers had stopped Blacks at the same rate as other drivers approximately 12,804 fewer Blacks would have been stopped in Minneapolis in 2002. If Blacks stopped in Minneapolis had been subjected to discretionary searches at the same rate as all stopped drivers, 1,053 fewer Blacks would have been searched.”
The racial profiling issue raised not only questions of fact, but a lot of emotion, as well. The first thing to understand is that it really is not about individual officers, or racist officers. Racial profiling is not about "a few bad apples" or a few racist White officers. That does not mean that there are no “bad apples”, or racists of a variety of colors in law enforcement, the same as anywhere else. The core of the problem is institutional, not individual. The issue has to be approached at the level of training and policy. For example, responding to a 2000 Department of Justice study on contacts with the police, the majority of Black men said they were equally likely to be stopped by Black or White officers.
For years the institutional assumption has been that it is good law enforcement to focus on race or ethnic appearance as a factor in deciding whom to stop or search. Contrary to what some may think, when race becomes one of the factors, law enforcement becomes less productive with respect to arrests or getting guns off the street. Check the data. Law enforcement has lower "hits” with a race-based system than when a completely behavioral based system is used.
Refer to The Myth of Racial Profiling by Dr. MacDonald or Harris, Profiles In Injustice: Why Racial Profiling Cannot Work (The New Press, 2002). Also look at - studies of racial profiling was done by John Lamberth, who uses violator benchmarks and who has expanded his methods in various urban and suburban settings in Kansas; Matt Zingraffin's work in North Carolina; work by Columbia University researchers for the New York Office of the Attorney General. Their study includes data on 180,000 stop-and- frisk encounters over 15 months.
The fact is that there is a huge amount of data regarding traffic stops available.
The study of the racial element led to the examination of other issues in the context of traffic stops, notably consent searches and pretext stops. The mania of the drug war led to routine traffic stops as a drug interdiction tool, and that led to officers wanting to, and asking to, search lots of cars. The trend arising out of the actuarial data of the late 90s on led many states to restrict the use of “consent” searches in routine traffic stops. Minnesota, for example, applies a temporal analysis that requires that the officer have reasonable suspicion to support the continued detention and the request for consent (see the cited case earlier in this thread for a thorough analysis). If consent is not given, of course, the officer needs probable cause. The Carroll rule allows search without a warrant in most cases. Other states require an advisory, similar to Miranda, prior to consent; some states require a signed waiver. Are there searches without consent? Of course there are. Thousands? Nationwide, of course there are, given the huge number of stops occurring.
Nothing I am saying attempts to portray law enforcement officers as the bad guys – quite to the contrary. Actually, I am the guy who, as a speaker to a conference of several hundred defense attorneys, told a persistent questioner from the audience who had a very obvious and toxic anti-police attitude, “OK, if you are ever in a bad wreck on the highway, you can call the *%#!% ACLU – if it is me, I plan to call 911 and pray for a deputy, officer or trooper to come save my &%#.”
If nothing else, I am usually an interesting lecturer, if a bit impatient with foolish comments.
An officer can ask to search – and the citizen can say no. Do I think it is a good policy to ask to search a citizen’s car every time there is a stop for minor traffic offenses? No, I don’t much like that policy, and in recent years many courts and agencies agree - the trend has been away from that approach. Still, asking is not unconstitutional. Coercion, bullying and the like in the face of refusal, on the other hand, well may be.
One problem is, though, that the litigated cases only address cases where there was evidence found resulting in criminal charges. What you can find in the statistical studies is the vast number of citizens who are searched, sometimes under claim of right, where there are no charges.
Even in cases that I win on constitutional grounds, are the officers “bad guys”? Almost always, no. Are they engaged in aggressive law enforcement? Well, yes – there is a line there, and if you are doing your job you know where that line is and you sometimes come near it. Sometimes you step out of bounds, too. Of course, I have run into officers who were abusive, or dishonest, or a variety of other failings – same as I have with defense attorneys, probation officers, judges, administrative staff, etc.
The bottom line: Law enforcement can be both respectful and effective. In fact, having handled thousands of cases handled by dozens of different departments and agencies, I think it usually is. This is what every American should demand.
