State constitutional analysis of pretext stops: Racial profiling and public policy concerns

Temple Law Review

Volumn 72, Issue 3, 1999, Pages 597-617

  Beck, Phyllis W ^a,b,c   Daly, Patricia A ^b  

^a Superior Court of Pennsylvania ^*  (United States)

^b TEMPLE UNIVERSITY   (United States)

^c UNIVERSITY OF PENNSYLVANIA   (United States)

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[No Author keywords available]

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EID: 9944263118     PISSN: 08998086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (168)

1. 517 U.S. 806 (1996).
2. See Whren, 517 U.S. at 819 (upholding stop where officers had probable cause to believe traffic code violated irrespective of officers' motivation).
3. See id. at 813 ("We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race.").
4. Id.
5. See infra notes 113-30 and accompanying text for a discussion of the public response to Whren.
6. 453 U.S. 454 (1981).
7. 669 A.2d 896 (Pa. 1995).
8. See infra notes 42-67 and accompanying text for a discussion of the Pennsylvania Supreme Court state constitutional analysis in Commonwealth v. White, 669 A.2d 896 (Pa. 1995), and Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).
9. See infra notes 91-100 and accompanying text for a discussion of Pennsylvania's willingness to diverge from federal standards.
10. See Commonwealth v. Edmunds, 586 A.2d 887, 896 (Pa. 1991) (exploring unique history of article I, section 8 and noting prominence of Pennsylvania Declaration of Rights in state's original constitution of 1776). Article I, section 8 provides: The people shall be secure in their persons, houses, papers, and possessions from unreasonable searches and seizures, and no warrant to search any place or seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant. PA. CONST, art. I, § 8.
11. New York v. Belton, 453 U.S. 454, 455 (1981).
12. Id. at 456.
13. Id.
14. Id. at 459.
15. 395 U.S. 752 (1969).
16. Belton, 453 U.S. at 457. In Chimel, police officers entered the home of burglary suspect with a warrant for his arrest. Chimel, 395 U.S. at 753. The suspect's wife permitted the officers to enter the home and wait for the suspect who was due to arrive from work shortly. Id. After the suspect returned home, the officers handed him the arrest warrant and proceeded to search the entire residence of the suspect's three-story home. Id. at 754. The Court found that the "search incident to arrest" principle does not include "searching any room other than that in which an arrest occurs." Id. at 763.
17. Belton, 453 U.S. at 458.
18. Id. (quoting Dunaway v. New York, 442 U.S. 200 (1979)).
19. Id. at 457.
20. See id. at 460 ("Our reading of the cases suggests the generalization that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within 'the area into which an arrestee might reach in order to grab a weapon or evidentiary ite[m]'.... [W]e read Chimel's definition... in light of that generalization.") (quoting Chimel, 395 U.S. at 763) (emphasis added).
21. The Court fashioned this definition despite its recognition that the rule in Chimel was based on "the need 'to remove any weapons that [the arrestee] might seek to use in order to resist arrest or effect his escape' and the need to prevent the concealment or destruction of evidence." Belton, 453 U.S. at 457 (quoting Chimel, 395 U.S. at 763).
22. Id. at 462.
23. Id.at 460 n.4.
24. See id. ("Our holding encompasses only the interior of the passenger compartment of an automobile and does not encompass the trunk.").
25. Belton, 453 U.S. at 466 (Brennan, J., dissenting). Justice Marshall joined in the dissent. Id. at 463.
26. Id. at 468 (Brennan, J., dissenting).
27. Id. at 465 (Brennan, J., dissenting) (citations omitted).
28. Id. at 469 (Brennan, J., dissenting).
29. Id. at 471-72 (Brennan, J., dissenting) (citations and footnotes omitted). Justice White, joined by Justice Marshall, also filed a dissenting opinion. He characterized the majority's decision as "an extreme extension of Chimel" to which he could not subscribe. Id. at 472 (White, J., dissenting).
30. Commonwealth v. White, 669 A.2d 896, 898 (Pa. 1995).
31. Id.
32. Id.
33. Id.
34. Id.
35. White, 669A.2d at 898.
36. Id.
37. Id.
38. Id.
39. Id.
40. Whte,669 A.2d at 898.
41. Id.
42. Id. at 901. The Pennsylvania Superior Court accepted this argument. Id. The other proffered bases for denying suppression were the automobile exception, a finding of exigency under the circumstances, and an inventory search. Id. at 898-99. All were rejected by the court. Id. at 902-03.
43. Id. at 902.
44. Id. at 898.
45. See White, 669 A.2d at 901-02 (discussing holding in Commonwealth v. Timko, 417 A.2d 620 (Pa. 1980), that warrantless search of automobile incident to arrest is limited to individual's clothing and areas within his immediate reach).
46. Id. at 902.
47. Compare Commonwealth v. White, 669 A.2d 896, 902 (Pa. 1995) (suppressing evidence found in paper bag found between front seats of car), and Commonwealth v. Timko, 417 A.2d 620, 623 (Pa. 1980) (suppressing evidence found in zippered valise seized from automobile), with New York v. Belton, 453 U.S. 454,460 n.4 (1981) (defining area within arrestee's immediate control to include glove compartments, consoles, luggage, boxes, bags, and all other receptacles found in passenger compartment).
48. White, 669 A.2d at 902. The court found that the arrestee's privacy interests remained "intact" and the officer was permitted to search only for the limited purpose of preventing the arrestee from obtaining weapons or destroying evidence. Id.
49. Id.
50. Id. at 903 (Montemuro, J., concurring).
51. Id. (Montemuro, J., concurring). Justice Montemuro believed that dealing with the issue in summary fashion "weaken[ed]" the court's prior state constitutional decision in Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991). White, 669 A.2d at 903 (Montemuro, J., concurring).
52. Id. at 903-04 (Montemuro, J., concurring).
53. White, 669 A.2d at 904 (Montemuro, J., concurring).
54. 586 A.2d 887 (Pa. 1991).
55. Edmunds, 586 A.2d at 895.
56. In Commonwealth v. Swinehart, 664 A.2d 957 (Pa. 1995), the court characterized the Edmunds factors as "helpful," but not mandatory. Id. at 961 n.6. The majority in White reiterated this characterization of Edmunds in response to the prosecution's claim that appellant waived his state constitutional claim by failing to set forth an Edmunds analysis. White, 669 A.2d at 899.
57. White, 669 A.2d at 904 (Montemuro, J., concurring). Justice Montemuro also suggested that the court engraft onto the Edmunds test the prerequisite finding of "important and substantial reasons" for departing from decisions of the United States Supreme Court. Id. (Montemuro, J., concurring).
58. Id. (Montemuro, J., concurring).
59. Id. at 908 (Montemuro, J., concurring).
60. Id. at 904 (Montemuro, J., concurring).
61. Id. at 904-05 (Montemuro, J., concurring).
62. White, 669 A.2d at 905-07 (Montemuro, J., concurring).
63. Id. at 907-08 (Montemuro, J., concurring).
64. Id. at 908 (Montemuro, J., concurring).
65. Id. (Montemuro, J., concurring).
66. Id. (Montemuro, J., concurring). See Chimel v. California, 395 U.S. 752, 768 (1969) (holding unconstitutional warrantless search beyond suspect's person of area not within his immediate reach).
67. White, 669 A.2d at 908 (Montemuro, J., concurring).
68. Whren v. United States, 517 U.S. 806,808 (1996).
69. Id.
70. Id.
71. Id. at 809.
72. Id.
73. Whren, 517 U.S. at 809. Among the charges was one prohibiting distribution of drugs in a school zone or other protected area. Id. In such circumstances, the statutory maximum punishment is doubled and there is a mandatory minimum one-year prison term. 21 U.S.C. § 860(a) (1994).
74. Whren, 517 U.S. at 810.
75. Id.
76. Id. Whren argued that civil traffic regulations present a "unique context" that allows police to stop virtually anyone they wish. Id. Hence, Whren argued, the Fourth Amendment test in such circumstances should not be probable cause, "but rather, whether a police officer, acting reasonably, would have made the stop for the reason given." Id.
77. Id.
78. See, e.g., United States v. Cannon, 29 F.3d 472, 476 (9th Cir. 1994) (clarifying test as whether reasonable officer "would have" made stop regardless of other suspicions); United States v. Smith, 799 F.2d 704, 70S (11th Cir. 1986) (concluding proper inquiry to determine whether traffic stop was pretextual is whether reasonable officer would have made stop absent other motivation).
79. The majority of circuits, including the one from which Whren came, followed the rule ultimately set forth in Whren, that is, any traffic stop based on an observed traffic violation is permissible. See, e.g., United States v. Botero-Ospina, 71 F.3d 783, 787 (10th Cir. 1995) (en bane) (holding traffic stop does not violate Fourth Amendment where police officer had reasonable suspicion traffic violation occurred); United States v. Ferguson, 8 F.3d 385, 392-93 (6th Cir. 1993) (en bane) (finding traffic stop does not violate Fourth Amendment where officer had probable cause to believe traffic violation occurred). The Ninth and Eleventh Circuits, however, considered whether the traffic stop "would have" occurred absent the officers' unrelated suspicions. See, e.g., Cannon, 29 F.3d at 476 (finding traffic stop constitutional if reasonable officer "would have" made stop regardless of suspicions of other criminal activity); Smith, 799 F.2d at 708 (concluding proper inquiry to determine whether traffic stop was pretextual is whether reasonable officer would have made stop absent other motivation).
80. See Smith, 799 F.2d at 711 (excluding evidence obtained from traffic stop where evidence suggested that "reasonable officer would not have" stopped defendants absent illegitimate purpose). Whren wanted the United States Supreme Court to adopt the "would have" standard of Cannon and Smith. Whren, 517 U.S. at 810.
81. Whren, 517 U.S. at 814-16. The Court reasoned that such an approach would be impermissibly "driven by subjective considerations." Id. at 814. The Fourth Amendment, instructed the Court, is concerned with reasonableness - a wholly objective principle that clearly is satisfied whenever there exists probable cause to believe a traffic law has been violated. Id.
82. Id. at 819. The Court concluded that there was no "realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure." Id.
83. Id. at 810.
84. Id. at 819.
85. Id. at 818.
86. Whren, 517 U.S. at 811. The Whren Court distinguished Florida v. Wells, 495 U.S. 1 (1990) (involving inventory search), and New York v. Burger, 482 U.S. 691 (1987) (discussing administrative searches), as cases "addressing the validity of a search conducted in the absence of probable cause." Id.
87. Id. at 813. Apparently, the only legal issue before the Court was suppression under the Fourth Amendment. See id. at 808 (framing issue as validity of temporary detention given Fourth Amendment prohibition against unreasonable seizures).
88. See supra notes 53-55 and accompanying text for a discussion of Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).
89. See supra note 10 for the relevant text of the Pennsylvania Constitution.
90. Commonwealth v. White, 669 A.2d 896, 904 (Pa. 1995) (Montemuro, J., concurring) (relying on Commonwealth v. Edmunds, 586 A.2d 887, 895-96 (Pa. 1991)).
91. Commonwealth v. Edmunds, 586 A.2d 887, 896 (Pa. 1991).
92. Commonwealth v. Miller, 518 A.2d 1187, 1191-92 (Pa. 1986).
93. See Commonwealth v. DeJohn, 403 A.2d 1283, 1291 (Pa. 1979) (rejecting United States v. Miller, 425 U.S. 435 (1976)).
94. Id. at 1289.
95. See Commonwealth v. Sell, 470 A.2d 457, 468 (Pa. 1983) (rejecting United States v. Salvucci, 448 U.S. 83 (1980)).
96. Id.
97. See Commonwealth v. Melilli, 555 A.2d 1254, 1260-61 (Pa. 1989) (rejecting Smith v. Maryland, 442 U.S. 735 (1979)).
98. See Commonwealth v. Edmunds, 586 A.2d 887, 895 (Pa. 1991) (rejecting United States v. Leon, 468 U.S. 897(1984)).
99. See, e.g., Commonwealth v. Matos, 672 A.2d 769, 776 (Pa. 1996) (departing from California v. Hodari D., 499 U.S. 621 (1991), in holding police officers' pursuit of individual approached without reasonable suspicion or probable cause constitutes seizure under Pennsylvania Constitution); Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992) (diverging from Oregon v. Kennedy, 456 U.S. 667 (1982), in finding Pennsylvania's double jeopardy clause prevents retrial of defendant where prosecutor intentionally sought to deny defendant fair trial).
100. Melilli, 555 A.2d at 1258.
101. In one instance, the state court did not reach the state constitutional issue. In Whitehead v. Maryland, 698 A.2d 1115 (Md. Ct. Spec. App. 1997), the Maryland appellate court found that where a police officer stops a vehicle and ultimately determines that no traffic laws have been violated, the officer's continued detention of the motorist cannot be rationalized as falling within Wliren. Id. at 1120.
102. See State v. McBreairty, 697 A.2d 495, 496 (N.H. 1997) (using federal and state case law to reject defendant's claim that stop was illegal).
103. See State v. Ladson, 979 P.2d 833, 842 (Wash. 1999) (noting state court's prior rejection of precedents relied on by Whren).
104. See id. at 837 (quoting WASH. CONST, art. 1, § 7).
105. Id. at 839.
106. Id.
107. See supra note 10 for the relevant text of the Pennsylvania Constitution.
108. See infra notes 113-37 and accompanying text for additional discussion of the public policy response to pretext stops and racial profiling.
109. See supra note 10 for the relevant text of the Pennsylvania Constitution.
110. See, e.g., Jeffrey Goldberg, The Color of Suspicion, N.Y. TIMES MAG., June 20, 1999, at 51, 53 (describing traffic stop with hope of criminal interdiction).
111. See Jackson Toby, 'Racial Profiling' Doesn't Prove Cops Are Racist, WALL ST. J., Mar. 11, 1999, at A22 (describing crackdown on minor offenses to prevent serious felonies as "one of the most important ideas in modern criminology").
112. See supra note 87 and accompanying text for a discussion of the Supreme Court's suggestion in Whren that the basis for objecting to race-based state action is the Equal Protection Clause.
113. Joseph Wambaugh, Trust Cops' Intuition, WALL ST. J., May 19, 1998, at A22.
114. Id.
115. Id.
116. Toby, supra note 111, A22.
117. See, e.g., David A. Harris, Car Wars: The Fourth Amendment's Death on the Highway, 66 GEO. WASH. L. REV. 556, 561 (1998) (asserting Whren gives law enforcement carte blanche to engage in racial profiling); Patricia Leary & Stephanie Rae Williams, Toward a State Constitutional Check on Police Discretion to Patrol the Fourth Amendment's Outer Frontier: A Subjective Test for Pretextual Seizures, 69 TEMP. L. REV. 1007, 1025 (1996) (describing Whren as "a rickety piece of judicial scholarship"); David O. Markus, Whren v. United States: A Pretext to Subvert the Fourth Amendment, 14 HARV. BLACKLETTER L.J. 91, 96-97 (1998) (arguing Whren encourages police officers to engage in arbitrary invasions of privacy).
118. See, e.g., David A. Harris, Car Wars: The Fourth Amendment's Death on the Highway, 66 GEO. WASH. L. REV. 556, 561 (1998) (asserting Whren gives law enforcement carte blanche to engage in racial profiling); Patricia Leary & Stephanie Rae Williams, Toward a State Constitutional Check on Police Discretion to Patrol the Fourth Amendment's Outer Frontier: A Subjective Test for Pretextual Seizures, 69 TEMP. L. REV. 1007, 1025 (1996) (describing Whren as "a rickety piece of judicial scholarship"); David O. Markus, Whren v. United States: A Pretext to Subvert the Fourth Amendment, 14 HARV. BLACKLETTER L.J. 91, 96-97 (1998) (arguing Whren encourages police officers to engage in arbitrary invasions of privacy).
119. See, e.g., David A. Harris, Car Wars: The Fourth Amendment's Death on the Highway, 66 GEO. WASH. L. REV. 556, 561 (1998) (asserting Whren gives law enforcement carte blanche to engage in racial profiling); Patricia Leary & Stephanie Rae Williams, Toward a State Constitutional Check on Police Discretion to Patrol the Fourth Amendment's Outer Frontier: A Subjective Test for Pretextual Seizures, 69 TEMP. L. REV. 1007, 1025 (1996) (describing Whren as "a rickety piece of judicial scholarship"); David O. Markus, Whren v. United States: A Pretext to Subvert the Fourth Amendment, 14 HARV. BLACKLETTER L.J. 91, 96-97 (1998) (arguing Whren encourages police officers to engage in arbitrary invasions of privacy).
120. See infra notes 119-26 and accompanying text for examples of media coverage on the issue of racial profiling.
121. See Tom Avril, et al., N.J. Admits that Race Played Role in Some Police Stops on Turnpike, PHILA. INQUIRER, Apr. 21, 1999, at Al (reporting on news conference in which New Jersey governor and attorney general acknowledged racial profiling by state troopers). Governor Christine Todd Whitman reportedly said that "the broader problem is the result of well-intentioned troopers who simply thought they were engaging in good police work." Id. The report issued by the state attorney general's office revealed that 53 percent of persons searched during turnpike stops were black and 24 percent were Latino, despite the fact that "blacks make up about 14.5 percent of New Jersey's overall population, and ... those 'of Hispanic origin' make up 11.9 percent." Id.
122. Actually, Governor Whitman requested that the superintendent of the state police tender his resignation prior to the release of the Attorney General's report on racial profiling. Diane Mastrull, et al., New Jersey's Top Trooper Is Forced Out, PHILA. INQUIRER, Mar. 1, 1999, at Al. Some thought Williams was asked to leave because the report was soon to be released and Williams had refused to admit his agency's racial profiling tactics; others believed his ouster was the direct result of public comments he made regarding the types of crimes committed and the types of people who commit them. Id. While insisting that racial profiling was something the state police would not tolerate, Williams also told reporters that the methamphetamine market was controlled by whites, while the heroin market was primarily controlled by Jamaicans. Id.
123. See Howard Goodman, Gloucester County Turnpike Arrests in Doubt, PHILA. INQUIRER (South Jersey edition), Apr. 21, 1999, at B1 (describing class action suit and effect of state concession of racial profiling). In 1996, a Gloucester County judge suppressed evidence seized in the arrests of nineteen people on the New Jersey Turnpike when those individuals asserted that they were targeted for traffic stops on account of their race. Id. The Attorney General's Office promptly appealed the decision, but dropped the appeal after issuing its report on racial profiling practices within the state police force. Id.
124. See id. It was expected that most, if not all, of the drug charges against the 19 African Americans stopped on the turnpike in Gloucester County would be withdrawn by the prosecution, since the suppression order would preclude it from offering evidence seized during the improper stop. Id. Cases in other New Jersey counties, wherein similar accusations against police were made, were put on hold. Id.
125. See Robert Cohen, Racial Profiling Allegations Spur Lawmakers to Call for U.S. Study, STAR-LEDGER (NEWARK, N.J.), Apr. 14, 1999, at 7, available in 1999 WL 2970986 (reporting New Jersey State Police revelations prompted legislation on racial profiling); North Carolina Legislation Mandates Statistics to Prove/Disprove Profiling, 1 CRIM. JUST. WKLY. 1, June 1, 1999, at 20 (noting North Carolina became first state to sign criminal statistics bill into law); Sonya Ross, Clinton Orders Officers to Collect Racial Data on Stops, Arrests, PHILA. INQUIRER, June 10, 1999, at A22 (reporting President ordered federal law enforcement agencies to collect race and gender data from all stops or arrests).
126. See Robert Cohen, Racial Profiling Allegations Spur Lawmakers to Call for U.S. Study, STAR-LEDGER (NEWARK, N.J.), Apr. 14, 1999, at 7, available in 1999 WL 2970986 (reporting New Jersey State Police revelations prompted legislation on racial profiling); North Carolina Legislation Mandates Statistics to Prove/Disprove Profiling, 1 CRIM. JUST. WKLY. 1, June 1, 1999, at 20 (noting North Carolina became first state to sign criminal statistics bill into law); Sonya Ross, Clinton Orders Officers to Collect Racial Data on Stops, Arrests, PHILA. INQUIRER, June 10, 1999, at A22 (reporting President ordered federal law enforcement agencies to collect race and gender data from all stops or arrests).
127. See Robert Cohen, Racial Profiling Allegations Spur Lawmakers to Call for U.S. Study, STAR-LEDGER (NEWARK, N.J.), Apr. 14, 1999, at 7, available in 1999 WL 2970986 (reporting New Jersey State Police revelations prompted legislation on racial profiling); North Carolina Legislation Mandates Statistics to Prove/Disprove Profiling, 1 CRIM. JUST. WKLY. 1, June 1, 1999, at 20 (noting North Carolina became first state to sign criminal statistics bill into law); Sonya Ross, Clinton Orders Officers to Collect Racial Data on Stops, Arrests, PHILA. INQUIRER, June 10, 1999, at A22 (reporting President ordered federal law enforcement agencies to collect race and gender data from all stops or arrests).
128. See Tom Avril & Douglas A. Campbell, N.J. Troopers Indicted in Racial Profiling Probe, PHILA. INQUIRER, Apr. 20, 1999, at Al (describing charges). The indictment alleges that the troopers falsified their stop and arrest records to make it appear that the minorities they stopped were instead white. Id. The two troopers, John Hogan and James Kenna, are the same officers involved in a 1998 incident on the New Jersey Turnpike. Id. Hogan and Kenna allegedly fired on four unarmed men, three black and one Hispanic, during a traffic stop. Id. See also Mastrull, et al., supra note 120, at A7 (describing shooting incident as bringing issue of racial profiling to forefront, eventually leading to resignation of superintendent of state police).
129. See George Berkin, Black Cops Vow to Follow, Tape Troopers, STAR-LEDGER (NEWARK, N.J.), May 22, 1998, at 30, available in 1998 WL 3417389 (describing response to turnpike shooting). Three African-American police officer groups organized a 1998 Memorial Day weekend outing that involved off-duty police officers patrolling the New Jersey Turnpike and videotaping traffic stops. Id.
130. See, e.g., Justice Department to Probe Accusations of 'Racial Profiling,' CHI. TRIB., Mar. 10, 1999, at 8 (reporting meeting between deputy attorney general and New Jersey black and hispanic leaders); John Kifner, N.J. Traffic Shootings Follow Racism Allegations Police 'Targeting Blacks' on Turnpike, ARIZ. REP., May 10, 1998, at A20, available in 1998 WL 7770245 (describing shooting incident and racial profiling controversy).
131. See, e.g., Justice Department to Probe Accusations of 'Racial Profiling,' CHI. TRIB., Mar. 10, 1999, at 8 (reporting meeting between deputy attorney general and New Jersey black and hispanic leaders); John Kifner, N.J. Traffic Shootings Follow Racism Allegations Police 'Targeting Blacks' on Turnpike, ARIZ. REP., May 10, 1998, at A20, available in 1998 WL 7770245 (describing shooting incident and racial profiling controversy).
132. See David Harris, Driving While Black: Racial Profiling on Our Nation's Highways, An ACLU Special Report (visited June 2,1999) (stating practice of police looking for drug criminals by stopping drivers based on color is so common "that the minority community has given it the derisive term, 'driving while black or brown' - a play on the real offense of 'driving while intoxicated'"). See also David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 546 & n.10 (1997) (relating "driving while black" was "standard way" black clients in Washington, D.C. area described "common experience of constant stops and harassment" by police).
133. See David Harris, Driving While Black: Racial Profiling on Our Nation's Highways, An ACLU Special Report (visited June 2,1999) (stating practice of police looking for drug criminals by stopping drivers based on color is so common "that the minority community has given it the derisive term, 'driving while black or brown' - a play on the real offense of 'driving while intoxicated'"). See also David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 546 & n.10 (1997) (relating "driving while black" was "standard way" black clients in Washington, D.C. area described "common experience of constant stops and harassment" by police).
134. ACLU, Driver Profiling Complaint Form (visited June 2, 1999) .
135. ACLU, ACLU 'Bustcard': Pocket Guidelines on Encounters With the Police (visited June 2, 1999) . The "Bustcard" instructs users on what to do when stopped by police. In addition to warning drivers to be polite, respectful, and calm, the ACLU advises them to "write down everything you remember ASAP," "make [no]... statements regarding the incident," and "[a]sk for a lawyer immediately upon your arrest." Id.
136. See AI Frank, P.A. Looking into Claims of Profiling on the PATH, STAR-LEDGER (NEWARK, N.J.), Mar. 13, 1999, at 11, available in 1999 WL 2962478 (reporting investigation of Port Authority PATH police alleged to have engaged in racial profiling); Howard Goodman, Profiling Allegations Expanded, PHILA. INQUIRER, Apr. 30, 1999, at B1 (reporting New Jersey Attorney General's Office investigation of state police program that trains hotel employees to spot possible drug dealers near turnpike).
137. See AI Frank, P.A. Looking into Claims of Profiling on the PATH, STAR-LEDGER (NEWARK, N.J.), Mar. 13, 1999, at 11, available in 1999 WL 2962478 (reporting investigation of Port Authority PATH police alleged to have engaged in racial profiling); Howard Goodman, Profiling Allegations Expanded, PHILA. INQUIRER, Apr. 30, 1999, at B1 (reporting New Jersey Attorney General's Office investigation of state police program that trains hotel employees to spot possible drug dealers near turnpike).
138. Wambaugh, supra note 113, at A22. The suspicions of the officers in Whren certainly were founded. See Whren v. United States, 517 U.S. 806, 806-07 (1996) (noting officers' "suspicions were aroused," causing them to pull over vehicle found to contain illegal drugs).
139. See Wambaugh, supra note 113, at A22 (suggesting certain criminals, including white lawbreakers in black neighborhoods, would "cruise ... unmolested" if police could not use profiling).
140. See id. ("As police attempt to cull potential lawbreakers from honest citizens, sex, age, race, clothing and lots of subtleties go into the process.").
141. While researching an article for the New York Times Magazine, author Jeffrey Goldberg rode with police officers from various cities, including Philadelphia. Some officers denied relying on race in deciding whom to stop; others admitted the practice. The officers alternatively decried and defended the practice. The wide use of racial profiling, however, was unmistakably clear throughout the fascinating piece. See generally Goldberg, supra note 110.
142. See Toby, supra note 111, A22 (asserting stopping people who violate minor laws helps prevent major crimes such as drug trafficking).
143. Whren, 517 U.S. at 813.
144. The Whren Court agreed that race-based stops are wrong, but noted that it was necessary to present such claims under the Equal Protection Clause, not the Fourth Amendment. Id.
145. Oyler v. Boles, 368 U.S. 448, 456 (1962).
146. See generally Goldberg, supra note 110. Despite their description of conduct that arguably constitutes racial profiling, most of the officers in Goldberg's article denied that race was the sole factor in a stop. Id. Similarly, two New Jersey state troopers indicted for falsifying records, who also denied that race was the sole factor, have been characterized by their lawyers as conducting "good police work." Avril & Campbell, supra note 124, at A6.
147. In this context, "prevail" is a strong word. Actually, a driver stopped by one of these officers may simply have a very strong case for a race-based traffic stop. Whether there exists a viable remedy for such a claim, however, is the central issue in this Article. See supra notes 138-39 and infra notes 141-60 and accompanying text for a discussion of the difficulty in fashioning a legal remedy for race-based traffic stops.
148. Of course, the accused would still be faced with establishing that a race-based pretext occurred in her case.
149. State v. Smith, 703 A.2d 954, 958 (N.J. Super. Ct. App. Div. 1997) (relying on United States v. Armstrong, 517 U.S. 456 (1996)). The use of a selective enforcement defense was approved by the United States Supreme Court in 1962, when in Oyler v. Boles, 368 U.S. 448 (1962), the Court held that prosecution based on race, religion, or another arbitrary classification violates the Equal Protection Clause. Id. at 456. See infra note 145 and accompanying text for a discussion of selective enforcement claims.
150. Even if compelling evidence were gathered, its positive effect in the courts is questionable. For years, opponents of the death penalty have offered statistical studies and analyses in an effort to prove that the harsh sentence is imposed in a discriminatory manner, but the death penalty remains a constitutional form of punishment. See, e.g., Developments in the Law: Race and the Criminal Process, Part VIII: Race and Capital Sentencing, 101 HARV. L. REV. 1603, 1614-22 (1988) (describing Supreme Court's rejection of death penalty as violative of Equal Protection Clause despite strong statistical evidence); Douglas W. Vick, Poorhouse Justice: Underfunded, Indigent Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REV. 329, 332-36, 410-12 (1995) (analyzing relation of race and socioeconomic status with imposition of death penalty).
151. Even if compelling evidence were gathered, its positive effect in the courts is questionable. For years, opponents of the death penalty have offered statistical studies and analyses in an effort to prove that the harsh sentence is imposed in a discriminatory manner, but the death penalty remains a constitutional form of punishment. See, e.g., Developments in the Law: Race and the Criminal Process, Part VIII: Race and Capital Sentencing, 101 HARV. L. REV. 1603, 1614-22 (1988) (describing Supreme Court's rejection of death penalty as violative of Equal Protection Clause despite strong statistical evidence); Douglas W. Vick, Poorhouse Justice: Underfunded, Indigent Defense Services and Arbitrary Death Sentences, 43 BUFF. L. REV. 329, 332-36, 410-12 (1995) (analyzing relation of race and socioeconomic status with imposition of death penalty).
152. In Philadelphia, Police Commissioner John Timoney is not waiting for the enactment of mandatory legislation before confronting racial profiling among his staff. Instead, he has formed a ten member "Integrity Control Unit" that will conduct "random, unscheduled audits of all bureaus, divisions and units for any signs of trouble, including in the area of police compliance with departmental policies ... such as racial profiling." Robert Moran, New Team to Monitor Police Conduct, PHILA. INQUIRER, June 11, 1999, at B2. Commissioner Timoney is also not naive about the daunting task he faces: "We cannot always detect, let alone change, the mindset or prejudices of certain people, but we can put systems in place to prevent those biases from affecting their performance as police officers." Telephone interview with the Offices of the Philadelphia Police Commissioner (June 30, 1999).
153. Selective enforcement claims have been raised many times over the past several decades. See Oyler v. Boles, 368 U.S. 448, 456 (1962) (denying selective enforcement claim where no unjustifiable standard alleged); United States v. Schoolcraft, 879 F.2d 64, 68-69 (3d Cir. 1989) (rejecting equal protection claim where no evidence was offered supporting contended prosecution based on unjustifiable standard); Commonwealth v. Wells, 657 A.2d 507, 510 (Pa. Super. Ct. 1995) (denying alleged equal protection claim for selective prosecution where both prosecuted and non-prosecuted occupants of stopped vehicle were of same race). As the United States Supreme Court has explained: A selective prosecution claim is not a defense on the merits to the criminal charge itself, but an independent assertion that the prosecutor has brought the charge for reasons forbidden by the Constitution. Our cases delineating the necessary elements to prove a claim of selective prosecution have taken great pains to explain that the standard is a demanding one.... A selective prosecution claim asks a court to exercise jurisdictional power over a "special province" of the Executive. United States v. Armstrong, 517 U.S. 456, 463-64 (1996). However, as recently as 1996, in the same term the Court decided Whren, the Court explicitly stated in a footnote that it has "never determined whether dismissal ... or some other sanction is the proper remedy if a court determines that a defendant has been the victim of prosecution on the basis of his race." Id. at 461 n.2.
154. Id. In Armstrong, the defendants sought discovery of police documents to establish their claim of selective enforcement and the district court entered an order granting the defendants' request. Id. at 459. The police challenged the defendants' right to the documents and refused to comply with the discovery order. Id. at 461. Armstrong involved racial profiling of a type, although not in the context of a traffic stop. Instead, the Armstrong defendants argued that they had been singled out for federal prosecution, in lieu of prosecution in the state court system, simply because they were black. Id. at 458.
155. See, e.g., State v. Kennedy, 588 A.2d 834, 838 (NJ. Super. Ct. App. Div. 1991) (discussing racial profiling and propriety of suppression as sanction). In a landmark 1996 case in the New Jersey Superior Court, State v. Soto, 734 A.2d 350 (N.J. Super. Ct. Law Div. 1996), Judge Robert Francis combined the suppression requests of nineteen criminal defendants, all of whom claimed that they were the victims of racial profiling by New Jersey troopers. Id. at 359. After hearing evidence of the agency's widespread racial profiling policy and practice, Judge Francis suppressed the evidence seized in the cases. Id. at 361. Thereafter, the Attorney General appealed the suppression order. Recently, in the wake of its admission that racial profiling indeed exists within the agency, the Attorney General's Office abandoned its appeal. Goodman, supra note 121, at B1.
156. Kennedy, 588 A.2d at 838. See also Goodman, supra note 121, at B1 (reporting order of suppression in 19 consolidated cases asserting racial profiling on New Jersey Turnpike).
157. Kennedy, 588 A.2d at 838-39.
158. See supra notes 103-06 and accompanying text for a discussion of State v. Ladson, 979 P.2d 833 (Wash. 1999), and that state's rejection of Whren.
159. See Armstrong, 517 U.S. at 461 n.2 (acknowledging that United States Supreme Court has not determined appropriate remedy for pretext stop).
160. See id. (stressing Court has not determined whether dismissal is proper remedy). In Armstrong, the trial court dismissed the indictment not because it was bound to do so, but because the parties agreed that dismissal was the most efficient way to get the issue of discovery limitations before the appellate court. Id.
161. See supra note 145 for a description of cases raising selective prosecution claims.
162. See Sean Hecker, Race and Pretextual Traffic Stops: An Expanded Role for Civilian Review Boards, 28 COLUM. HUM. RTS. L. REV. 551, 587-89 (1997) (examining difficulties of bringing Fourteenth Amendment claim for pretextual stop).
163. See, e.g., Commonwealth v. Mulholland, 702 A.2d 1027, 1034-35 (Pa. 1997) (involving claim against prosecution and police officers' effort to bar their retrial where Commonwealth prosecuted only three of five officers involved in death of arrestee).
164. See supra notes 119-24 and accompanying text for a discussion of racial profiling as an action of individual officers or department policy.
165. See State v. Smith, 703 A.2d 954, 957-58 (N.J. Super. Ct. App. Div. 1997) ("At best, the evidence proffered relates ... Trooper Long had a hidden agenda and profiled Afro-American citizens .... The alleged motives of an individual police officer are not enough.").
166. This conclusion is true even in Pennsylvania where the state supreme court has interpreted the exclusionary rule broadly. See Commonwealth v. Glass, 718 A.2d 804, 808-09 (Pa. Super. Ct. 1998) (describing purpose behind Pennsylvania's exclusionary rule as not just deterrence of police misconduct, but also as fundamental safeguard of privacy), appeal granted in part, 726 A.2d 1041 (Pa. 1999).
167. See supra notes 53-55 and accompanying text for a discussion of Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991).
168. Admittedly, analysis of pretext under search and seizure reasonableness principles would not eliminate pre-trial litigation altogether. Courts still would be required to sift through what a police officer "would have done" absent her legally insupportable suspicions. The reasonableness test, however, sharply limits the inquiry by making it a narrower one. The issue is simply whether the stop would have occurred on the basis of the proffered reason, i.e., the minor traffic violation.