a. This wide discretion allows police officers to target and search African-American and Latino-American motorists.
Police officers have long praised the wide discretion they are able to exercise in the use of pretextual traffic stop. With a “legitimate” traffic violation, the officer can stop a motorist and then attempt to further investigate for any evidence of other criminal activity unrelated to driving. No probable cause or “reasonable suspicion” of other non-traffic-related offenses is required for a police officer to issue a seizure of a motor vehicle. The testimony of patrolling police officers in areas with a high incidence of crime, have cited these particular tactics as being extremely effective in enforcing the law.53 In particular, these stops have produced numerous drug-related arrests and confiscation of narcotics from motorists that may not have occurred.54
But while law enforcement is “winning the war” against drugs, these officers deny that they are specifically targeting African-American and Latino-American communities. Police departments, like the already mentioned Maryland State Troopers, vehemently deny using race as a determinative factor in stopping an automobile.55 Instead, they justify their actions as a part of enforcing the traffic laws of their respective states.56 The real reason that blacks and Hispanics are subjected to disproportionately higher rates of traffic stops is because the police have profiled these races for involvement in illegal drug activity. This profiling is not based on just pure speculation. Members of law enforcement have admitted that “being black of Hispanic was and is a factor in their drug courier profile on which they decide who to stop and search.”57
These stereotypes of African-Americans and Latino-Americans as “drug dealers” are motivating which motorists on our highways are actually being stopped. Actual accounts of police patrols reveal an undeniable pattern of race-based police stops. The goal of the Selective Enforcement Team, a group of police officers who patrolled the Interstate 95 in central Florida, was to impede the flow of drug traffickers within the state.58 Besides drug arrests, the Team was also able to make seizures of cash and vehicles which the department were allowed to keep.59
Similar to the majority of police agencies in America, the Sheriff’s Department of Volusia County kept no actual records of motorists who were stopped and searched but no arrests or seizures were made.60 But there was an eyewitness to what really happened on this stretch of highway in Florida. Each of the police officer’s cars was equipped with hidden video cameras.61 For three years these cameras had been documenting each and every traffic stop made by the Enforcement Team. The Orlando Sentinel Newspaper, pursuant to Florida’s Public Record law, were eventually able to obtain this videotape footage documenting police activity along the I-95.62
After reviewing these tapes, the newspaper published a summary of over 148 hours of videotape footage of police officer stops along the I-95.63 Close to 1,100 traffic stops by the Florida police were fully documented. The result of this summary was apparent. The Selective Enforcement Team had been stopping Blacks and Hispanics in far greater numbers than whites. A very small percentage of minority motorists traveled along this particular stretch of the highway, close to five-percent.64 But the Orlando Sentinel discovered that more than seventy percent of all drivers stopped were either of African-American or Latin-American descent.65 Even contrasting these numbers to the entire population of Florida the disparate enforcement of the traffic laws is clear. Less than twelve percent of the population in Florida are of African-American descent and Hispanics constitute about nine percent.66
Besides being stopped in greater percentages than whites, blacks and Hispanics were also detained much longer by the Selective Enforcement Team. The summary published by the newspaper demonstrated that the police stopped whites for about 5.1 minutes. In comparison, non-whites were detained for 12.1 minutes, nearly twice as long. Furthermore, eighty percent of cars searched belong to either African-Americans or Latino-Americans.
The experience of these drivers in Florida is a result of the harm that the legal system has created through Whren. Similar statistical studies have yielded similar results in Tennessee, North Carolina, Georgia, Mississippi, and Texas.67 Police will use their wide discretion in enforcing the traffic laws to stop any motorist they wish. In Volusia county, the officers were able to point to “legitimate traffic violations, ranging from “swerving” to exceeding the speed limit.”68 These violations are excuses to stop any drivers they believe to be involved in narcotics trafficking. Because of racial stereotypes and holding in Whren the police can disproportionately detain black and Hispanic drivers.
Once the police officer has legally stopped the vehicle, the harm of being discriminated against unfortunately does not end. Besides being subjected to unwanted delay, the officer now has the opportunity to “investigate” for evidence of criminal activity completely separate and unrelated to the traffic violation. The entire interior of the car is now exposed to the eyes of the officer, allowing him to discover and seize any objects that are potentially incriminating within his “plain view.”69 If a legal arrest of the driver can be made, the arresting officer is justified to conduct a full-fledged body search of the motorist and the entire interior of the car.70
However, in the majority of cases, the police officer is unable to view anything criminal in plain view or able to find a legal justification for arresting the driver based on the traffic violation.71 But the probing nature of the officer’s investigation does not end here. The officer does not issue a ticket or warning and allow the driver to go, but employs a very powerful tool method in obtaining a legal search. He will attempt to obtain consent from the driver to search. Consent is the most frequently cited basis to justify police intrusion into constitutionally protected areas of privacy.72 Although drivers are under no legal obligation to consent, many still do.73 Some consent because the police’s authority intimidates them.74 Motorists simply aren’t fully aware that they can refuse.75 The Constitution does not require the police to inform citizens they can freely withhold consent from the officer.76
Even so, police officer can obtain consent through mental manipulation. During the stop, the police officers may ask several sorts of seemingly innocuous questions. They ask, “Where are you coming from?” “Where are you headed?” “Who’s the person you’re visiting?” “Who’s with you in the back seat.” Some of the questions become more personal.77 These questions are designed to find contradictions that may show that the driver might have something to hide and to put the driver in the frame of mind of responding to the officer’s authority.78 According to police officers, this form of “sweet talk” usually leads to a consensual search. Police departments even teach their officers these psychological techniques to hone their ability in obtaining consent in their patrols.
These searches often will leave the motorist feeling anger and harassment for being singled out from the white population for stops and searches. Even more dramatic is that it may explain why there are so many blacks are imprisoned in this country. Although whites use drugs in far greater numbers than African-Americans, African-Americans comprise a disproportionate percentage of drug arrests, convictions, and imprisonment.79 While blacks represent only twelve percent of this country’s drug users and fewer than thirty-five percent of its crack cocaine users, more than ninety percent of those convicted for trafficking in 1994 were black.80 Law enforcement agents even concede that drugs are used and sold in middle and upper class neighborhoods and business districts, but instead have focused their law enforcement efforts in urban and inner-city areas which are populated primarily by African-Americans and other people of color.
The Whren decision has resulted in great harm to the black community, as Bell believed legal decisions in this country create. By allowing a mere traffic violation to justify a traffic stop, the police can use the lengthy vehicle codes to stop almost any motorist. But motorists are selected based on their race as African-Americans and Latin-Americans motorists are being disproportionately stopped. After the stop, the police will attempt to find a justification to investigate these drivers for any drug-related activity.
B. The Inevitable failure of an Equal Protection Challenge to
Police Traffic Stops
A Racial Realist strategy must be adopted to resist against the discriminatory enforcement of traffic stops against minority motorists. The Whren decision, which held this police conduct reasonable under the Fourth Amendment, claimed to offer a legal remedy to those motorists stopped for DWB. After declaring that the Fourth Amendment cannot look into the subjective racial motives of an officer, Justice Scalia acknowledged that the “selective enforcement of the law based on considerations such as race” was impermissible under the Constitution.81 If the petitioners in Whren were chosen by the police because of their race, this conduct could be challenged on constitutional grounds within the purview of the Fourteenth Amendment’s Equal Protection Clause instead of the Fourth Amendment.82
However, any African-American or Latino-American who hopes to bring this type of challenge against their local police department for the discriminatory enforcement of the traffic laws will inevitably encounter failure and eventual despair. The Fourteenth Amendment, the constitutional authority that Whren suggests minority motorists utilize, prevents states from “enforcing any law which shall deny to any person within its jurisdiction the equal protection of the laws.” The Equal Protection Clause was designed to prevent discrimination within all the States.83 For a motorist to argue that the police have selectively enforced traffic violations based on his race falls within the Equal Protection Clause “because the discriminatory application of the law amounts to a denial of equal justice.”84 The claimant who attempts to establish that his equal protection rights we
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