Criminal Justice Section  

   Criminal Justice Magazine

Criminal Justice Magazine
Fall 2000
Volume 15, Issue 3

A Primer in Profiling:
The Merger of Civil Rights and Criminal Defense

By Margie Paris

"The police stopped me because I’m black," explains the new client. "They can’t do that, can they?" Such questions are becoming common as criminal defense lawyers increasingly find themselves representing defendants who believe they have been "profiled"—stopped and searched because of their race or ethnicity. Recent, well-supported studies back these claims, and the resulting growth in public awareness is matched by a surge in demands on the part of defendants that their lawyers address not only the criminal charges, but the potential civil rights infringement as well.

When defense lawyers represent clients who have been profiled, they face the challenging task of pursuing remedies in the criminal case using constitutional theories with which they may not have much experience and that require access to statistical data. To add to the difficulty, the client probably will need information on how to report police misconduct and pursue civil remedies. (For a more detailed discussion on seeking civil remedies, see William H. Buckman & John Lamberth, Challenging Racial Profiles: Attacking Jim Crow on the Interstate, 23 Champion 14, 18 (1999).)

In order to fulfill the dual role of criminal defense attorney and civil rights advocate, a lawyer must learn a new body of case law and new methods of proof. Fortunately, there is the pioneering work of other lawyers and a wealth of information on the Web and in print. This article will focus on federal constitutional provisions because they provide powerful exclusionary remedies and sometimes result in the dismissal of charges.

Fourth Amendment concerns

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. Most profiling cases involve informal profiling and do not explicitly include race or ethnicity as factors, though these factors may play a big role. As a result, it is often difficult to challenge profiling using Fourth Amendment theories. Nevertheless, in most cases a lawyer must attempt to do so, if only to preserve a client’s claims.

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. Similarly, traffic police are guilty of profiling when they search the vehicles of minority drivers at a higher rate than cars driven by whites, or when they target minority drivers for computer checks. (See "Racial Profiling Alleged in Computer Checks by Police in Illinois Town," American Civil Liberties Union, www.aclu.org/profiling/.)

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.

If the profiling situation involved more than one individual ask the client to describe the others affected by the police encounter and which of them were stopped, questioned, or searched.

Having identified the ways in which the client may have been treated differently than other individuals, the next step is to become familiar with the ways in which profiling violated the client’s legal rights and what relief should be sought. There are two federal constitutional provisions that 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. (The Fifth Amendment provides this guaranty in cases involving federal actors.) 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 ultimate goal is to obtain an order suppressing all evidence that was derived from Fourth Amendment violations. If possible, defense also seeks 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 will also explain how the police ran afoul of the Fourth Amendment.

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 carefully to ensure they are not used to target "entire neighborhoods or communities in which members of minority groups regularly go about their daily business." ( Montero-Camargo, 208 F.3d 1138 (9th Cir. 2000).) Although the Supreme Court recently allowed the use of such a factor in Illinois v. Wardlow, 120 S. Ct. 676 (2000), defense should caution the court to ensure that the factor "is limited to specific, circumscribed locations where particular crimes occur with unusual regularity." ( Montero-Camargo at 1138.) Aside from impermissible factors such as race and ethnicity, defense must ask whether the factors in the profile are broad enough to describe a large group of innocent people. If so, they should be disregarded and the officer’s decision should be evaluated only on legitimate factors. (See Reid v. Georgia, 448 U.S. 438 (1980); Montero-Camargo ("factors that have such a low probative value that no reasonable officer would have relied on them . . . must be disregarded as a matter of law") 208 F.3d at 1132.) If the remaining factors are insufficient to give rise to individualized suspicion, the court must grant the motion to suppress. It’s helpful to determine whether experts created the profile, if its accuracy can be verified, and whether police were trained to use the profile. The motion is more likely to be granted if defense can show the profile is an accumulation of police hunches and/or the officers received no specialized training.

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, 517 U.S. 806 (1996), 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.

In a pretrext case, defense should also challenge the suspicion that police claim to have developed. The Sixth Circuit found no probable cause when police on I-40 in Tennessee pulled over a Winnebago that strayed 20 to 30 feet outside its lane—a distance that would take the trailer a third of a second to travel. ( United States v. Freeman, 209 F.3d 464 (6th Cir. 2000).) Police claimed probable cause based on a belief that the driver was intoxicated and had violated a state law requiring vehicles to be "driven as nearly as practicable entirely within a single lane." In a search, police found marijuana.

The trial court denied the defendant’s motion to suppress the marijuana, but the reviewing court held that the driver’s "failure to follow a perfect vector" did not give rise to probable cause to believe that the driver had violated either law. (209 F.3d at 466–67.) Writing separately to concur, Sixth Circuit Judge Clay suggested that the police had used the lane violation as a subterfuge, noting that "[i]n making credibility determinations as to an officer’s purported reason for initially stopping a vehicle, the Court may use the record in the case before it, what has been learned from other similar cases, all reasonable inferences that can be drawn therefrom, as well as its own common sense." (209 F.3d at 468.)

Today’s judges are more likely to give credence to equal protection theories in criminal cases, but subjective intention is a vital element of such claims under the Fourteenth and Fifth Amendments—both of which prohibit purposeful discrimination by governmental actors. When there is clear evidence that the government has discriminated intentionally on the basis of a "suspect" classification, the actions must be justified by compelling government interests, and courts must strictly scrutinize the justification. In most profiling contexts, however, compelling government interest cannot be claimed and the case is won by proving intentional discrimination.

Intentional discrimination

But therein lies the rub: This kind of proof is not easy and it doesn’t come cheaply. In an equal protection claim, a lawyer must make a prima facie case having two prongs. First, demonstrate that a government actor treated similarly situated people differently on the basis of a suspect classification. Second, 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. ( United States v. Armstrong, 517 U.S. 456 (1996).)

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. For example, black defendants, alleging they were targeted for traffic stops on the New Jersey Turnpike, produced a traffic survey showing African-American motorists were stopped on the turnpike at rates that far exceeded their representation in the overall population of drivers and of traffic violators. (See State v. Soto, 734 A.2d 350, 352–53 (1996).) Although the Soto defendants also introduced other evidence, the traffic survey was the principal evidence on which the judge relied.

Third, the most difficult prong of an equal protection claim—discriminatory intent—can be proven by inference where the pattern of differential treatment is "stark." ( McCleskey v. Kemp, 481 U.S. 279 (1987).) The Soto case again serves as a useful example. The court sustained the defendants’ prima facie case, holding that the strong statistical showing raised a presumption of purposeful discrimination.

What relief is available based on an equal protection theory? Defendants in the Soto case were successful in suppressing evidence because police were enforcing the laws in a discriminatory fashion. A motion to dismiss based on selective prosecution may also be appropriate. Defense should explain to the client that damages and injunctive relief might be available in a civil lawsuit. Aggrieved motorists have used class action mechanisms to gain settlements in Maryland and Pennsylvania, and other suits are still pending. (See Rebecca Porter, Skin Deep: Minorities Seek Relief from Racial Profiling, 35 Trial 13 (Nov. 1999).)

Once constitutional doctrines and available relief have been identified, a lawyer should examine the discovery needed to advance a client’s claims. Because discovery laws differ among jurisdictions, this article will look at broad categories of useful information.

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. For example, in the Soto case, defendants stopped on the New Jersey Turnpike between 1988 and 1991 compiled a database of stops on 35 randomly selected days within that time period. The database was constructed with information obtained from the state, including arrest reports, patrol charts, radio logs, and traffic tickets. From the database, the defendants were able to identify the percentage of vehicles stopped on those days that had occupants identified by police as "black." They then conducted their own survey to determine the percentage of black travelers on the turnpike and the percentage of those who violated traffic laws. 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 of useful information include:

• profiles, written or unwritten, 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. In the Soto case, the defense introduced training videos that consistently depicted drug traffickers as Hispanic. In addition, the state made reference to reports made by the state police and to annual traffic surveys conducted by New Jersey’s Department of Transportation in an unsuccessful effort to rebut the defendants’ statistical showing;

• regulations and policies governing the police units, paying particular attention to any mission statements and the amount of discretion exercised. In Soto, the discretion exercised by different types of traffic enforcers was important to statistical differences in the "stop" rates. Certain radar patrol units, that were not permitted to choose their targets, stopped black drivers at far lower rates than police units that exercised more discretion in choosing targets. Moreover, Soto and other cases have verified what minorities have long known: Police units that participate in drug enforcement efforts tend to target minorities;

• 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. In connection with this information, research case law thoroughly for cases in your jurisdiction in which motions to suppress were filed concerning similar police conduct. In the Freeman case, the concurring judge relied on a record of motions to suppress (even though most of them were denied) to suggest that police were engaging in a disturbing pattern of pretextual stops;

• document retention policies in the relevant jurisdiction. This information not only determines what kinds of information are available, but also will help demonstrate ways in which the jurisdiction failed to investigate claims of discrimination. The judge in the Soto case questioned the credibility of a state police commander who claimed there was insufficient evidence of discrimination, but had neglected available sources of information.

Where else to search

There is a wealth of information available on the Web. The most useful websites are those created by the American Civil Liberties Union (ACLU) ( www.aclu.org/profiling/) and the Civil Rights Division of the U.S. Department of Justice ( www.usdoj.gov/crt/crt-home.html). The ACLU’s site contains a lengthy and informative report by Professor David A. Harris, one of the country’s leading experts on profiling. The report, "Driving While Black: Racial Profiling on Our Nation’s Highways", is available at www.aclu.org/profiling/ report/index.html. In addition to information available on the Web, lawyer publications and law journal articles can provide you with more background information about profiling and discriminatory policing. Leading articles include: "The Stories, The Statistics, and the Law: Why ‘Driving While Black’ Matters" by David A. Harris (84 Minn. L. Rev. 265 (1999)); "Race and the Fourth Amendment" by Tracey Maclin, (1 Vand. L. Rev. 333 (1998)); "Race, Reasonable Articulable Suspicion, and Seizure" by Randall S. Susskind (31 Am. Crim. L. Rev. 327 (1994)), and "Race and the Decision to Detain a Suspect" by Sheri Lynn Johnson (93 Yale L.J. 214 (1993)).

Finally, it may be appropriate to help a client report police profiling and advocate for better laws to control this practice. The client should first complain to the police department or the agency that has jurisdiction over the officers involved in the profiling. Many jurisdictions do not make the complaint process easy, but the effort is necessary. Not only are such complaints useful evidence for the next victim of profiling, but also police agencies themselves are paying more attention to the volume of profiling complaints; some have volunteered to collect data about profiling. Encourage the client to report profiling to the Department of Justice, which enforces antidiscrimination provisions found in the Civil Rights Act of 1964 and the Omnibus Crime Control and Safe Streets Act of 1968. The Justice Department has acted upon profiling complaints in several instances, and its enforcement activity has resulted in orders and consent decrees requiring law enforcement units to collect data about profiling. The state’s attorney general’s office and other state officials may be involved in monitoring activities. There are ways that a client can assist nongovernmental groups in monitoring profiling activity. The ACLU’s website has a "driver profiling complaint form." The organization has taken a leading role in measuring and combating profiling, and the client’s report assists in that effort. Also consider contacting the National Association for the Advancement of Colored People (NAACP) and other groups active in fighting profiling.

Profiling has been a pernicious law enforcement practice for many years. Acting as a civil rights lawyer—even for limited purposes—the criminal defense attorney helps a client find relief and combats profiling at the same time. n

Margie Paris is an associate professor at the University of Oregon School of Law. She teaches criminal law and criminal procedure and formerly practiced criminal defense in Chicago. She thanks David Pebworth for his invaluable research on this article.

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