Volume 18, Number 2
March 2001

CRIMINAL JUSTICE

A Primer in Profiling

The Merger of Civil Rights and Criminal Defense

By Margie Paris

Profiling runs afoul of the Fourth Amendment’s search and seizure protections when law enforcement officers make a decision to stop or search a person based on the individual’s apparent race or ethnicity, rather than on conduct or a close match with an eyewitness description. Profiling is "formal" when officers use a specific list of factors that describe individuals likely to be involved in a particular kind of criminal activity. Informal profiling takes place when officers act on the basis of malleable factors that they claim to have accumulated through their own experience or the experience of others in their units. Identifying police actions. Although recent attention has focused on profiling in customs searches and traffic stops, profiling occurs whenever law enforcement officers make decisions based on race or ethnicity rather than on behavioral characteristics (except in those cases involving eyewitness descriptions). For example, narcotics officers engage in profiling when they focus their use of drug-sniffing dogs on members of minority groups.

In order to isolate the potential profiling claim, ask the client to describe the incident in a detailed narration. Then ask specific questions designed to clarify the potentially discriminatory police actions. For example, in a traffic stop situation, ask whether police:

• Questioned the client about his/her destination.

• Demanded registration, license, and insurance papers.

• Sought permission to search.

• Employed drug-sniffing dogs.

• Ran a computer check.

• Issued a citation.

Next, become familiar with the ways in which profiling violated the client’s legal rights and what relief should be sought. Two federal constitutional provisions are potentially implicated by profiling: The Fourth Amendment’s prohibition against unreasonable searches and seizures and the Fourteenth Amendment’s guaranty of equal protection of the laws. Although federal remedies may be the first line of defense, state constitutional provisions, statutes, and regulations may also apply.Crafting the motion. In crafting a Fourth Amendment motion, the goal is to obtain an order suppressing all evidence that was derived from Fourth Amendment violations. If possible, the defense also will seek an order dismissing charges if tainted evidence is clearly the basis of the charge. The motion will identify the tainted evidence and the police actions that led to its discovery. It also will explain how the police ran afoul.

The central argument will concern the lack of individualized probable cause or reasonable suspicion by the police. If race or ethnicity was involved, argue that such factors are improper in the "guilt calculus." Ask the judge to disregard those factors and evaluate the existence of legitimate suspicion based on the remaining facts. If the profile does not explicitly contain race or ethnicity, determine whether it contains proxies or code terms such as "high-crime area." Courts must examine such terms to ensure they are not used to target "entire neighborhoods or communities in which members of minority groups regularly go about their daily business."

If no profile was used and police simply targeted minorities, preserve the argument that pretextual stops violate the Fourth Amendment by referencing Whren v. United States, and argue that Whren was wrongly decided. Cite other cases in your jurisdiction in which similar pretext stops have been challenged, and raise the possibility that they reflect a pattern of stops that abuse the authority granted police by Whren. In addition, research the state’s constitution and laws, because some prohibit pretext policing. The defense should also challenge the profile that police claim to have developed. Intentional discrimination. In an equal protection claim, a lawyer must make a prima facie case having two prongs. Demon-strate that a government actor treated similarly situated people differently on the basis of a suspect classification. Establish that the governmental actor did so purposefully. Once the prima facie case is made, the burden shifts to the government to rebut with race-neutral explanations.

Three things help the lawyer to make such a case. First, establish a "colorable basis" for the belief that police engaged in purposeful discrimination, and the court will order discovery. The "colorable basis" standard requires "some evidence," but not a prima facie case, on both of the prongs of the equal protection claim. Second, establish proof of differential treatment at both the preliminary stage and in the prima facie case by using statistical surveys as the primary evidence. Third, the most difficult prong of an equal protection claim—discriminatory in-tent—can be proven by inference where the pattern of differential treatment is "stark."

Once constitutional doctrines and available relief have been identified, a lawyer should examine the discovery needed to advance a client’s claims. The most important data in many cases will be statistical evidence revealing differential law enforcement treatment of minorities and whites. In traffic stop situations, some data can be gleaned from traffic tickets issued on specific dates. More revealing data can be gleaned from spot checks over a broader time period. Spot checks of other kinds of data may also prove important. If defense believes the client was targeted for a pretextual stop and search, counsel should request "consent to search" forms for a number of days in the relevant period of time.

Other categories include:

• Profiles used by relevant police units, including the sources of those profiles, data concerning their accuracy or inaccuracy, and information about stop and arrest rates by officers using the profiles.

• Surveys, reports, training manuals, teaching videos, and any other materials from any source that were used to train police in the relevant jurisdiction.

• Regulations and policies governing the police units.

• Information identifying current and former members of police units. Interviews may prove useful in discovering informal methods of training and unwritten profiling policies.

• Personnel files, records of complaints against officers, records of investigating bodies, and records of lawsuits and motions to suppress involving similar police conduct.

• Document retention policies in the relevant jurisdiction.

Fourth Amendment background principles. There are four basic principles of Fourth Amendment jurisprudence.

First, the Fourth Amendment requires reasonable searches and seizures based on individualized suspicion. Before police are legally justified in arresting or detaining a person, they must be able to articulate facts that legitimately give rise to a suspicion that the person is involved in criminal activity. These facts must raise inferences of criminal activity. Similarly, before police can search, they must have facts sufficient to give rise to suspicion that evidence of a particular crime will be found in a particular place.

Second, the individualized suspicion must rise to a certain level. For an arrest or a full-blown search, police need probable cause. For less intrusive actions, such as a brief detention or a pat down of outer clothing, the facts need not rise to the level of probable cause, but they must support "more than an inchoate and unparticularized suspicion or hunch." The kinds of facts that sustain these levels of individualized suspicion include a person’s behavior or clothing and (in some circumstances) physical characteristics.

Third, despite judicial deference to police, courts have insisted that a person’s race or ethnicity usually is not a fact that raises legitimate suspicion, unless such a fact is part of an eyewitness description of a suspect.

Fourth, police can stop individuals for pretextual reasons if they can articulate facts sufficient to raise the required level of suspicion. In traffic stops, police can identify (or fabricate) probable cause to show that almost any driver is committing a minor traffic offense. As a result, an officer can stop virtually any vehicle, and the stop will satisfy the Fourth Amendment even if the officer’s subjective intention is to target for scrutiny or harassment drivers of a particular race or ethnic background.

Margie Paris is an associate professor at the University of Oregon School of Law.

- This article is an abridged and edited version of one that originally appeared on page 4 of Criminal Justice, Fall 2000 (15:3).

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