Wednesday, June 10, 2009



by David Walsh-Little


Race plays a role in every aspect of the criminal justice system but street encounters between police officers and minority citizens are particularly problematic.  Interactions that lead to criminal charges are reviewable by a court later on, but the ability to accurately recreate the totality of what happened during a foot or traffic stop is almost impossible.  The police have broad discretion to act on the street.  How that discretion is exercised often has as much to do with the race of the person being observed as any alleged illegal conduct.  Slowing down and rolling through a stop sign violates the traffic codes but who among us thinks that the police are less likely to look the other way when the driver or front seat passenger is brown or black?  There is a wide chasm between what the law allows and who feels the force of the law coming down upon them.  A welcome Supreme Court case decided earlier this term called Arizona v. Gant, provides a little relief- at least in the context of automobile stops.    


Plainclothes officers patrolling a “high drug neighborhood” observe two young African-American men in an automobile stopped at an intersection in a dark Pathfinder.  The police execute a U-turn to approach the vehicle and observe the Pathfinder turn right at the intersection without signaling and drive off at an unreasonable rate of speed.  The undercover officers pursue and stop the Pathfinder for violating the traffic laws.  They observe and seize a bag of what appears to be crack cocaine from the car.  Both occupants in the car were arrested. 


Sound familiar to car stops occurring all over the country particularly in urban jurisdictions?  Would the police have approached if two white people were sitting at an intersection?   These were the facts in a 1996 Supreme Court case entitled Wren v. United States.  The Supreme Court ruled that this practice of using the traffic codes as a pretext for the real reason for the stop is perfectly legitimate. Stopping someone for one reason (possibly race) and articulating another reason as long as that reason is lawful, complies with the Constitution.  In the words of Justice Scalia, “[W]e think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”  Hmm.  Is there any doubt that the subjective motivation of police officers play a role in who gets stopped?  With the traffic codes as cumbersome as they are, let’s face it, a zero tolerance policy gets almost all of us a traffic ticket on a short ride to the grocery store.


What the police can and cannot do and why the police do what they do are very different questions and it is the latter that sometimes land a large number of darker skinned people in jail.  The police target who they want to target- the poor, minorities, and others, and then use the traffic codes to pull them over, sometimes arrest them, and use the arrest for a reason to search their car.  This approach was further enhanced by an older case called Belton v. New York, which was widely read by police departments to allow the search of all aspects of your car if they have any reason to arrest you- including traffic violations.  Find a traffic violation, and then arrest the driver for the purpose of searching their car was a tried and true investigatory technique.  The recent decision in Gant is far from a panacea to this continuing problem, but by limiting the officer’s discretion on the street, the decision is more likely to force the police to make decision on actual criminal conduct instead of less noble motivations.


In Gant, narcotics officers in Tucson, Arizona, approach a house they were targeting and interviewed Rodney Gant at his home.  They did not arrest him.  Instead, they waited until later that evening when Mr. Gant was returning home in his car. The police approached Mr. Gant as he exited his car, and then, already knowing Mr. Gant had a suspended driver’s license, arrested him in his front yard.  The police searched his car and found a gun and some drugs in a jacket in the back seat of the car.  As the officer testified at the later trial, he searched the car because “ the law says we can do it.” 


Well, the Supreme Court ruled to the contrary. Without a connection between the grounds for the arrest (Driving with a Suspended License) and any possible evidence of that crime in the car, and without any portion of the car in arm’s reach of Mr. Gant to raise a security risk, the police had no basis to search the car.  This reasonable decision doesn’t alter law enforcement’s ability to search an automobile when they have probable cause or some other lawful reason to do so.  What the decision does do is sever the inevitable conclusion that being arrested for a traffic stop allows the police to search your car.  With the traffic laws often being used as a pretext for stopping minorities, the decision is a unusually refreshing breeze from our highest court.  Let’s hope the summer winds keep blowing until the end of the term.       


Dave Walsah-Little is a public defender in Baltimore.


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