Colorblind Racial Profiling: A History, 1974 to the Present [1 ed.] 1138630772, 9781138630772

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Colorblind Racial Profiling: A History, 1974 to the Present [1 ed.]
 1138630772, 9781138630772

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Colorblind Racial Profiling outlines the history of racial profiling practices and policies in the United States from 1974 to the present day. Drawing on a wide variety of sources including case law, newspaper and television reporting, government reports, and police manuals, author Guy Padula traces how institutionalized racial profiling spread across the nation and analyzes how the United States Supreme Court sanctioned the practice. Insightful and accessible, Colorblind Racial Profiling is essential reading for all those interested in the history of racial profiling and criminal justice in the United States. Guy Padula is Assistant Professor of Law at Renmin University in Beijing, China, an Adjunct Professor in Temple University’s Beasley School of Law, USA, Beijing Master of Laws LL.M. Program, and the author of Madison v. Marshall: Popular Sovereignty, Natural Law and the United States Constitution.

Q Taylor & Francis Taylor & Francis Group


COLORBLIND RACIAL PROFILING A History, 1974 to the Present

Guy Padula

First published 2018 by Routledge 711 Third Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business  2018 Taylor & Francis The right of Guy Padula to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data Names: Padula, Guy, 1965- author. Title: Colorblind racial profiling : a history, 1974 to the present / by Guy Padula. Description: New York : Routledge, 2018. | Includes bibliographical references and index. Identifiers: LCCN 2018004881 (print) | LCCN 2018005634 (ebook) Subjects: LCSH: Racial profiling in law enforcement—United States. | Discrimination in criminal justice administration—United States. Classification: LCC HV7936.R3 (ebook) | LCC HV7936.R3 P33 2018 (print) | DDC 363.2/308900973—dc23 LC record available at ISBN: 978-1-138-63077-2 (hbk) ISBN: 978-1-138-63078-9 (pbk) ISBN: 978-1-315-17464-8 (ebk) Typeset in Bembo by Swales & Willis Ltd, Exeter, Devon, UK

For my Mother

“Colorblind Racial Profiling offers a fascinating tale of how institutionalized racial profiling was pioneered by the federal government and whitewashed by the Supreme Court. Guy Padula painstakingly weaves together almost five decades of discriminatory policing and adjudication and shows how ideas from the security apparatus (from border patrol to the police) cross-fertilize and bolster the practice of racial profiling. This is a book I will assign in my classes.” –Eduardo Bonilla-Silva, Professor of Sociology, Duke University, and President of the American Sociological Association “This is an eye-opening look into the history and practice of racial profiling. Guy Padula, a Constitutional Law scholar, examines four programs—the racial profiling of airline passengers, bus and train passengers, motorists, and pedestrians. Examining police training practices, court rulings, and descriptions of police encounters with citizens, Padula lays bare the ways in which black and Hispanic Americans are denied their Fourth Amendment rights. Beautifully written, meticulously researched and passionately argued, Colorblind Racial Profiling brings much needed attention to the erosion of American civil liberties and the ongoing racial discrimination that has come to shape citizen police encounters. This should be required reading for anyone trying to understand race relations in America.” –Mary Waters, John L. Loeb Professor of Sociology, Harvard University “By juxtaposing detailed case studies of racial profiling in policing with the federal courts’ evasive and at times disingenuous responses, Padula develops an insightful and rich account of how the justice system has aided and abetted the development of a ‘colorblind’ ideology that in substance and effect perpetuates racial hierarchies. An important and richly textured contribution to the legal and historical literature on America’s twenty-first century color line.” –Aziz Huq, Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School “Beginning with airplane hijackings in the 1960s and 1970s, law enforcement agents throughout the U.S. have routinely developed ‘profiles’ of individuals more likely to commit crimes. Often, these have been laughably inaccurate or all-inclusive, such as carrying cash in the denominations ‘preferred by drug dealers’: 1, 5, 10, 20, 50, or 100 dollar bills. Using case law, reviewing every major U.S. Supreme Court decision, and delving into police training manuals as no previous scholarly book has done, Padula shows the breadth of racial profiling across U.S. criminal justice from airports, train and bus stations, traffic stops, stop-and-frisk programs, and drug arrests. The book is a must-read, an

encyclopedic review of the past half-century of constitutional misinterpretation by the Supreme Court and a willingness of various police agencies to target minorities.” –Frank Baumgartner, Richard J. Richardson Distinguished Professorship in Political Science at The University of North Carolina at Chapel Hill and co-authorof Suspect Citizens: What 20 Million Traffic Stops Tell Us about Policing and Race (Cambridge, 2018) “For anyone who cares about racial profiling, Padula’s carefully researched history should be essential reading. Indeed, for anyone who cares about policing, or for that matter race, this is essential reading. To be sure, Colorblind Racial Profiling: A History, 1974 to the Present, provides a history of racial profiling. But in doing so, it also broadens our understanding of the recent history of this country.” –Bennett Capers, Stanley A. August Professor of Law, Brooklyn Law School “Padula combines concrete legal reasoning with a sophisticated ethical framework to unpack the fundamental racism at the heart of both American policing and Supreme Court jurisprudence. He shows how these institutions have combined racism and the War on Drugs into a toxic mixture that has undermined the basic civil rights of people of color and eviscerated the Fourth Amendment.” –Alex Vitale, Professor of Sociology at Brooklyn College and author of The End of Policing (Verso, 2017) “The everyday interactions between law enforcement and African Americans remain an open sore in American social life and a continual flash point for racial confrontation on America’s streets. Yet for decades, the courts have endorsed supposedly ‘color blind’ procedures in law enforcement. In this brilliant mix of legal analysis and sociological observation Guy Padula shows how, ironically, ‘color blindness’ in the law actually reinforces racially biased outcomes.” –Philip Kasinitz, Presidential Professor of Sociology, City University of New York

Q Taylor & Francis Taylor & Francis Group



Acknowledgments xi Introduction


1 He Didn’t Go to Ireland


2 We Didn’t Really Know What We Were Looking For


3 A Spirit of Apparent Cooperation


4 Hit the Road Jack


5 There Goes One Now


6 That Magic Moment


7 Disharmonic Convergences


8 Even Hannibal Had a Map


9 The Bronx Gulag



Conclusion: Shine a Light



In evaluating Perry’s [the arresting officer] credibility and the weight to be accorded his testimony, I have considered among other factors, his testimony that physical limitations on his vision make it difficult or impossible for him to discern whether a person is Black, Hispanic or Anglo. He testified that he suffers from both astigmatism and color blindness . . . With regard to his asserted color blindness, Perry swore that it is nearly impossible for him to distinguish among Black, Hispanic and White people . . . Indeed, he went so far as to testify that even when he pulled alongside the defendant’s vehicle, a few feet from it in broad daylight, his color blindness prevented him from determining that the driver and passenger were Black. On cross examination, however, he testified that in looking around the courtroom, he was able to distinguish Blacks, Whites and Hispanics, but that he could not always do so while on duty as a law officer. [The defendants’] complexions are very dark and they are obviously Black. I find to be incredible Perry’s testimony that he could not distinguish Black from non-Black drivers in broad daylight. (United States v. Laymon, 730 F. Supp. 332, 335 (D. Colo. 1990))


Writing a book on race and the American criminal justice system while residing in Beijing presents certain challenges and I have therefore relied more heavily than most authors on my network of family and friends. Michael Anderson, Lewis Hussain, Nina Moore, Christopher Norris and Benjamin Van Rooij all provided valuable substantive comments. Audrey Holdaway was recruited for her editorial skills. Louie Thompson, the Assistant Dean for Graduate and International Programs at the Temple Beasley School of Law, was kind enough to provide funding for a research assistant based in the United States. Thomas Halper, once again, has been indefatigable in reading multiple versions of all the chapters. And, my wife, Jennifer Holdaway, has provided moral and intellectual support throughout the entire process.

Q Taylor & Francis Taylor & Francis Group



On November 20, 2016, Detective Benjamin Marconi conducted a traffic stop in front of police headquarters in San Antonio, Texas. While he was writing up the ticket, another vehicle pulled up behind the officer. The driver got out, walked up to the patrol car, and shot Marconi twice in the head. Marconi, a father of two, was taken to a hospital and pronounced dead.1 If Marconi’s murder had been a single isolated incident, the tragedy could be dismissed as the act of a madman. If two such attacks had occurred on the same day, it might be rationalized as a strange coincidence. However, on the day Marconi was murdered, three unrelated and unprovoked ambush attacks were committed against unsuspecting police officers.2 The past several years have been marked by police shootings of unarmed civilians, ambush attacks against police officers, numerous protests, some of them violent, and the rise of law enforcement-related protest organizations. Many Americans might say this cycle started after the August 2014 shooting of Michael Brown. However, anger has been simmering for years, and not just in San Antonio, Texas or Ferguson, Missouri. One of the starkest examples of the belief that the criminal justice system has become a means of racial oppression can be found on a YouTube channel entitled “Nycresistance,” and a blog of the same name. In March 2008, armed with a video camera, a New York City (NYC) resident (the “Blogger”) began surreptitiously shooting New York Police Department (NYPD) officers making stop-and-frisks. The Blogger started his project with the belief that once he made his videos public, the police officers patrolling his neighborhood would be disciplined for constitutional violations.3 It certainly must have been easy to find stops to record because by 2006 over a half-million New Yorkers were being stopped and frisked annually.4

2 Introduction

Over time, the Blogger became increasingly disillusioned because rather than abating, stop-and-frisk grew increasingly pervasive. The Blogger began arguing the NYPD was aggressively enforcing trivial infractions and traffic violations in black neighborhoods as a form of extortion to fund city government.5 Whereas he once thought bad cops were to blame, he eventually proclaimed that he had “come to find out that the Police Commissioner and Mayor are fine with this! They are the architects of what you are seeing.”6 He even claimed that the “NYPD should be seen as an outside force, as an invading army.”7 Those inclined to dismiss such claims as hyperbole should first consider the words of the Police Commissioner, Ray Kelly, and Mayor, Michael Bloomberg. According to the sworn testimony of a New York State Senator, Commissioner Kelly told him that he had his officers focus on young blacks and Hispanics “because he wanted to instill fear in them, every time they leave their home, they could be stopped by the police.”8 NYPD statistics indicate Kelly’s wish was largely fulfilled. Between 2004 and 2012, 4.4 million stops were recorded, and 83% of those stopped were either black or Hispanic.9 These stop-and-frisks were so pervasive that when Reuters randomly sampled twenty-five black NYC police officers in 2014, “all but one said that, when off duty and out of uniform, they had been victims of racial profiling.”10 Even Mayor Bloomberg agreed the program was discriminatory. However, he claimed whites were victims. “I think we disproportionately stop whites too much and minorities too little. It’s exactly the reverse of what they say.”11 These disturbing statistics and statements raise an obvious question. How could racially targeted policing be pervasively practiced and publicly defended in a city so liberal that it is sometimes derisively referred to as Moscow on the Hudson? The answer is that the NYPD’s program was no anomaly; it was the logical and almost inevitable culmination of a forty-year history of institutionalized racial profiling. However, as a constitutional historian, I must make an embarrassing confession. I spent years studying and teaching the subject while remaining largely oblivious to the most flagrant and pervasive constitutional violation of my lifetime. A fascinating aspect of racial profiling is society’s ability to turn a blind eye to the practice.

From Brooklyn to Beijing This book has a somewhat unusual origin. It can be traced back not to my hometown of Brooklyn, New York, but my place of residence for the past nine years, Beijing, China. The idea of exploring the history of racial profiling arose after I was asked to teach a class on the “Rule of Law” at Tsinghua University. I was delighted by the opportunity because the subject closely coincides with my research interests. In fact, the first sentence in my first book quoted Thomas Paine’s declaration that America had replaced a monarchical government with a system in which “THE LAW IS KING.”12

Introduction  3

My students in China are adults, practicing attorneys, prosecutors, and judges, but I knew from experience that some have an overly romanticized view of the American constitutional system of government. Moreover, I had also read a somewhat disturbing argument advanced by a Communist Party leader that China should adopt a constitutional system similar to that of America, albeit one with certain “Chinese characteristics.” Perhaps legal systems are like time in that they are relative; but that does not make the better ones perfect, or mean they should be emulated without careful forethought. I thus hoped to challenge my students to think more critically about the nature of a just society while at the same time prudently critiquing those who seek to exploit the legitimacy provided by constitutionalism in order to consolidate political power. The key to this endeavor lay in exploring the difference between the Rule of Law versus the Rule by Law. I wanted to demonstrate the need to diligently strive for the former while strenuously guarding against the latter. A constitution can be a force for good or evil; it can promote equality or sanction slavery. Since I wanted to discuss these ideas while avoiding any unscheduled flights back to the States, I thought it wise to choose a topic that did not directly criticize my host country. Exploring the deficiencies of the American criminal justice system, particularly the changes which have occurred since the mid-1970s, would provide an antidote to unquestioning views of the American legal system. Perhaps more importantly, by openly criticizing my government in a university classroom, an action which has led to imprisonment for Chinese professors, I was demonstrating one of the freedoms enjoyed by Americans while making an unspoken condemnation of political repression in China. I first considered discussing how the United States has gone from having one of the world’s most lenient incarceration rates to one of the harshest. From 1973 to 2009, the state and federal prison populations rose from 200,000 to 1.5 million.13 I also thought of focusing on how so few of the incarcerated have received their constitutional right to a jury trial as opposed to being sentenced through a plea-bargaining process. It is, to say the least, ironic that the American Bar Association has long maintained a Rule of Law Initiative in China to promote a more “just and transparent” criminal justice system.14 Public trials are an essential part of having a transparent criminal justice system, but that is increasingly rare in America. Shortly after the incarceration rate began its inexorable rise, the percentage of defendants convicted by a jury began plummeting. From 1977 to 2012, the ratio of federal criminal jury trial cases decreased from about 25% to just 3%,15 and state felony cases decreased from 8% in 1976 to just 2.3% by 2009.16 As noted more than twenty years ago, the opaque plea-bargaining process in America, which is conducted completely behind closed doors, “is not some adjunct to the criminal justice system; it is the criminal justice system.”17 Although these two trends are certainly troubling, I ultimately chose to explore institutionalized racial profiling, which also began in the mid-1970s, because it is eerily similar to a form of political repression which occurs in China.

4 Introduction

Authoritarian regimes often maintain power by selectively enforcing generally unenforced laws to silence dissenters. In a country in which corruption is an unavoidable part of doing business and tax evasion rampant, the Chinese government can always find a pretext to prosecute troublemakers. Racial profiling, of course, operates on a similar principle. In the U.S., traffic rules are so minutely regulated that it is hard to drive more than a mile without committing an infraction. This permits the police to selectively enforce traffic laws against whomever they choose. The main difference between China and the U.S. is the targeted population. In China, there is an unspoken rule that if you do not challenge the government you can generally avoid trouble. In fact, in some ways, America sometimes feels more like an authoritarian police state than China. For example, the police in China almost never stop motorists because the nation relies on cameras to enforce traffic laws. And, based on the fact that I accumulated more speeding tickets in just three years of driving in China than in the prior twenty-five years while living in the United States, one might even posit that these dreadful devices are more effective than strictly necessary. Curiously, in an age of technology and preoccupation with cost savings and robotics, America has not fully embraced traffic cameras, which would of course have the added benefits of reducing biased policing on the highways as well as accidental shootings. Although I originally envisioned discussing institutionalized racial profiling as an indirect means of critiquing the Chinese state, the more I researched the practice, the more I began to recognize the profound injustices that characterize the American justice system. There appear to be far fewer police–citizen encounters in China, accidental shootings are unheard of, and, rather than being reserved for imprisoning political or economic rivals, the practice of selective enforcement in America is directed against entire racial and ethnic populations.

Research Challenges Racial profiling implicates two constitutional clauses: The Fourth Amendment’s right to be free from unreasonable searches and seizures and the Fourteenth Amendment’s Equal Protection of the Law guarantee. It also clashes with ancient common-law principles that guilt is personal, not collective, and the idea that people are innocent until proven guilty. However, as Oliver Wendell Holmes once said, “a page of history is worth a volume of logic.”18 Therefore, I chose to explore the historical background of selective enforcement before turning to the legal issues. How, when, and where did racial profiling originate? These questions proved to be considerably more difficult to answer than I had anticipated. One challenge I confronted is that law enforcement in America is intensely fragmented, with over 12,000 police departments employing almost a halfmillion full-time sworn personnel.19 The typical agency, headed by an elected

Introduction  5

Sheriff answerable to local constituents, illustrates the absence of a centralized, hierarchical policy-making apparatus. This decentralization presents daunting research obstacles and raises another question. For decades, statistics have proven that African American drivers are stopped disproportionately more than white drivers.20 Why have countless independent law enforcement agencies across the United States willingly adopted racial profiling policies? In addition to being deeply fragmented, law enforcement is also highly secretive. When I tried to research how police surveillance techniques have changed over time by reading police manuals, I quickly discovered police departments do not share this kind of information with the general public. Since I had previously taught at the John Jay College of Criminal Justice, the nation’s leading scholarly and practical center for police training, I had access to one of the best collections of law enforcement materials in the country. Yet, even here, I could find only one police training manual focusing upon the subject of surveillance. Fortunately, the book I did find, Charles Remsberg’s Tactics for Criminal Patrol, provided the kind of “magic moment” researchers live for.21 Its lessons, including those on how to avoid racial profiling accusations and convince suspects to waive their Fourth Amendment rights, will be discussed in Chapter 6. Although Tactics proved to be immensely revealing, I was frustrated by the lack of other relevant police manuals in the John Jay Library. I therefore tried running keyword searches in the many thousands of law journal articles that have been written which address the subject of racial profiling, but I could not find even a single reference to police manuals or training literature. The vast literature on racial profiling instead relies on statistics, personal accounts of the victims, consent decrees, and case law.22 I finally found an explanation for this curious omission in the account of another scholar who had sought police training manuals to understand what officers are taught regarding proper arrest procedures. This professor also discovered that his law school’s librarian could not obtain any police manuals even after contacting “libraries likely to have such materials (such as the library at the California Department of Justice).” After sending out over a hundred requests under the Freedom of Information Act, he learned from a number of training officers that they had little or nothing in writing, and that most training on the issues . . . was given orally by training officers. I was skeptical about this at first, but I was told this by so many independent sources that I came to believe it. One training officer told me, “the average cop doesn’t like to read much. Give him a book and he’ll put it on a shelf. They like to learn by listening to more experienced officers.” What about the interrogation manuals that the Supreme Court assumed in Miranda v. Arizona were generally used by the police? I was told: “Those were used by detectives, who do read. They are specialists, not beat cops, who are generalists and not academically inclined, usually.”23

6 Introduction

Unable to find primary sources in the field of law enforcement, I decided to turn my attention to the judiciary. I naturally began with the Supreme Court and ran a search to discover every decision in which the term “racial profiling” appears. Much to my surprise, the Supreme Court has used the term “racial profiling” in only three cases and all in passing.24 What makes this omission particularly glaring is that the Supreme Court rarely avoids controversy. This fact was even noted as far back as the 1830s when Alexis de Tocqueville wrote that “there is hardly a political question in the United States which does not sooner or later turn into a judicial one.”25 Since then, the Supreme Court has amassed even greater power and virtually all modern political battles, including abortion, segregation, the death penalty, gay rights, affirmative action, and even the contested 2000 presidential election, were ultimately debated before the Court. The Court’s prolonged silence on one of the most significant constitutional issues of our time is analogous to the Sherlock Holmes hound that did not bark. It speaks volumes and helps explain how institutionalized racial profiling could be practiced for so many years before its prevalence was generally recognized. In fact, the Court’s avoidance of the term “racial profiling” is part of a much larger pattern that finds “Fourth Amendment case law . . . remarkably silent on the racial dimension of encounters between citizen and police.”26

Colorblind Racial Ideology The Court’s silence on this controversial topic parallels a broader societal phenomenon, sometimes labeled “colorblind racial ideology.” Even readers who are unfamiliar with the term will recognize the idea. One of its proponents, Eduardo Bonilla-Silva, has postulated that “despite the profound changes that occurred in the 1960s, a new racial structure—the new racism for short—is operating, which accounts for the persistence of racial inequality.”27 Pivotal to this new racism, which maintains the old goal of keeping minorities “in their place,” is the “rearticulation” of racial politics.28 Advocates of this theory claim the new-right has developed a politically acceptable dialogue which is capable of subtly conveying messages of racial animus to their intended audience. The rearticulation of racial ideology allegedly has progressed in three stages. It began with the use of “code-word” politics. Phrases and symbols were employed that do not directly challenge popular democratic or egalitarian ideals such as justice and equal opportunity, but at the same time imply or refer indirectly to racial themes. Richard Nixon’s use of the term “law and order” during the 1968 presidential election is a famous illustration of this strategy. As the New York Times explained weeks before the 1968 election, Nixon’s code-worded call for “law and order,” by adopting the catchphrase of white segregationists, was understood to subtly, or not so subtly, express “resentment or fear of the Negro.”29 Code-word terminology was followed by “reverse-discrimination”-type arguments. Whites began arguing that preferential treatment programs sponsored

Introduction  7

by the government as well as affirmative action policies in academia represented reverse racism. Reverse-discrimination arguments naturally led to a closely related but somewhat more sophisticated approach which has been labeled “colorblind” racial ideology. This final stage of the rearticulation process is said to be based on the myth that “race has all but disappeared as a factor shaping the life chances of all Americans.”30 Years before sociologists formulated their theory of colorblind racial ideology, a prominent political strategist outlined how his Republican Party had rearticulated discussion of racial issues. Although Lee Atwater, the former Republican Party Chairman and 1988 campaign manager for George H.W. Bush, did not use the terms “code-words” or “colorblind racial ideology,” he clearly alluded to such concepts during a taped interview in 1981: Here’s how I would handle that issue . . . as a psychologist, which I am not, is how abstract you handle the race thing. You start out, I don’t want you to quote me on this, you start out in 1954 by saying, “Nigger, nigger, nigger.” By 1968 you can’t say “nigger”—that hurts you, backfires. So you say stuff like, uh, forced busing, states’ rights, and all that stuff, and you’re getting so abstract. Now, you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites . . . “We want to cut this,” is much more abstract than even the busing thing, uh, and a hell of a lot more abstract than “Nigger, nigger.”31 Although the title of this book is obviously inspired by the concept of colorblind racial ideology, the theory suffers from reductionism. Nixon may have cynically adopted the catchphrase of white segregationists, but the slogan resonated because the homicide rate had risen by 72% between 1957 and 1968, while the incarceration rate had fallen by almost 17%.32 1968 was also one of the most tumultuous years in American history. Martin Luther King and Robert Kennedy were both assassinated; civil disturbances broke out in over one hundred cities; U.S. Army troops even had to defend Washington as looting and fires spread within two blocks of the White House; and the Democratic National Convention was marred by massive protests and by what has been labeled a “police riot.” Colorblind racial ideology is also ahistorical. Resentment against a perceived “reverse racism” did not originate in the 1970s; it was evident a century before when the Supreme Court overturned an 1875 federal law banning segregation across the entire nation: When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws.33

8 Introduction

The flaws of “colorblind racial ideology” notwithstanding, the theory helps explain a remarkable phenomenon: many white Americans remain oblivious to the persistence of segregation and the stark economic inequality between the races. For example, Pew Research reported in 2013 that the median net worth of households headed by whites was roughly thirteen times that of black households ($144,200 and $11,200 respectively). Yet a remarkable 42% of whites believe that blacks are as well off as whites or are even doing better.34

A Strange Silence Just as some Americans have been afflicted with a form of colorblindness which allows them to proclaim their faith in the ideals of integration and racial equality while ignoring the continued existence of segregation and economic disparity, the Supreme Court’s colorblind jurisprudence has permitted it to declare an adherence to “Equal Justice Under Law” while avoiding any recognition of how the police have been systematically targeting blacks and Latinos for decades. The development of this peculiar jurisprudence began with United States v. Brignoni-Ponce (1975).35 In this illegal immigration case, a Border Patrol Agent testified that the only reason he had stopped a motorist was because the driver looked “Mexican.”36 Q. Did these people in the car appear to be of Mexican descent to you? A. Yes, sir. Q. And that, if there was any, appeared to be the reason you stopped them? A. Yes, sir.37 In Brignoni-Ponce, the Court ruled a stop based on the sole criterion of race is constitutionally impermissible, but it also suggested a list of non-racial factors that officers could recite to future judges to make such stops legal. The message was clear. If an arresting officer testifies that she stopped a car solely because the occupants looked Mexican, the trial judge has to find a constitutional violation. However, if the same officer making the same stop stresses some of the additional factors suggested by the Supreme Court, such as the occupants’ clothing and hairstyle, or the time of day and type of car, then the stop becomes permissible. The Brignoni-Ponce approach helps explain how the Court has managed to sanction racial profiling while avoiding the subject of race. In other areas of the law, such as freedom of speech, abortion, or affirmative action, the relevant terminology is repeated throughout the Court’s opinions. Yet, in landmark racial profiling cases, the issue of race is only briefly alluded to, and sometimes not even mentioned at all. Selective enforcement cases certainly exist; they just cannot be found using the most obvious search terms.

Introduction  9

The greatest challenge in writing a history of racial profiling is presented by the Three Wise Monkeys, who neither hear, see, nor speak of evil. Police officers have been instructed not to discuss race; colorblindness renders the Supreme Court incapable of seeing race; and law enforcement agencies keep their internal documents hidden from public view. Fortunately, there are four publicly available sources that can be used to trace the development and spread of racial profiling practices. The first two are judicial decisions and transcripts from lower court hearings. As the above exchange from Brignoni-Ponce illustrates, criminal defense attorneys, unlike most police officers, prosecutors, and Supreme Court Justices, are hardly averse to addressing the subject of race. Investigative journalism provides the third rich source of material, and this book would have been impossible to write but for the outstanding work of various reporters. Finally, several law officers who played pivotal roles designing and implementing institutionalized racial profiling policies have written memoirs that proved invaluable. By exploiting these four resources, I was eventually able to trace the history behind the rise and spread of institutionalized racial profiling in America. Perhaps it is not entirely coincidental that state-sanctioned racial profiling began at almost the exact moment that America’s incarceration rate began rising exponentially. In 1974, a Drug Enforcement Administration (DEA) agent, Paul Markonni, was tasked with the responsibility of identifying drug couriers as they walked through the Detroit Metropolitan Airport terminal.38 As Markonni himself later admitted, “when we started this detail at the airport, we didn’t really know what we were looking for.”39 He would, however, quickly decide who he was looking for. Inspired by a previously constructed profile used to identify potential skyjackers, Markonni compiled a “list of deviant characteristics” based on his untested belief that most drug couriers are black women.40 Soon prosecutors began referring to his list as a “drug courier profile.”41 The first institutionalized racial profiling case to reach the Supreme Court was United States v. Mendenhall (1980), and it involved the use of Markonni’s “profile” in the Detroit airport. Not surprisingly, the defendant just so happened to be a black woman. The arresting officer echoed what the arresting officer had said in Brignoni-Ponce by admitting under oath that he had noticed the defendant simply because she was a black woman traveling alone.42 The officer supplemented this testimony by also saying that he had found Mendenhall suspicious because she was the last person to exit the aircraft and was walking very slowly, but this testimony exposed the central flaw in the advice the Court offered in Brignoni-Ponce. If a person is stopped because of the color of her skin, describing innocuous and perfectly innocent behavior will fail to establish the requisite level of legal suspicion required to make a stop. In Mendenhall, the additional factors mentioned by the arresting officer were so weak that even the prosecution conceded the officer did not have legal justification to make a stop.43

10 Introduction

The federal Sixth Circuit Court of Appeals had found Mendenhall’s arrest to be so obviously unconstitutional that it issued a two-sentence decision overturning her conviction.44 However, the Supreme Court reversed that ruling and set forth a radical reinterpretation of the Fourth Amendment. In Mendenhall, the Supreme Court rejected its own traditional approach to adjudicating Fourth Amendment disputes—demanding that law enforcement agents offer “individualized” and “articulable suspicion” to justify stopping and searching a suspect. Articulable suspicion essentially means that the arresting officer must be able to explain to a judge why a suspect’s behavior was indicative of possible criminal behavior. When the police implement racial profiling actions, however, the arresting officer by definition focuses on an individual’s skin color and not her behavior. Therefore, it is hardly surprising there was a decided lack of articulable suspicion in Mendenhall and all the other racial profiling cases that reached the Supreme Court. The Court responded in Mendenhall by reclassifying her stop as a mere “encounter,” thus largely eliminating the Fourth Amendment right to be free from unreasonable “stops or seizures.”45 The Court then asked whether the defendant had decided to “waive” her constitutional rights and willingly cooperated with the police.46 Mendenhall is portrayed as an upstanding citizen, a woman who “voluntarily [and] in a spirit of apparent cooperation” agreed to be interrogated in a private locked office and searched.47 The Court never asked why someone transporting heroin would be so cooperative, and the majority ignored the arresting officer’s testimony that Mendenhall had no choice but to obey his “requests.”48 This “consent”-based interpretation of the Fourth Amendment switches the focus of judicial inquiry from the suspect’s allegedly suspicious behavior preceding the stop to her reactions afterwards. Individualized suspicion becomes inconsequential; the only issue becomes the question of consent.

The Doctrine of Informed Consent Today’s practice of racial profiling should not be confused with the barbaric type of law enforcement that was so common during the Jim Crow era. Though occasional cases were publicized, physical abuse used to be so commonplace that it constituted standard operating procedure and its defenders were regularly elected to office. Consider, for example, a landmark case from 1936, Brown v. Mississippi, in which three black tenant farmers were suspected of killing a white planter.49 During his “interrogation,” Ellington was hung by his neck from a tree limb twice but still maintained his innocence and continued to do so even after he was subsequently whipped. After being “severely whipped” again the next day, Ellington finally confessed. Brown and Shields received

Introduction  11

similar treatment. They were made to strip and they were laid over chairs and their backs were cut to pieces with a leather strap with buckles on it by the Deputy Sheriff and two other men. Six days after the murder, the defendants were found guilty in a trial that lasted all of thirty minutes. The Deputy Sheriff was asked during his testimony if he had whipped the defendants to make them confess. He replied “not too much for a negro.”50 Brown v. Mississippi marked the first time the Supreme Court struck down a state criminal conviction because of a forced confession. The case was the beginning of a long string of decisions in which the Court began prohibiting local law enforcement agencies from inflicting “the third degree” and getting suspects to waive their Fifth Amendment right against self-incrimination by “voluntarily” confessing. The 1936 Brown decision eventually led to Miranda v. Arizona (1966), which set forth the principle of “informed consent.”51 Miranda famously held that police officers must inform suspects upon arrest of their Fifth Amendment right to remain silent and their Sixth Amendment right to consult with an attorney. Although police brutality still rears its ugly head on occasion, today’s racial profiling eschews physical force. It is often characterized not by an iron fist, but by civil conversation, politely framed requests, and even light banter. These conversations might be exceedingly polite, but they occur in a context in which only one of the parties is armed with a gun and legally authorized to use physical force. Moreover, as Chief Justice Earl Warren emphasized in his Miranda opinion, “coercion can be mental as well as physical.”52 If the police are not permitted to use physical or psychological coercion to “persuade” suspects to waive their Fifth and Sixth Amendment rights, why should such measures be permitted in the context of the Fourth Amendment? The best explanation for this jurisprudential inconsistency is that shortly before the mid-1970s transformation of America’s criminal justice system, as marked by the rise of mass incarceration, the replacement of criminal trials with mass plea bargaining, and the advent of institutionalized racial profiling, another critical change occurred which perhaps made these latter phenomena possible. After Richard Nixon won the 1968 election, he was given the opportunity to reshape the Court. The majority in Miranda comprised just five Justices and three left the Court during President Nixon’s first term in office. Abe Fortas, Earl Warren, and Hugo Black (and John Marshall Harlan II who dissented) were replaced by Harry Blackmun, Warren Burger, Lewis Powell, and William Rehnquist. These more conservative Justices wanted to overturn Miranda, not extend its holding to the Fourth Amendment.53 Although Miranda ultimately survived, the Court has practically invited the police to use psychological coercion to manipulate suspects into waiving their Fourth Amendment rights by “asking” them to “consent” to stops, interrogations, and searches.54

12 Introduction

What makes these police encounters particularly disturbing is that, according to numerous police records and estimates, well over 90% of the people who were stopped and searched without probable cause in various institutionalized racial profiling programs were completely innocent.55 Most of those involved may have suffered no bodily harm, but these discriminatory programs have exacted a terrible toll on the individual and collective level nonetheless. It could also be argued that although the police rarely resort to physical force today, African Americans have always been targeted by the police and the only change has been one of degree and not kind. It is certainly true that many police officers would have stopped an unrecognized black man driving in the white part of town in the 1950s. However, there is no evidence that I have seen indicating officers prior to the 1970s were officially trained and ordered to stop a certain daily number of black airline passengers, bus passengers, motorists, those walking in predominantly black neighborhoods, or, as we shall see, those simply sitting on benches outside their apartment buildings. The fact that the term “racial profiling” was not even coined until the 1990s offers further evidence that the practice is a relatively new phenomenon.56 Racial profiling has been brought about by developments in modern policing. Whereas law enforcement used to be reactive in nature, it now strives to be proactive. Rather than investigating crimes after they have been committed, the police increasingly seek to prevent crime by identifying people that they believe are the most likely to commit crime. Law enforcement has also mirrored developments in the corporate world in that it strives to be more efficient. Police officers today are given target levels or quotas regarding the number of motorists or pedestrians to stop.57 This explains why the scale of racial profiling overshadows anything that occurred during the days of Jim Crow, and why it is just as likely to be practiced in northern cities as in the Old South.

A Moral Incongruity A more detailed chapter summary follows, but the structure of the book is straightforward. Other than the first chapter, which recounts how a police shooting on the New Jersey Turnpike in 1998 made racial profiling a national issue for the first time, the book is chronological and it covers from 1974 to the present. Four nationwide institutionalized racial profiling programs are recounted. After first targeting minority airline passengers, authorities turned to bus and train passengers. The third program focused on minority motorists and, with the stop-and-frisk program in NYC, even black and Latino pedestrians now face heightened scrutiny. The four programs are taken in turn and most are covered in two chapters. The first chapter, relying on police memoirs, investigative news reports, and trial transcripts, focuses on the specific agents who first designed and implemented the particular program. The following chapter then examines how

Introduction  13

local courts, and ultimately the United States Supreme Court, ruled on the constitutional issues raised by the law enforcement policies. One of the book’s main contributions is that the story behind these four programs has never before been woven into a single narrative. Previous authors have certainly condemned the policies, and others have critiqued the Supreme Court’s decisions.58 However, no author has juxtaposed a close examination of the four law enforcement programs with an analysis of the Supreme Court rulings. Moreover, previous authors have also neglected to consider the lower court decisions. Thus, the story of how trial and appellate court judges valiantly fought against discriminatory practices has gone untold. These judges condemned the discriminatory programs with language rarely found in judicial opinions, and sometimes even freed guilty criminals at great risk of public condemnation. Trial and appellate court judges are the unsung heroes of this history. For example, when the first airport “drug courier profile” cases reached the Sixth Circuit, that court not only ruled the practice unconstitutional, but it also made derisive references to “the much abused drug courier profile.”59 Afterwards, when the institutionalized racial profiling spread to bus depots and train terminals in Florida, the Supreme Court of Florida compared these sweeps to something one would expect to see in “Hitler’s Berlin [or] Stalin’s Moscow.”60 When Florida highway troopers subsequently pioneered the practice of targeting minority motorists, the Eleventh Circuit Court of Appeals and the Florida Supreme Court repeatedly ruled such stops to be unconstitutional and the former sarcastically insulted the trooper who designed it.61 Finally, after NYC instituted its stop-and-frisk program targeting pedestrians, a local federal judge so strongly condemned the practice that she was publicly rebuked and removed from the case.62 Although these judges attempted to police the police, another heretofore neglected story has been the inability of courts to counter flagrant police misconduct and their constitutional transgressions. As one local court in New Jersey complained, “It is morally incongruous for the State to flout constitutional protections and at the same time demand that its citizens obey the law.”63 The judiciary has but one weapon to uphold the Fourth Amendment’s guarantee against unreasonable search and seizure: the exclusionary rule. The Supreme Court invented this curious device in 1914.64 Judges use the exclusionary rule to exclude evidence when a defendant’s Fourth Amendment rights have been violated in order to discourage police misconduct in the future. For example, if a defendant is arrested for carrying an illegal firearm but the gun was discovered after an illegal search, the state will not be permitted to submit the gun into evidence to prove the charge. In this scenario, the prosecutor can no longer win the case and will decline to prosecute. The disappointment the police officer feels upon seeing a guilty defendant released is supposed to incentivize her to reform her behavior in the future. However, freeing a menace to

14 Introduction

society is a rather indirect method for deterring illegal searches and seizures. It is in fact hard to imagine a more bizarre manner of upholding constitutional rights than asking judges to free guilty criminal defendants caught red handed. A more obvious method would be to penalize state actors who commit constitutional violations. There certainly is a deep moral incongruity in the present state of affairs which helps explain the frustration and anger which is sometimes directed at the police. Citizens can be harshly penalized for violating the most trivial of infractions, but police officers can deliberately violate the Constitution with impunity. For example, the Supreme Court has specifically held that if a motorist commits a seat-belt infraction, she is subjected to being pulled over, fined, searched, handcuffed (in front of her crying children), arrested, fingerprinted, and put into jail.65 (The officer who did this subsequently even failed to fasten the defendant’s seat belt after he placed her in his patrol car.)66 While citizens can be arrested and imprisoned for a seat-belt violation, police officers often escape any punishment for purposeful civil liberty and civil rights transgressions. As we shall see, during the 1980s, the Eleventh Circuit issued two rulings holding that a highway patrolman in Florida, Robert Vogel, was selectively targeting motorists based on a “drug courier profile” that he had constructed and later by switching to pretext traffic violation stops based on the most trivial traffic infractions.67 After he continued making these profile/pretext stops, local prosecutors simply diverted future cases to state courts, hoping those judges would decide differently. Vogel even persisted after the Florida Supreme Court also ruled these stops unconstitutional.68 Rather than being disciplined, Vogel was instead elected Sheriff and later permitted his officers to be filmed on national television making the kind of traffic stops that had been declared unconstitutional.69 The extent of these egregious violations was revealed by a newspaper’s investigative review of police videotapes. Sixty-nine percent of the motorists Vogel’s officers were stopping were people of color in a jurisdiction in which only 5% of the motorists on the highway were black or Latino.70 Another disturbing pattern I discovered in researching this book is how the Supreme Court has abandoned traditional Fourth Amendment principles when the police have largely targeted people of color, but suddenly rediscovered the requirement of “articulable suspicion” when random stops have been applied universally and ensnared whites as well as blacks, such as in the case of narcotics roadblocks.71 In these types of cases, the Court suddenly reverted to traditional Fourth Amendment principles and overturned these police practices. Even more upsetting is the Court’s double standard in its application of the Equal Protection Clause. The jurisprudential obstacles created by the Court are so insurmountable that forty years after the institutionalization of selective enforcement practices, the Court has yet to decide the merits of a single racial profiling claim.72 Yet no such obstacles confront white litigants when they allege an employment program or a university’s affirmative action policy violates the Equal Protection Clause. The Court has decided dozens and dozens of

Introduction  15

affirmative action cases while refusing to even utter the words “racial profiling,” and all the while they sit inside a building in which “Equal Justice Under Law” is literally carved in stone on its edifice. It is hardly surprising that after the Court sanctioned the selective targeting of airline passengers, bus and train passengers, and then motorists, a police force took the final step and began targeting pedestrians. Society’s remarkable ability to ignore racial profiling practices, a failure once shared by this author, helps explain how the NYPD could record making more stops of young black men in 2011 than the total number of young black men living in NYC.73 That anonymous YouTube Blogger, who began recording these stops in 2008, wanted those New Yorkers who were not being subjected to such police scrutiny to recognize what was happening. This book represents a continuation of that endeavor.

Chapter Summary In addition to providing a history of racial profiling, this book more importantly attempts to explain how a society which extols equality of law principles and overwhelmingly condemns racial profiling could permit such a pervasive constitutional violation to be perpetuated for almost half a century.74 The first chapter recounts how the majority of Americans first learned of the existence of institutionalized racial profiling after the police shot three innocent men during an otherwise routine traffic stop on the New Jersey Turnpike in 1998. Before this incident, few white Americans had heard the expression “driving while black.”75 However, public defenders had been alleging for years that troopers were stopping motorists who fit a racial “profile”—minorities driving new or expensive cars or cars with out-of-state plates.76 Two years earlier, in 1996, in a little-noticed decision, a New Jersey trial court judge had ruled that New Jersey state troopers had in fact adopted “at least a de facto policy” of targeting minorities for investigation and arrest.77 After the shooting occurred, and the officers were criminally prosecuted, the worst fears of racial profiling opponents were proven: the officers admitted they had been trained to target minority motorists on the highway and to conceal that fact from public view. Racial profiling was a de jure policy in New Jersey and there had been a widespread conspiracy to keep that fact secret. The shooting also led to investigations by the New Jersey State Government, the U.S. Department of Justice, and the national media. These investigations revealed that although the New Jersey Governor, the Attorney General, and the Superintendent of Police had all publicly denied racial profiling allegations, all three had been secretly colluding to ensure the police targeted minority motorists, and they continued to do so even after the Justice Department began its investigation. The evidence was so overwhelming that the Governor ultimately declared “racial profiling was real, not imagined,” while disingenuously

16 Introduction

calling for an investigation to determine who was responsible. Ultimately, no one was punished; neither for the constitutional violations, nor for the widespread crimes of filing false police reports or for suborning perjury. As the first chapter explains, racial profiling is better than the perfect crime because even when the violation is detected, there is still no remedy for the victims or penalty for the offenders.78 The first half of the second chapter examines United States v. Lopez (1971), the most important judicial examination of perhaps the world’s first predictive criminal profile: the skyjacker profile. In his analysis of the legal and ethical dangers of predictive criminal profiles, Judge Jack Weinstein prophetically warned that “proposals based on research designed to predict who might commit crimes and giving them the special attention of law enforcement agencies is [sic] particularly disturbing.”79 Although exactly this idea was eventually put into practice as part of the NYC stop-and-frisk program, the first three stages of racial profiling were based not upon reliable scientific research, but simply upon anecdotal evidence and unproven assumptions. The second half of the chapter focuses on the “drug courier profile” constructed by DEA Agent Markonni. The “profile” justified arbitrary stops because it listed the most innocent of acts as suspicious such as using a telephone or the bathroom after landing, taking a taxi to or from the airport, and walking quickly. But one criterion did distinguish a select few passengers: race. It may seem shocking today, but DEA agents repeatedly testified, often on direct examination, that they were targeting African Americans and Latinos; that the vast majority of travelers they stopped were minorities; and that 98% of the passengers they stopped were guilty of no crimes. Not surprisingly, most trial courts, and all the federal appellate courts which heard these cases, rejected the idea that mere conformity to the “profile” justified a stop and search. The third chapter begins with an examination of the connection between the enforcement of immigration laws at the nation’s southern border and the rise of racial profiling. It discusses how the Supreme Court explicitly sanctioned the use of race as a criterion of suspicion in the 1975 Brignoni-Ponce ruling. Since Markonni was at that same moment developing his “list of deviant characteristics,” it appears DEA airport agents may have concluded targeting minority airline passengers was perfectly acceptable. The chapter then turns to an examination of the first three cases in which the Supreme Court considered the use of Markonni’s “drug courier profile.” In the first case, Mendenhall, the Supreme Court was given the perfect opportunity to end the nation’s first institutionalized racial profiling program.80 The prosecution conceded that police had lacked probable cause to stop and search the defendant. However, after setting forth a new “consent”-based doctrine of the Fourth Amendment, a bare majority of Justices concluded that Mendenhall’s constitutional rights had not been violated because she had agreed to be interrogated in a private office and willingly submitted to be searched.

Introduction  17

Chapter 4 chronicles the implementation of dragnet police sweeps of long-distance bus and train passengers in Florida. Whereas DEA airport agents had made half-hearted attempts to justify their actions based upon how quickly or slowly the suspect was walking, the Florida police extended the practice to passengers sitting in bus seats or even lying in bed inside locked train compartments. As the Court’s majority decision correctly declared, Florida v. Bostick (1987) followed “logically from prior cases and breaks no new ground.”81 The doctrine of “consent” had already been established in Mendenhall; if a single airline passenger was randomly stopped and searched, why not a few dozen bus passengers? Thus, the most interesting question Bostick presented was not jurisprudential but ethical. Previous scholars have asked why so many guilty suspects with something to hide willingly submit to police searches, but this chapter instead explores a different question. How can judges who once compared bus sweeps to something one would expect to see in Nazi Germany and apartheid South Africa subsequently vote to uphold such abhorrent practices? Relying on the lessons learned in one of the most important and notorious social psychology experiments ever conducted, this chapter explores the dynamic of judicial obedience to authority. In the fifth chapter, the focus turns to the nation’s highways and roads. It explores how a single law enforcement agent, Florida Highway Trooper Robert Vogel, implemented a “drug courier profile” for use on the highways. Vogel’s “profile” remained true to the design Markonni had previously forged by containing criteria that could describe virtually anyone. For example, specific criteria included driving north on I-95, at or below the speed limit, and being casually dressed. Once again, however, a single criterion separated out a select few motorists: race. The Eleventh Circuit Court of Appeals and the Florida Supreme Court together issued four rulings prohibiting “profiling,” “pretext” stops, and “consent”-based searches. Yet these rulings had no effect whatsoever. Vogel was celebrated by the media, appeared repeatedly on national television, was elected Volusia County Sheriff, and then instructed his 300 troopers to apply his approach to law enforcement. Even more disturbing, the DEA subsequently trained 27,000 officers throughout the nation to adopt Vogel’s methods via their Operation Pipeline program. Chapter 6 compares the Supreme Court decision which sanctioned the racial profiling of motorists, Whren v. United States (1996), with a decision that had been decided exactly one hundred years previously, Plessy v. Ferguson (1896). These two cases share a telling similarity: in both cases the Court refused to examine the subjective intent of the allegedly racist state actors. The Court in Plessy argued that there was no “objective” reason to believe that a law mandating segregated railroad cars “stamps the colored race with a badge of inferiority,” and it thus avoided looking at the subjective intent of the lawmakers. It never asked what, other than racial animus, could have animated the white legislators who enacted that law. In Whren, the Court declared that its precedent foreclosed

18 Introduction

“any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” The Court thus ruled out any inquiry into the subjective intent of the arresting officer. The Court’s refusal to consider racial animus as a motivating factor sanctions racial profiling today just as it once sanctioned segregation a century ago; Plessy’s “badge of inferiority” has been replaced by a new badge, a badge of criminality. Chapter 7 then begins where the first chapter concluded. Having started with a discussion of how racial profiling first became a national issue in 1998 because of the shooting on the New Jersey Turnpike, Chapters 2 through 6 related the history prior to the shooting. Chapter 7 returns to the period following the 1998 shooting, in which media investigations revealed that racial profiling techniques had been adopted across the nation. Opinion polls taken after the shooting indicated that the public was overwhelmingly opposed to such tactics, and there was bipartisan support to stop racial profiling. Chapter 7 focuses on four factors explaining why the practice has nonetheless continued unabated to this day. First, the Supreme Court has not only ignored race; it has prohibited lower courts from hearing legal challenges made against selective enforcement practices. The Court has used the judicial doctrines, including “standing,” to prohibit litigants from arguing the Equal Protection Clause of the Fourteenth Amendment prohibits the police from selectively enforcing the law against people of color. Curiously, as the chapter will explore, the doctrine of “standing” is not an obstacle when whites argue the Equal Protection Clause prohibits affirmative action programs. A second factor which helps explain the persistence of racial profiling practices is the “systemic dysfunction of city police” which has included “racial and ethnic discrimination, lack of diversity, and many of the other common effects of insular white working-class hegemony in mid-century American life.”82 The nation’s decentralized system of law enforcement makes it exceedingly difficult for Congress to police the police and the modern phenomenon of “policing for profit” also exacerbates racial bias. Chapter 7 concludes with a discussion of how 9/11 also effectively ended the bipartisan consensus that had previously existed to end racial profiling. Chapters 8 and 9 turn to the third and final stage of racial profiling: pedestrians. Beginning in the mid- to late 1990s, the NYPD pioneered the use of “stop and frisk, as a proactive and pervasive law enforcement technique.” However, unlike the “drug courier profiles” that had been used in airports, and on buses and highways, the New York program was based on statistical data. In NYC, over 90% of the victims of shootings in 2010 were young black and Latino men, and over 90% of the suspects were also young black and Latino men.83 The “stop-and-frisk” program was based on reliable crime data, and crime was in fact dramatically reduced in NYC. The program was eventually declared unconstitutional by a federal trial court judge, but during the trial the judge would not permit the government to offer an efficacy-based defense. Thus, the

Introduction  19

most important question was ignored. Did stop-and-frisk help reduce crime in NYC and reduce the murder rate by over a thousand people per year? If so, should it be ruled constitutional as advancing a “compelling interest” and being “narrowly tailored” to achieve that interest under the “strict scrutiny” standard? The final chapter and conclusion of the book illustrates how the stop-andfrisk program represents exactly what Judge Weinstein had warned against when he examined the predictive “skyjacker” profile in 1971. The program was based on “research designed to predict who might commit crimes and giving them the special attention of law enforcement agencies.” However, once again, the Court indirectly upheld this technique in its 2016 decision, Utah v. Strieff.84 The book concludes with a reference to a law review article published in 1960 defending a series of Supreme Court decisions declaring segregation unconstitutional. Written by a law school professor and a southerner, the article declared that those who failed to recognize the inherent inequality of segregation were guilty of a “self-induced blindness” based on a “flagrant contradiction of known fact.”85 Colorblind racial ideology is an age-old affliction in America. The only thing that has changed is that the Justices of the Supreme Court, after a brief remission during the Civil Rights Era, have once again become stricken with the disease.

Notes 1 Silvia Foster-Frau and Alia Malik, “Detective Benjamin Marconi: A Smiling Grandfather and Community Protector,” San Antonio Express-News, www.expressnews. com/news/local/article/Det-Benjamin-Marconi-a-smiling-grandfather-and-10629 182.php. 2 “Alleged Sanibel Shooter in Court; Competency Questioned,” Santiva Chronicle, June 22, 2017, Article/Alleged-Sanibel-Shooter-in-Court-Competency-Questioned/19/18/6701; “St. Louis Police Officer Shot in ‘Ambush’ Attack, Chief Says,” Chicago Tribune, www. 3 “NYPD Cops Caught Hunting Citizens During Thanksgiving Holidays!” Nycresistance, YouTube, (November 25, 2012), (dialogue transcribed by the author). 4 The police made 506,491 recorded stops in 2006. New York Civil Liberties Union, “Stop-and-Frisk 2016,” 5 “NYPD Cops,” supra note 3, at 13:00. 6 Id., at 12:15-minute mark. 7 Id. 8 Floyd v. City of New York, 959 F. Supp. 2d 540, 606 (S.D.N.Y. 2013). 9 New York Civil Liberties Union, “Stop-and-Frisk 2016,” stop-and-frisk-data. 10 Michelle Conlin, “Off Duty, Black Cops in New York Feel Threat from Fellow Police,” Reuters, December 23, 2014, (The reporter confirmed in email correspondence with the author that the police officers chosen for the study had been randomly sampled.)

20 Introduction

11 Yoav Gonen, “Bloomberg: ‘We Disproportionately Stop Whites Too Much and Minorities Too Little’ in Stop-Frisk Checks,” New York Post, June 28, 2013, http:// 12 Guy Padula, Madison v. Marshall: Popular Sovereignty, Natural Law and the United States Constitution (Lanham, MD: Lexington Books, 2001), 3. 13 National Research Council, The Growth of Incarceration in the United States (Washington, D.C.: The National Academies Press, 2014), 2. 14 American Bar Association, Rule of Law Programs in China, groups/criminal_justice/publications/criminal_justice_section_archive/crimjust_ standards_juryaddendum.html. 15 Matthew Clarke, “Dramatic Increase in Percentage of Criminal Cases Being Plea Bargained,” Prison Legal News, January 15, 2013, 2013/jan/15/dramatic-increase-in-percentage-of-criminal-cases-being-plea-bargained. 16 Id. 17 Robert E. Scott and William J. Stuntz, “Plea Bargaining as Contract,” 101 Yale Law Journal 1909, 1912 (1992). 18 New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). 19 U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Law Enforcement Statistics, 20 The fragmented nature of law enforcement makes it impossible to cite comprehensive nationwide statistics. However, studies from various jurisdictions over the course of a quarter-century have found blacks and Latinos are stopped disproportionately. Examples include Sharon LaFraniere and Andrew W. Lehren, “The Disproportionate Risks of Driving While Black,” New York Times, October 25, 2015, A1 (examining data from Connecticut, Illinois, North Carolina, and Rhode Island); Samuel R. Gross and Katherine Y. Barnes, “Road Work: Racial Profiling and Drug Interdiction on the Highway,” 101 Michigan Law Review 651 (2002) (examining data from Maryland); State v. Soto, 734 A.2d 350, 752–3 (N.J. Super. Ct. Law. Div. 1996) (discussing a New Jersey study); and Jeff Brazil and Steve Berry’s investigative report on Floridian motorists, “Tainted Cash or Easy Money?” Orland Sentinel, June 14–17, 1992, 21 Charles Remsberg, Tactics for Criminal Patrol: Vehicle Stops, Drug Discovery and Officer Survival (Northbrook, IL: Calibre Press, 1995). 22 For statistical analysis see, e.g.,William H. Buckman and John Lamberth,“Challenging Racial Profiles: Attacking Jim Crow on the Interstate,” 3 Rutgers Race & Law Review 83 (2001); an example of a monograph which relies extensively on the personal accounts of individuals allegedly subjected to racial profiling is Charles R. Epp et al., Pulled Over: How Police Stops Define Race and Citizenship (Chicago, IL: University of Chicago Press, 2014); for a somewhat dated but still excellent analysis of consent decrees, see Brandon Garrett, “Remedying Racial Profiling,” 33 Columbia Human Rights Law Review 41 (2001); another somewhat dated but well-received monograph analyzing case law is David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press, 1999). 23 Myron Moskovitz, “A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton,” Wisconsin Law Review 657, 664 (2002); see also Rachel Harmon, “Why Do We (Still) Lack Data on Policing?” 96 Marquise Law Review 1119 (2013). 24 The three cases in which the term appears are Ashcroft v. al-Kidd, 563 U.S. 731, 739 (2011); Illinois v. Wardlow, 528 U.S. 119, 133 nn.9 and 10 (2000); and Atwater v. City of Lago Vista, 532 U.S. 318, 372 (2001). As other scholars have observed, “the Supreme Court has not decided a case dealing directly with ‘racial profiling.’” Brooks Holland, “Racial Profiling and a Punitive Exclusionary Rule,” 20 Temple Political and

Introduction  21

25 26 27 28 29 30 31 32

33 34 35 36 37 38 39 40 41 42 43 44

45 46 47 48 49 50 51 52

Civil Rights Law Review 29, 34 (2010) (quoting Erwin Chemerinsky and Laurie L. Levenson, Criminal Procedure Investigation 255 (2008)). Alexis DeTocqueville, Democracy in America, ed. J.P. Mayer, trans. by George Lawrence (Garden City, NY: Doubleday & Company, 1969), 270. Developments in the Law: Race and the Criminal Process, 101 Harvard Law Review 1472, 1498 (1988). Eduardo Bonilla-Silva, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in America (Lanham, MD: Rowman & Littlefield, 2014), 26. Id. Max Frankel, “Whose Law and Order?” New York Times, October 13, 1968, E2. Bonilla-Silva, Racism Without Racists, supra note 27, at 302. Rick Perlstein, “Exclusive: Lee Atwater’s Infamous 1981 Interview on the Southern Strategy,” The Nation, November 13, 2012. The homicide rate in 1957 was 4 (per 100,000) and the incarceration rate stood at 113 (per 100,000).The respective figures in 1968 were 6.9 and 94.The source for the homicide rate is taken from annual volumes of the Federal Bureau of Investigation’s Uniform Crime Reports, later titled Crime in the United States. For the incarceration rate, see United States Department of Justice, Bureau of Justice Statistics, “Prisoners 1925–81,” United States v. Stanley, 109 U.S. 3, 25 (1883). Pew Research Center (2016), “On Views of Race and Inequality, Blacks and Whites are Worlds Apart,” 422 U.S. 873 (1975). “In this case the officers relied on a single factor to justify stopping respondent’s car: the apparent Mexican ancestry of the occupants.” Id., at 885–6. Appendix, at *9, Brignoni-Ponce, 422 U.S. 873 (1975) (No. 74–114). Morgan Cloud, “Search and Seizure by the Numbers: The Drug Courier Profile and Judicial Review of Investigative Formulas,” 65 Boston University Law Review 843, 847 (1984). United States v. McClain, 452 F. Supp. 195, 199 (E.D. Mich. 1977). Id., 199 (Markonni stating that “in the majority of cases the courier has been a black female”). McClain, 452 F. Supp. 195. Appendix, at *15, United States v. Mendenhall, 446 U.S. 544 (1980) (No. 78–1821), 1979 U.S. S. Ct. Briefs LEXIS 1094. The prosecution “concede[d] that its agents had neither a warrant nor probable cause to believe that the respondent was carrying narcotics.” Mendenhall, 446 U.S. at 550. Petition for a Writ of Certiorari at 8a, United States v. Mendenhall, 446 U.S. 544 (1980) (No. 78–5064). The appellate court subsequently granted the government’s petition for an en banc rehearing and again ruled in Mendenhall’s favor in just seven sentences. Judge Weick issued a short dissenting opinion. United States v. Mendenhall, 596 F.2d 706 (6th Cir. 1979). Mendenhall, 446 U.S. at 557 (“the initial encounter between the DEA agents and the respondent on the concourse at the Detroit Airport did not constitute an unlawful seizure”). See Chapter 3’s discussion of Mendenhall. Mendenhall, 446 U.S. at 549. See Chapter 3, notes 109, 122 and accompanying text. 297 U.S. 278. Id., 280–2. 384 U.S. 436. Id., 448–9.

22 Introduction

53 As discussed in Chapter 2, note 129, Burger and Rehnquist had voiced their disagreement with Miranda prior to their appointments. 54 See Chapter 9, note 89 and accompanying text. 55 See Chapter 3, note 147 and accompanying text; Chapter 4, note 71 and accompanying text; Chapter 5, notes 33–40 and accompanying text; Chapter 6, note 123; and Chapter 8, notes 1–5 and accompanying text. 56 The oldest reference to the term “racial profiling” found in the New York Times is from Jon Nordheimer, “Troopers Are Accused of Stopping Drivers Based on Race,” New York Times, December 23, 1994, 5. The first time a federal judge used the term was in People v. Dickson, 180 Misc. 2d 113, 690 N.Y.S.2d 390 (Sup. Ct. 1998). 57 Supervisors of the notorious DEA program Operation Pipeline encouraged troopers to make at least eight to ten stops a day. See Gary Webb, “Driving While Black: Tracking Unspoken Law-Enforcement Racism,” Esquire, April 1999.There have been numerous reports of the NYPD imposing quotas or “performance measures” on its officers. See Chapter 8, notes 180–6 and accompanying text. 58 See, e.g., David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press, 1999). 59 United States v. Andrews 600 F.2d 563, 564 (6th Cir. 1979). 60 Bostick v. State, 554 So. 2d. 1158 (Fla. 1989) (quoting State v. Kerwick, 512 So. 2d 347, 348 (Fla. Dist. Ct. App. 4th Dist. Sept. 16, 1987)). 61 After ruling Trooper Robert Vogel had made an illegal stop in United States v. Smith, 799 F.2d 704 (11th Cir. 1986), the Eleventh Circuit began a subsequent decision by stating “The case involves the same Florida state trooper, using the same drug courier profile on the same highway.” United States v. Miller, 821 F.2d 546, 546–7 (11th Cir. 1987). 62 Gabrielle Levy, “Judge Shira Scheindlin Pulled from Stop-and-Frisk Case,” UPI, November 1, 2013, 63 State v. Kennedy, 247 N.J. Super. 27, 30 (App. Div. 1991). 64 Weeks v. United States, 232 U.S. 383 (1914). 65 Atwater v. Lago Vista, 532 U.S. 318 (2001). 66 Id., 369 (Justice O’Connor, dissenting). 67 United States v. Smith, 799 F.2d 704 (11th Cir. 1986); and United States v. Miller, 821 F.2d 546 (11th Cir. 1987). 68 Kehoe v. State, 521 So. 2d 1094, 1095 (Florida 1988); and State v. Johnson, 561 So. 2d 1139 (Florida 1990). 69 These rulings and Vogel’s television appearances are discussed in Chapter 5. 70 Henry Pierson Curtis, “Statistics Show a Pattern of Discrimination,” Orlando Sentinel, August 23, 1992, 488_1_drug-squad-black-and-hispanic-traffic-stops. 71 City of Indianapolis v. Edmond, 531 U.S. 32, 43 (2000). 72 The Court’s remarkable ability to go decade after decade without ever deciding the merits of a single selective enforcement claim in a criminal case explains why it has never had to declare what the remedy would be for such a violation. See United States v. Armstrong, 517 U.S. 456, 461 n.2 (1996) (“We have never determined whether dismissal of the indictment, 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”). 73 New York Civil Liberties Union, “NYCLU Briefing,” May 9, 2012, at 7, www.nyclu. org/files/publications/NYCLU_2011_Stop-and-Frisk_Report.pdf. 74 In 1991, according to a Gallup poll, 81% of American disapproved of racial profiling. See Frank Newport, “Racial Profiling Is Seen as Widespread, Particularly Among Young Black Men,” Gallup News Service, December 9, 1999,

Introduction  23

75 76 77 78 79 80 81 82 83

84 85

poll/3421/racial-profiling-seen-widespread-particularly-among-young-black-men. aspx young-black-men.aspx. The term “driving while black” first appeared in the New York Times on May 21, 1990. Tim Golden, “Residents and Police Share Lingering Doubts in Teaneck,” New York Times, May 21, 1990, B4. Joseph F. Sullivan, “Man in Police-Bias Case May Get Troopers’ Files,” New York Times, February 23, 1990, B4. State v. Soto, 324 N.J. Super. 66, 84 (Law Div. 1996). The Supreme Court has never determined what would be the proper remedy if a court determined that a defendant had been the victim of prosecution on the basis of race. United States v. Armstrong, 517 U.S. 456, 460 n. 2 (1996). Lopez, 328 F. Supp. 1077, 1082 (E.D.N.Y. 1971). 446 U.S. 544 (1980). Florida v. Bostick, 501 U.S. 429, 436–7 (U.S. 1991). Franklin E. Zimring, The City That Became Safe: New York’s Lesson for Urban Crime and its Control (New York: Oxford University Press, 2012), 103. See Raymond W. Kelly, NYPD, “Crime and Enforcement Activity in New York City,” 11 (2012) (reporting racial demographics for over 97% of shootings where race was known). The shooting victims were 74% black, 22% Hispanic, 2.8% white, and 0.5% Asian, while 96.4% of known shooting suspects were described as black or Hispanic. Former NYPD Police Commissioner William Bratton has also noted how “[o]ur statistics told us clearly that a large percentage of crime in New York was being perpetrated by blacks and Hispanics.” William Bratton with Peter Knobler, Turnaround: How America’s Top Cop Reversed the Crime Epidemic (New York: Random House, 1998), xxviii. 136 S. Ct. 2056 (2016). Charles L. Black, Jr., “The Lawfulness of the Segregation Decisions,” 69 Yale Law Journal 421, 426 (1960).


Our country has always existed in a kind of time-vacuum: we have no public memory of anything that happened before last Tuesday. (Gore Vidal)1

On the night of April 23, 1998, a passenger van containing three young African Americans and one Latino man, aged twenty to twenty-three, was pulled over by two New Jersey state troopers on the New Jersey Turnpike (the “Shooting”). The police drew their guns; shots were fired; three of the passengers were hit; two were seriously injured. The term “driving while black” had been coined at least a decade earlier, but awareness of the practice was largely confined to minority communities.2 Soon after the Shooting occurred, however, President Bill Clinton declared racial profiling to be “morally indefensible” and “deeply corrosive.”3 Democratic Party presidential candidates in the 2000 election vied over who would be more effective in ending it, and Congressman John Conyers introduced a bill in the House of Representatives to require police agencies across the nation to begin keeping statistics on traffic stops.4 Moreover, it was not only Democrats who came out against racial profiling. In 2001, President George W. Bush, in his first State of the Union address, raised the issue of racial profiling and pledged, “We will end it.”5 For some, these solemn pronouncements had a decidedly hollow ring. Defense attorneys and civil libertarians years before had realized that something was rotten in the state of New Jersey. As far back as 1987, public defenders in New Jersey had begun noticing a dramatic increase in the drug cases arising out of traffic stops on the New Jersey Turnpike, and civil liberties groups collected

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over 200 complaints from drivers alleging they had been stopped and searched with no justification.6 In addition to civil liberty groups and public defenders, local judges were also beginning to question whether the police were targeting minority drivers and two criminal cases forewarned of the coming national scandal: State v. Kennedy (1991) and State v. Soto (1996).7 Kennedy and Soto were both consolidated cases consisting of multiple criminal defendants. In both cases the defendants alleged that police officers were targeting minority motorists on the New Jersey Turnpike. They argued traffic infractions were being exploited as pretexts to stop and search black drivers. Fourth Amendment cases often involve a two-step analysis involving a police officer’s decision to stop a suspect and the subsequent decision to search the suspect. The officer must possess at least reasonable suspicion to make a stop, and she must have a higher level of suspicion, probable cause, to conduct a search.8 Before trial, defense counsel will routinely file a “motion to suppress,” arguing the officer lacked reasonable suspicion for the stop, and/or probable cause for the search. There is typically a hearing in which evidence is presented and the arresting officer will testify. If the judge agrees with the defense, she grants the motion, invokes the exclusionary rule, and declares the evidence to be inadmissible which, at least in illegal contraband cases, usually results in the defendant’s acquittal. In cases arising from traffic violations, defendants generally are foreclosed from making a Fourth Amendment defense based on the “subjective intentions” of the police officer.9 Thus, motorists who commit a traffic violation cannot argue that they were pulled over for some ulterior motive, such as racial bias. This is generally true, as the Kennedy court explained, because allowing a defendant to raise a “subjective intent” defense would require courts to engage in a costly and time-consuming expedition into the state of mind of the searching officer.10 Although the “underlying motives or intent” of the police officer are normally irrelevant, the Kennedy court made an exception to the rule: [D]ifferent considerations are applicable where, as here, the claim is made that a police agency has embarked upon an officially sanctioned or de facto policy of targeting minorities for investigation and arrest. Defendants do not seek information concerning the hidden thoughts or motivations of individual police officers. Instead, the inquiry they request focuses upon the existence or non-existence of a course of conduct, one that presumably can be proven or disproven by objective evidence.11 The Kennedy court was undoubtedly aware that there was reason to believe the defendants’ allegation of targeted policing might be true. The State Public Defender’s Office had been alleging for years that troopers were routinely stopping motorists who fit a racial profile: minorities driving new or expensive

26  He Didn’t Go to Ireland

cars or cars with out-of-state plates.12 In addition, in 1989, a local television news station had aired an important investigative report, “Without Just Cause,” detailing how minorities represented just 5% of the drivers on the New Jersey Turnpike, but comprised nearly 80% of the people arrested.13 The report received considerable attention locally, and New Jersey Governor Jim Florio eventually fired Police Superintendent, Clinton L. Pagano, partly because of the resulting scandal.14 The Kennedy court explained that if the defendants could prove their allegation, it would suppress the evidence against them “to deter future insolence” on the part of law enforcement agents.15 The judiciary should not lend its aid to brazen lawlessness by passively accepting the fruits of police misconduct. It is morally incongruous for the State to flout constitutional protections and at the same time demand that its citizens obey the law.16 Thus, the Kennedy defendants were permitted to assert a selective enforcement defense. However, to prove their argument, the defendants needed a study that could calculate the racial breakdown of motorists committing traffic violations on the highway, and then compare the percentage of violators who are black with the percentage of blacks stopped. If 20% of speeders are black, roughly 20% of the people being pulled over for speeding should presumably be black. The data presented in Kennedy was insufficient, so their motion to suppress was denied.17 An important precedent had nonetheless been set. If future defendants could figure out how to design the proper study, they could also present a selective enforcement defense. It is interesting to note that the 1991 Kennedy decision never used the term “racial profiling.” In fact, prior to the Shooting in 1998, no federal judge had ever used that term and it had appeared in only three New York Times articles.18 The subject was not part of the national conversation and the first time the term appeared in the New York Times was in an article published on December 23, 1994. It was used again just twice during the next fifteen months.19 All three articles focused on the second New Jersey case which provided forewarning of the coming scandal, State v. Soto (1996). Superior Court Judge, Robert E. Francis, presided over Soto.20 Although Soto is largely forgotten, it plays a pivotal role in the history of racial profiling because it marked the first and last time a criminal defendant prevailed on a racial profiling defense asserted under the United States Constitution.21 Soto involved seventeen defendants of “African ancestry” who claimed that New Jersey State troopers were selectively enforcing the law by targeting black motorists driving on the New Jersey Turnpike.22 All the defendants had been caught carrying illegal contraband, and all had filed “motions to suppress.” The defendants argued that Francis should declare the evidence found against them

He Didn’t Go to Ireland  27

inadmissible because the police had violated the Fourth Amendment’s Search and Seizure clause, as well as the Fourteenth Amendment’s Equal Protection of the Law clause.23 Although the three New York Times articles never defined the term “racial profiling,” it obviously meant law officers were deliberately targeting minority motorists for traffic infractions. For now, we will adopt this as our definition of racial profiling. The Soto defendants, having learned from the Kennedy decision, presented Francis with the best-designed and implemented racial profiling traffic study that has ever been conducted. The New Jersey Turnpike has four lanes in the area in question, two in each direction. The defense survey team stationed observers by the side of the highway with binoculars to record the race of motorists. They also employed a car with the cruise control set at 60 mph and had the driver speaking into a tape recorder to note the race of drivers he passed, as well as the race of drivers who passed him.24 Francis granted the seventeen defendants’ motion to suppress because the statistical study had “proven at least a de facto policy” of selective enforcement had been practiced between April 1988 and May 1991 among troopers of Moorestown station who patrolled between exits 1 and 3 of the New Jersey Turnpike.25 Someone in Washington, D.C. apparently read the Soto decision because the United States Department of Justice (DOJ) quietly began an investigation into the New Jersey police department.26 Although the Soto decision garnered little attention in 1996, two years later the Shooting made racial profiling a national issue and for the first time prominent white politicians acknowledged that longstanding complaints of police officers stopping motorists for “driving while black” might be accurate.27 This book begins with an account of the Shooting and its aftermath, not just because it made institutionalized racial profiling a national issue, but also because the incident offers unique insight into how insidious and systemic racial profiling has become. The decentralized nature of America’s law enforcement system precludes an exhaustive review of the thousands of agencies scattered across the country, so we will instead begin with a case study of New Jersey, a liberal northeastern state with a highly regarded police force. In March 1996, the Soto decision warned Governor Christine Todd Whitman, her Attorney General, Peter G. Verniero, and the Superintendent of Police, Carl Williams, that they had a problem. Judge Francis, after years of litigation, declared the local police had adopted at least a de facto policy of racial profiling. After the Shooting in April 1998, the media asked what these officials had done during the intervening two years to resolve the issue. The New Jersey government, after coming under intense pressure, would eventually release almost 100,000 pages of internal documents detailing the actions of the Whitman administration which occurred during the two years in question. These documents included memos from the Attorney General’s office and accounts of meetings Attorney General Verniero and Superintendent Williams

28  He Didn’t Go to Ireland

had held, and they detailed police policy after the Soto decision. Only the most cynical reader will not be disturbed by what these documents revealed. The Shooting caught many observers off guard because it happened in the liberal northeast, not the conservative south. Whitman, Verniero, and Williams all publicly denounced racial profiling. Criminal justice experts also considered New Jersey as having “one of the finest police forces in the nation.”28 Nonetheless, as the Governor and her Attorney General would eventually be forced to admit, the police had been practicing racial profiling for years, and continued practicing it even after the 1996 ruling in Soto. After the Shooting, an elected government official admitted for the first time that a policy of racial profiling had been conducted under her watch. Thus, we begin our inquiry into the history of racial profiling in America with an account of what transpired in New Jersey after four young black and Latino men were stopped by the New Jersey State police on the night of April 23, 1998.

The Shooting Why did the two troopers choose to pull over these four young men? Perhaps for the same reason they had stopped a black Temple Law School student thirty minutes earlier for allegedly making an illegal lane change.29 The troopers’ report of that earlier incident was curiously inaccurate. The report listed the black student’s race as white.30 The revelation of this fact heightened suspicions that the troopers were targeting minority motorists and intentionally misreporting their race in stops when no criminal charges were filed or traffic citations issued to protect themselves against the kind of statistical analysis that had been at the heart of the Soto decision. After the two troopers stopped the van, the driver mistakenly put the vehicle into reverse instead of park.31 Maybe he was nervous or unfamiliar with the rental van’s gear shift. In any event, when the driver took his foot off the brake, the van began slowly moving backwards. The confused driver suddenly found himself confronted by two state troopers pointing their guns at him and yelling for him to stop the vehicle. He instinctively dove for cover onto the floor. He was the only person in the van who escaped being shot. Although the troopers at first claimed that the van had been moving rapidly after it went into reverse, state forensic investigations revealed that it could not have been going any faster than 4 mph.32 The two troopers later admitted they had lied about its speed.33 Exactly what happened afterwards was never fully resolved because witness accounts varied.34 It is undisputed that the driverless van began slowly moving backwards, it struck the police car, then it drove backwards onto the highway and collided with a Honda Accord. The impact presumably caused the van to shift gears, because it changed direction and began moving forwards toward the police officers until it finally came to rest in a ditch.35 It is also undisputed

He Didn’t Go to Ireland  29

that the three passengers in the van were shot multiple times and two were seriously injured. How many shots were fired and when they were shot varied according to witnesses. The police claimed a total of eleven shots were fired, which seemed unlikely because that would mean that every single shot they fired hit someone at least once. According to Peter Neufeld, who represented the victims, the three men who were struck had a total of twelve bullet entry wounds.36 The police claimed they first shot at the van when it began moving backwards and then again after it had struck the Honda and began driving forwards in their direction.37 However, according to the occupants of the van, the driver of the Honda, and a second passerby witness, the police fired multiple shots into the van after it was standing stationary in a ditch by the side of the highway.38 Forensic evidence supported the witnesses’ version.39 If the police had stopped the van hoping to find drugs or weapons, they were disappointed. The subsequent search discovered only a Bible and a John Steinbeck novel.40 The four young black and Latino men were not drug dealers; they were driving from their homes in New York City to North Carolina Central University hoping to win athletic scholarships in a tryout for the university’s basketball team.41 As all these facts came to light, the incident provided more ammunition to those who argued that New Jersey police were still targeting minority drivers, despite long-standing complaints, the DOJ investigation, and the Soto ruling. Moreover, it also appeared that the police were engaged in a conspiracy to escape blame after shooting three unarmed men in a driverless van going backwards at no more than 4 mph. Superintendent Williams issued a press release the day after the Shooting explaining why the police had stopped the van. He asserted that the troopers “obtained a speed reading from radar” that clocked the van “traveling at 74 m.p.h. in the turnpike’s 55 m.p.h. speed zone.” That assertion was, at best, mistaken. The police car was not equipped with a radar gun.42 In fact, since the driver’s license had been suspended due to unpaid parking tickets, he could credibly assert that he had been “driving at 55 on the dot.”43 His assertion was largely corroborated by another driver who had noticed the van shortly before the incident occurred and who came forward because the initial news reports “didn’t sound anything like what [he] saw.”44

The Interview As the media firestorm grew, and as the police version became increasingly suspect, Police Superintendent Williams sat down for an extended newspaper interview. The interview took place almost a year after the Shooting had occurred, in late February 1999. Williams was undoubtedly hoping to repair some of the damage, and his statements represented a marked change in his public relations strategy. Perhaps because no one in the state of New Jersey was

30  He Didn’t Go to Ireland

more aware of the degree to which state troopers were in fact targeting minority drivers, Williams was the first leader to throw in the towel. Williams conceded that, to a certain extent, racial profiling was being practiced, but he defended it as a sensible police policy that was perfectly constitutional under Supreme Court case law. Williams made two related arguments. First, referring to a recent trip President Clinton had made to Mexico, Williams argued certain crimes can be linked to certain ethnic groups: [T]he President of the United States went to Mexico to talk to the President of Mexico about drugs. He didn’t go to Ireland. He didn’t go to England. Today, with this drug problem, the drug problem is cocaine or marijuana. It is most likely a minority group that’s involved with that.45 Although Williams claimed it would be naïve to dismiss the correlation between race and certain drug crimes, he also argued racial profiling was impermissible and that troopers must stop drivers only “on the basis of a traffic violation.” He added, “As far as racial profiling is concerned, that is absolutely not right. It never has been condoned in the State Police, and it never will be condoned in the State Police.”46 Williams was apparently making a distinction. He defined racial profiling as stopping a car for no reason except for the fact that the driver is black; he condemned that. However, using a traffic violation as a pretext to stop cars being driven by black drivers, he argued, is a legally permissible and rational policy. If the crack market is “basically a black enterprise” as Williams claimed, making pretext stops of black drivers will be the most effective way to interdict crack dealers on the highway.47 We will define the practice Williams condemned as “pure racial profiling”; the practice he implicitly condoned as “pretext racial profiling”; and we will use the term “racial profiling” to signify either. Some black leaders did not entirely agree with Williams’ statements regarding the correlation between race and crime and the constitutionality of pretext racial profiling: “His views are dastardly, his thoughts are ill and sickened, and he is unfit to hold such a critical, important office. He’s a racist of the worst kind, because he doesn’t even know it,” claimed New Jersey Assemblyman Leroy D. Jones.48 A broad coalition of black legislators, ministers, and civil rights advocates immediately protested, and Governor Whitman fired Williams hours after his interview was published.49 Williams certainly deserved condemnation for dismissing opponents of racial profiling as simply naïve, but which part of the argument did his opponents disagree with? Some undoubtedly found the idea of using traffic violations as a pretext to target minority drivers morally repugnant, but just three months after Soto was issued, the United States Supreme Court unanimously upheld the constitutionality of a pretext traffic stop. In Whren v. United States (1996), plainclothes vice squad officers used a trivial traffic violation, the failure to use a turn signal, as

He Didn’t Go to Ireland  31

an excuse to pull over two young black men driving an SUV.50 There was no doubt the traffic violation was a pretext for the stop; the Government conceded during oral arguments that the police officers did not pull the car over because of the traffic violation.51 In fact, the police officers were undercover officers and they were prohibited from stopping cars for routine traffic violations.52 The vice officers pulled the car over because they suspected the young black male occupants were drug dealers.53 These vice officers in the nation’s capital had done exactly what had been done in Soto; they had used a traffic violation as a pretext to investigate black males whom they suspected were drug dealers. However, the Supreme Court reached a very different conclusion. The Court held that if a motorist commits a traffic violation, a police officer can stop the car even if their subjective motivation for the stop is to investigate a non-vehicular crime for which they lack the requisite reasonable suspicion.54 One may argue pretext racial profiling violates the Fourteenth Amendment’s Equal Protection Clause, but Whren declared this practice, at least in terms of the Fourth Amendment, to be constitutionally permissible. In terms of the assertion that the crack market is “basically a black enterprise,” some conservatives, such as columnist George Will, argued that Williams was just pointing out the “awkward fact” that “felons are not evenly distributed across society’s demographic groups. Many individuals and groups specialize in hurling accusations of racism, and police become vulnerable to such accusations when they concentrate their efforts where the crime is.”55 Years later, Williams would stand by his comments. “I was just quoting reality,” he said, explaining he had based his argument on “government statistics.”56 Was Williams a racist of the worst kind or was he punished for citing awkward facts? It is an undeniable fact that certain crimes can be linked to race or ethnicity. For example, when the FBI targeted the New York City Gambino crime family in the 1980s, a high percentage of the suspects were undoubtedly Italian Americans. When the United States Customs officers seek to interdict cocaine smuggling at our nation’s airports, they naturally concentrate more on planes arriving from Bogotá than Beijing. Williams was essentially arguing that illegal drug consumption and/or distribution can be linked to particular ethnic groups and therefore it is logical to target those groups. In terms of illegal drug consumption, multiple national surveys and government-generated studies demonstrate that illegal drugs are consumed with equal enthusiasm by whites, Latinos, and African Americans.57 Other indicators support these studies; for example, white youth have about three times the number of drug-related emergency room visits as their African American counterparts which roughly correlates with population figures.58 However, New Jersey Troopers were presumably more concerned with dealers than users, and reliable statistics on the racial breakdown of drug dealers are harder to come by.

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Drug dealing, like all consensual-type crimes such as prostitution and gambling, usually goes unreported. However, we do know who controlled the cocaine market in New York City during the 1980s because the sociologist Terry Williams spent more than 1,200 hours doing field work studying it from 1982 through 1986.59 What he found was that the vast majority of the street dealers at that time were from the Dominican Republic. Dominicans are the foot soldiers for the Colombians, and while there are many young African-American, Puerto Rican and Colombian teenagers transacting cocaine business, Dominicans are by far the majority among dealers who operate cocaine and crack houses in New York City. Dominicans were in charge of 50 of the 53 coke and crack houses I visited.60 Harlem had long suffered from the scourge of illegal narcotics and even young children were being drawn into the trade. After the passage of the “Rockefeller laws” in 1973, mandating a prison term for anyone over eighteen in possession of an illegal drug, heroin dealers had begun employing children as young as eight years and the practice was adopted by cocaine dealers.61 Things then went from horrific to hellish. The first newspaper account of crack was published in 1985, and the peak years of crack cocaine consumption and corresponding profits occurred from 1987 to 1989.62 Crack dealing was initially enormously profitable, but the New York City crack market eventually became saturated with sellers. Entrepreneurial dealers then began transporting their product, as well as underage workers, across the country. As one Brooklyn youth transplanted to Buffalo explained, “There’s more opportunity in Buffalo. You know back in the days when you went west to claim gold? Buffalo’s like that.”63 If Williams wanted to justify New Jersey’s policy of targeting out-of-state minority drivers, he should have pointed to these largely black and Latino peripatetic crack dealers, and the fact that Dominicans and Colombians controlled the Harlem cocaine market.64 Of course, even if Williams had made this argument, rather than discussing how Clinton had not gone to Ireland, he would still have raised serious constitutional concerns. Having law enforcement target a particular racial group raises obvious Fourteenth Amendment Equal Protection of the Law concerns. Legislation frequently involves benign classifications such as minimum age limits for driving or licensing requirements for professional practices. Other classifications are more troubling. For example, many states prohibit felons from voting and many colleges have been accused of employing quota systems in their admission programs. When classifications are subjected to an Equal Protection of the Law challenge, courts will apply one of three tests which impose varying burdens of proof upon the government. In the most lenient test, “rational basis,” the government only needs to show the challenged

He Didn’t Go to Ireland  33

classification is rationally related to serving a legitimate state interest. A second more rigid test is referred to as “intermediate scrutiny.” Under intermediate scrutiny, the state must show it is trying to further an important government interest by means that are substantially related to that interest. Whenever classifications are based on race, religion, nationality, or other “immutable characteristics,” courts impose the standard of “strict scrutiny.”65 Under strict scrutiny, the government must show the racial classification furthers a compelling interest and that it is narrowly tailored to meet that interest. According to the Supreme Court, it has “insisted on strict scrutiny in every context, even for so-called ‘benign’ racial classifications, such as race-conscious university admissions policies” and other affirmative action-type programs.66 Racial classifications related to criminal law enforcement potentially violate not just the Equal Protection Clause, but also the “fundamental assumption” which underlies our entire criminal justice system, “that guilt is personal and not inheritable.”67 As noted in the Introduction, the Supreme Court has never ruled on the merits of a racial profiling allegation, but if it were to adjudicate such a claim, it would certainly subject the practice to strict scrutiny. However, rather than ask whether the police practices in New Jersey could have survived strict scrutiny, we will ask whether they could have survived a challenge based on the most lenient test: rational basis. Although the ends sought—catching drug dealers was obviously a legitimate government interest—were the means employed, using traffic violations as a pretext to stop and search minority motorists, rational? And, if the means were irrational, why were the police employing them? It is of course impossible to know the percentage of white, African American, and Latino motorists on the New Jersey highway who were members of an interstate drug syndicate. However, a number of contemporaneous studies during that period do give some indication that whites are hardly immune from the lure of drug dealing. In a study conducted in Boston in 1989, 12% of the black participants reported having sold drugs.68 One might conclude such studies would support a policy of selectively targeting drivers who resembled black and Latino inner-city youths. However, even amongst this cohort, roughly 90% of the male participants were not drug dealers. Moreover, this Boston study compared three neighborhoods: Roxbury which is predominantly black, South Boston which is primarily white, and Dorchester which is racially mixed. Twelve percent of the African American males reported they had sold drugs in the previous year, but 18% of white youths had done the same.69 A second study, by the DOJ, also found that white youth are more likely than black youth to engage in illegal drug sales.70 In a third ethnographic study, which focused on Manhattan’s Lower East Side during a two-year period starting in 1999, slightly over half of the seventy-three dealers who were selling various drugs, including marijuana, cocaine, and heroin, were white.71 It is also important to consider the fact that exceedingly few drug dealers engage in interstate trafficking. While some drug users make occasional sales to

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acquaintances and friends, a very small percentage of dealers will sell to strangers on the street. Even many of those who do try to earn a living dealing drugs quickly quit because the competition is cut-throat, literally.72 As the sociologist Sudhir Venkatesh explained in Floating City, the few who do persist rarely even venture out of their own neighborhood: “Midtown Manhattan [for Harlem drug dealers] was as distant as Beijing as far as cocaine sales were concerned.”73 But this raises a question. Why were New York City drug dealers traveling to Buffalo instead of midtown Manhattan? Selling to a wealthy clientele, as opposed to making street sales, is more profitable and less risky because wealthier consumers will pay a premium for privacy. As the criminologist William Stuntz once explained, “the single most common feature that divides upscale, less risky markets from downscale ones is visibility.”74 If wealthy clienteles are more desirable, why did Harlem dealers move to Buffalo as opposed to taking the A train to midtown? Because they found it easier to cross the city line as opposed to the color line. Consider, for example, the central figure in Venkatesh’s Floating City, “Shine.” In 2003 he decided to shut down his Harlem crack operation and start selling powdered cocaine, “the kind white people use.” This highly intelligent streetsavvy dealer from Harlem had cultivated wealthy white friends, but nonetheless he lacked a certain “cultural capital.” Shine tried going to bars in SoHo and Wall Street but, as he explained, “I’m just not comfortable hanging out in those places by myself.” Shine’s dilemma, and even his pseudonym, brings to mind Ralph Ellison’s Invisible Man. His problem was that “no three hundred-pound black street dealer is going to sell coke in Wall Street and not get noticed.” Eventually Shine decided frequenting art gallery openings might be a better plan because “it’s a scene where you can be . . . colorful.” Although this author is aware of no statistics telling us whether wealthier white cocaine consumers rely primarily on white dealers, Venkatesh’s case study would support that conclusion.75 The findings of the above-mentioned Lower East ethnographic study offer still more evidence. As the title of that study indicates, “We Deliver: The Gentrification of Drug Markets on Manhattan’s Lower East Side,” over half of the dealers might have been white because they were catering to the new residents of a gentrifying neighborhood. Perhaps Superintendent Williams would dismiss such sociological and ethnographic analysis and argue that Colombians were the importers and controllers of the cocaine supply; they worked almost exclusively with Dominicans who in turn controlled the street-level distribution in Washington Heights; and African Americans often made street sales in the Harlem neighborhood. Therefore, Williams had his officers naturally focus on people of color. However, why stop there? For a period of time, the Dominicans’ most loyal and regular customers were white youths from New Jersey. According to the sociological study, Cocaine Kids, after crack emerged in 1985, the New York City market consisted

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largely of “white buyers from New Jersey.”76 But New Yorkers needed no academic studies to inform them that “young white buyers” from New Jersey were streaming into Washington Heights to buy cocaine.77 The stereotype had become so ingrained that when Rudy Giuliani, who was then a United States Attorney, donned a Hell’s Angels leather vest and drove up to Harlem in 1986 to buy himself some crack, he even used a car with New Jersey license plates to add a special touch of authenticity to his publicity stunt.78 Some of the white buyers who ventured to New Jersey were undoubtedly buying extra cocaine for friends and perhaps making a bit of profit for their troubles. And, as anyone who grew up in the Tri-State area knows, the most direct route from Washington Heights to New Jersey is the George Washington Bridge, which feeds directly onto the New Jersey Turnpike. The President may not have gone to Ireland, but whites from New Jersey were certainly traveling to Washington Heights to buy cocaine and bringing it all, or at least some, back home.

The Statistical Evidence Is there any statistical evidence directly related to whether minority motorists were more likely than white motorists to be transporting illegal contraband on the New Jersey Turnpike? No person in the United States had a better understanding of this question than Dr. John Lamberth, who chaired the Psychology Department at Temple University and was a recognized expert in statistics and social psychology.79 He also designed and implemented the statistical study that convinced Judge Francis the police were practicing racial profiling in Soto. The study consisted of two traffic surveys on different sections of the New Jersey Turnpike.80 Lamberth and his team of researchers discovered that 98.1% of the drivers on the New Jersey Turnpike were driving more than 60 mph in a 55-mph speed zone. He also found that 15% of the cars that were speeding had a black occupant, and that cars with black occupants committing multiple violations also equaled about 15%. The court found that stops made by the Radar Unit, which basically made non-discretionary stops, were relatively consistent with the percentage of black violators, but that the discretionary stops made by the Patrol Unit, which is involved in drug interdiction, resulted in more than three times the percentage of blacks being stopped. Discretionary traffic stops involving black motorists made up 46.2%, representing a statistically significant disparity of 16.35 standard deviations.81 Lamberth later explained in an interview with the New York Times just how stark the disparity was: The difference in these results was so wide, so big, I couldn’t even get the computer to spit out a number. It poured out like 32 zeros and we still hadn’t gotten a number yet. These were things we just don’t see, its [sic] so far off the wall.82

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In short, the Soto decision revealed that although 15% of the traffic violators on the New Jersey Turnpike were black, between 35% and 62% of the drivers being stopped were black depending on the location or police unit doing the stopping.83 Although Lamberth’s study conclusively proved the existence of targeted policing, it never addressed the question of whether the policy was rational. Since the state in Soto had denied the police were targeting minority motorists, the rationale for implementing such a policy was not debated. After Soto, Lamberth began researching the question of whether pretext racial profiling of motorists might be an effective law enforcement strategy. The answer would turn on whether minority motorists were more likely to be transporting narcotics. Lamberth had access to such statistics because he was asked to conduct a second study in a civil lawsuit involving a plaintiff who claimed he had been the victim of racial profiling on the southern extension of the New Jersey Turnpike, the I-95 in Maryland. Maryland was even worse than New Jersey. Of the population violating the traffic code on the highway, 17.5% were black, but more than 72% of those stopped and searched were black.84 As part of the settlement of that case, the police agreed to give the court data on the race of drivers for every stop followed by a search for three years.85 Lamberth then used this data to test the assumption that minority drivers are more likely to be carrying illegal contraband. Lamberth published his findings in an article published a few months after the Shooting, in August 1998.86 It should be noted that Lamberth conceded in his article that he was relying on data from the southern extension of the New Jersey Turnpike, the I-95 in Maryland, because he lacked sufficient data on the results of stops and searches from New Jersey. However, there was “a strong numerical basis” to conclude that the traffic along the I-95 in New Jersey was similar to the I-95 in Maryland. According to Lamberth, the data showed that for every 1,000 searches by the Maryland State Police, 200 blacks and only 80 non-blacks were arrested. This could lead one to believe that more blacks were breaking the law—until you know that the sample is deeply skewed. Of those searched, 713 were black and only 287 were non-black.87 In other words, the percentage of searches discovering illegal contraband was exactly the same for blacks as non-blacks: 28%. (The Maryland police also searched men thirteen times more than women, but the women who were searched were just as likely to be carrying drugs.88) Lamberth explained that he had relied on the Maryland data because there were no “comparable figures on contraband possession or arrests from New Jersey.”89 The New Jersey police, in other words, had been practicing a policy of selective enforcement for over a decade without ever bothering to test the policy’s underlying rationale. The policy had been constructed on the basis of

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stereotypes, not statistical evidence. Apparently, no effort was ever made to aggregate the arrest statistics and determine the effectiveness of the policy. After Soto, however, the New Jersey police did begin maintaining better records of their traffic stops. The police recorded the number of searches, the race of the drivers, and whether the searches discovered illegal contraband. The statistics were still not very different from those in Maryland. According to an internal New Jersey study, “10.5% of the cars of white [sic] searched produced arrest or seizure of contraband, usually drugs or weapons, and 13.5% of minority-driven vehicles produced arrests or seizure of contraband.”90 Almost 90% of the minority motorists searched were carrying no illegal contraband. But they had been subjected to intrusive, inconvenient, and sometimes humiliating searches conducted on the side of the highway.91 The most incontrovertible evidence regarding the effectiveness of targeting racial minorities as a police technique comes from data collected in 2000, when the New Jersey State police finally began to keep records of all stops and searches. This data pertained to the section of the turnpike at issue in Soto, and revealed that 77% of the total searches were conducted on black and Latino motorists. However, troopers found evidence in the searches of whites 25% of the time; they found evidence in searches of blacks 13% of the time; and they found evidence in the searches of Latinos just 5% of the time.92 In short, white motorists were two to five times more likely to be carrying illegal contraband than the minority motorists being targeted by the police.

The Attorney General’s “Interim Report” As noted in the Introduction, some sociologists argue that modern-day racial relations are defined by a “colorblind racial ideology.”93 Colorblind racism may be defined as the attempt to rationalize racial inequality and injustice by ignoring race altogether. The events surrounding the Shooting revealed the “colorblind” approach of the Whitman Administration. The top leaders of government all condemned racial profiling publicly, but privately they defended the practice. Lies and misleading statements denying the practice were perfectly acceptable, but acknowledgment of the truth was strictly forbidden. For example, consider what happened to Police Superintendent Williams. When he issued press releases falsely denying racial profiling allegations and falsely claiming the driver of the van had been speeding, no action was taken. However, when he offered an accurate assessment of Fourth Amendment law and acknowledged the rationale for racial profiling policies, he was promptly dismissed.94 Whitman did not want anyone to speak the truth. In fact, even after the 1996 Soto ruling, and even after her Superintendent of Police conceded in his February 1999 interview that the police were engaging in pretext racial profiling, Whitman persisted in denying the reality of racial profiling until April 1999.

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After Whitman fired Williams, she called for a “full investigation” into the Shooting and ordered her Attorney General, Peter G. Verniero, to review the State Police practice.95 Almost exactly a year after the Shooting occurred, the Attorney General’s “Interim Report” was made public on April 20, 1999.96 The contents of the report were unlikely to have pleased the Governor or her Attorney General. The Interim Report offered the same conclusion that Judge Francis had reached in Soto: statistical evidence confirmed racial profiling was being practiced by New Jersey State police. Whitman defended herself by asserting, “[i]t is not something that any of us had any reason to anticipate, because they are numbers that none of us had seen before.”97 If opponents of racial profiling actually believed her, they were even more naïve than Williams had accused them of being. Had Attorney General Verniero, who was standing next to the Governor when she made that statement, kept it a secret from her that he had spent the past three years fighting Soto and its holding that statistical studies had “proven at least a de facto policy” of racial profiling?98 The Governor cannot be expected to know of every case on the state docket, but Soto had led to multiple New York Times articles including one that explained that Judge Francis had lambasted the “utter failure by the State Police hierarchy to monitor and control . . . or investigate the many claims of institutional discrimination.”99 It even led to a United States DOJ investigation. Did Attorney General Verniero keep that investigation a secret from Whitman as well?100 Perhaps he had, because more than two years after the investigation had begun, Governor Whitman baffled reporters by speaking about the investigation as “only a possibility, rather than as a process already well under way.”101 It is also curious that only a few hours before the release of the April 20, 1999 Interim Report—and one week before the appeal of Soto was set to begin—the state suddenly dropped the case.102 In any event, ten years after a New Jersey television station aired its damning report, three years after a New Jersey judge held that New Jersey had a de facto policy of racial profiling, and one year after the Shooting received nationwide publicity, Governor Whitman finally saw the light. But what about the man standing next to her, Attorney General Verniero? As part of his three-year appeal of the 1996 Soto decision, Verniero undoubtedly would have ordered an internal investigation (the Internal Investigation) to investigate racial profiling allegations in preparation for future litigation. This Internal Investigation would have been conducted years before the findings of the April 20, 1999 Interim Report were finally released. Apparently, this Internal Investigation must not have discovered evidence of racial profiling because Verniero testified before the New Jersey State Senate that the existence of racial profiling only “crystallized” in his mind with the Interim Report.103

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The Internal Investigation It is hardly surprising that after the Soto decision was announced, and the United States Justice Department began its inquiry, the New Jersey police had begun conducting internal audits and assembling a racial database of all the drivers arrested by each of the eight troopers whose conduct was at issue in the Soto ruling.104 In other words, the public investigation that Whitman ordered and which led to the Interim Report was redundant; there had already been the Internal Investigation. The Interim Report may have been unnecessary, but it was politically expedient because the Internal Investigation offered no political cover for Whitman and Verniero. The Internal Investigation became public only because it was later the subject of a joint reporting project between the New York Times and ABC News. From the beginning, senior members of the Attorney General’s office were involved in the Internal Investigation. While members of the Attorney General’s office and the police department were conducting their Internal Investigation and issuing public denials of the existence of racial profiling, “privately, according to the State Police documents, they expressed serious doubts.” In fact, the Internal Investigation revealed the problem was “even worse than critics had alleged.”105 The Internal Investigation findings were “even worse” because they showed there were huge disparities not only in whom the police chose to stop, but also in whose cars the police subsequently searched for illegal contraband. The Internal Investigation examined 160 searches by troopers at the Moorestown station in Burlington County during parts of 1994 and 1996, finding that 89% involved minority drivers. At the Cranbury station in Middlesex County, five troopers performed thirty-five searches and thirty-three were on minority drivers. Targeting minority drivers for stops and targeting minority drivers for searches naturally resulted in many more minorities getting arrested, and “84% of the 764 people arrested by the eight troopers [who were the subject of the Soto decision] were members of minority groups.”106 It is little wonder that, at the earliest stages of the Internal Investigation, Deputy Attorney General John Fahy, who had represented the state in the Soto decision, wrote a memorandum expressing his doubts about proceeding with the appeal. Yet, toward the end of the Internal Investigation, after weighing all the evidence, a decision was reached that rather than dropping the appeal, the better course of action would be to suppress the evidence and to “restrict production of data [to the Justice Department] to [the] Moorestown and Cranbury stations.”107 Deputy Attorney General George Rover, who was assigned to provide the Justice Department with statistics on racial disparities in the treatment of drivers, also testified that a superior had instructed him not to turn over audits or statistics on stops and searches on the southern portion of the turnpike. If the Justice Department were to call him, “Tell them we’re working on something.”108

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How high up the chain of command did this decision to suppress the evidence from the Justice Department go? According to internal police documents, Attorney General Verniero and the Superintendent of Police Williams agreed to the policy during a meeting they held on January 10, 1997. So, more than a year before the Shooting, evidence of racial profiling had become crystal clear—so clear it had to be suppressed. Yet, it did not become “crystallized” in the Attorney General’s mind until he found himself in the glare of the media spotlight after three innocent men were shot and almost killed on the side of the highway.109 As noted above, during the course of the Internal Investigation conducted after the 1996 Soto decision, the Attorney General and Superintendent of Police discovered incontrovertible evidence of racial profiling that was “even worse” than the evidence presented at the Soto trial. However, this evidence still did not reveal the true extent of the problem because troopers were deliberately and systematically under-reporting their stops of racial minorities. During the Soto trial it was revealed that troopers were ordered to radio in the race of each driver that had been stopped, but that order was “widely ignored.” Judge Francis had found that fact “unusual for a military-style organization that routinely reprimanded troopers for minor infractions.” After the ruling, “the State Police sent out several edicts reminding troopers that calling in the race of drivers was mandatory . . . [but] troopers still failed to obey the order in thousands of stops, the audits show.” It was also confirmed that troopers were in fact jotting down the license plate numbers of white motorists who were not stopped and using them on reports of blacks who were pulled over and let go without a violation.110 Moreover, one might assume that at least during this internal investigatory period the police would have considered a temporary pause in their racial profiling actions. Given that the United States Justice Department was conducting an investigation and there was a pending appeal in the Soto decision, the Attorney General might have found it in his interest to order the police to stop more white drivers simply for appearances’ sake. The police presumably would have been on their best behavior during this time. Yet, during this three-year period, “evidence of racially biased treatment continued to mount, in some instances worsening.” In 1996, the records show that blacks made up 51.6% of those searched by troopers at the Cranbury and Moorestown stations. “By 1998, the number of searches carried out by the same two stations had nearly doubled, and blacks made up 54.9% of those searched.”111 Why did Verniero not insist the police stop practicing racial profiling until at least the Soto appeal was heard? Why did he wait until the day he announced that the 1999 Interim Report had verified racial profiling had occurred to drop the appeal? He and Whitman had been under an intense media spotlight for a year, yet they persisted in moving forward with the Soto appeal. Although the Attorney General’s office suppressed evidence from the Justice Department, this author is not aware of a single allegation that any information they produced had been altered or falsified. Therefore, we must conclude that Verniero’s

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plan in the Soto appeal was to follow the usual appellate strategy of conceding the facts but arguing the law. Yes, the police engaged in pretext racial profiling, but Judge Francis had gotten the law wrong. As noted, shortly after Soto was handed down, the Supreme Court issued Whren which permits pretext traffic stops. Verniero was so confident of the legal argument and so convinced pretext racial profiling was good police policy that he did not even bother ordering a temporary halt during the Justice Department investigation. One can surmise the Attorney General had advised the Police Superintendent on the law and when Williams repeated it to the press, he was fired. Apparently, Governor Whitman did not want the argument made public. And, shortly before their April 20, 1999 news conference, Whitman and Verniero realized the Soto appeal would now receive extended news coverage because of its connection to the Shooting. So, they dropped the appeal, but they did so reluctantly. The belief that pretext racial profiling was perfectly legal and morally justified also explains why no police officers were ever disciplined for engaging in it.112 Soon after the Soto decision was handed down and internal police audits revealed how “glaring” the abuses were, the chief of internal affairs recommended a “racial monitoring program” that would have subjected troopers who stopped high numbers of minority drivers to counseling and discipline.113 Although when speaking to the press “Williams frequently repeated that any trooper found violating a motorist’s rights would be severely disciplined,” when he read the internal affairs memo suggesting such violators should be punished, he wrote one word on it: “No!”114

The Perfect Crime When Whitman and Williams held their April 20, 1999 news conference and announced that racial profiling was “real, not imagined,”115 reporters asked what disciplinary measures would be taken.116 Whitman and her Attorney General “said they did not yet know what legal action, if any, would be taken against troopers whose arrest records form the basis for today’s report, or against superiors who contributed to the atmosphere that made it pervasive.”117 However, the Governor promised to continue studying the issue by ordering yet another investigation, a new “exhaustive review” of previous violations.118 There would ultimately be no punishment because racial profiling is better than the perfect crime: even when the violation is detected, there is still no remedy for the victims or penalty for the offenders.119 The idea of the Attorney General leading a second investigation to discover “superiors who contributed to the atmosphere that made [racial profiling] pervasive” is laughable. He and Whitman were undoubtedly too busy plotting their own exit strategies, which is what soon transpired. The best evidence of how naïve it was to ask about possible disciplinary measures is what happened, or did not happen, during and after the trial of the two troopers.

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The troopers admitted during their criminal trial for attempted murder and assault that they had lied about the circumstances of the Shooting, and the traffic stop that preceded it, and that other troopers had coached and encouraged them to lie. They admitted they routinely targeted minority motorists for illegal car searches in the hope of finding drugs. One of the defendants, Trooper Hogan, claimed that covering up racial profiling was commonplace and condoned. “No one at the station, including supervisors, seemed to be concerned when a minority arrestee was brought to the station after the radio call had identified that driver as white,” Hogan said. “From the time when I first came to the Turnpike I was aware this was occurring. It was so common I just assumed it was how it was done.”120 It is one thing to avoid punishing troopers for engaging in pretext racial profiling when the evidence comes out of a private internal investigation, but these former officers were publicly testifying that racial profiling was widely practiced by New Jersey State troopers in a trial receiving national news coverage. Nonetheless, the Attorney General’s office still failed to investigate obstruction of justice allegations as well as claims that the troopers’ superiors were guilty of subornation of perjury and that false police reports had been filed routinely. Instead, the state offered a plea agreement that required the officers to pay a fine of $280 each and resign from the police force.121 The agreement did not require the defendants to name any co-conspirators.122 It appears that no one in the New Jersey Police Department or the Attorney General’s office was ever disciplined for engaging in the massive conspiracy to hide evidence that racial profiling was occurring, for filing false police reports related to the race of drivers, or for filing false police reports related to the Shooting.123 Governor Whitman and Attorney General Verniero were certainly never held responsible. A month after the April 1999 news conference where the Attorney General admitted that law enforcement agents in his state were engaging in racial profiling, the thirty-nine-year-old lawyer with little trial experience won his nomination battle to sit on the state Supreme Court.124 Governor Whitman became the Environmental Protection Agency Administrator under President George W. Bush in 2001. Perhaps the most telling fact of this entire incident is that the Governor and Attorney General never apologized for what had happened; they refused even to express regret.125 One can easily understand why prosecutors from the state Attorney General’s office sought to end the matter as soon as possible and thus failed to follow up on allegations of police misconduct raised by the troopers in their criminal trial. But why did the judge approve a plea bargain agreement that amounted to little more than a slap on the wrist? After all, the officers pleaded guilty to two felonies: falsifying documents about the race of motorists they had stopped and lying about the speed of the van when it went into reverse. They could have been sentenced to five years’ imprisonment.126

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Moreover, consider what happened immediately after the Shooting. The troopers dragged the three men they had shot out of the van, lay them face down in the mud, and handcuffed them. Rather than attending to their injuries, the troopers instead searched the van for drugs and weapons. One of the innocent men was bleeding profusely, and the paramedics had to cut off his clothes and work around his handcuffs to attend to him.127 One can also ask why the federal prosecutors also agreed not to prosecute these two troopers. Surely targeting minority motorists constitutes a federal civil rights violation. Yet the troopers were not just spared jail time; they were not even placed on probation.128 According to Superior Court Judge Delehey, he believed the officers had acted “out of misguided zeal and misguided loyalty born of an indoctrination into an approach to law enforcement that can generally be described as Machiavellian.”129 The judge concluded that “They are not only victims of their own conduct, but victims of the system that employed them.”130 They were “victims of the system” because racial profiling in New Jersey was not a de facto policy condoned by the state; it had been an official policy for years. As the state prosecutors explained to the judge, “both men had been carrying out policies they had been taught.”131 The troopers were stopping black and Latino drivers because their supervisors had trained them to do so.132 One might have expected that the admission that New Jersey state troopers had been taught to engage in racial profiling would have garnered headlines and follow-up investigations looking into who was responsible for implementing such policies. Yet it was not even deemed worthy of mention in some of the newspaper coverage.133 Racial profiling had become so pervasive and systemic that even some African Americans agreed the two troopers should be spared punishment. For example, the New York Times interviewed a black corrections officer who said racial profiling was a “system wide [sic] practice” and that the two troopers should not have had to bear the burden for that. “They were singled out, and it’s not fair. They didn’t sit in some bar and decide that they were going to go out and do this. They were doing what they were told and they have suffered enough.”134 The next several chapters will explore how racial profiling became a ubiquitous practice across the United States. We will see how it started at the nation’s airports, and then spread like a virus to our railroad stations, bus stations, highways, and eventually even our city streets. We will explore how the idea of a “drug courier profile” originated; how that profile was based on an unfounded assumption that minorities are more likely to be engaged in illicit drug activity; and how the Supreme Court has failed to uphold constitutional protections that should have prevented such policies. We will also see who was behind implementing a policy to teach law enforcement agents to selectively target minority motorists. However, one final question must be asked about what transpired in New Jersey.

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Why did it prove to be so difficult to stop racial profiling? Governor Whitman, Attorney General Verniero, and Superintendent Williams all claimed to be opposed to the idea of unfairly targeting minorities, but the practice continued unabated in the face of enormous pressure to end it. If there had been statistical evidence underlying the rationale, the question would be different. If statistical evidence proves a correlation exists between race and crime, it opens the door to George Will’s argument that awkward facts need to be confronted. Indeed, the final two chapters explore the issues raised by the fact that shooting suspects in New York City are overwhelmingly young black and Latino men. But, as we have seen, the best statistical evidence available demonstrated that white motorists were at least as likely, if not more likely, to be carrying illegal contraband. Accusations of racism should never be made frivolously. Other than being labeled a murderer or sex offender, there is perhaps no greater social stigma in America than being branded a racist. But consider what transpired in New Jersey. It is hardly an onerous task to record the number of stops made, the race of the drivers stopped, the number of searches conducted, and the results of those searches. Yet no effort was made to investigate whether a correlation existed prior to the implementation of the pretext racial profiling policy. Even after studies by Lamberth, and an investigation by the New Jersey police, all disproved any such correlation, the policy still continued unabated. In 2000, it was reported that minorities averaged 30% of the motorists on the turnpike but accounted for 78% of the drivers stopped and searched by the police.135 The most obvious explanation for why the police targeted minority motorists for well over a decade without ever testing the rationale underlying the policy is that it never occurred to them the policy was built on an inaccurate racial stereotype. This is exactly what Assemblyman Jones meant when he said Williams was “a racist of the worst kind, because he doesn’t even know it.” Perhaps racial animus was not the motivating factor; but if an unfounded prejudicial belief in the connection between race and criminality was not the explanation, what was?

Notes 1 Gore Vidal, “Drugs: Case for Legalizing Marijuana,” New York Times, September 26, 1970, 29. 2 The search engine of the New York Times reveals the paper’s first use of the term “driving while black” is from 1990. Tim Golden, “Residents and Police Share Lingering Doubts in Teaneck,” New York Times, May 21, 1990, B4. 3 “Getting the Facts on Racial Profiling,” New York Times, June 11, 1999, A32. 4 See Ceci Connolly and Mike Allen, “Gore and Bradley Woo Minorities,” The Washington Post, February 22, 2000, A1; Joe Donohue, “States on I-95 Target Profiling by Their Police,” Newark Star-Ledger, February 26, 1999, 21 (reporting that Conyers’ bill stalled in the Senate Judiciary Committee after “heavy lobbying” by National Association of Police Organizations); and Traffic Stops Statistics Study Act of 1999, H.R. 1443, 106th Cong. (1999).

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5 Address to the Joint Session of Congress by the President, reprinted in 147 Cong. Rec. H433 (Feb 27, 2001). 6 Joseph F. Sullivan, “New Jersey Police Are Accused of Minority Arrest Campaigns,” New York Times, February 19, 1990, B3. 7 State v. Kennedy, 247 N.J. Super. 27 (App. Div. 1991); and State v. Soto, 324 N.J. Super. 66 (Law Div. 1996). 8 Delaware v. Prouse, 440 U.S. 648, 661 (1979); Fourth Amendment law is very fact specific and there are innumerable exceptions to the general rule. 9 The Supreme Court did not address this issue until shortly after the second of the two New Jersey cases was decided. By holding that “subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” the Court effectively held pretext traffic stops are permissible under the Fourth Amendment. Whren v. United States, 517 U.S. 806, 813 (1996). 10 See Kennedy 247 N.J. Super. at 27. 11 Id., 29–30. 12 Joseph F. Sullivan, “Man in Police-Bias Case May Get Troopers’ Files,” New York Times, February 24, 1990, 28. 13 Mary Jo Patterson, On the Frontlines of Freedom: A Chronicle of the First 50 Years of the American Civil Liberties Union of New Jersey (Indiana, IN: iUniverse, 2012), 80. 14 Peter Kerr, “Florio Appoints New Head of State Police,” New York Times, February 6, 1990, B6. 15 Kennedy, 247 N.J. Super. at 30. 16 Id. 17 Id. 18 A Lexis search in the ALLFEDS database brings up seven pre-1998 cases, but the term is found in the Lexis-produced summaries, not in the opinions authored by the judges. The first case in which a federal judge used the term “racial profiling” is People v. Dickson, 180 Misc. 2d 113, 121 (1998). Interestingly, Dickson used the term in reference to the shooting and even cited a New York Times article discussing the incident. Jerome Skolnick and Abigail Caplovitz report, on the basis of a Lexis search, that the first use of the term in the American press was in 1987, followed by a handful of uses through 1993, thirty-one in 1994 and 1995, sixty-three in 1996 and 1997, 187 in 1998, over 1,000 in 1999, and over 1,000 again from January through September 2000. Skolnick and Caplovitz, “Guns, Drug and Profiling:Ways to Target Guns and Minimize Racial Profiling,” 43 Arizona Law Review 413, 419 n.36 (2001). 19 Jon Nordheimer, “Troopers Are Accused of Stopping Drivers Based on Race,” New York Times, December 23, 1994, B5; Robert D. McFadden, “Police Singled out Black Drivers in Drug Crackdown, Judge Says,” New York Times, March 10, 1996, 33; and George James, “If It’s Paved, They’ll Patrol It,” New York Times, May 12, 1996, N.J. Region, 1. 20 Soto, 324 N.J. Super. 66 (Law Div. 1996). 21 Iver Peterson, “Troopers’ Union Defends Stops Linked to Profiling,” New York Times, November 30, 2000, B1. 22 Soto, 324 N.J. Super. at 69. 23 Id. (“These are consolidated motions to suppress under the equal protection and due process clauses of the Fourteenth Amendment.”) 24 Dr. John Lamberth, “Driving While Black: A Statistician Proves That Prejudice Still Rules the Road,” Washington Post, August 16, 1998, C01. 25 Soto, 324 N.J. Super. at 84. See also McFadden, “Police Singled out Black Drivers,” supra note 19. Exits one through three are on the southernmost twenty-six-mile section of the New Jersey Turnpike. 26 David Kocieniewski, “U.S.Will Monitor New Jersey Police on Race Profiling,” New York Times, December 23, 1999, A1.

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27 Connolly and Allen, “Gore and Bradley,” supra note 4. 28 George James, “If It’s Paved, They’ll Patrol It,” supra note 19. 29 Doug Most, “Shot Through the Heart,” Sports Illustrated, July 10, 2000, 86. 30 Id. 31 This description of the incident is taken from Id. 32 Id. 33 Robert Hanley, “Reported Deal Would Keep Two Troopers Out of Prison,” New York Times, January 11, 2002, B5. 34 See John Kifner, “State Police Deny Claim of Racial Stops,” New York Times, May 12, 1998, B4 (“The troopers and the occupants of the van have given sharply different accounts”). 35 John Kifner and David M. Herszenhorn, “Racial ‘Profiling’ at Crux of Inquiry into Shooting by Troopers,” New York Times, May 8, 1998, B1. 36 Kifner, “State Police,” supra note 34. 37 Most, “Shot,” supra note 29. 38 Kifner and Herszenhorn, “Racial ‘Profiling,’” supra note 35. 39 According to one of the passengers’ lawyers, “[T]he windows shattered by gunfire were at the back and sides of the van rather than the windshield, as might be expected from police shooting at an oncoming vehicle.” Id. 40 Most, “Shot,” supra note 29. 41 Id. 42 Kifner and Herszenhorn, “Racial ‘Profiling,’” supra note 35. 43 Most, “Shot,” supra note 29. 44 Kifner and Herszenhorn, “Racial ‘Profiling,’” supra note 35. 45 Robert D. McFadden, “Whitman Dismisses State Police Chief for Race Remarks,” New York Times, March 1, 1999, A1. 46 Id. 47 “Colonel Williams Speaks,” 60 Minutes, CBS, October 18, 1999, www.cbsnews. com/news/colonel-williams-speaks. 48 McFadden, “Whitman Dismisses State Police Chief,” supra note 45. 49 Kathy Barrett Carter and Ron Marisco, “Whitman Fires Chief of State Police,” Star Ledger, March 1, 1999, at 1A. 50 517 U.S. 806 (1996). 51 See Chapter 6, footnote 43 and accompanying text. 52 Whren, 517 U.S. at 817. 53 During the suppression hearing one of the arresting officers testified as follows: “Sir, they were leaving a high drug area. We did not know they had drugs in that vehicle at that time, just had a reasonable suspicion as to their actions as to why they were stopped at the stop sign for so long.” Brief for Petitioners at 14, Whren, 517 U.S. 1996 WL 75758. 54 “Permissibility under Fourth Amendment of detention of motorist by police, following lawful stop for traffic offense, to investigate matters not related to offense,” 118 American Law Reports Federal, 567 (2017) (citing Whren for this proposition). 55 George F. Will, “Exposing the ‘Myth’ of Racial Profiling,” The Washington Post, April 19, 2001, A19. 56 Joseph Fried, “Reflecting on Profiling, and Famous Last Words,” New York Times, February 17, 2002, B1. 57 See, e.g., U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Summary of Findings from the 2000 National Household Survey on Drug Abuse, NHSDA series H-13, DHHS pub. no. SMA 01-3549 (Rockville, MD: Office of Applied Studies, 2001), reporting that 6.4% of whites, 6.4% of blacks, and 5.3% of Hispanics were current users of illegal drugs in 2000; Results from the 2002 National Survey on Drug Use and Health: National Finding, NHSDA series H-22, DHHS pub. no. SMA 03-3836 (2003), revealing nearly

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identical rates of illegal drug use among whites and blacks, only a single percentage point between them; and Results from the 2007 National Survey on Drug Use and Health: National Findings, NSDUH series H-34, DHHS pub. no. SMA 08-4343 (2007), showing essentially the same finding; Abuse and Mental Health Services Administration, Results from 2009 National Survey on Drug Use and Health: Volume I. Summary of National Findings 23 (Rockville, MD: Office of Applied Studies, 2010) revealing that 10% of black adults use illegal drugs; 9% of white adults and 8% of Latinos do so; and National Institute of Health, National Institute on Drug Abuse, U.S. Department of Health and Human Services, Drug use Among Racial/Ethnic Minorities 34, fig. 2 (rev. ed. 2003), available at pdf/minorities03.pdf. 58 Bruce Western, Punishment and Inequality (New York: Russell Sage Foundation, 2006), 47–8. 59 Terry Williams, The Cocaine Kids: The Inside Story of a Teenage Drug Ring (New York: Da Capo Press, 1989), 3 (Kindle edition). 60 Id., 51. 61 Id., 102. 62 Jane Gross, “A New Purified Form of Cocaine Causes Alarm as Abuse Increases,” New York Times, November 29, 1985, 1; and Randol Contreras, preface to The Stickup Kids: Race, Drugs, Violence, and the American Dream (Berkeley, CA: University of California Press, 2013), x. 63 Mary B.W. Tabor, “Migrants of Drug World: From Brooklyn to Buffalo,” New York Times, February 26, 1992, 1. 64 See Contreras, The Stickup Kids, for an account of New York City dealers from the Dominican Republic who expanded into other markets; see also Michael Massing, “Crack’s Destructive Sprint across America,” New York Times Magazine, October 1, 1989, 38. 65 Korematsu v. United States, 323 U.S. 214, 216 (1944) (declaring that “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny”). 66 Johnson v. California, 543 U.S. 499, 505 (2005) 67 Korematsu, 323 U.S. at 243 (Jackson, J., dissenting). 68 Anne C. Case and Lawrence F. Katz, The Company You Keep:The Effects of Family and Neighborhood on Disadvantaged Youths, Working Paper No. 3705 (Cambridge, MA: National Bureau of Economic Research, 1991), 7. 69 Id. 70 Howard N. Snyder and Melissa Sickman, Juvenille Offenders and Victims: 2006 National Report, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (Washington, D.C., 2006). 71 Ric Curtis, Travis Wendel, and Barry Spunt, We Deliver: The Gentrification of Drug Markets on Manhattan’s Lower East Side, Report published by the National Institute of Justice, U.S. Department of Justice, 5 716.pdf. 72 See Randol Contreras, The Stickup Kids: Race, Drugs,Violence, and the American Dream (Berkeley, CA: University of California Press, 2013). 73 Sudhir Venkatesh, Floating City: A Rogue Sociologist Lost and Found in New York’s Underground Economy (New York: Penguin Books, 2013), 102. 74 William J. Stuntz, “Essay: Race, Class and Drugs,” 98 Columbia Law Review 1795, 1806 (1998). 75 Venkatesh, Floating City, supra note 73, at 98–103, 131, 207–10, 214. Floating City also chronicles the world of prostitution and here, too, a wealthy young woman had the “cultural capital” to run a high-end escort service that the women of color who were also being studied lacked.

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76 Williams, The Cocaine Kids, supra note 59, at 123. 77 Id., 123. See also Peter Kerr, “Washington Heights: Cocaine Trade Thrives,” New York Times, April 1, 1986, A1; and Dana Kennedy, “Would-be Drug Dealers Take a Deadly Path between Dominican Republic and Washington Heights,” Los Angeles Times, January 9, 1994. 78 Susan Heller Anderson and David W Dunlap, “New York Day by Day,” New York Times, July 10, 1986, A1 and B3. Giuliani and his “partner in crime” Senator Al D’Amato were pictured on the front page of the Times that day. 79 State v. Soto, 324 N.J. Super. 66, 69 (Law Div. 1996). Dr. Lamberth’s study was validated by Dr. Joseph B. Kadane, who had been the head of Carnegie Mellon University Department of Statistics between 1972 and 1981 and a Fellow of the American Statistical Association. Kadane testified that in his opinion both the traffic and violator surveys were well designed, carefully performed, and statistically reliable for analysis. Id., 71. 80 For a detailed explanation of the survey design and background see Lamberth, “Driving While Black,” supra note 24. 81 State v. Soto, 324 N.J. Super. 66, 70–1 (Law Div. 1996). 82 John Kifner, “Van Shooting Revives Charges of Racial ‘Profiling’ by New Jersey State Police,” New York Times, May 10, 1998, 33. 83 This of course excludes data from the non-discretionary stops made by the Radar Unit. 84 David A. Harris, “The Stories, the Statistics, and the Law:Why ‘Driving While Black’ Matters,” 84 Minnesota Law Review 265, 280–1 (1999). 85 Angela J. Davis, “Race, Cops, and Traffic Stops,” 51 University of Miami Law Review 425, 441 (1997). 86 Lamberth, “Driving While Black,” supra note 24; see also William H. Buckman and John Lamberth, “Challenging Racial Profiles: Attacking Jim Crow on the Interstate,” 23 The Champion 14 (1999). 87 Lamberth, “Driving While Black,” supra note 24. 88 Chet K.W. Pager, “Lies, Damned Lies, Statistics and Racial Profiling,” 13 Kansas Journal of Law & Public Policy, 515, 518 (citing John Knowles, Nicola Perisco, and Petra Todd, “Racial Bias in Motor Vehicle Searches: Theory and Evidence,” Caress Working Paper 99–06 (1999)). 89 Lamberth, “Driving While Black,” supra note 24. 90 Iver Peterson, “Whitman Says Troopers Used Racial Profiling,” New York Times, April 21, 1999, B8. 91 During the Soto trial, an ex-trooper, Kenneth Wilson, offered the following testimony: “You can always find a reason to pull someone over but you have to talk your way into the car. Once you get consent to search, you go right to the trunk. A lot of times you look through luggage.” Nordheimer, “Troopers Are Accused,” supra note 19. 92 David Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (New York: The New Press, 2002), 80. 93 Michael Omi and Howard Winant, Racial Formation in the United States (New York: Routledge, 2015) (3rd edition), 14. 94 Kathy Barrett Carter and Ron Marisco, “Whitman Fires Chief of State Police,” Star Ledger, March 1, 1999, A1. 95 David Kocienewski, “Racial Profiling Is the Subject of the U.S. Inquiry in New Jersey,” New York Times, February 12, 1999, B1. 96 Peter Verniero and Paul H. Zoubeck, Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling (April 20, 1999), intm_419.pdf. 97 Peterson, “Whitman Says Troopers Used Racial Profiling,” New York Times, April 21, 1999, B8.

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98 State v. Soto, 324 N.J. Super. 66, 69 (Law Div. 1996). 99 McFadden, “Police Singled Out,” supra note 19. 100 Soto, 324 N.J. Super. at 84. 101 Kocienewski, “Racial Profiling Is the Subject,” supra note 95. 102 See David A. Harris, Driving While Black: Racial Profiling on our Nation’s Highways, An American Civil Liberties Union Special Report, June 1999, 103 Laura Mansnerus, “Ex-Aide Recalls a 1997 Racial Profiling Memo He Gave Verniero, Then Lost Track Of,” New York Times, March 28, 2001, B6. 104 David Barstow and David Kocieniewski, “Records Show New Jersey Police Withheld Data on Race Profiling,” New York Times, October 12, 2000, B8. 105 Id. 106 Id. 107 Id. 108 Laura Mansnerus, “Attorney General Discouraged Release of Data on Profiling, Lawyers Testify,” New York Times, March 21, 2001, 5. 109 Barstow and Kocieniewski, “Records Show,” supra note 104. 110 Id.; and David Kocieniewski, “Trenton Charges 2 Troopers with Falsifying Drivers’ Race,” New York Times, April 19, 1999, B1 (“As many as 10 other troopers could face criminal charges” for routinely falsifying the race of the drivers they stopped). 111 Barstow and Kocieniewski, “Records Show,” supra note 103. 112 Id. 113 Id. 114 Douglas A. Campbell and Howard Goodman, “The Path to Glory for N.J. Troopers: Arrests, Arrests: Waging a War on Drug Traffickers, the State Police Have Lost Sight of Public Safety, Some Troopers and Others Say,” The Philadelphia Inquirer, March 7, 1999,; and Id. 115 Iver Peterson, “Verniero Has 79-Page Defense on Eve of Testimony by Aides,” New York Times, March 27, 2001, B5. 116 Iver Peterson, “Whitman Says Troopers Used Racial Profiling,” New York Times, April 21, 1999, B8. 117 Id. 118 Peterson, “Verniero Has 79-Page Defense,” supra note 115. 119 The Supreme Court has never determined what would be the proper remedy if a court determined that a defendant had been the victim of prosecution on the basis of race. United States v. Armstrong, 517 U.S. 456, 460 n.2 (1996). 120 Kathy Barrett Carter, “Two Troopers Admit Profiling and Cover-Up of Shooting: Plea Deal Enables Pair to Avoid Prison for ’98 Turnpike Incident,” The Newark StarLedger, January 15, 2002, §1 at 1 and 8. 121 It had long been alleged that the Attorney General condoned racial bias amongst the New Jersey State troopers. At the time Superintendent Williams was fired, sixteen troopers had racial bias complaints pending. Renee Steinhagen, a lawyer for African American troopers, who had filed a racial discrimination lawsuit, was quoted in 1999 as saying that although the department is under the jurisdiction of the attorney general, the “Attorney General’s Office, whenever the little boys get in trouble, goes out of its way to defend [them]. It allows these men to act on their individual prejudices.” Campbell and Goodman, “Path to Glory,” supra note 114. 122 Carter, “Two Troopers,” supra note 120. Although the plea deal was reached after Governor Whitman left office on January 31, 2001, the case had been dragging on for years. In fact, the presiding judge, New Jersey Superior Court Judge Charles A. Delehy, complained in 2001 that it had become one of the oldest pending cases in the Mercer County courts. Robert Hanley, “Judge Demands Resolution to Talks in Turnpike Shooting Case,” New York Times, July 17, 2001, B5.

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123 The author could only find two references indicating that anyone may have been disciplined. It was first reported in 1999 that ten troopers in addition to the two troopers involved in the Shooting could face criminal charges for routinely falsifying the race of the drivers they stopped. Kocieniewski, “Trenton Charges,” supra note 110. However, a year later Kocieniewsk wrote that “[t]here is no evidence in the available documents that audit results were used to punish troopers.” Barstow and Kocieniewski, “Records Show,” supra note 104. In terms of the lawyers involved, there is one equivocal reference: “Most of Mr. Verniero’s subordinates also weathered disclosures that they had turned aside evidence of racial profiling.” Laura Mansnerus, “The Wounds Linger, on Both Sides,” New York Times, January 16, 2002, B6. While it is true that Carl Williams and Clinton Pagano both lost their jobs as Police Superintendents in the midst of racial profiling scandals, Pagano’s dismissal was also related to a host of other factors including his feuding with the Attorney General and other scandals related to police planting evidence on suspects. Williams was dismissed because of his poor public relations skills, not because of his actions. McFadden, “Whitman Dismisses,” supra note 45. 124 David Kocieniewski, “Whitman Narrowly Wins Fight to Put Verniero on Top Court,” New York Times, May 10, 1999, B1. 125 David Kocieniewski, “On Politics: There’s Been a Confession, Will There Be an Apology,” New York Times, April 25, 1999, §14, 2; David Kocieniewski, “Verniero Rejects Blame in Profiling Issue,” New York Times, April 27, 1999, B5. 126 Robert Hanley, “Reported Deal,” supra note 33. 127 Most, “Shot Through the Heart,” supra note 29. 128 Robert Hanley, “New Jersey Troopers Avoid Jail in Case that Highlighted Profiling,” New York Times, January 16, 2002, A1. 129 Carter, “Two Troopers,” supra note 120. 130 Owen Moritz, “N.J. Troopers Plead, Admit Race Profiling,” New York Daily News, January 15, 2002, 131 Hanley, “New Jersey Troopers,” supra note 128. 132 Id. 133 Moritz, “N.J. Troopers Plead,” supra note 130. 134 Ronald Smothers, “Troopers’ Case Ends, But the Talk Goes On,” New York Times, January 16, 2002, B5. 135 Josh Getlin, “Racial Profiling Still a Problem; Despite Efforts in New Jersey, Statistics Stay High,” Los Angeles Times, May 27, 2001, C10.


The people down there could care less about treatment or education. All they want to do is lock the folks up involved with drugs . . . just lock them up. (President Nixon quoted as he pointed toward the borough of Queens, while flying over New York City in a helicopter during June 1972)1

When Judge Delehey said that the two New Jersey troopers should not be criminally sanctioned because they “had been carrying out policies they had been taught,” he confirmed the most explosive allegation made in Soto: racial profiling was a de jure policy in New Jersey. However, the Soto defendants had failed to prove targeting minorities was an officially sanctioned policy partly because they encountered a problem mentioned in the Introduction: obtaining police manuals. The police made the highly dubious claim that all copies of relevant training materials had been destroyed prior to the defendants’ discovery request.2 Despite the stonewalling, the Soto defense eventually located two training films. The first, entitled “Operation Pipeline,” was obtained through the help of a sympathetic attorney in New Mexico;3 the second was entitled, “Jamaican Posses.”4 Operation Pipeline depicted thirty offenders getting arrested; twentynine of them were Latinos.5 Jamaican Posses depicted only young black men as involved in drug dealing. Judge Francis wrote, [a]t a minimum, teaching Hispanics are mainly involved in drug trafficking and showing films depicting mostly Hispanics and blacks trafficking in drugs at training sessions worked at cross-purposes with concomitant instruction pointing out that neither race nor ethnicity may be considered in making traffic stops.6

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Francis’s decision in Soto omits mentioning who had produced Operation Pipeline, possibly because he feared the potential political ramifications. The opening credits announce the video was done by the federal government’s Drug Enforcement Administration (DEA) and the New Jersey State Police.7 In other words, the New Jersey police claimed in Soto that they could not find a copy of a video that they themselves had produced. Moreover, in terms of the trial of the two troopers involved in the shooting, the same video established that they had been taught not only to selectively target minority motorists, but also that a federal agency had been doing the teaching. When New Jersey officials found themselves publicly vilified because of the shooting, they protested that it was the federal government that “wrote the book on racial profiling.”8 It would be easy to cast the federal government as the villain in this story. In fact, even when President Bush promised to end racial profiling during his February 27, 2001 State of the Union Address, one of the people watching that speech was his newly appointed Environmental Protection Agency Administrator, Christine Todd Whitman. However, racial relations in America are incredibly complex. Recall, for example, that the Justice Department’s Civil Rights Division did launch an investigation after Soto was announced. The fact that the New Jersey Attorney General’s office was suppressing information also demonstrates that the New Jersey Police Department took this investigation very seriously.9 But the Justice Department lawyers charged with investigating racial profiling did not need to travel to New Jersey to obtain evidence; they just needed to walk down the hallway and pay a visit to the DEA. What had happened was that the Justice Department’s DEA taught a local law enforcement agency to selectively target minority motorists and the Justice Department’s Civil Rights Division subsequently investigated that local police agency for selectively targeting minority motorists. Perhaps the most celebrated book on the Jim Crow of old was C. Vann Woodward’s The Strange Career of Jim Crow (1955). The history of institutionalized racial profiling has been no less peculiar. In fact, it can be traced back to one of the more bizarre crime waves in American history—the airplane skyjackings of the late 1960s and the federal government’s response of designing what is probably the world’s first predictive criminal profile.

The Skyjacker Profile Police have been using criminal profiles since at least the days of Jack the Ripper, and the forensic tool was popularized in the Sherlock Holmes stories. It has recently become an increasingly popular law enforcement tool. It has been employed to identify rapists, serial killers, and even abusive parents.10 However, the first profile ever developed by federal law enforcement agencies in the United States was the now largely forgotten “skyjacker profile.”11

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It may seem odd in a discussion on racial profiling to first discuss the obscure and obsolete skyjacker profile, but the author must beg the reader’s indulgence. The skyjacker profile was a direct precursor of the later “drug courier profile” which played a pivotal role in the first three stages of institutionalized racial profiling. Both profiles were originally implemented in airports. More importantly, the design of the skyjacker profile and subsequent treatment by the courts offer critical insight into constitutional issues related to the use of proactive criminal profiles. Finally, the problems associated with the “drug courier profile” are best understood by first examining the skyjacker profile. As incredible as it may sound, as late as 1970 it was possible to enter an airport and proceed to one’s boarding gate without encountering an X-ray machine, a metal detector, or even a uniformed security guard. Identification was not required and some flights even permitted passengers to pay their fares after take-off as commuter trains and buses do today. Family members or friends could accompany a passenger to the boarding gate and wave goodbye.12 However, the situation would soon change because between 1961 and 1972, 159 commercial flights were hijacked in the United States. The majority of these incidents occurred during the final five years of the time span.13 In July 1968, the Senate convened hearings and the possibility of using metal detectors or X-ray machines to screen passengers was suggested. However, the airline industry opposed this idea. Skyjackers were usually armed, but there had been very few instances of actual violence. In fact, so many of the skyjackers had simply demanded a safe-haven flight to Cuba that the Cuban government and the airlines had worked out arrangements allowing the airlines to retrieve their planes. It cost the airlines around $20,000 to buy back an aircraft, return the passengers, and reward abducted crew members with extra vacation days. The airlines had determined that periodic skyjackings and the risk of injury to their passengers was financially preferable to buying and operating metal detectors at all the nation’s airports. Their lobbyists targeted the Federal Aeronautics Administration (FAA), and the idea of metal detectors was dropped.14 Nonetheless, something had to be done. Two weeks after the hearings had concluded, a flight carrying Senator James Eastland of Mississippi was skyjacked.15 Altogether, twenty-two flights originating out of American airports were hijacked in 1968.16 As the crisis was worsening, in October of that same year, a collection of federal agencies including the FAA, the Department of Justice (DOJ), and the Department of Commerce convened a taskforce consisting of individuals trained in several disciplines including psychology, law, engineering, and administration to begin developing a skyjacker profile.17 The development of the skyjacker profile began just days after the Supreme Court issued its seminal Fourth Amendment decision, Terry v. Ohio (1968). Terry began when an undercover police officer became suspicious of two men who were “casing” a jewelry store. The officer confronted them and, afraid that they might be armed, frisked them and discovered a pistol. Terry held that a brief

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investigative seizure is permissible under the Fourth Amendment if the officer possesses articulable facts sufficient to provide a reasonable suspicion that the suspect is engaged in criminal conduct. The juxtaposition of the Court setting the rules of Search and Seizure in the quaintly old-fashioned context of a jewelry store heist at the exact moment the government had begun developing its skyjacker profile illustrates the challenges that lower courts would soon face. The skyjacker profile did not immediately render Terry obsolete but, as we shall see, the challenge of applying Terry’s principles in the context of searches conducted on the basis of the criteria of a predictive profile proved quite formidable.18 Although criminal profiles had been used for almost a century prior to the design of the skyjacker profile, police had previously used the technique retrospectively; they constructed psychological profiles to find individuals who had already committed criminal acts. Criminal profiles have proven most helpful with crimes of a “random and motiveless nature” in which the criminal has demonstrated “some form of psychopathology.”19 Although it is not entirely accurate to say a serial killer has no motive or that such murders are completely random, it is much more challenging to find a Son of Sam or a Unabomber than figuring out whether the jealous husband murdered his wife or her lover did it. The skyjacker profile was innovative because it was designed to be predictive: identify the criminal before the act; prevent the skyjacker from boarding the plane. Not surprisingly, this new goal demanded new methods. Whereas the police had previously examined the evidence of a crime scene to find the perpetrator of that crime, the federal government was now collating evidence of every known previous skyjacker to spot an individual in a crowd who shared certain behavioral characteristics with those criminals. The designers created a statistical model based on previous criminal acts committed by perpetrator A, to find perpetrator B, before B could commit a crime, based on the theory that A and B would share certain traits or behaviors. Moreover, the police needed to identify B without stopping too many innocent Cs and Ds. The plan was audaciously ambitious. It was heavily reliant on airline personnel with little or no psychological or law enforcement training. And the police only had as much time as it took the potential skyjacker, from entering the terminal to boarding the plane, to identify and stop her. It may seem foolish to the modern reader to expect that all skyjackers would share psychological traits that would be so readily apparent that airline workers could identify them while checking in their luggage. However, according to an author who recently rediscovered the forgotten story of the great American skyjacking crime wave, the idea was not that farfetched. Many of the hijackers, at least initially, did share a certain disillusionment and sense of despair: [Skyjackers] were susceptible to the skyjacking virus because they had lost all faith in America’s promise. It is no accident that the epidemic began to crest as the last vestiges of 1960s idealism were being extinguished . . . Airplanes

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were ideal targets for these troubled souls. On a practical level, skyjackers could use planes to flee to distant lands, where they presumed they would be celebrated for their audacity. But there was also a strong psychological component to skyjacking’s allure, one that stemmed from America’s love affair with flight. Even as commercial air travel became accessible to the masses during the 1960s, it retained an aura of wonder and privilege— pilots were debonair heroes, the planes themselves marvels of technological might . . . There was no more spectacular way for the marginalized to feel the rush of power.20 John Dailey, the FAA’s chief psychologist, was the person in charge of constructing the profile and analyzing the methods of past skyjackers. He studied accounts of every single American hijacking since 1961—more than seventy cases in all. He compiled a database of the perpetrators’ basic characteristics: how they dressed, where they lived, when they traveled, and how they acted around airline personnel. His research convinced him that all skyjackers involuntarily betrayed their criminal intentions while checking in for their flights. “There isn’t any common denominator except in [the hijackers’] behavior,” he told one airline executive. Some will be tall, some short, some will have long hair, some not, some a long nose, et cetera, et cetera. There is no way to tell a hijacker by looking at him. But there are ways to differentiate between the behavior of a potential hijacker and that of the usual air traveler.21 Although the FAA has never publicly divulged its skyjacker profile, based on what has been revealed, and Dailey’s statement above, most agree the profile was based only on “the behavioral characteristics of embarking passengers rather than on inherited or social characteristics.”22 For example, paying for one’s ticket by unconventional means was considered to be an important tip-off.23 However, as we will see, the generally held belief that the profile was based purely on objective behaviors is mistaken.

United States v. Lopez (1971) Much of what we know today about the skyjacker profile comes from a motionto-suppress hearing that took place in a New York Federal District Court in 1971. This masterful decision, United States v. Lopez, was written by Judge Jack Weinstein.24 Lopez had been apprehended at John F. Kennedy airport after he had triggered the skyjacker profile and was subsequently discovered to be carrying heroin. Lopez filed a motion to suppress, which argued the “anti-hijacking system” was unconstitutional.25 The decision demonstrates that constitutional analysis, much like airport security, has undergone a sea change in less than fifty years.

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Weinstein subjected the skyjacker profile to painstakingly rigorous analysis in his thirty-four-page decision. He clearly was troubled by the implications of the proactive criminal profile, and he examined the history behind the task force that designed the profile and the investigations they undertook.26 He reviewed how the profile had been statistically tested to determine its validity. For example, in one sample, 500,000 passengers were screened, 1,406 were selected for additional security measures under the criteria of the profile, 50% of the screened passengers were immediately allowed to board after passing through a metal detector, 283 of the remaining passengers were interviewed, and only one-third of these were actually searched. Ultimately, out of this sample of 500,000, only twenty passengers were denied boarding.27 A second sample size of 226,000 screened passengers had had similar results.28 Since the FAA was keeping detailed statistical records, it allowed Weinstein to explore a subject judges today almost never discuss. How should we statistically balance the probability of success with the level of intrusion, inconvenience, and discomfort suffered by the innocent people who are stopped and searched? Perhaps the protections afforded under the Fourth Amendment should be adjusted based on the societal risk. He noted that society might demand a 33% base rate probability of success if the police were searching for drugs, as opposed to a 5% base rate probability of success if the police were searching for a bomb. In the end, Weinstein ruled the profile was permissible because the vast majority of people were allowed to pass through unimpeded and the potential danger was so great. The FAA had taken great pains to scientifically construct the criteria that comprised the skyjacker profile, and Judge Weinstein warned that were “even one characteristic” revealed, it would undermine the system. Since he feared revealing the secrets, he ruled the government discuss the criteria in camera, and he also analyzed whether the defendant’s Sixth Amendment right to confront the witnesses against him had been violated by being excluded from the hearing.29 Weinstein concluded the criteria did “not discriminate against any group on the basis of religion, origin, political views, or race.”30 Moreover, law enforcement personnel and airline staff could screen passengers “without exercising judgment.”31 In other words, the selected criteria were non-biased factors that could be objectively observed, so there was no reliance on subjective and potentially biased decision making. Although Weinstein was ultimately satisfied that use of the skyjacker profile was constitutional, he offered a remarkably trenchant warning: “Proposals based on research designed to predict who might commit crimes and giving them the special attention of law enforcement agencies is [sic] particularly disturbing.”32 Weinstein ruled that although evidence discovered during a frisk pursuant to the skyjacker profile would normally be admissible, the special circumstances of Lopez’s case required suppression.33 The problem was that a Pan American Service Manager had “updated” the profile without the proper authorization

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from the Pan American Security Services, the United States Marshall Service, or the FAA.34 One of the characteristics added introduced an ethnic element for which there is no experimental basis, thus raising serious equal protection problems. The second criterion called for an act of individual judgment on the part of airline employees. The effect of these changes was to destroy the essential neutrality and objectivity of the approved profile . . . The approved system survives constitutional scrutiny only by its careful adherence to absolute objectivity and neutrality. When elements of discretion and prejudice are interjected it becomes constitutionally impermissible.35 This author is aware of no criminal profile that was as carefully developed and widely tested as was the skyjacker profile. So, how successful was it? The profile was primarily used during the years 1970 through 1972 because the use of metal detectors in airports nationwide began on January 5, 1973.36 Initially, as Weinstein noted, the results were very impressive: “Whether because of it or for other reasons hijacking decreased in 1970 to approximately 50% of what it was in 1969. No flight fully protected by the program has been hijacked.”37 However, the skyjacker profile should have come with the famous Wall Street disclaimer: “Past performance is no indicator of future results.” Soon after the profile screening was implemented the motives of the skyjackers began to change, and so did their demographic profile and behavior. Instead of demanding a flight to Cuba, skyjackers engaged in a range of unpredictable behaviors. By 1972, the skyjackers were bold and foolish beyond measure, prone to taking risks that smacked of lunacy. Middle-aged men parachuted from jets while clutching six-figure ransoms to their chests; manic extremists demanded passage to war zones a hemisphere away; young mothers brandished pistols while feeding formula to their infants.38 During the summer of 1971, there was a skyjacking almost every week.39 In 1972, a hijacked airplane flew directly over President Nixon while he was vacationing in San Clemente.40 The passengers on that plane had not been subjected to the profile screening because it was a short shuttle flight. Yet even after that loophole was closed, six days later, two such planes were hijacked on the same day.41 Then, in November 1972, a hijacker threatened to fly his plane into a nuclear reactor in Knoxville, Tennessee, if he were not given $10 million in cash.42 The Nixon administration quickly ordered airlines to begin screening every passenger with metal detectors and to inspect the contents of all carry-on bags.43 Metal detectors proved enormously more effective than the profile, and the FAA stopped using it in 1973.44

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Not only was the profile ineffective at identifying skyjackers, but it was also not as objectively scientific as advertised. Its chief designer, Dailey, rejected the idea that skyjackers could be women.45 “Women almost never get involved in situations where they need a knowledge of guns or explosives, such as might be used by a hijacker,” he told Congress in February 1969.46 Just a few months after he offered this testimony, Leila Khaled would capture the world’s attention for her role in the hijacking of TWA Flight 840 on its way from Rome to Athens and, in 1972, Cathy Kerkow would partake in the fascinatingly bizarre skyjacking episode profiled in Brendan Koerner’s book, The Skies Belong to Us: Love and Terror in the Golden Age of Skyjacking (2013). (After the longest-distance skyjacking in American history, Kerkow and her accomplice Roger Holder ended up flying to Algeria where they were greeted by the international branch of the Black Panthers and the leftist President Houari Boumediene.) The skyjacking crime wave is relevant for our purposes for numerous reasons. First, it inspired the creation of the world’s first predictive criminal profile; it resulted in the Lopez decision; and it symbolized how crime was becoming a federal issue for the first time beginning in the mid to late 1960s.47 The federal government had gotten involved in skyjacking because the FAA regulated the industry, but it was still unusual. Prior to 1960, “Presidents rarely touched on crime in their public addresses or private messages; party platforms were silent on the issue.”48 Why would presidents have concerned themselves about crime? In 1949, only 4% of big-city residents felt that crime was their communities’ worst problem.49

Crime and the City Solution Shortly after the 1949 poll was taken, crime started to rise dramatically, increasing 66% in the 1950s.50 As mentioned in the Introduction, homicide in particular increased, rising by 72% between 1957 and 1968.51 Although crime was becoming of greater concern, the federal government ignored the issue for well over a decade after the crime wave began largely because the police power is reserved to the states under the Constitution. The DOJ only prosecuted Internal Revenue Cases, and with the exception of the Federal Bureau of Investigation (FBI), crime was generally believed to be a state and local concern.52 The Lyndon Johnson administration was typical of its predecessors in that initially it was “indisposed to making crime a federal issue.”53 However, that position changed in 1965 when Johnson proclaimed a “War on Crime” after the Watts riots.54 By 1968, “crime and lawlessness” became the local problem of greatest concern to citizens.55 In the recent era of declining crime rates, some have portrayed the drug battles from the 1960s through the 1990s as a deliberate effort on the part of Republicans to create a “new racial caste system.”56 Scholars have focused on the rhetoric and policies of the federal government while ignoring the pleas for

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more police protection emanating from the communities which were adversely affected. Michael Javen Fortner, one of the few scholars to focus on voices within the black community, has chronicled how crime and drug abuse had become so acute in Harlem by the late 1960s that church leaders declared, “We need constant patrolling, but we’ve begged for patrolmen but we can’t get them.”57 Harlem residents directed their anger at the people they blamed for the rise in crime: drug addicts. In a 1971 survey of Harlem business owners on how to solve the community’s crime problems, the top four proposed solutions all called for more punitive measures including “stricter law enforcement,” “more policemen,” “take junkies off the street,” and “more severe punishment for criminals.”58 Even men of the cloth called for punitive measures. Reverend Oberia D. Dempsey, pastor of the Upper Park Avenue Baptist Church, declared: Take the junkies off the streets and put ’em in camps . . . Sure, the Civil Liberties Union and the N.A.A.C.P. would howl about violation of constitutional rights. But we’ve got to end this terror and restore New York to decent people. Instead of fighting all the time for civil rights we should be fighting civil wrongs.59 By the mid-1960s, America was experiencing its worst crime wave in its history, but it still had one of the most lenient criminal justice systems in the world as measured by the incarceration rate.60 Of course, the experience of African American criminal defendants in the south was a different matter. The Supreme Court had been overturning cases based on forced confessions involving brutal third-degree interrogations and other injustices for decades. The battle had begun in 1932, with the Scottsboro Case, when for the first time the Court reversed a state criminal conviction because of unfair procedures at trial. Over the course of the next three decades, the Court began enforcing basic constitutional rights of due process, the right to counsel, the right against forced confessions, and the right to be free from unreasonable searches and seizures against state government infringement. Unfortunately, the Court’s timing could not have been worse. The Court’s willingness to ensure basic procedural fairness in rulings such as Mallory v. United States (1957), Mapp v. Ohio (1961), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966) was largely directed at reining in the criminal justice systems of Jim Crow states. However, Americans, especially in northern urban areas, were increasingly becoming fearful of rising crime rates. During these same years, between 1957 and 1968, as noted in the Introduction, the homicide rate rose by 72% while the incarceration rate fell by almost 17%.61 Nixon had found blaming Democrats and the Supreme Court for rising crime rates a potent weapon in the 1968 election, but he was no better able to fight unorganized street crime than his predecessor. Thus, in 1972, Nixon found himself on the defensive on the crime and drug issue in his re-election campaign.

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The Democratic nominee, Senator George McGovern, claimed that the number of heroin addicts in America had doubled since Nixon had been elected in 1968, and allegations surfaced that Nixon had allowed Southeast Asian countries to become major suppliers of heroin because of political considerations related to the Vietnam War.62 Fortunately for Nixon, 1972 was a less tumultuous year than 1968 had been, and crime played a less significant role in the election. After he won the 1972 election, Nixon issued an executive order establishing the DEA. It would soon become an adage in American politics that “no politician has ever seen his approval ratings decline by being tough on drugs,” and much like its predecessor agency, the Bureau of Narcotics and Dangerous Drugs, the DEA would receive dramatic increases in funding.63 In 1973, during its first year of operation, the DEA’s budget was $75 million and it employed 1,470 agents. In just two years its budget increased to $140 million and the number of agents grew to 2,135.64 But an additional 700 agents in a country with over 200 million people is unlikely to have much of an effect on criminal behavior. What would have an enormous impact on innocent citizens, however, was the fact that the DEA would soon become the first law enforcement agency in the nation’s history to institutionalize racial profiling.

The Airport “Drug Courier Profile” In addition to creating the DEA, Nixon also issued an executive order in January 1973 for metal detectors to become operational in all airports across the country. Afterwards, the skyjacking crime wave came to an immediate halt. The birth of the “drug courier profile” occurred shortly thereafter in Detroit Metropolitan Airport, in late 1974. Agents were assigned to monitor domestic travelers and interdict drug smugglers, and the newly minted DEA agents quickly “borrowed a page from the efforts to stop hijacking and [put] forth a major effort to prevent the transportation of drug contraband by cutting off the flow of drugs at its source.”65 What did the DEA learn from the mistakes of the skyjacker profile? How did it improve the system to insure better results? The first thing the DEA did was to streamline the design process. Rather than relying on a task force of experts, lawyers, and social scientists from an assortment of federal agencies, the DEA instead turned to just one individual, Paul Markonni, who had been assigned surveillance duty at the Detroit Metropolitan Airport in October 1974.66 In fact, it appears that Markonni might have developed the “profile” on his own initiative while sitting around at the airport, with no prodding whatsoever from the DEA. Second, having no training in social science methodology, Markonni dispensed with such formalities, and instead used personal observations to formulate the criteria of his “drug courier profile.”67 Finally, rather than holding inter-agency task force meetings and congressional hearings, Markonni instead chatted with a

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few colleagues and interviewed a random collection of drug informants and convicted drug smugglers to gather information for his “profile.”68 It would appear this somewhat unorthodox approach to designing the “drug courier profile” had its benefits. The skyjacker profile was discontinued after just three years while the airport “drug courier profile” survived for decades.69 In fact, as we shall see in Chapter 4, a similar model was later used on the nation’s roads and highways in forty-eight states. Since the “profile” was developed on a somewhat ad hoc basis, most of what we know about it must be gleaned from case law. Markonni developed the “profile” in 1974, and it had spread to twenty airports by 1979.70 By 1986, there were over 140 published opinions involving airport stops by DEA agents based on the “drug courier profile.”71 Today, agents are stationed in all medium and large-sized airports across the nation.72 Although Markonni was an essential figure in the nation’s first institutionalized racial profiling program, this does not mean he had malevolent intentions. He was a law enforcement agent trying to do a difficult job in a completely new environment. After metal detectors had been placed in airports to stop skyjackers, a number of individuals were caught carrying narcotics. (Some unfortunate souls may not have fully grasped the significance of the words “metal detector” because they tried to pass through them carrying contraband wrapped in aluminum foil.)73 The newly formed DEA then decided to post a single agent, Markonni, to a detail at Detroit Metropolitan Airport.74 Markonni’s previous training and experience were probably worthless. There is no drug dealing in airports, no possibility of infiltrating a drug dealing syndicate, none of the traditional signs of the illicit drug trade that law enforcement agents normally target. There were instances in which he got tips from law enforcement agents or airline security personnel, but otherwise he probably had a lot of time on his hands. He began the detail in October 1974. Markonni, and another eight agents who joined him, eventually searched “141 persons in 96 airport encounters” that took place during the first eighteen months of the operation, about one “airport encounter” every two months per agent.75 There must have been days if not weeks on end when the agents sat watching endless streams of passengers walking past them. As Markonni himself once testified, “when we started this detail at the airport, we didn’t really know what we were looking for.”76 It must have been mind-numbingly boring and it was at this point that the “drug courier profile” was conceived. Markonni had no Ph.D., he had no experts to confer with, no congressional hearings to attend. Yet his method was not much different from Dailey’s. He looked at past perpetrators and then formulated a model based on their actions. He was headed down the right path. However, he apparently did not realize that his entire model was constructed on anecdotal evidence and was never tested to insure it was based on a representative sample. Had the DEA first conducted random searches of passengers to determine a benchmark, and then

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discovered that black women were disproportionately transporting drugs as Markonni later testified they were, one would still need to discuss whether targeting black female passengers was constitutionally and ethically permissible. One would also want to know the difference between the percentages of black women transporting narcotics versus other individuals. If we know 3% of black women are transporting narcotics and only 1% of white men are, would that justify targeting the former over the latter? The problem in answering this question is that, under Supreme Court case law, Markonni would not have been permitted to run random stops of domestic passengers to establish these benchmark figures.77 Perhaps the reader imagines law enforcement can search any airport traveler’s luggage or person, but there is an important legal distinction between international and domestic airline passengers. The former are awarded significantly less constitutional protection because, as the Supreme Court has explained, searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border.78 The Court has never found an exception to general Fourth Amendment law for domestic travelers, and it has repeatedly ruled random stops are impermissible because individualized suspicion is required for stops and searches.79 Markonni was tasked with catching drug-smuggling domestic passengers and he came up with the only system he could think of under the circumstances. Markonni may have tried his best, but his “drug courier profile” should have been laughed out of court. His method is so unscientific, so rife with potential bias and error, that it is almost trite to critique it. The prosecutors who argued the “profile” should be taken seriously, the judges who eventually accepted this argument, and the defense attorneys who failed to challenge it, these are the men and women who deserve our opprobrium. In fact, Markonni and other DEA agents admitted the tool was not a real criminal “profile” and they initially resisted using the term.80 The term “drug courier profile” was obviously coined by prosecutors in their effort to bolster its credibility. The following chapter will discuss the first Supreme Court decision involving Markonni’s “drug courier profile.” However, we will now turn to the first published case in which a judge encountered this new tool of law enforcement: United States v. Van Lewis (1976).81 A small percentage of Supreme Court cases involve the Fourth Amendment but, for the average criminal trial court judge, motions to suppress are their bread and butter. To understand the true dynamics of the issues related to the implementation of the “drug courier profile,” we need to begin by considering lower courts’ opinions, and there is no better place to start than the first published opinion examining Markonni’s “profile.”82

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Van Lewis Van Lewis was issued on March 3, 1976 by Federal District Court Judge Charles W. Joiner. President Nixon had appointed Joiner to the bench in 1972. Prior to his appointment, he had spent twenty-five years in academia, and had been the Dean at Wayne State University since 1967. The case proved to be an important precedent; it would be cited repeatedly by the United States Supreme Court, four different federal circuit courts, and five different state courts.83 Van Lewis raised questions closely related to the issues Judge Weinstein had previously addressed in Lopez. Joiner, like Weinstein before him, was presented with a new criminal “profile” that had been developed by a federal governmental agency. Van Lewis begins with a section entitled, “General Background,” which describes how “highly skilled agents” have developed a method for identifying drug couriers.84 Joiner notes that the method involves “developing sensitivity to a number of details that either increase or decrease the likelihood that a person is a courier.”85 Just as happened in Lopez, the DEA agents also discussed the specific criteria comprising the profile, “in camera in a joint hearing and counsel for all parties were given access to the information under a protective order.”86 However, Joiner then notes that the agents testified in open court regarding “some of the characteristics of a drug courier”: (1) the use of small denomination currency for ticket purchases; (2) travel to and from major drug import centers, especially for short periods of time; (3) the absence of luggage or use of empty suitcases on trips which normally require extra clothing; and (4) travel under an alias.87 The reader is left scratching her head wondering why the in camera hearing was necessary if the agents were perfectly willing to discuss the profile’s characteristics publicly. Perhaps the prosecutors demanded the in camera hearing to reinforce the credibility of the “profile” and the befuddled agents, who would admit in later cases that their criteria did not actually constitute a real criminal profile, simply went along with it. It appears Joiner never asked Markonni whether race was a criterion in the “profile” and, unlike Weinstein, he never mentioned the Equal Protection Clause in his decision. However, Joiner at least recognized that since the criteria were based on such innocuous acts as making a phone call after landing, they could conceivably pose a danger “if used by less skilled people or those who may be less than completely honest.”88 This sentence echoes Weinstein’s warning that using science “to predict who might commit crimes and giving them the special attention of law enforcement agencies is particularly disturbing.”89 If Joiner had any concerns that the agents might be targeting members of racial minorities, he was apparently reassured by statistical evidence proving that

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the agents were “extraordinarily accomplished” and successful at ferreting out drug couriers.90 As he explained, the agents have searched 141 persons in 96 airport encounters prompted by their use of the courier profile and independent police work . . . Agents have found controlled substances in 77 of the 96 encounters and arrested 122 persons for violations of narcotics laws.91 According to Joiner, the DEA had demonstrated that their profiling method “succeeds in most cases in determining that a crime has been committed and who committed it.”92 However, Joiner was making three fundamental miscalculations. Joiner’s first mistake was failing to ask for information regarding the number of people stopped. Weinstein had discussed the following factors in determining the validity of the skyjacking profile: (1) how many total travelers there were; (2) how many people were stopped; (3) how many people were searched; and (4) of those, how many times weapons were found.93 Joiner ignored the first two factors and only considered the issue of how many people were searched and how many searches discovered illegal contraband. Joiner’s conclusion that the agents were “extraordinarily accomplished” at “determining . . . that a crime has been committed” rested on his assumption that they were right 80% of the time.94 However, Joiner should have asked Markonni how many total people had been stopped because the Fourth Amendment protects against unwarranted stops in addition to searches. The failure to ask about the number of people being stopped was repeated by subsequent judges for at least the next decade. Incredibly, Judge Charles L. Becton, of the North Carolina Court of Appeals, reviewed all the cases involving the use of the “drug courier profile” during its first ten years of operation and discovered every single judge made the exact same mistake. “In none of the few cases citing statistical data as evidence of the program’s success has the DEA presented statistics on the number of suspects whom agents have approached but not arrested.”95 When one considers the prestige associated with federal judgeships, it is simply astounding that such a basic logical mistake became so widespread. Perhaps the best explanation for this paradox is found in a concept recognized in the medical science: the distinction between eminence and evidence-based medicine. The former refers to clinical decisions made by relying purely on the opinion of a medical specialist or any prominent health professionals rather than relying on critical appraisal of scientific evidence available. The latter is understood as integrating clinical knowledge and skills with the best critically appraised evidence available. Eminence-based medicine helps explain how harmful procedures such as bleeding or lobotomies came to be widely practiced. Joiner’s multiple references to the “highly skilled” and “completely honest” agents imply he was deferring to their judgment because of their training and

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skill as opposed to objectively asking whether these particular defendants had done anything indicative of criminal behavior. The statistics he offered are irrele­ vant to the issue of whether these particular defendants had acted suspiciously. They simply reinforce Joiner’s conclusion that the agents could be trusted to make the right decisions. However, as the Supreme Court warned in Terry, “If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be ‘secure in their persons, houses, papers, and effects,’ only in the discretion of the police.”96 Joiner’s mistake was repeated nonetheless because our common law is predicated on the principle of stare decisis (the rule of precedent), and is thus particularly prone to eminence-based error. Joiner’s second mistake was that he apparently never asked the agents if race was a criterion in the “profile.” We now know it was an essential criterion because Markonni and his fellow agents repeatedly testified in later cases that they were targeting African Americans and Latinos. Moreover, the agents and prosecutors were so untroubled by this idea that the information was sometimes elicited by prosecutors and not defense counsel. For example, Markonni once testified that most drug couriers were in his opinion black women;97 in a second case, according to the judge, Markonni “implied” that “the confluence of two factors—defendant’s arrival from Los Angeles and his race [African American]—is to be considered as particularly significant”;98 another agent testified that the “suspicious traits” he looked for were “people traveling from a source city [and second] people who are Hispanics (especially Mexicans)”;99 when asked whether the fact that a passenger is of Hispanic descent arouses his suspicion an agent testified that “it is something we take cognizance of”;100 and, in 1990, Agent Carl B. Hicks testified that he had been on the lookout for “sharply dressed Black female couriers” but two years later the same agent testified that a disembarking passenger caught his attention because he was “a roughly dressed young black male.”101 Some judges have noted, without protest, that a criterion of the profile includes “appearing to be a person of Hispanic background,” while others at least expressed their “uncomfortable impression . . . that, but for the Hispanic appearance of [the defendants], they might not have been stopped.”102 Perhaps most disturbing is that a Memphis agent testified that 75% of the individuals followed were black and, according to the Federal Transportation Association, only 4% of the airline travelers were black.103 An analogy illustrates why Joiner should have asked whether the agents were focusing on minority travelers as they later freely admitted. Imagine the DEA agents had been assigned to stop drunk drivers instead of drug couriers. The agents construct a drunk driver profile based on their anecdotal observations of previous arrests and the criteria, such as the age of the car, its color, and its condition. They then set up a roadblock for eighteen months and cheerfully wave through virtually all the white drivers and stop

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minority drivers almost exclusively. They politely approach such drivers, ask to see identification, registration, insurance, ask them their destination, and make pleasant small talk. If the driver appears sober, which the vast majority do, they thank him for their cooperation and wish him a good day. However, over the course of an eighteen-month period, ninety-six drivers appear to be drunk; all are ordered to submit to a breathalyzer; and all ninety-six are discovered to have been found to be driving under the influence. Since the vast majority of drivers who were stopped were minorities, the vast majority of drivers arrested for inebriation prove to be minorities. The Special Agents’ success rate of administering breathalyzer tests would be perfect, and the intrusion suffered by all the sober minority drivers would have been minimal. Public safety would also have been dramatically improved by taking ninety-six drunk drivers off the road. In fact, the immediate threat to public safety posed by inebriated drivers is considerably greater than the corresponding threat posed by drug couriers. Now, imagine that a driver raises a selective enforcement of the law defense, and the government answers that the policy was justified because a much higher percentage of minority drivers drive drunk. When asked to prove this assertion, the government puts Special Agent Markonni on the witness stand and he testifies that every person caught at the road block was black. Such circular logic is easily refuted and it was anticipated by Judge Weinstein. Moreover, it is hardly surprising that the DEA agents discovered drugs in a high percentage of the people they searched. If someone after being stopped “became visibly shaken, and extremely nervous and began shouting incoherently,” the agents chose to search that person’s luggage.104 Markonni never testified as to how many travelers had been stopped, but it stands to reason that someone who is carrying narcotics will be considerably more nervous than an innocent traveler. If agents mostly stopped blacks and Latinos, one would expect the vast majority of those arrested to be black and Latino. The circular logic gained momentum, and targeting of minorities in airports naturally led to more minorities getting arrested for drug possession, which in turn justified selective enforcement in the minds of the agents and even some judges. Perhaps the reader wonders whether Markonni was possibly right; maybe most airport drug smugglers were minorities, and therefore it made logical sense to target minorities. It is of course impossible to cite ironclad proof, but there is certainly evidence to suggest that if race and gender were going to be incorporated into the profile, white men should have been the target. During the 1960s and early 1970s, the heroin trade was largely controlled by white men. According to the DEA, most of the heroin being imported into the United States during this period was coming from France. This fact was neither secret nor a new development. According to the DEA’s website, heroin labs were first discovered near Marseilles in 1937.105 “The convenience of the port

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at Marseilles and the frequent arrival of ships from opium-producing countries made it easy to smuggle the morphine base to Marseilles from the Far East or the Near East.”106 By 1969, according to the DEA, French traffickers were supplying the United States with 80–90% of the heroin consumed by addicts.107 It has also been well documented that the mafia switched from bootlegging alcohol to trafficking narcotics after Prohibition ended and that “Lucky” Luciano organized a large-scale heroin drug-smuggling operation after World War II.108 Not surprisingly, the largest heroin arrests of this era all seemed to be connected with French suppliers and Italian mafia distributors.109 This was all public knowledge at the time and captured in the classic movie, The French Connection (1971), which was based on New York City detective, Edward Egan, and a case in which he seized 112 pounds of heroin.110 The fact that whites very heavily represented in the heroin trade at that time seems to have completely escaped Markonni’s attention. There is also reason to suspect that since the Italian mafia largely controlled heroin trafficking within the U.S., they would have been tempted to use the same distribution network to sell cocaine. In fact, in other movies from that era, such as Super Fly (1971) or the forgotten gem, Across 110th Street (1972), the top cocaine dealers are always white mobsters. Corrupt police officers were also heavily involved in the illegal drug trade. Older readers will recall the shooting of policeman Frank Serpico and the eponymous movie. New York City residents from Harlem, the Bronx, and the Lower East Side had been alleging for years that corrupt police officers were stealing drugs and then reselling them. After a fellow police officer shot Serpico, the Knapp Commission was created to investigate police corruption and it found that New York police had failed to investigate reports by a federal agency that seventy-two policemen had been “improperly eng­ aged in the narcotics traffic” between 1968 and 1970.111 Incredibly, an estimated $70 million worth of narcotics was stolen from the New York City Police Department’s property clerk’s office during the period from 1969 to 1972: 69 pounds of heroin, which included the heroin seized in the French Connection case, and 131 pounds of cocaine. The principal federal narcotics agent in the French Connection case was also indicted for selling narcotics in 1973.112 Police officers, of course, overwhelmingly consisted of white men in those days. New York was hardly unique. For example, William Bratton, the former Police Commissioner of New York and Los Angeles, has written that corruption during the 1970s in the Boston Police Department was also “widespread in the detective bureau and rumored to be run by the detective sergeants.” “I have to say ‘allegedly,’” Bratton added, “because a lot of these allegations never resulted in indictments. Unlike the Knapp Commission investigations in New York, in Boston in the 1970s no major police corruption scandal broke that resulted in cops going to jail.”113

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It seems as improbable that the DEA agents were ignorant of these facts as it does that Americans would have found it permissible to target white men. In any event, if the government was going to target a specific racial group, it should have first gathered valid evidence before enacting an enforcement program conducted in airports throughout the entire United States. But, as noted, this approach would have required establishing a benchmark by randomly searching domestic passengers which has never been permitted by the Court. Curiously, as we shall see, the Court has repeatedly struck down random searches when they are truly random, and thus ensnare all races, but it has never ruled a search illegal because of racial profiling.

Independent Police Work The third critical mistake Judge Joiner made in not questioning the statistics used to bolster the credibility of the agents’ “profile” is revealed by the last three words of the following sentence: “Since initiation of the DEA airport detail, agents have searched 141 persons in 96 airport encounters prompted by their use of the courier profile and independent police work.” This data was based on two independent variables: the “drug courier profile” and “independent police work” (usually tips provided by other law enforcement agents). In other words, we have no way to determine how many of the ninety-six “encounters” were based solely on the “drug courier profile” criteria as opposed to independent police work. Although no one knows how many of the early arrests were the result of “independent police work,” according to Markonni, “[t]he majority of our cases, when we first started, involved cases we made based on information from law enforcement agencies or from airline personnel.”114 By this author’s count, information provided by independent police work led to searches in four of the first five published cases in which DEA agents arrested drug couriers in Detroit Metropolitan Airport.115 “It is reasonable to assume,” one judge noted, “that in target cities the names of these major drug dealers are plugged into airline terminal computers, and that DEA agents are alerted when someone purchases a ticket in the name of a suspected major drug dealer.”116 Another reason to doubt the validity of this data is that after reading a large number of these early airport drug cases, one is left with the impression that the agents were initially picking the lowest-hanging fruit. Although judges often describe the drug couriers as part of “highly organized . . . sophisticated criminal syndicates,” a number of these early cases involved suspects trying to pass through metal detectors with drugs or currency wrapped in aluminum foil or walking through the airport with an “unusual limp” or a “very obvious bulge” that turned out to be illegal contraband.117 The ninety-six searches at issue were conducted during the first eighteen months after DEA agents were assigned to Detroit Metropolitan Airport in 1974. The reader will recall airports had few

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security precautions prior to 1973, and it is possible that the drug couriers, especially those limping through metal detectors with unusual bulges wrapped in tin foil, were easy to spot. It is hardly surprising that Judge Joiner missed an issue or two when one considers the length of his decision. Brevity may be the soul of wit, but prison is no laughing matter. His decision was three cases in one. It involved illegal contraband discovered through three different searches conducted on five different defendants. Judge Joiner, in other words, had had three different cases before him where the defendants (three of whom were traveling together) had all filed motions to dismiss evidence discovered by DEA agents at the Detroit Metropolitan Airport. Judge Joiner consolidated the three motions and wrote one opinion to dispense with them all at the same time, and he did so in just eight pages. As the reader will recall, Lopez, involving a single defendant, was thirty-four pages.

The Three Sets of Defendants If Judge Joiner had appreciated the significance of the newly invented “drug courier profile,” he would not have consolidated the first defendant, Van Lewis, with the second and third set of defendants, Hughes and McCaleb. A ticket agent had alerted Markonni about Van Lewis based on two of the profile’s criteria: Van Lewis had purchased a short-term round-trip ticket to Los Angeles, and had used cash to do so.118 Moreover, he was foolhardy enough to tell the agent, “if everything went okay he would be coming back later that evening.”119 While Van Lewis was flying to Los Angeles, Markonni was investigating the address that Van Lewis had provided. Markonni discovered that Van Lewis’s apartment was already under local police surveillance and that the suspect had been previously arrested for heroin possession.120 By the time Van Lewis returned to Detroit, Markonni was waiting for him. The second defendant in Van Lewis, Paula Hughes, initially drew the attention of the agents because they thought “she resembled a person who had been convicted for possession of heroin a short time before.”121 In fact, the two women were sisters. Thus, Hughes raised issues related to the issue of mistaken identity, not the use of the “drug courier profile.” Nonetheless, since Judge Joiner treated the Hughes search as being triggered solely based on conformity with the “drug courier profile” criteria, so shall we. The third set of defendants, McCaleb, White, and Page (McCaleb), were stopped only because they matched several of the profile’s criteria. There were no other factors involved such as a metal detector alert or independent police work. We shall refer to such cases as “pure” “drug courier profile” cases. The McCaleb defendants had taken a quick round-trip flight to Los Angeles carrying little luggage. Judge Joiner also notes that two of the defendants appeared nervous, the third appeared “cool,” and one of them “either made a local telephone

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call or went to the restroom” after landing.122 The McCaleb set of defendants squarely presented questions that courts would struggle with for years. The agents followed a regular script in their “pure” “drug courier profile” cases. They would politely “request” to see a suspect’s ticket and identification, “request” the suspect accompany them to a private office, and then “request” to search the suspect’s luggage and person. Judges were asked to decide whether the “request” to see a passenger’s ticket and identification constituted a “stop” or “seizure” under the Fourth Amendment. If so, is it constitutionally permissible to make stops based solely on the fact that the suspect matched the seemingly innocent criteria of the “drug courier profile”? Finally, how can judges differentiate a police officer’s request from a command, and how can they distinguish between consent and acquiescence?

Van Lewis and the Doctrine of Informed Consent As previously noted, traditional Fourth Amendment law was guided by a simple two-step analysis. Judges first asked whether the police officer had reasonable suspicion to make the stop, and then whether there was probable cause to conduct a search. A third step in the constitutional analysis is now often required because the police argue the suspect consented to the entire encounter. A suspect’s alleged consent to a search works a bit like that Monopoly card: “do not pass go; do not collect $200; go directly to jail.” If you consent to the stop and search, you receive no constitutional protection, and you will go directly to jail if illegal contraband is found. Thus, the state often argues in the alternative; the officer had the requisite suspicion for the stop and search, but if not, it was immaterial because the defendant consented. Van Lewis initially followed the usual script. Joiner first ruled the fact that the “defendants met the courier profile gave rise to a ‘founded suspicion,’ which permitted the questioning and identification checks that took place in these cases.”123 Thus, the stops were constitutional.124 Joiner then examined the searches and ruled the police had lacked probable cause. The only information suggestive of probable cause articulated by the agents was a limited number of characteristics which might easily be observed in many other innocent travelers. Short trips to major cities which also function as drug import centers, little or no luggage, nervous gestures or conversation upon arrival, or the uses of aliases do not of themselves give rise to probable cause that a suspect is a drug courier. Given an absence of probable cause to arrest these defendants, the searches of Hughes’ handbag and McCaleb’s suitcase were invalid as incident to arrest.125 (Emphasis added) Most judges would have suppressed the evidence after finding “an absence of probable cause” rendered the searches “invalid.” However, Joiner did something

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unusual: he asked whether the Hughes and McCaleb defendants, who were both being held in a custodial detention, had agreed to be searched. Van Lewis thus turned not on the issue of probable cause, but on consent. There are many examples of when a defendant may choose to waive her constitutional rights. A defendant has a right to forgo a lawyer and represent herself pro se or waive her right to a trial by plea bargaining. Or, as the Supreme Court discussed in its 1966 landmark case on the Fifth Amendment, Miranda, a suspect may forgo her Fifth Amendment protection against self-incrimination and confess to a crime.126 However, Miranda created the principle of “informed consent.” The police must inform the suspect of their “Miranda rights” to confirm that the suspect is making a knowing waiver of her constitutional right to remain silent and to be represented by an attorney. After Miranda, many anticipated the Court would extend the doctrine of informed consent to the Fourth Amendment. If Fifth and Sixth Amendment rights cannot be waived without informed consent, why should Fourth Amendment rights be any different? However, Miranda’s doctrine of informed consent was exceptionally controversial. The “liberal” New York Times published editorials characterizing Miranda as providing “immunity from punishment for crime on a wholesale basis” and surveys of police agencies saying they would have to forgo interrogation altogether.127 It has even been claimed that “during the 1968 presidential election, Richard M. Nixon had run against Chief Justice Warren and his Court as much as he had run against his Democratic opponent, Hubert H. Humphrey.”128 By the time the Supreme Court considered the question of whether the doctrine of informed consent should be extended to the Fourth Amendment, the Supreme Court had been transformed. The 1966 Miranda ruling had been a fivefour decision and, by 1971, three of the five Justices voting in the majority were gone from the Court. These liberal Justices were replaced by Nixon appointees: Warren E. Burger, Harry A. Blackmun, Lewis F. Powell Jr., and William H. Rehnquist. Burger and Rehnquist had even voiced their strong disagreement with the Warren Court’s criminal procedure decisions and Miranda in particular prior to their appointment.129 Thus, at the exact moment that the country’s incarceration rate began increasing “rapidly and continuously,” Nixon’s gang of four joined forces with two dissenting Justices in Miranda, Justices Potter Stewart and Byron R. White.130 In Schneckloth v. Bustamonte (1973), these six Justices voted against extending the doctrine of informed consent to the Fourth Amendment.131 Schneckloth began when a police officer stopped a car after observing that one headlight and its license plate light were burned out. Six men were in the car. One of the front-seat passengers, Joe Alcala, was the brother of the car’s owner, who was not present. When asked by the officer if he could search the car, Alcala replied, “Sure, go ahead.” The driver later testified as to the critical moment: “The police officer asked Joe [Alcala], he goes, ‘Does the trunk open?’ And Joe said, ‘Yes.’ He went to the car and got the keys and opened up the

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trunk.” No one was threatened with arrest, no mention of obtaining a search warrant was made, and the police officer’s uncontradicted testimony was that “it was all very congenial.” In the course of the search, the police officer found three stolen checks in the back seat of the car. These checks were later linked to Robert Bustamonte, one of the passengers in the car.132 When the defendant, Bustamonte, sought to suppress the evidence, the Ninth Circuit failed to anticipate how a change in the Supreme Court’s composition would lead to a change in constitutional construction. The circuit court ruled that Alcala’s consent could not be found solely from the absence of coercion and a verbal expression of consent. It might have been very “congenial,” but the search took place at 2:40 am and the first officer had called for back-up assistance.133 As the Ninth Circuit explained, “Alcala was not advised that he had the right to refuse to consent, nor are we referred to any indication in the record that he had knowledge of such right.”134 Since the police officer had not informed Alcala that he had the right to refuse the request, the appellate court ruled that the State had to prove that Alcala “had known that his consent could have been withheld and that he could have refused to have his vehicle searched”135 (emphasis in original). It concluded that “an essential part of the State’s initial burden is to prove that a person knows he has a right to refuse consent.”136 Justice Stewart, one of the Miranda dissenters, authored the majority opinion in Schneckloth, and he reversed the lower court because in his view informed consent would impede traditional investigatory techniques of law enforcement. Stewart even quoted Miranda for the proposition that “[i]t is an act of responsible citizenship for individuals to give whatever information they have to aid in law enforcement.”137 It is not clear why the police asked to search the car, or why Alcala agreed. It appears to this author that Alcala had become a cooperating witness for the government and had struck a deal to avoid prosecution. In any event, Alcala was not charged with a crime. Thus, Schneckloth was an odd case to reject the doctrine of informed consent as applied to the Fourth Amendment because the defendant had not consented to the search; a third party had. Although the Court ruled the search was constitutional, Stewart warned: The Fourth and Fourteenth Amendments require that a consent not be coerced, by explicit or implicit means, by implied threat or covert force. For, no matter how subtly the coercion was applied, the resulting “consent” would be no more than a pretext for the unjustified police intrusion against which the Fourth Amendment is directed . . . Where there is coercion there cannot be consent. (Emphasis added)138 Stewart advised future judges to apply “the most careful scrutiny” before determining a suspect had consented to a search, otherwise the result would be to

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“sanction the possibility of official coercion.”139 Judges were to employ what has become known as the “totality of the circumstances” test. The sentence setting forth the totality of the circumstances test is the most important part of the Schneckloth decision and, as we shall see in the next chapter, it helped set the stage for the rise of institutionalized racial profiling: In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.140

Judge Joiner’s Reading of Schneckloth Joiner reasoned that under Schneckloth the question was simple: had Hughes and McCaleb agreed to waive their Fourth Amendment rights? Hughes’s motion to dismiss was granted because the agents had asked her if they could search her luggage and, to borrow the words of Nancy Reagan, she “just said no.” McCaleb’s motion, on the other hand, was denied. Judge Joiner concluded he had willingly agreed that the agents could search his suitcase as evidenced by the fact that McCaleb had used a key to unlock the suitcase and then stepped back to allow the agents to inspect it.141 Judge Joiner’s eight-page decision allowed for no totality of the circumstances analysis or questions regarding the “possibly vulnerable subjective state of the person who consents.” Rather, he simply concluded that since McCaleb had unlocked the suitcase exactly as Alcala had opened the trunk of the car, there could be “no clearer evidence of intent to permit the opening and inspection.”142 Since McCaleb never signed a consent form or verbally agreed, “clearer evidence” was perhaps possible. Moreover, the agent who had taken McCaleb into custody told him “he would like permission to search the suitcase but that if he refused he would proceed immediately to the magistrate’s office and attempt to obtain a search warrant.”143 Does this not constitute at least subtle coercion under Schneckloth? Was McCaleb’s response, unlocking the suitcase and stepping back without saying anything, indicative of consent or acquiescence?144 Moreover, considering that the same agents proceeded to search Hughes’ luggage after she refused their request, it appears the use of the word “request” is a misnomer. Since the Fourth Amendment is directed at the state and prohibits a law enforcement agent from conducting an unreasonable search and seizure, one would assume that the actions of the police officer are pivotal to the constitutional inquiry. As the reader will recall, Joiner began his analysis by first declaring that there had been “an absence of probable cause to arrest these defendants.”145 Yet, Judge Joiner shifted the focus of inquiry from the police officer to the suspect. The issue became whether the suspect had consented or

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perhaps acquiesced to the authority of the state. Under Judge Joiner’s approach, the burden is neither on the police officer to abide by the Constitution nor on the court to enforce the constitutional limits of state power. It became the responsibility of McCaleb, who had already been effectively arrested and subjected to an unconstitutional custodial interrogation, to resist. The DEA agents patrolling the airport in Detroit surely realized they had scored an important victory. They could now claim they had “founded suspicion” to stop passengers who carried little luggage, looked either too cool or too nervous, and used the bathroom or a telephone after disembarking. They could then take these passengers to a private office, interrogate them, and conduct a search with no probable cause if they could obtain the suspect’s “consent.” Why bother conducting undercover investigations or surveillance operations that could last days or weeks at a time? With their new “method” they could stop and search travelers every time a plane landed; a “founded suspicion” could be achieved in just a few minutes of observation. Markonni was to policing what Henry Ford was to manufacturing. Predictive “profiles” and the doctrine of consent would prove as pivotal in law enforcement as the assembly line has been to the automobile industry. The DEA could not possibly have assigned Markonni to a more symbolic location than Detroit Metropolitan Airport, and it could not have gotten a better judge than the Nixon appointee, Judge Joiner, to decide the first drug courier case. The challenge, however, was convincing future judges to adopt Judge Joiner’s analysis and, as we shall see in the next chapter, the more cases that were brought before federal judges, the more difficult that became. District and appellate court judges, including the Sixth Circuit which has jurisdiction over Detroit, became increasingly skeptical and downright disdainful of Markonni’s “drug courier profile.” The government began losing the majority of these cases, and all the federal circuit courts which considered the question had ruled searches based solely on the “drug courier profile” were unconstitutional. However, the United States Supreme Court eventually overruled these decisions and made Judge Joiner’s constitutional analysis the law of the land.

Notes 1 Edward Jay Epstein, “The Krogh File: The Politics of Law and Order,” National Affairs (Spring 1975), 121. 2 State v. Soto, 324 N.J. Super. 66, 79 n.8 (Law Div. 1996). According to James Fyfe, a criminologist who has studied the records of “hundreds and hundreds” of police academies, this was not credible because “Every police department keeps, in great detail, records of their curriculum.” Douglas A. Campbell and Howard Goodman, “The Path to Glory for N.J. Troopers: Arrests, Arrests: Waging a War on Drug Traffickers, the State Police Have Lost Sight of Public Safety, Some Troopers and Others Say,” The Philadelphia Inquirer, March 7, 1999, news/25509354_1_black-troopers-white-male-troopers-minority-troopers. 3 William H. Buckman and John Lamberth, “Challenging Racial Profiles: Attacking Jim Crow on the Interstate,” 3 Rutgers Race & Law Review 83, 112 (2001).

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4 Soto, 324 N.J. Super. at 80–1. 5 New Jersey Black and Latino Caucus, Report on Discriminatory Practices Within the New Jersey State Police, 26 Seton Hall Legislative Journal 273, 288 (2002). 6 Soto, 324 N.J. Super. at 80–1. 7 Campbell and Goodman, “The Path to Glory,” supra note 2. 8 David Kocieniewski, “New Jersey Argues that the U.S. Wrote the Book on Racial Profiling,” New York Times, November 28, 2000, A1. 9 The DOJ eventually entered into a consent decree with the state. United States v. State of New Jersey, No. 99–5970 (MLC), PP 26–28 (D. N.J. Dec. 30, 1999). 10 Charles L. Becton, “The Drug Courier Profile: ‘All Seems Infected that th’ Infected Spy, As All Looks Yellow to the Juandic’d Eye,’” 65 North Carolina Law Review 417, 423 (1987). 11 The first criminal profile ever developed in the United States may have been the one used in connection with the “Mad Bomber” who planted bombs throughout New York City from 1940 to 1957. Matthew M. Greenbert, The Mad Bomber of New York: The Extraordinary True Story of the Manhunt That Paralyzed a City (New York: Union Square Press, 2011). 12 Brendan I. Koerner, The Skies Belong to Us: Love and Terror in the Golden Age of Hijacking (New York: Crown Publishing, 2013), Kindle Edition, location 3339. 13 Id., Loc. 135. 14 Id., Loc. 718–33. 15 Id., Loc. 739. As a response to this incident and the high percentage of skyjackers who were requesting passage to Cuba, the State Department actually proposed offering free “one-way with no chance of return” flights to Cuba to anyone who wanted them. Id. at Loc. 743. 16 Id., Loc. 763. 17 United States v. Lopez, 328 F. Supp. 1077, 1082 (E.D.N.Y. 1971). 18 Terry v. Ohio, 392 U.S. 1, 6–7, 21 (1968). 19 John E. Douglas et al., “Criminal Profiling from Crime Scene Analysis,” 4 Behavioral Sciences & the Law 403, 405 (1986). 20 Koerner, The Skies Belong to Us, supra note 12, at Loc. 148. 21 Id., Loc. 1060. 22 Becton, “The Drug Courier Profile,” supra note 10, at 423. 23 Koerner, The Skies Belong to Us, supra note 12, at Loc. 1060. 24 United States v. Lopez, 328 F. Supp. 1077 (E.D.N.Y. 1971). 25 Id., 1081. 26 Id., 1082–3. 27 Id., 1084. 28 Id. 29 Id., 1086. Judge Weinstein also offered an extended discussion of the due process and Sixth Amendment implications of excluding the defendant from the in camera testimony. Id., 1088–92. 30 Id., 1086. 31 Id. 32 Id., 1100. 33 Id., 1101. 34 Id., 1101–2. 35 Id., 1101. If the added elements had not been relied upon, presumably it would not have been relevant. It appears the added element was connected with race. 36 Koerner, The Skies Belong to Us, supra note 12, at Loc. 3296. The profile was discontinued after 1973, and then used again for a period of time starting again in 1980. Becton, “The Drug Courier Profile,” supra note 10, at n.5, 423. 37 Lopez, 328 F. Supp. at 1084. 38 Koerner, The Skies Belong to Us, supra note 12, at Loc. 167.

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39 Id., Loc. 1232. 40 Id., Loc. 2951. 41 Id. 42 Id., Loc. 3261. 43 Id., Loc. 3273. 44 Becton, “The Drug Courier Profile,” supra note 10, n.45, 423. 45 Koerner, The Skies Belong to Us, supra note 12, at Loc. 1341. 46 Id. 47 The federal government had gotten involved in enforcing prohibition during the 1920s, and mail and wire fraud prior to the 1960s. However, until 1968, local crime was rarely if ever an issue addressed by presidential candidates. 48 Vesla M. Weaver, “Frontlash: Race and the Development of Punitive Crime Policy,” 21 Studies in American Political Development 230, 239 (2007). 49 “Crime Seen Top Problem for Cities,” Washington Post, July 27, 1975, 1. 50 Weaver, “Frontlash,” supra note 48, at 240. 51 The homicide rate rose from 4 per 100,000 in 1957 to 6.9 in 1968. Crime in the United States, FBI, Uniform Crime Reports. 52 Weaver, “Frontlash,” supra note 48, at 239. 53 Id., 240. 54 Id. 55 George F. Cole, “Thinking About Crime,” The Public Perspective 4 (1991). 56 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, rev. ed. (New York: The New Press, 2012), 22. 57 Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment (Cambridge, MA: Harvard University Press, 2015), 142. 58 Id., 143. 59 Id., 142. 60 William Stuntz, The Collapse of American Criminal Justice (Cambridge, MA: Harvard University Press, 2011), 2. 61 The homicide rate in 1957 was 4 (per 100,000) and the incarceration rate stood at 113 (per 100,000). The respective figures in 1968 were 6.9 and 94. Crime in the United States, FBI, Uniform Crime Reports; and Prisoners 1925–1981 Bureau of Justice Statistics, 2, 62 Douglass E. Kneeland, “McGovern, Buoyancy Renewed, Attacks President on 2 Fronts,” New York Times, September 18, 1972, 16; Robert B. Semple, Jr., “Nixon Defends His Record in Combating Drug Trade,” New York Times, September 19, 1972, 38. 63 Michael Kramer, “The Political Interest: The Phony Drug War,” Time Magazine, September 2, 1996, 31. 64 1970–1975, Drug Enforcement Administration, 65 United States v.Van Lewis, 409 F. Supp. 535, 542 (E.D. Mich. 1976). 66 Morgan Cloud, “Search and Seizure by the Numbers:The Drug Courier Profile and Judicial Review of Investigative Formulas,” 65 Boston University Law Review 843, 847 (1984). 67 The literature and case law reviewed by this author mentions no factor other than anecdotal evidence as the source of the Markonni profile. 68 Deborah Kops, Racial Profiling (Open for Debate) (Tarrytown, NY: Marshall Cavendish Benchmark, 2006), 35. 69 Hall, “Search and Seizure,” § 41.02 (LexisNexis). 70 Cloud, “Search and Seizure by the Numbers,” supra note 66, at 847–8. 71 Becton, “The Drug Courier Profile,” supra 10, at 417. 72 Lexis Treatise, Search & Seizure, Chapter 41 Airports and Bus and Train Stations, Part B. Profile Stops (2–41 Search and Seizure § 41.02).

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73 United States v. Lopez, 328 F. Supp. 1082 (E.D.N.Y. 1971). 74 United States v.Van Lewis, 409 F. Supp. 535, 538 (E.D. Mich. 1976). 75 Id., 535. 76 United States v. McClain, 452 F. Supp. 195, 199 (E.D. Mich. 1977). 77 See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32 (2000); and Delaware v. Prouse, 440 U.S. 648 (1979). 78 United States v. Ramsey, 431 U.S. 606, 616 (1977) (holding that Fourth Amendment protections apply to domestic airline passengers). 79 “A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.” City of Indianapolis, 531 U.S. at 37. 80 In an early case, Markonni explained that “the drug courier profile is not so much a profile as a ‘number of deviant characteristics.’” United States v. Floyd, 418 F. Supp. 724, 725 (E.D. Mich. 1976). Other agents also resisted using the term “profile.” For example, consider the following exchange between the prosecutor and arresting officer in a hearing from the United States v. Mendenhall (1980) decision: Q: And looking for people who bring narcotics to the airport, do you use such a thing as a drug profile or—pardon me, a profile? A: What we are looking—you may call it—that would be just a term to use.You may call it that. I would consider it to be just a number of things that, through our experiences, we have been able to observe that are just not normal for the average individual coming through the airport. It’s made up of a number of characteristics. Appendix, at *10, United States v. Mendenhall, 446 U.S. 544, 562 (1980), (No. 78–1821), 1979 U.S. S. Ct. Briefs LEXIS 1094. 81 409 F. Supp. 535 (E.D. Mich. 1976). 82 The term “drug courier profile” does not actually appear in Van Lewis. Judge Joiner instead refers to it as a “method” the agents had come up with for identifying drug couriers. Id. at 538. 83 Florida v. Royer, 460 U.S. 491 (1983); United States v. Mendenhall, 446 U.S. 544 (1980); United States v. Dean, 1995 U.S. App. LEXIS 4897 (4th Cir. 1995); United States v. Vanichromanee, 742 F.2d 340 (7th Cir. 1984); United States v. Vasquez, 612 F.2d 1338 (2d Cir. 1979); United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977); Gonzalez v. Superior Court, 189 Cal. Rptr. 696 (Cal. App. 2d Dist. 1983); Horvitz v. State, 433 So. 2d 545 (Fla. Dist. Ct. App. 4th Dist. 1983); People v. Plantefaber, 410 Mich. 594 (Mich. 1981); State v. Sykes, 27 Wn. App. 111 (Wash. Ct. App. 1980); and State v. Key, 375 So. 2d 1354 (La. 1979). 84 Van Lewis, 409 F. Supp. at 538. 85 Id. 86 Id. 87 Id. 88 Id., 543. 89 United States v. Lopez, 328 F. Supp. 1077, 1000 (E.D.N.Y. 1971). 90 Van Lewis, 409 F. Supp. at 543. 91 Id., 538. 92 Id., 543. 93 Lopez, 328 F. Supp. at 1084–97. 94 Van Lewis, 409 F. Supp. at 543. 95 Becton, “The Drug Courier Profile,” supra note 10, at n.4, 418. 96 Terry v. Ohio, 392 U.S. 1, 22 (1968). 97 See United States v. McClain, 452 F. Supp. 195, 199 (E.D. Mich. 1977) (Markonni stating on direct examination that “in the majority of cases the courier has been a black female”). 98 United States v. Coleman, 450 F. Supp. 433, 439 n.8 (E.D. Mich. 1978).

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99 United States v.Westerbann-Martinez, 435 F. Supp. 690, 692–3 (E.D.N.Y. 1977). 100 United States v.Vasquez, 612 F.2d 1338, n.10, 1353 (2d Cir. 1979). 101 United States v. Condelee, 915 F.2d 1206, 1208 (8th Cir. 1990) and United States v. Weaver, 966 F.2d 391, 392 (8th Cir. 1992). 102 United States v. Place, 660 F.2d 44, 48 (2d Cir. 1981); and United States v.Vasquez, 612 F.2d 1338, 1352–3 (Oakes, J., dissenting) (2d Cir. 1979). 103 United States v. Taylor, 917 F.2d 1402, 1409 (6th Cir. 1990) (overturned on other grounds); and Andrew Schneider and Mary Pat Flaherty, “Presumed Guilty: The Law’s Victims in the War on Drugs,” The Pittsburg Press, August 12, 1991, (reprinted from the Pittsburgh Press, August 11, 1991), 104 United States v. Allen, 421 F. Supp. 1372, 1372 (E.D. Mich. 1976). 105 Marseille is, of course, a famously cosmopolitan melting pot with a high percentage of its population originating from areas outside of France including north and SubSaharan Africa. 106 1970–1975, supra note 64. 107 Id. 108 Steven B. Duke, Albert C. Gross, America’s Longest War: Rethinking Our Tragic Crusade Against Drugs (Los Angeles, CA: Tarcher Inc., 1994), Ebook edition, 102–8. 109 For example, according to the DEA website a joint operation between U.S. and French authorities seized 110 pounds of heroin at the Paris airport in January 1972; five men in New York and two in Paris were arrested and 264 pounds of heroin were seized in February 1972; and the French interdicted a fishing boat headed to Miami carrying 415 kilos of heroin also in February 1972. 1970–1975, supra note 64, at 12. 110 David Burnham, “City Detective of Movie Fame Accused of Withholding Drugs,” New York Times, November 17, 1971, 43. 111 David Burnham, “Graft Study Finds Inaction in 72 Drug Cases,” New York Times, August 14, 1972, A1. 112 James M. Markham,“‘Connection’ Agent is Indicted by U.S. in Narcotics Sales,” New York Times, February 6, 1973, 1; James M. Markham, “Police Said to Have Known in August of Drug Losses,” New York Times, January 3, 1973, 43; Laurie Johnston, “Nadjari Sees More Judges and Police Being Indicted,” New York Times, October 15, 1973, 41. 113 William Bratton with Peter Knobler, The Turnaround: How America’s Top Cop Reversed the Crime Epidemic (New York: Random House, 1998), 42. 114 United States v. McClain, 452 F. Supp. 195, 199 (E.D. Mich. 1977). 115 United States v. Scott 406 F. Supp. 443 (E.D. Mich. 1976); United States v. Griffin, 413 F. Supp. 178 (E.D. Mich. 1976); United States v. Hodge, 539 F.2d 898, 900 (6th Cir. Mich. 1976); and United States v. Van Lewis, 409 F. Supp. 535, 542 (E.D. Mich. 1976) taken together involved five searches based on independent police work. Van Lewis and Floyd involved two searches based on the use of the drug courier profile. 116 Becton, “The Drug Courier Profile,” supra note 10, at 427; see also United States v. Morin, 665 F.2d 765, 767 (5th Cir. 1982) (after they placed his name in the Narcotics and Dangerous Drugs Information System computer, agents discovered that defendant Morin had previous narcotics convictions and was suspected of smuggling drugs from Columbia); and United States v. Rogers, 436 F. Supp. 1, 2 (E.D. Mich. 1976) (“Agent Black testified that he intended . . . to ascertain whether Rogers was among those persons on a Drug Enforcement Administration list”). 117 Quotation taken from United States v. Mendenhall, 446 U.S. 544, 562 (1980). Published cases in which a suspect was found carrying contraband or currency wrapped in aluminum foil through a metal detector include United States v. Lopez, 328 F. Supp. 1077, 1098 (E.D.N.Y. 1971) and United States v. Smith, 643 F.2d 942, 944 (2nd Cir. 1981). “Unusual bulge” cases include United States v. Smith, 574 F.2d 882, 883–4 (6th Cir. 1978); United States v. Roundtree, 596 F.2d 672, 673 (5th Cir. 1979); and United States v. Buenaventura-Ariza, 615 F.2d 29, 33 (2nd Cir. 1980).

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118 119 120 121 122 123 124

125 126 127 128 129


131 132 133 134 135 136 137 138 139 140 141 142 143 144 145

Van Lewis, 409 F.2d at 539. Id. Id., 539–40. Id., 540. Id., 541. None of these behaviors had been listed as a criterion in this particular case, but they would be in future cases, and Judge Joiner presumably mentioned them for a reason. Id., 544. See United States v. Allen, 421 F. Supp. 1372, 1374 (E.D. Mich. 1976) (“Judge Joiner upheld the validity of the courier profile as a basis for making an investigative stop of a suspected individual but ruled that further evidence of drug possession was needed to establish probable cause for arrest. Both parties here agree with this authority and argue it should control this case”). Van Lewis, 409 F.2d at 543. Miranda v. Arizona, 384 U.S. 436 (1966). Arthur Krock, “In the Nation:The Wall Between Crime and Punishment,” New York Times, June 14, 1966, 46; and Fred P. Graham, “Survey Shows Court Rule Curbs Police Questioning,” New York Times, June 20, 1966, 1. Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1993), 329. In May 1967, Judge Burger of the D.C. Court of Appeals gave a speech highly critical of the Warren court that received coverage in the U.S. News and World Report. Nixon incorporated his argument into his campaign speeches and Burger believed his speech was the primary reason why Nixon nominated him to be Chief Justice. See Brian R. Gallini, “Schneckloth v. Bustamonte: History’s Unspoken Fourth Amendment Anomaly,” 79 Tennessee Law Review 233, 251 (2012). Shortly after the election, on April 1, 1969, Rehnquist, as the Assistant Attorney General in charge of the Office of Legal Counsel, wrote a memo highly critical of the Warren Court and directed his “heaviest fire” at the Miranda decision. See Yale Kasimar, “On the Fortieth Anniversary of the Miranda Case: Why We Needed It, How We Got It—And What Happened to It,” 5 Ohio State Journal of Criminal Law 163, 168 (2007–2008). The term “rapidly and continuously” is taken from National Research Council, The Growth of Incarceration in the United States (Washington D.C.: National Academies Press, 2014), 34 (discussing how “the imprisonment rate grew rapidly and continuously from 1972”). 412 U.S. 218. Bustamonte v. Schneckloth, 448 F.2d 699 (9th Cir. Cal. 1971). Id., 699. Id., 700. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). Id. Schneckloth, 412 U.S. at 232 (quoting Miranda, 384 U.S. at 478). Id., 228–34 (citations omitted). Id., 229. Id. United States v.Van Lewis, 409 F. Supp. 535, 541 (E.D. Mich. 1976). Id., 545. Id., 541. Id. Id., 543.


For a waiver of constitutional rights in any context must, at the very least, be clear. (Justice Potter Stewart, emphasis in original)1

Although this work contends that the implementation of Markonni’s “drug courier profile” marks the advent of modern-day racial profiling, it must be acknowledged that Border Patrol officers, working near the Mexican border, were stopping motorists based on their racial appearance long before Markonni began his detail at Detroit Metropolitan Airport.2 In fact, just eight days before Markonni arrested Van Lewis in Detroit Metropolitan Airport, the Supreme Court handed down United States v. Brignoni-Ponce (1975) which at least one scholar argues marks the advent of modern-day racial profiling.3 Brignoni-Ponce started when two Border Patrol officers stopped the defendant’s car because its occupants appeared to be “of Mexican descent”: Q. Did these people in the car appear to be of Mexican descent to you? A. Yes, sir. Q. And that, if there was any, appeared to be the reason you stopped them? A. Yes, sir.4 The arresting officer’s actions in Brignoni-Ponce would constitute racial profiling according to how Congress has defined that term today: The term racial profiling means the practice of a law enforcement agent or agency relying, to any degree, on race, ethnicity, national origin, or religion in selecting which individual to subject to routine or spontaneous

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investigatory activities or in deciding upon the scope and substance of law enforcement activity following the initial investigatory procedure, except when there is trustworthy information, relevant to the locality and timeframe, that links a person of a particular race, ethnicity, national origin, or religion to an identified criminal incident or scheme.5 (Emphasis added) If a rape victim identifies her assailant as a Caucasian, it is perfectly fine under the above definition for law enforcement agents to eliminate blacks, Latinos, and Asians as suspects. What is not permitted would be to selectively target a racial group in “routine or spontaneous investigatory activities” without more specific “trustworthy information,” which can link the suspect to an “identified criminal incident or scheme.” The congressional prohibition against using race without trustworthy information is absolute; race cannot be used “to any degree.” However, in Brignoni-Ponce the officer relied solely on race as a basis of suspicion.6 The type of stop at issue in Brignoni-Ponce, where a patrol car pulls over a motorist, is called a “roving patrol” stop, as opposed to more permanent fixedcheckpoint stops. The government argued the need to curb illegal immigration justified random roving patrol stops, or at least random stops of vehicles containing occupants of apparent “Mexican descent.” It contended Border Patrol officers should be permitted to “stop motorists for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border . . . without any reason to suspect that they have violated any law.”7 Brignoni-Ponce, at first glance, appears to strengthen Fourth Amendment rights because the Court ruled the stop to be unconstitutional. However, the case advances two critical doctrines which have had the opposite effect. The Fourth Amendment can be read as prohibiting all warrantless searches and seizures: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. As the reader will recall, Terry v. Ohio sanctioned the warrantless stop-and-frisk of men casing a jewelry store when the arresting officer also lacked probable cause.8 In his concurrence, Justice Harlan explained an exception to the Fourth Amendment was necessary because the officer had articulable suspicion the suspects were intending to commit a “crime of violence” and were likely armed.9 However, the arresting officer in Brignoni-Ponce never claimed that he had reason to believe the occupants of the car he stopped were armed. Nonetheless, Brignoni-Ponce extended the Terry exception from situations in which “the investigating officers had reasonable grounds to believe that the suspects were armed

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and that they might be dangerous,”10 to routine illegal immigration stops because of “the importance of the government interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border.”11 The second critical doctrine advanced in Brignoni-Ponce is that it permitted the use of race as a criterion of suspicion in routine law enforcement activities. The stop in Brignoni-Ponce was ruled illegal because “the officers relied on a single factor to justify stopping the respondent’s car: the apparent Mexican ancestry of the occupants.”12 However, the Court advised Border Patrol officers that in future cases they could secure convictions by referring to “[a]ny number of [additional] factors.” Lest future officers lack the proper imagination, the Court helpfully listed possible additional criteria, including the vehicle’s “proximity to the border,” the officers’ “previous experience with alien traffic,” the “driver’s behavior,” and how, as trained officers, they could recognize “the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut” of the occupants in the vehicle.13 If the arresting officer had cited such additional factors, it would not have changed the fact that race had been the dispositive factor in the decision to stop the vehicle. If the same car, traveling at the same speed, had passed the same officers at the same time and location, but the occupants had looked Caucasian, would they have stopped the car? The same question could have been asked in countless airport “drug courier profile” cases. Agents listed several seemingly innocent criteria, such as making a phone call after landing or walking hurriedly, as raising their suspicions, but as one judge noted, he was left with the “uncomfortable impression . . . that, but for the Hispanic appearance of [the defendants], they might not have been stopped.”14 Brignoni-Ponce leaves one with the “uncomfortable impression” that the Court was deliberately advising future law enforcement agents to adopt a more colorblind approach to policing by emphasizing factors other than race when testifying at trial. On the other hand, is it reasonable to ask Border Patrol officers to ignore racial characteristics when seeking to curb illegal immigration near the Mexican border? Moreover, as the Supreme Court explained, since the founding of our Republic, Congress has granted the Executive plenary authority to conduct routine searches and seizures at the border, without probable cause or a warrant, in order to regulate the collection of duties and to prevent the introduction of contraband into this country.15 The “border exception” to the Fourth Amendment is well established, which is why international airline passengers, but not domestic travelers, may be subjected to random searches of their luggage and person.16 The government argued in Brignoni-Ponce that the border exception to the Fourth Amendment should be extended beyond ports of entry because the nation’s porous southern border allows many to circumvent official entry points.

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After the Court handed down Brignoni-Ponce, lower court judges had to decide if the ruling was limited to border searches. Was the Court simply reaffirming the government’s power to secure the nation’s borders is plenary, or was it fundamentally changing traditional Fourth Amendment analysis? Judge Joiner considered precisely this question in Van Lewis and he concluded that although Brignoni-Ponce (and a second illegal immigration case) “are sometimes referred to as border search cases, their holdings and dicta are not so limited.”17 Joiner noted that in Brignoni-Ponce the Supreme Court had “upheld limited investigative stops on facts that do not amount to probable cause for arrest,” and he wrote the “thrust” of the Brignoni-Ponce leads to the conclusion “agents have the power to stop for temporary investigation and interrogation persons about whom they have a ‘founded suspicion’ of involvement in narcotics traffic.”18 Joiner might have been right because Brignoni-Ponce said, “in appropriate circumstances the Fourth Amendment allows a properly limited ‘search’ or ‘seizure’ on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime”19 (emphasis added). Thus, the Terry exception allowing for stops without probable cause in situations where the suspects are likely armed and dangerous was extended in Brignoni-Ponce to immigration stops, where there was no reason to think the suspects were armed, and then extended yet again by Joiner to stops involving possible narcotics trafficking in Van Lewis when it was highly unlikely that the suspects were armed because they were traveling in an airport.

The Proliferation of “Drug Courier Profile” Cases in the Lower Federal Courts As noted, Van Lewis held a lower standard than “reasonable suspicion”; a “founded suspicion” was sufficient for “the limited interrogation and identification stops” that had taken place.20 It also implicitly held that a suspect must disobey an officer’s “requests” to uphold her Fourth Amendment’s rights. However, the victory was short lived. Judges following in the wake of Van Lewis continued applying traditional Fourth Amendment analysis and they overwhelmingly rejected Markonni’s “profile.” In the second published pure “drug courier profile” decision, United States v. Rogers (1976), Drug Enforcement Administration (DEA) agents arrested the defendant for heroin possession at Detroit Metropolitan Airport.21 The police testified that they had been observing disembarking passengers for “characteristics matching a drug courier ‘profile.’” However, according to the judge, Roger M. Freeman, little testimony had been presented concerning the source and content of the profile other than the arresting agent’s assertions that it is a composite given to him by his superiors and that the profile characteristics include direct flights from shipping cities, little or no luggage, and nervous mannerisms.22

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Unlike Joiner, Freeman began his Fourth Amendment analysis by asking the traditional question: did the agent have the requisite level of reasonable suspicion to stop the defendant? He made no mention of how Brignoni-Ponce had lowered the standard of suspicion. Instead, Freeman determined reasonable suspicion was lacking because the factors that drew the agent’s attention “reduce to the fact that he had taken a direct flight from Los Angeles with little luggage and was observed to be glancing around nervously.”23 Freeman never reached the question of whether the agent had had probable cause to search the defendant, or whether the suspect had waived his Fourth Amendment rights by consenting to that search, because once the judge ruled that the stop was unconstitutional, those questions became moot.24 The third pure “drug courier profile” case was United States v. Floyd.25 Markonni testified that he had become suspicious of the defendants as they were walking toward the baggage claim for the flimsiest of reasons, and once again the defendants walked out of the courtroom as free men. It is hard to imagine Markonni’s testimony was beneficial to the prosecution. When the prosecutor asked him about the “drug courier profile,” he responded that actually, “the ‘drug courier profile’ is not so much a profile as a ‘number of deviant characteristics.’”26 The judge appeared none too impressed: Accordingly, the Court, after balancing the competing interests of drug law enforcement and the right of the individual to be left alone, holds that a stop of a person is not reasonable, and is, therefore, illegal under the Fourth Amendment, where the stop is based simply on the fact that such person possesses certain otherwise innocent characteristics, despite the fact that such characteristics may be part of an alleged “drug courier profile.”27 Since Markonni had denied his list of deviant characteristics constituted a “profile,” the judge’s cutting reference to an “alleged ‘drug courier profile’” was obviously directed at the prosecutor. It only took a year for the first “drug courier profile” appeal to reach the Sixth Circuit Court of Appeals. In 1977, that court heard McCaleb’s appeal of his conviction in Van Lewis. The case was retitled United States v. McCaleb.28 There was little chance the Sixth Circuit would rule in McCaleb’s favor because appellate courts very rarely overturn a trial court’s factual determinations and Joiner’s ruling that McCaleb had consented to the search was a question of fact, not law. To understand the distinction between questions of fact versus law, consider a typical rape trial. The defendant will often assert the alleged victim had consented to the act. Juries will hear testimony from the relevant parties and decide who is telling the truth. We allow juries to make such factual determinations in the belief that laymen are just as qualified as lawyers in deciding whom to believe. However, imagine the jury convicts a defendant of rape and the defendant appeals on the basis that the trial court had no jurisdiction to hear the case.

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The rape had occurred in New York, but he had been tried in New Jersey. Whether a New Jersey court has jurisdiction over a crime occurring out of state, a question of law is the type appellate courts usually consider. Joiner played the role of the jury during the suppression hearing; he had to decide who was telling the truth over the question of whether McCaleb had consented to the search.29 Since McCaleb was asking the appellate court to overturn a factual determination, the Sixth Circuit explained the burden of proof was exceptionally high: The question of voluntariness of a consent is “a question of fact” . . . and as such requires this court to hold the district judge’s finding of voluntary consent to be clearly erroneous before it can be overruled.30 (Emphasis added) The Sixth Circuit agreed with Joiner’s determination that there had been no probable cause to search the defendants. However, it overruled his two other findings: that conformity to the “drug courier profile” “gave rise to a ‘founded suspicion’ which permitted the limited interrogation,” and that the defendants had consented to their search.31 In terms of the latter issue, consent, the Sixth Circuit listed all the reasons to conclude the search was not consensual. Factors tending to militate against a finding of voluntariness include an unconstitutional stop; an unconstitutional arrest; the detention of appellants in unfamiliar surroundings by three agents; the statement to McCaleb by agent Markonni that he either consent to the search or remain in detention with his companions while a warrant was sought; the fact McCaleb did no more than unlock the bag, as distinguished from the defendant in Schneckloth, who opened the trunk of his car for the officers, and; the fact that no oral acquiescence or written consent was given by McCaleb.32 In other words, Judge Joiner was not just wrong; according to the Sixth Circuit, his ruling had been “clearly erroneous.” McCaleb set a very important precedent. The Sixth Circuit eventually heard over a dozen “drug courier profile” cases and it consistently held that mere conformity to the “rather loosely formulated list of characteristics used by the Detroit agents” did not “indicate ‘suspicious’ persons.”33 In fact, when the government filed its brief in the first airport drug courier case that would be heard by the U.S. Supreme Court, United States v. Mendenhall (1980), the analysis was focused more on McCaleb than Mendenhall.34 That is because a Sixth Circuit Court of Appeals panel had reversed the district court’s order in Mendenhall in a two-sentence unpublished decision simply stating that “the court concludes that this case is indistinguishable from United States v. McCaleb.”35

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Three other circuit courts looked at pure “drug courier profile” cases before the Supreme Court issued its ruling in Mendenhall. The Second and Fifth Circuits agreed with the Sixth Circuit that mere conformity to the profile criteria was insufficient to form the basis for an investigative stop, let alone probable cause to effect a search.36 The Ninth Circuit ruled it would not decide whether conformity to the profile alone would constitute reasonable suspicion for a stop, because it held the search was the “critical issue.”37 This appellate court held that the defendant’s “conformity to some of the ‘drug courier profile’ factors and his nervous behavior when stopped were insufficient to warrant a prudent (person) in believing that petitioner had committed or was committing an offense.”38 In addition to these four courts, the Eighth Circuit, in a case involving an informant’s tip, dismissed the profile’s criteria as having “little or no probative value.”39 Circuit courts certainly upheld searches where DEA agents used independent police work to gather more evidence or when additional factors such as X-ray machine discoveries were made, but these five circuit courts unanimously agreed that mere conformity to the profile could not constitute probable cause to effect a search.40 And the three circuit courts which ruled on the issue of whether the police were justified in making the stop all agreed that the profile alone could not be used to establish even reasonable suspicion. The drug courier cases were going against the government and the tone of the decisions reveals many judges were becoming increasingly impatient with the DEA agents’ modus operandi. For example, consider the following paragraph from a Sixth Circuit decision issued shortly before the Supreme Court handed down its decision in Mendenhall: This is yet another case involving a stop, frisk and subsequent arrest by DEA agent Paul Markonni at the Detroit Metropolitan Airport. Unlike the “typical” Detroit Metro Airport case, this case does not involve a stop based on the much abused drug courier profile, but presents a rare instance of an anonymous tip providing the basis for the stop.41 The previous chapter noted how drug couriers had encountered little surveillance prior to 1973, and some were rather easy to spot. Another change seems to be that DEA agents initially used the “drug courier profile” to identify suspects and then followed up with traditional police work. For example, consider Van Lewis. The reader will recall that a ticket agent had contacted Markonni after Van Lewis had bought a round-trip ticket to Los Angeles. He went to Van Lewis’s listed address and discovered that Van Lewis had previously been arrested for heroin possession.42 After Van Lewis, DEA agents quickly dispensed with investigations and opted for an assembly-line approach to law enforcement: they began stopping and interrogating people solely on the basis of their conformity with the drug profile

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criteria. Prosecutors in turn began urging judges to adopt an eminence-based approach to adjudication by deferring to the agents’ training, skill, and experience. This trend was best described in a Second Circuit opinion decided the same year the Supreme Court issued its Mendenhall decision: The line of cases in our Court from Oates to Vasquez has resulted in a requirement of progressively fewer objective facts to satisfy the threshold requirement of reasonable suspicion. In Oates the agent had prior knowledge of the suspect’s drug connections to use as a framework for evaluating unusual behavior. In Rico there was no prior knowledge but, in addition to the complex of suspicious or unusual behavior, the agent noted the suspect’s unnatural walk and tugging at her trousers, facts which objectively can be viewed as indicating hidden contraband. Still the Rico Court recognized that the facts only “narrowly sufficed” to justify the stop. Price, Vasquez-Santiago, and Vasquez, however, contain even fewer objective facts linking the suspects to narcotics trafficking. As a result, the agent’s perception of objectively neutral conduct has taken on an added importance. The “trained eye of the narcotics agent” has loomed more prominently in our most recent analyses of airport stops, as nervous behavior and perceived attempts by passengers to appear “separate” have emerged as the principal conduct justifying the stop.43 The DEA agents may have been becoming increasingly aggressive in stopping people because the limited available data indicates the amount of drugs they were seizing was rapidly diminishing. For example, in 1976, DEA agents seized 66 pounds of heroin, 7 pounds of cocaine, and 189.5 pounds of marijuana at Detroit Metropolitan Airport but only 10 pounds of heroin, 4.8 pounds of cocaine, and 47.5 pounds of marijuana in 1978.44 It could be argued this illustrates the program was successful, but it is unlikely the DEA thought so if it had the same approach to law enforcement as the New Jersey State Police. A 1999 newspaper article examining what New Jersey troopers were rewarded for was entitled, “The Path to Glory for N.J. Troopers: Arrests, Arrests.”45 According to the authors, the surest way to become “trooper of the year” has been to make more drug arrests and seize more contraband than anyone else. In 31 years, the award has gone 19 times to troopers who have chalked up huge numbers of drug seizures or arrests.46 The irony is that the number of people being searched in airports may have been rapidly increasing precisely because the percentage caught carrying illegal contraband was dramatically decreasing.

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Paul Markonni’s “Drug Courier Profile” Even a cursory examination of the criteria contained in the airport “drug courier profile” establishes why these cases could not survive traditional Fourth Amendment scrutiny. The most detailed profile Markonni ever presented consisted of the following criteria: The primary characteristics are (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as a rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers. The secondary characteristics are (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities.47 The first problem with arguing that conformity to these criteria gives rise to reasonable suspicion to make a stop is that many of these behaviors were normally discovered only through the interrogation which occurred after the stop. For example, the primary characteristics’ third, fourth, fifth, and sixth criteria, and the secondary characteristics’ third and fourth, normally cannot be detected simply by observing embarking or disembarking passengers. Therefore, six of the eleven criteria can immediately be eliminated as justifications to effect a stop, and we are left with five: The primary characteristics: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; and (3) unusual nervousness beyond that ordinarily exhibited by passengers. The secondary characteristics: (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning. Since virtually every city in the United States was eventually described as either a source or distribution city, the first criterion is also worthless. The idea that making a phone call after landing or standing on a line to take a taxi is suspicious is not even worthy of comment. The eleven criteria of our “alleged” profile can almost immediately be reduced to just two components:

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(1) carrying little or no luggage, or large quantities of empty suitcases; and (2) unusual nervousness beyond that ordinarily exhibited by passengers. Indeed, as the Second Circuit noted, most drug courier cases involved the “trained eye of the narcotics agents” and reliance on just two criteria: “unusual nervousness” and something else, such as companions separating at the luggage area or walking hurriedly.48 It is certainly possible to argue that the suspects in the seminal Fourth Amendment Terry decision had also done nothing illegal in repeatedly walking by and observing a jewelry store window. However, consider how that police officer described their conduct: The man paused for a moment and looked in a store window, then walked on a short distance, turned around and walked back toward the corner, pausing once again to look in the same store window. He rejoined his companion at the corner, and the two conferred briefly. Then the second man went through the same series of motions, strolling down Huron Road, looking in the same window, walking on a short distance, turning back, peering in the store window again, and returning to confer with the first man at the corner. The two men repeated this ritual alternately between five and six times apiece—in all, roughly a dozen trips.49 Is there a plausible explanation for why two innocent men would furtively peer into a jewelry store window twenty to twenty-four times and then secretly confer on a street corner? Compare that with the most suspicious criterion in the airport “drug courier profile” that could be discovered prior to an interrogation: paying for a plane ticket with cash instead of a credit card. Should payment by legal tender be considered suspicious? Many people with poor credit or a limited income have no other options, and credit cards were certainly less common in the 1970s. There is even a scene in The French Connection in which the drug dealer buys a plane ticket and the ticket agent begins the transaction by automatically asking “cash or charge?”50 Moreover, even this criterion was applied inconsistently. Agents asserted that “paying for an airline ticket in currency of small denominations” is suspicious, but so is purchasing a ticket with large denominations of cash.51 Similarly suspicious are the purchases of round-trip tickets or one-way tickets52 as well as the purchase of coach tickets or first-class tickets.53 How many times has the reader found herself buying a round-trip coach ticket, making a phone call after landing, taking a taxi to or from the airport, traveling with little luggage, or making a short-term turnaround flight? How many people regularly fly from or to New York, Los Angeles, San Francisco, or Miami every day? Yet, how many times do innocent people walk back and forth in front of a jewelry store window a dozen times and then furtively confer with a friend on a street corner?

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The behavior exhibited in Terry is so commonly considered to be suspicious that there is a verb to describe it: “casing.” Not only were the criteria comprising the drug courier’s profile of a completely different nature, but they also changed from one case to the next. By this author’s count, the seventh pure “drug courier profile” decision emanating from the Sixth Circuit was United States v. Chamblis (1977).54 Chamblis was published less than one year after Van Lewis, but the fact that the criteria were overly subjective and malleable had already become crystallized in the district court judge’s mind: One problem with determining the propriety of the stop solely on the basis of whether or not the defendant met the profile is that the factors present in the profile seem to vary from case to case. Special Agent Wankel himself testified that the profile in a particular case consists of anything that arouses his suspicions. A look at the profile cases themselves tends to show that the factors present in the profile tend to change. For instance, in United States v. Mendenhall [the judge here is referring to the District Court decision three years before the Supreme Court heard the appeal] . . . a special agent of the Drug Enforcement Administration testified that drug couriers deplane last in order to obtain a clear view of the area inside the terminal. No mention was made of this factor in the present case, possibly because the defendant was one of the first persons off the plane.55 Not only did the profile vary from agent to agent, but individual agents also offered inconsistent and sometimes contradictory criteria. For example, nervousness is one of the most commonly cited criteria. However, Markonni made no mention of that in Van Lewis, possibly because one of the defendants was described as appearing very “cool.”56 While he was stationed in Detroit, Markonni presented at least five different versions of the drug courier profile, and then another four were developed after he was switched to Atlanta.57 The weakest of the profile’s criteria is certainly the first: “source” and “distribution” cities. Agents have testified certain cities are considered to be “source” cities for drugs, including New York, Los Angeles, San Diego, Miami, and many others.58 Virtually all remaining cities, including Detroit, Atlanta, Birmingham, Alabama, and even Anchorage, Alaska, fall into the distribution category.59 In short, it is suspicious if a person flies from, or to, almost any city in the country. Cities can also switch from the source to the distribution category, depending upon the direction of the airplane. For example, New York has been described as a source city for the Midwest,60 but another case labeled Chicago as a source city for New York.61 Agents in Newark, New Jersey have testified that Palm Beach, Florida is a source city for Newark, even though a presumably more conveniently located source city lies just across the Hudson River.62

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Perhaps those Newark agents never spoke with the agents who were stationed in Pittsburgh, because the latter claimed Newark is a source city for Pittsburgh.63 The second criterion in the profile above lists “carrying little or no luggage, or large quantities of empty suitcases.” However, in various other cases agents testified that “carrying a small tote bag, a medium-size bag, two bulky garment bags, two apparently heavy-laden suitcases, or four pieces of luggage” also aroused their suspicions.64 If we return to the drunk driving roadblock analogy we realize how absurd the situation had become. The second chapter argued that what the agents were doing in the airports would be the equivalent of constructing a drunk driver profile based on innocent criteria, such as the age of a car, its color and condition, and then using these criteria to stop mostly minority motorists. However, the reality was even worse. It was as if the agents were testifying that most drunk drivers drive old red cars in one case, then saying new blue ones in the next, while pulling over mostly African Americans driving either, and all the while claiming that they make these claims based on their experience and training. Is criminal profiling an appropriate tool for catching drug traffickers? As noted in the second chapter, criminal profiles were developed in cases of a “random and motiveless nature,” in which the criminal had demonstrated “some form of psychopathology.”65 Some drug couriers were certainly addicts who were physically and psychologically dependent, but the DEA presumably was most interested in catching large-scale professional dealers. Drug dealers may be ruthless, but are they driven by some shared psychopathology leading to particular types of common behavior, or are they businessmen engaged in an illegal trade? It may be a high-risk occupation, but drug trafficking is simply not a crime of a “random and motiveless nature.” As the late Curtis Mayfield once observed, “Can’t reason with the pusherman, finance is all that he understands.” A second problem in applying criminal profiles to catch drug couriers is that if they are in fact part of “highly organized . . . sophisticated criminal syndicates,” they will undoubtedly share information with their associates.66 If an officer testifies that using cash to pay for an airline ticket triggers the profile, an organized syndicate would immediately switch to credit card payments. It is tempting to conclude the alleged “drug courier profile” is not worth the paper it’s written on but, according to the DEA, no one has ever “committed the profile to writing.”67 The profile has been used for decades in all major U.S. airports, and the DEA has trained thousands of local law enforcement agents across the nation in its use, but according to the DEA, no one has ever written the criteria down on a piece of paper. No local law enforcement agent ever took notes during the training seminars; not one trainer ever gave the trainees a written list. The DEA even claimed it constantly updates the profile with additional characteristics.68 What is more disturbing—that agents would so flagrantly perjure themselves or that judges failed to challenge such obvious lies?

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Although the federal appellate courts uniformly rejected the profile, prior to those rulings a number of trial judges offered decisions in agreement with Judge Joiner. Joiner had ruled that the agents had a “founded suspicion” to stop the McCaleb defendants and that they subsequently consented to be searched. A few months later, a second district court judge reached the same conclusion in United States v. Mendenhall.69 (Mendenhall was issued before the Sixth Circuit ruled in McCaleb that Markonni’s “profile” did not provide a “founded suspicion” to effect a stop.) By the time Mendenhall reached the appellate court, the Sixth Circuit had decided McCaleb and it disposed of Mendenhall by issuing a twosentence unpublished opinion overturning the lower court’s ruling.70

Black Power By 1980, the year the Supreme Court heard the government’s appeal of the Sixth Circuit’s decision in Mendenhall, it had become obvious that DEA agents were targeting African Americans and Latinos traveling through the nation’s airports and then retrospectively justifying these stops on the basis of conformity to the ever-changing profile criteria. Perhaps the reader asks whether stopping people at random is a bad idea if done in a race-neutral manner. Anyone who has ever passed through a sobriety roadblock has been subjected to a random stop.71 The Supreme Court has also upheld certain types of random searches including the mandatory drug testing of all law enforcement personnel engaged in drug interdiction efforts and drug testing of railroad personnel involved in train accidents.72 So, why not allow for random stops and searches of domestic travelers passing through our nation’s airports, as we allow for international travelers?73 As noted, the Court has never created an exception to the Fourth Amendment for domestic airline passengers. However, if the Court had created such an exception by sanctioning truly random stops such as sequenced stops, it would unlikely have generated much protest. Society can be surprisingly accepting of searches when conducted in an obviously non-biased fashion. For example, when the Federal Aviation Administration (FAA) instituted mandatory metal detector screening of passengers on January 5, 1973, it was predicted people would resist the security measures and reporters staked out positions near the new machines “to catch such moments of rage.”74 However, these reporters were disappointed, for few people complained.75 Passengers believed that the skyjacking threat justified the intrusion, and the fact the screening was universally applied surely contributed to the acceptance of the new security measures. People are accepting of universal screening, but there is something deeply disturbing about being singled out and treated differently. There is an even stronger reaction to being unjustly accused of wrongdoing: resentment, fear, and anger. We must also expect that due to our nation’s history, our collective memory

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of slavery, Jim Crow, the Ku Klux Klan, segregation, and now institutionalized racial profiling, the insult of being unjustly targeted by law enforcement agents will be felt most acutely by African Americans. The experience of two innocent black men illustrates the importance of Fourth Amendment protections. Its purpose is to protect innocent people from suffering unwarranted governmental intrusions, not to exonerate the guilty. The first incident, which occurred in 1988, involved a forty-six-yearold African American, Joseph Morgan, whom agents stopped at Los Angeles International Airport. The DEA agents first spotted the “muscular black man” when he was walking toward them and then abruptly turned toward a bank of telephones. The agents quickly moved in, and the encounter turned violent. One agent and Morgan fell to the ground. Morgan was immediately arrested, handcuffed, and an agent held his hand to Morgan’s mouth as he was marched by “gaping passers-by.”76 A witness testified at trial that he had tried to intervene on Morgan’s behalf and to explain to the agents that the man they had just arrested was Joe Morgan, the hall of fame baseball player. According to Morgan, he had also tried to tell the agents who he was when they first approached him, but they had responded by grabbing him and slamming him to the ground. Later, when the agents realized his identity, they “offered to free him if he would forget the matter.”77 However, if Joe Morgan had not been who he was, how much longer would the police have interrogated him? How much worse would the incident have been for an average black man?78 According to the attorney representing the police, the whole incident was Morgan’s fault because he had “overreacted.” “If he had cooperated, none of this would have happened. I think he had a bruised ego, and he was offended because the officer hadn’t recognized him.”79 Morgan eventually won a settlement with the city, but few people would have had Morgan’s financial resources, time, and celebrity power to persevere. The average person would have had to live with the memory of being arrested, handcuffed, gagged, and marched through an airport because he was a black man who had tried to use a public phone in an airport. A second civil lawsuit involved Ronald Harris, the winner of the lightweight boxing gold medal in the 1968 Olympics. In January 1997, more than twenty years after Markonni first developed his “profile,” DEA agents were monitoring passengers exiting a plane arriving in Cleveland because it was coming from the “source” city Fort Lauderdale.80 The agents noticed Harris because “he wore a jogging suit yet carried a briefcase; because he was not carrying an overcoat despite the cold temperature; and because he walked rapidly through the airport while looking around—all of which [DEA Agent] O’Bryant, a 22-year law enforcement veteran, associated with a drug courier profile.”81 Perhaps “wearing a jogging suit but carrying a briefcase” was a criterion included in

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O’Bryant’s unwritten “profile,” but it is certainly not mentioned in many other cases. Prosecutors had previously assured judges that agents “could distinguish between a passenger glancing around nervously to escape detection and one who is merely disoriented in disembarking at a strange airport.”82 However, Harris was not trying to spot possible undercover agents; he was looking for his uncle who had arranged to pick him up at the airport. Harris declined O’Bryant’s request to speak with him. After Harris retrieved his suitcase from the luggage carousel, O’Bryant called for a dog to sniff it.83 Harris realized what the agents were doing, lost his temper, and allegedly threatened the agents by saying, “I don’t appreciate you and your monkeys following me and if you keep it up I’ll rip your head off.”84 According to Harris, the “problem is that black men are singled out.” He had exited the plane with roughly 200 other passengers, “and I was probably the only black male.”85 As happened in the incident with Morgan, the encounter turned physical, and Harris soon found himself sitting inside the agents’ office handcuffed to a chair. The agents discovered no narcotics, but Harris nonetheless was taken to a police station and charged with aggravated disorderly conduct, resisting arrest, and assault on a police officer. After being indicted for assaulting a police officer, he was acquitted by a jury. According to Harris, the officers “trumped up the assault charges to cover their mistake.”86 Harris won his criminal trial and filed a civil suit. The litigation lasted eight years but he eventually lost his tort claims act against the government in 2005.87 It is interesting to note in the Olympic ceremony held right before Harris was awarded his gold medal, track stars Tommie Smith and John Carlos demonstrated against racism by famously raising their fists overhead in the black-power salute while being given their medals. Harris declined to continue the protest during his ceremony.88

Mendenhall The indignities suffered by Morgan and Harris could have been avoided because these incidents occurred many years after the Supreme Court had been presented with the easiest of opportunities to end the nation’s first institutionalized racial profiling policy. In 1980, the Court issued United States v. Mendenhall (1980). The entire court and the prosecution agreed that the police had lacked probable cause to search the defendant.89 Moreover, the agents did not just search Mendenhall’s belongings; they strip-searched her. This bears repeating. The agents strip-searched Mendenhall and no one, not even the prosecution, claimed the agents had probable cause to do so. It is hardly surprising that the Sixth Circuit needed just two sentences to find a constitutional violation. Yet, the Supreme Court reversed and upheld her conviction. Mendenhall produced a convoluted and splintered 2–3–4 decision. The entire interaction between Mendenhall and the agents consisted of three stages:

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the stop; a trip to a locked office; and the search. The constitutionality of each stage in the encounter was considered in turn. Stewart authored the Judgment of the Court, which only Rehnquist signed in its entirety, and he argued that Mendenhall had consented to the entire encounter. Justice Powell’s concurrence addressed only the initial stop; the moment the agents approached Mendenhall and asked to see her identification and ticket. He said the agents had reasonable suspicion to make the stop. Powell, and the two other concurring Justices, signed Stewart’s opinion as to the subsequent two stages in the encounter. Four Justices dissented. The following heuristic is offered to assist the reader. Stage of the Encounter

Stewart’s Judgment of the Court

Powell’s Concurring Opinion

White’s Dissenting Opinion

Initial Questioning

Stewart and Rehnquist: Not a “stop,” a consent-based “encounter.”

Powell and two other Justices: 4th Amendment “stop” based on reasonable suspicion

White and three other Justices: Unconstitutional

Trip to the Office

Stewart and four other Justices: Constitutional—a consent-based interrogation Stewart and four other Justices: Constitutional—a consent-based search


Powell’s Concurrence Powell’s concurrence in Mendenhall illustrates how even a United States Supreme Court Justice found it challenging to argue that triggering the “drug courier profile” criteria provided reasonable suspicion to make a stop. As noted, Powell addressed only one question in his concurrence: did the agents have the requisite level of legal suspicion when they stopped Mendenhall and asked to see her documents?90 Powell argued that there were six reasons the agents could conclude the defendant was a drug courier: Mendenhall was flying from Los Angeles into an airport which was “known to be frequented by drug couriers”; she appeared to be “very nervous”; she was the last person to disembark; she “scanned” the terminal upon entering it; she walked “very, very slowly”; she claimed no baggage; and she switched airlines to get to Pittsburgh.91 As the defense documented in its brief to the Supreme Court, the last two suspicious acts are easily explained. Mendenhall switched airlines because the airline she had taken from Los Angeles, American Airlines, had no flights to Pittsburgh.92

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That was also why she appeared to have no luggage. In those days, luggage was automatically transferred between airlines.93 The arresting agent, Thomas Anderson, had testified that he did not realize Mendenhall had to change airlines to get to Pittsburgh because he was unfamiliar with airline schedules.94 But, to paraphrase Bob Dylan, you don’t need an air traffic controller to know which way a plane flies. After also dismissing the first criterion, Mendenhall was traveling between two of the largest cities in America, the agents’ articulable suspicion can be reduced to the following: Mendenhall was the last person to disembark; she “appeared to be very nervous,” and she had looked around the terminal after disembarking. Mendenhall may have been the last to exit the plane, but when one considers how agents in other cases had testified that being the first to disembark—or being in the middle of a line of deplaning passengers, or disembarking after three quarters of the other passengers—also constitutes indicia of criminal conduct, one can appreciate the challenge of securing a non-suspicious spot in the line of people leaving an aircraft.95 Mendenhall also proceeded at a slow pace after she disembarked, but as the reader will recall, the Olympic boxing champion, Ronald Harris, had come under suspicion for walking too quickly. Perhaps the pace of a passenger’s gait was not the determinative factor in whom the agents were choosing to stop. In fact, DEA Agent Anderson’s testimony leaves little doubt that Mendenhall was stopped for one additional reason which Powell somehow forgot to mention: Q: When you first saw Sylvia Mendenhall, what drew your attention to her was that she was a black woman traveling alone, and she was the last to get off the airplane, is that right? A: Additionally that she appeared to be very nervous as she came off the airplane.96 It may seem surprising that a federal law enforcement officer would testify under oath that he had found a person suspicious because she was a black woman. However, Anderson had arrested Mendenhall less than a year after BrignoniPonce had been published, and law enforcement personnel are regularly updated on relevant Supreme Court decisions.97 He, Paul Markonni, and all the other agents operating in Detroit Metropolitan Airport might have concluded that targeting minority airline passengers was no different than targeting minority motorists and it became constitutionally permissible as long as they mentioned other factors of suspicion.98 However, by the time Mendenhall was issued in 1980, the limits of the illegal immigration case, Brignoni-Ponce, had become all too obvious. DEA agents were citing the most innocuous acts as indicia of suspicion, and they were contradicting themselves from one case to the next. Powell also tried to bolster his argument that the agents were justified in stopping Mendenhall by citing the

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statistics from Van Lewis, but this contention only further undermines confidence in his integrity as an honest adjudicator because the Justice was addressing only one issue in his concurrence: did the agents have reasonable suspicion to make the stop?99 Powell was not addressing the search and, as Justice White explained in a dissenting opinion, the fact that the agents had found controlled substances in seventy-seven of their ninety-six searches says nothing whatsoever about their success rate in choosing whom to stop.100 It is possible the agents stopped 1,000 passengers but only searched ninety-six.

Stewart’s Opinion Powell’s opinion perfectly illustrates the futility of Brignoni-Ponce. Attempting to articulate individualized suspicion when the police are stopping people based on skin color cannot be achieved simply by listing innocuous factors such as someone’s walking pace or her position in the line disembarking passengers. Justice Stewart realized that the key to upholding the constitutionality of the stop was to eliminate the constitutional requirement of individualized suspicion. In fact, Stewart cared so little about the requirement of articulable suspicion that he relegated the six factors mentioned by Agent Anderson to a footnote.101 Not surprisingly, Stewart never declares in his decision that he is overturning the traditional approach to Fourth Amendment analysis and eliminating a fundamental constitutional protection. In fact, he declares that there is “no question” that Mendenhall had a “constitutional right of personal security as she walked through the Detroit Airport.”102 He also noted that a person is seized under the Fourth Amendment if “by means of physical force or a show of authority, his freedom of movement is restrained.”103 However, these protections become irrelevant if one concludes Mendenhall willingly waived her Fourth Amendment rights. It was undisputed that after the agents spotted Mendenhall, they “identified themselves as federal agents, and asked to see her identification and airline ticket.”104 One might assume if federal agents identify themselves and ask to see a person’s identification it constitutes a “show of authority,” her freedom of movement is necessarily restrained, and she would have no right to refuse consent. Justice Stewart explained away this apparent discrepancy in the paragraph below: The purpose of the Fourth Amendment is not to eliminate all contact between the police and the citizenry, but “to prevent arbitrary and oppressive interference by enforcement officials with the privacy and personal security of individuals.” As long as the person to whom questions are put remains free to disregard the questions and walk away, there has been no intrusion upon that person’s liberty or privacy as would under the Constitution require some particularized and objective justification.105

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The standard Fourth Amendment question of whether there had been a show of authority is replaced in the paragraph above by the question of whether the citizen was free to walk away, in which case it poses “no intrusion upon that person’s liberty or privacy.” However, another human value besides liberty and privacy is implicated in these situations: human dignity. Consider Ronald Harris. He maintained his liberty and privacy by declining to answer any questions, but the harm was already done. Harris was deeply offended and thought he had been singled out because he happened to be the only black passenger; not because of his attire or the fact that he had “walked rapidly through the airport while looking around.”106 Unfortunately for Mendenhall, she lacked a boxing champion’s confidence, and she did not just walk on by. Mendenhall produced her identification; the agents discovered she was traveling under an alias; she failed to provide a convincing explanation for this discrepancy; and the agents then asked Mendenhall to accompany them to their office.107 Although it is suspicious to be traveling under an assumed name, it was legal and easy to accomplish in those days. For example, during that airport scene in The French Connection, the agent sells the ticket without asking for any form of identification and then tells the buyer, who paid in cash, to remember to write his name down on his ticket prior to boarding as he walks away from the counter. In any event, there is no need to debate whether Mendenhall’s alias gave rise to probable cause because even the prosecution conceded the police lacked probable cause to arrest Mendenhall until after they searched her.108 The pivotal question thus became whether the agents requested, or ordered, Mendenhall to accompany them to the office.

Stage Two: The Custodial Interrogation Stewart, writing for a majority of five on this question, argued Mendenhall had consented to go to the office. However, even the arresting officer, Agent Anderson, saw matters differently. Q: All right. Now, when you asked her to accompany you to the DEA office for further questioning, if she had wanted to walk away, would you have stopped her? A: Once I asked her to accompany me? Q: Yes. A: Yes, I would have stopped her. Q: She was not free to leave, was she? A: Not at that point.109 The reader undoubtedly asks, in light of Anderson’s testimony, how could Stewart have concluded Mendenhall was “free to disregard the questions and walk away”?110 Stewart’s answer is a pivotal moment in the history of

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constitutional law because it rewrote Fourth Amendment law, it offered a new theory of civil liberty, and it profoundly influenced police practices throughout the nation. As we saw, Stewart began his opinion by reciting black letter Fourth Amendment law. Law enforcement agents are restrained by the Fourth Amendment as soon as they exert “physical force or a show of authority.”111 We will label this doctrine Test A, “the show of force test.” Test A awards citizens the greatest constitutional protection because it focuses on the officer’s actions. We have already discussed how Van Lewis abandoned Test A and shifted the focus of Fourth Amendment analysis onto the suspect’s reactions. The police, lacking probable cause, searched the luggage of two suspects. One suspect, Hughes, denied their “request” to conduct the search, but the second suspect, McCaleb, allegedly expressed his consent by unlocking the suitcase. Judge Joiner held Hughes’s Fourth Amendment rights had been violated, but not McCaleb’s. The pivotal issue became not whether the police had had probable cause, but whether the suspect had “consented” to the search. In discussing whether Mendenhall had consented to accompany the agents to the office, Stewart at first appears to be adopting Joiner’s reasoning because he writes the dispositive question is whether the citizen “remains free to disregard the questions and walk away.”112 We will label Test B as the “the walk on by” test. Under Test B, not just the focus, but also the onus, is shifted onto the citizen. The focus is shifted because the court ignores demonstrations of authority and simply asks, how did the suspect react? The onus is shifted because it is now the citizen’s responsibility to uphold her Fourth Amendment rights at her own peril. She must correctly distinguish orders from requests. If she misinterprets a request as an order, as McCaleb apparently did in Van Lewis, she waives her Fourth Amendment rights via consent. If, on the other hand, she misinterprets an order as a request that can be refused, she has to suffer the legal and possible physical consequences if the officer forcibly upholds his order as happened to Ronald Harris. Although Test B dramatically weakens the protections afforded by the Fourth Amendment, even under its application, Mendenhall’s rights were presumably violated because Anderson had testified she had had no choice but to comply with his “requests.” Mendenhall thus presented an even more difficult set of facts than Van Lewis had. The “request” in Van Lewis had been made under an implied threat of coercion, but the police never conceded in court that the suspect had had no choice but to comply with their requests. Stewart overcame this difficulty by inventing a new standard to adjudicate Fourth Amendment disputes, Test C, the “reasonable person test.” As the reader will recall, Stewart had also authored Schneckloth which set forth the “totality of the circumstances test.” In Schneckloth’s version of that test, “the subjective state” of mind of the person being arrested is specifically listed as a factor. But Mendenhall replaces that factor with the mindset of “reasonable person.” Compare the two decisions:

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Shneckloth: “In examining all the surrounding circumstances to determine if in fact the consent to search was coerced, account must be taken of subtly coercive police questions, as well as the possibly vulnerable subjective state of the person who consents.”113 (Emphasis added) Mendenhall: “[a] person is ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave.”114 (Emphasis added) To claim Mendenhall’s “reasonable person” test represents a form of colorblind jurisprudence is an understatement. This test certainly allowed Stewart to ignore Anderson’s testimony that he stopped Mendenhall because she was a black woman. However, under the reasonable person doctrine, reality itself becomes irrelevant. The subjective state of the arresting officer and the defendant can both be disregarded. A reasonable person would have reached the wrong conclusion had she been in Mendenhall’s shoes and concluded that she was free to walk away. Justice Stewart was not only rewriting Fourth Amendment law, he was offering a new theory of civil liberty. Constitutional rights traditionally have been extended to all citizens alike, including unreasonable ones. That idea is captured in Justice Felix Frankfurter’s assertion that Americans have “the freedom to speak foolishly and without moderation.”115 The First Amendment grants a right to assert the most ridiculous arguments, associate with the most illogical people, and pray to the silliest of deities.116 However, after Mendenhall, Fourth Amendment protections would be narrowed to protect only those sensible enough to say “you’re going to need a warrant for that.” The only way Mendenhall could have preserved her constitutional right against an unconstitutional seizure was to refuse the law enforcement agents’ “request” to accompany them to their office after she had effectively been placed under arrest. Is there any other constitutional right which is forfeited when a citizen dare not resist the power of the state? Suspects disobey the police at their own peril, as the surviving family members of Eric Garner can attest. (Garner’s death in 2014, after the police placed him in a choke hold, was recorded on a cell phone and received widespread attention.)117 It is unlikely that Mendenhall would have been shot or placed in a stranglehold, but consider what the government attorney said about Joe Morgan: “If he had cooperated, none of this would have happened.”118 Justice Stewart’s novel interpretation of the Fourth Amendment can be reduced to the following: if a law enforcement agent lacks probable cause to seize a suspect, but does so nonetheless, and if that suspect subsequently complies with the officer’s requests, that suspect waives her rights under the Fourth

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Amendment if a “reasonable person” would have believed they could have refused the officer’s “requests.” Why would any judge propose a principle of law which encourages citizens to disobey the police?

Stage Three: The Search After ruling that Mendenhall had not been seized despite Anderson’s testimony to the contrary, the next question Justice Stewart had to determine was whether the search was consensual. One might expect the same test, Test C, the hypothetical reasonable person standard, would have governed the search because it was controlling in the first two stages of the encounter. However, while it is not entirely implausible a reasonable person would agree to present her identification and even consent to an interrogation, what “reasonable person” would willingly agree in “a spirit of apparent cooperation” to submit to a strip-search rather than walk away and catch her plane? Justice Stewart avoided this conundrum by returning to Test B: the walk on by test. The following heuristic lists the tests as discussed by Stewart in reverse order: Test


Defining Characteristic

C: “Reasonable The stop and the custodial Person” interrogation B: “Walk on The search By” A: “Show of Force”

Would a reasonable person have felt free to leave? Did the officers expressly state the suspect was free to decline obeying their “requests”? Discussed in relation to the Did the officers exert physical force stop, but rejected for Test C or demonstrate their authority?

When focusing on the third stage, the search, Justice Stewart abandoned the “reasonable person” doctrine, and based his ruling on the testimony of the officers who said that they had informed Mendenhall she could refuse their request to strip-search her. The same agent’s testimony, which had been ignored when it was favorable to the defendant, became dispositive when it was favorable to the prosecution. Moreover, it should be noted Mendenhall probably did not understand what she was consenting to. Anderson testified that he and a second male agent took Mendenhall to a private locked office with no other occupants.119 The agent asked Mendenhall to take a seat and then told her, “I would like your consent to search your person as well as your handbag, and you have the right to decline this search if you so desire.”120 When Anderson asked Mendenhall for her “consent,” he did not indicate a female agent would conduct the body search.121 Based on Anderson’s testimony, it appears Mendenhall either did not understand a body search meant a strip-search, or that she allegedly agreed to remove her

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clothing in front of two male agents in a locked private office. A female officer was eventually summoned, but Anderson again testified that he would have “stopped” Mendenhall had she tried to leave the room where the search took place.122 According to the female agent, Mendenhall also complained that she had a plane to catch. Stewart ignored this testimony and instead concluded that Mendenhall had “voluntarily in a spirit of apparent cooperation” consented to be strip-searched.123 Such reasoning brings to mind the famous line in The Godfather, “I’ll make him an offer he can’t refuse.” Stewart’s “reasonable person” standard does not initially appear to be a radical doctrine because the term is prevalent throughout the law. However, consider its use in tort law, where it is used to decide whether the alleged wrongdoer, the tortfeasor, committed a harmful act. In terms of the suppression hearing, Mendenhall was accusing Anderson of having violated her constitutional rights. He was the alleged wrongdoer. Yet, Stewart instead focused on the alleged victim and asked whether her actions conformed to the reasonable person standard. Decisions which ask whether a “reasonable person” would have consented to a search echo the strategy rape defendants once used. Before rape shield laws were passed, defendants often switched the focus of inquiry from themselves onto the victim. They sought to put their accuser on trial by examining her previous sexual history or by asserting she was wearing overly provocative clothing. Stewart’s argument that it did not matter whether the police had probable cause to strip-search Mendenhall is reminiscent of the “it’s not my fault, she was asking for it” mantra. Of course, if an innocent subject does resist and the incident turns violent, as happened with Joe Morgan and Ronald Harris, the suspect is still at fault for not cooperating and may be indicted for resisting arrest. The reader may object that the analogy equates the guilty with the innocent; drug couriers with rape victims. Mendenhall was of course guilty, but how many innocent Americans were subjected to similar encounters? Contemporaneous data are extremely limited, but they do indicate a high percentage of people who were stopped were also searched. In a 1983 case the government revealed that between six and twelve people were being stopped daily at Chicago O’Hare airport and that roughly 60% were searched.124 Markonni testified when he was working in Atlanta that “eighty percent or better” of the people he stopped were searched and roughly half consented, with the other half being placed under arrest.125 It also appears it was not unusual to request the suspect consent to a strip-search. The female officer who supervised Mendenhall’s strip-search offered her testimony just several months after Van Lewis had been decided, indicating that the program was in its infancy. She testified that she had previously “searched women for various reasons, including approximately ten times for narcotics [and] she had never had a case where a woman refused to consent to the search.”126 Apparently DEA agents were searching a great number of people and it was not unusual for them to ask for someone’s “permission” to conduct

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a strip-search. Yet, in none of these cases does it appear anyone thought to ask what percentage of the men and women whom had been strip-searched had turned out to be innocent. Innocent travelers who were subjected to these stops had a strong incentive to submit to a search. It will end the interrogation and allow her to go on her way. Moreover, a refusal to comply may be taken as evidence of guilt as it was when Mendenhall indicated she did not want to be strip-searched because she had a plane to catch. The female officer replied, “if you don’t have anything on you, you don’t have a problem.”127 If the Court allows the police to seize people based on their “consent” instead of probable cause, it puts the innocent suspect in a catch-22 bind. Refusal to comply with an officer’s requests becomes indicative of guilt, and the best hope to end the interrogation is to submit “in a spirit of apparent cooperation.” The Fourth Amendment protects a right to privacy. The Court should have concluded a “reasonable person” would not submit to a strip-search unless compelled to do so. Therefore, it should have adopted a per se rule prohibiting strip-searches when the police lack probable cause. Mendenhall seemingly represented a victory for law and order but the next drug courier case should have raised serious doubts about the unintended consequences of the “reasonable person” standard.

Reid The 3–2–4 plurality decision in Mendenhall was difficult for lower courts to interpret; Reid v. Georgia (1980) only added to the confusion.128 There is no reason to recount why the agents stopped Reid because the Supreme Court concluded that “the agent could not, as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances.”129 What distinguishes Reid from Mendenhall is how the defendant reacted when the agents approached him outside the terminal. Reid did what any reasonable person would do under the circumstances. He ran as fast as his legs would carry him and “abandoned” his cocaine-laden shoulder bag.130 Since there was no reasonable suspicion to make the stop, and Reid did not exactly exhibit “a spirit of apparent cooperation,” he won a favorable ruling from the Court.131 The Supreme Court’s first two cases involving the “drug courier profile” perfectly paralleled Joiner’s ruling in Van Lewis. Mendenhall, like McCaleb, obeyed the commands of the police, so both defendants lost their motions to dismiss; Reid and Hughes, on the other hand, won favorable rulings by resisting the requests of the agents. The “highly organized criminal syndicates” must have been pleased. If the police approach a drug courier, they can flee and hope to escape; if they are subsequently caught, they might still elude justice by filing a motion to suppress. It creates a win-win situation, at least for the guilty willing to resist arrest.

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Considering the implications of these two decisions, it is hardly surprising there was a lack of clarity regarding how to interpret them. Judge Charles L. Becton declared that “after Mendenhall and Reid confusion abounded among the lower courts”; the New York Times described Reid as “an inconclusive opinion that succeeded mostly in confusing state and Federal judges”; and the Fifth Circuit declared that the “fractured legal conclusions of the majority in Mendenhall leave us without guidance.”132 Judges were confused because they were still attempting to apply traditional Fourth Amendment analysis; they did not realize the full implications of Justice Stewart’s “reasonable person” standard and the doctrine of consent. For example, Judge Becton wrote a highly cited law review article which listed all the behavioral characteristics from the first four Supreme Court “drug courier profile” cases side by side. He tried to decipher a pattern or logic as to what triggers reasonable suspicion, but that question had become irrelevant.133 It was easy to miss the significance of Mendenhall because Justice Stewart did not announce he was offering a new theory of constitutional law, and he had the good sense not to write an opinion in Reid.

From Border Patrol to Airport Surveillance This chapter began with a discussion of whether Brignoni-Ponce should be viewed as marking the advent of modern-day institutionalized racial profiling. It certainly violated today’s official definition of racial profiling by allowing for race to be viewed as a permissible criterion of suspicion in routine law enforcement practices. However, even under its rationale, the airport “drug courier profile” should have been prohibited. This was made clear in a companion case to Brignoni-Ponce that was issued the following year: United States v. Martinez-Fuerte (1976).134 Martinez-Fuerte involved fixed-checkpoint stops, as opposed to the roving patrol stop that had been at issue in Brignoni-Ponce. In Martinez-Fuerte Border Patrol officers were again relying on racial characteristics to identify potential illegal immigrants, but this time the Court upheld the practice because the “subjective intrusion—the generation of concern or even fright on the part of lawful travelers—is appreciably less in the case of a checkpoint stop.”135 Although the Court in these two illegal immigration cases sanctioned the use of race as a criterion of suspicion, both rulings offered statistical evidence to argue the policy was at least rational. The Court cited estimates that in 1972 there were 10 to 12 million illegal aliens living in the country, of whom 85% were Mexican.136 Although these figures were later disputed, the Court held that targeting people of Mexican appearance was constitutional because the “likelihood that any given person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”137 Reasonable people can disagree whether it should be permissible to use race and/or national origin as a criterion of suspicion in immigration enforcement.

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The Court in Brignoni-Ponce and Martinez-Fuerte may have encouraged officers to deemphasize race in future cases, but at least it did not entirely ignore the issue. The Court in Mendenhall and Reid turned a colorblind eye to how DEA agents had repeatedly testified race was a criterion in the profile despite the fact that the ACLU had filed an amicus brief in Mendenhall warning them that the “profile” was being discriminatorily applied against blacks and Hispanics.138 As previously noted, the Court has developed three tests for adjudicating Equal Protection disputes: rational basis, an intermediate scrutiny, and strict scrutiny.139 Assume for the sake of argument that the Constitution permits the police and Border Patrol officers to selectively target racial groups under the most lenient test, rational basis. In the two illegal immigration cases, the government at least offered evidence to support a rational basis finding. It cited congressional testimony, and contemporaneous data compiled by the Census Bureau as well as the Immigration and Naturalization Service, to buttress the conclusion that people of a Mexican appearance were more likely to be illegal immigrants than those who did not appear to be Mexican.140 After directly confronting the issue of whether the policy was at least rational, the Court then discussed two questions which carried little if any weight in the airport cases: the effectiveness of the program and the invasiveness of the intrusion. In relation to the first issue, the effectiveness of the program, the Court cited comprehensive statistics in Martinez-Fuerte that are reminiscent of Lamberth’s study in Soto: the number of cars that were passing through the checkpoints; the percentage of these motorists who could be expected to be Latino; the total number of motorists who were not waved through but referred to a secondary area for questioning; and the percentage of stopped cars that contained illegal aliens.141 According to the Court, roughly 820 of the 146,000 cars passing through the checkpoint were referred to a secondary area for questioning, and roughly 20% of these cars contained illegal immigrants.142 In terms of the invasiveness of the search, Brignoni-Ponce described the intrusion as “modest,” and claimed it “usually consumes no more than a minute.”143 In Martinez-Fuerte, the government explained even those who were referred to the secondary area were usually back on the highway in three to five minutes.144 In both cases, the Court emphasized that “[a]ll that is required of the vehicle’s occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.”145 “There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside.”146 Now consider the airport “drug courier profile.” People may disagree over what level of probability, if any, would justify this law enforcement “tool,” but the Court never even asked whether there was any empirical evidence to support a rational basis argument for a nation-wide program that was selectively targeting minority airline passengers. It merely cited the Van Lewis statistics, which did not even purport to show that minority airline passengers are more

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likely to act as drug couriers than are white passengers. Even under the most lenient constitutional standard, rational basis, the government failed to justify the program and it should have been prohibited. The only available data this author is aware of that is even tangentially related to the rationality of targeting minority domestic airline passengers pertains to international flights. Here, international black and Latino airline passengers were also being targeted, but whites were more likely to be carrying illegal contraband. 43.3 percent of those people subjected to body searches or X-rays in 1998 were black or Hispanic. Drugs were found on 6.3 percent of the black people searched, 6.7 percent of the white people searched and only 2.8 percent of the Hispanic people searched.147 Perhaps minorities were less likely to be carrying drugs because they were more fearful of being searched than white passengers were. Yet, once again, as happened in New Jersey, the available statistical evidence indicates that if the police were going to be targeting a particular racial group, white people might have made the better target.

Notes 1 Fuentes v. Shevin, 407 U.S. 67, 95 (1972). 2 See, e.g., United States v. Brignoni-Ponce, 422 U.S. 873 (1975). 3 Kevin R. Johnson, “How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering,” 98 Georgetown Law Journal 1005 (April 2010). 4 Appendix, at *9, Brignoni-Ponce, 422 U.S. 873. 5 Text of the End Racial Profiling Act of 2013, S. 1038 (113th), congress/bills/113/s1038/text. 6 Brignoni-Ponce, 422 U.S. at 876 (“The only issue presented for decision is whether a roving patrol may stop a vehicle in an area near the border and question its occupants when the only ground for suspicion is that the occupants appear to be of Mexican ancestry”). 7 Id., 883. 8 There was a certain amount of ambiguity regarding Terry’s application to Fourth Amendment stops or “seizures” because the Court explained in a footnote it was not ruling on the constitutional propriety of an investigative “seizure” upon less than probable cause for purposes of “detention” and/or interrogation. “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred. We cannot tell with any certainty upon this record whether any such ‘seizure’ took place here prior to Officer McFadden’s initiation of physical contact for purposes of searching Terry for weapons, and we thus may assume that up to that point no intrusion upon constitutionally protected rights had occurred” (Terry v. Ohio, 392 U.S. 1, n.16, 19 (1968)). 9 Id., 33 (Harland, J., dissenting).

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10 Brignoni-Ponce, 422 U.S., 881. 11 Id. 12 Id., 885–6. 13 Id., 884–6. 14 United States v. Place, 660 F.2d 44, 48 (2d Cir. 1981); and United States v.Vasquez, 612 F.2d 1338, 1352–3 (Oakes, J., dissenting) (2nd Cir. 1979). 15 Montoya de Hernandez, 473 U.S. 531, 537 (1985) (citations omitted); see also “Thirtieth Annual Review of Criminal Procedure,” 89 Georgetown Law Journal 1045, 1141 (2001) (analyzing case law of border searches). 16 Wayne LaFave et  al., Criminal Procedure, 236 (3rd ed. 2000) (summarizing border exception law for routine searches). 17 United States v.Van Lewis, 409 F. Supp. 535, 544 (E.D. Mich. 1976). 18 Id. 19 United States v. Brignoni-Ponce, 422 U.S. 873, 881 (1975) (citing Terry v. Adams, 407 U.S. 143 (1972)). 20 Van Lewis, 409 F. Supp. at 544. 21 United States v. Rogers, 436 F. Supp. 1 (E.D. Mich. 1976). 22 Id., 6. 23 Id., 18. 24 Id., 8. 25 United States v. Floyd, 418 F. Supp. 724 (E.D. Mich. 1976). 26 Id., 725. 27 Id., 728. 28 United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977). 29 The distinction between fact and law is notoriously complex and it could be argued this question involved both issues. 30 McCaleb, 552 F.2d at 720–1. 31 United States v.Van Lewis, 409 F. Supp. 535, 544–55 (E.D. Mich. 1976). 32 McCaleb, 552 F.2d at 721. 33 Id., 720. 34 United States v. Mendenhall, 446 U.S. 544 (1980). 35 The Sixth Circuit’s two-sentence decision in Mendenhall was unpublished. It can be found in Petition for Certiorari, Mendenhall, 446 U.S. 544 (No. 78–1821). The order simply stated the following: “Upon consideration of the briefs and oral arguments of counsel together with the record and transcript the court concludes that this case is indistinguishable from United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977). Accordingly, the judgment of the district court is reversed.” Id., 34.The Sixth Circuit subsequently granted the prosecution’s motion for an en banc hearing and issued a per curiam decision upholding the panel’s decision. United States v. Mendenhall, 596 F.2d 706, 708 (6th Cir. 1979) (En Banc). 36 United States v. Buenaventura-Ariza, 615 F.2d 29, 31 (2nd Cir. 1980); United States v. Ballard, 573 F.2d 913, 916 (5th Cir. 1978). (In United States v.Vasquez, 612 F.2d 1338 (2nd Cir. 1979), the Second Circuit arguably upheld a stop and search involving nothing more than mere conformity to the “drug courier profile” criteria.) 37 United States v. Allen, 44 F.2d 749, 751 (9th Cir. 1980). 38 Id., 752. 39 United States v. Scott, 545 F.2d 38, 40, n.2 (8th Cir. 1976) (determining that “the other ‘suspicious’ circumstances cited by the government, that the appellant was a female (it being ‘common for females to carry narcotics on their person’) and that she was traveling from Los Angeles (it being known ‘that Los Angeles, California is a major distribution area for Mexican heroin’) have little or no probative value”). 40 However, after the Supreme Court issued Mendenhall in 1980, the 8th Circuit explicitly condoned the use of race as a criterion of suspicion in an airport “drug courier profile” cases. “Facts are not to be ignored simply because they may be unpleasant—and

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the unpleasant fact in this case is that [the DEA agent] had knowledge, based upon his own experience and upon the intelligence reports he had received from the Los Angeles authorities, that young male members of the black Los Angeles gangs were flooding the Kansas City area with cocaine. To that extent, then, race, when coupled with the other factors [the agent] relied upon, was a factor in the decision to approach and ultimately detain [the suspect].We wish it were otherwise, but we take the facts as they are presented to us, not as we would like them to be.” United States v.Weaver, 966 F.2d 931, 934 n.2 (8th Cir. 1992). 41 United States v. Andrews 600 F.2d 563 (6th Cir. 1979) (citations omitted). 42 United States v.Van Lewis, 409 F. Supp. 535, 539–40 (E.D. Mich. 1976). 43 United States v. Buenaventura-Ariza, 615 F.2d 29, 35 (2nd Cir. 1980). 44 United States v. Mendenhall, 596 F.2d 706, 708 (6th Cir. 1979) (En Banc) (Weick, J., dissenting). 45 Douglas A. Campbell and Howard Goodman, “The Path to Glory for N.J. Troopers: Arrests, Arrests: Waging a War on Drug Traffickers, the State Police Have Lost Sight of Public Safety, Some Troopers and Others Say,” The Philadelphia Inquirer, March 7, 1999, 46 Id. 47 United States v. Elmore, 595 F.2d 1036, n.3 1039 (5th Cir. 1979). 48 Buenaventura-Ariza, 615 F.2d at 35. 49 Terry v. Ohio, 392 U.S. 1, 6 (1968). 50 Interestingly, the drug dealer paid cash while the government agent used a credit card. 51 Compare United States v.Van Lewis, 409 F. Supp. 535, 538 (E.D. Mich. 1976), aff’d sub nom with United States v. Patino, 649 F.2d 724, 725 (9th Cir. 1981). See also United States v. Craemer, 555 F.2d 594, 595 (6th Cir. 1977) (listing, as drug profile characteristics, tickets “purchased with cash using bills of small or large denominations”). 52 Compare United States v. Craemer, 555 F.2d 594, 595 (6th Cir. 1977) with United States v. Sullivan, 625 F.2d 9, 12 (4th Cir. 1980). 53 Florida v. Ellis, No. 80–8114CF (17th Judicial Circuit), rev’d, No. 80–2044, slip op. (Fla. Dist. Ct. App. 1981) (per curiam). 54 425 F. Supp. 1330 (E.D. Mich. 1977). 55 Id., 1333. 56 United States v.Van Lewis, 409 F. Supp. 535, 541 (E.D. Mich. 1976). 57 Id., 538; United States v. McCaleb, 552 F.2d 717, 719–20 (6th Cir. 1977); United States v. McClain, 452 F. Supp. 195, 199 (E.D. Mich. 1977); United States v. Allen, 421 F. Supp. 1372, 1374 (E.D. Mich. 1976); United States v. Floyd, 418 F. Supp. 724, 725 (E.D. Mich. 1976), aff’d in part and vacated in part sub nom. United States v. Roseborough, 571 F.2d 584 (6th Cir. 1978). Four others were developed as a result of Markonni’s activities in Atlanta. See Reid v. Georgia, 448 U.S. 438, 440–1 (1980) (per curiam); United States v. Elmore, 595 F.2d 1036, 1039 n.3 (5th Cir. 1979), cert. denied, 447 U.S. 910 (1979); United States v. Key, No. CR77–323A (N.D. Ga. Mar. 23, 1978); United States v.Thomas, No. CR78–223A (N.D. Ga. Nov. 3, 1978). 58 See United States v. Mendenhall, 446 U.S. 544, 562 (1980). 59 See United States v. Elmore, 595 F.2d 1036, 1037 (5th Cir. 1979); Brooker v. State, 164 Ga. App. 775, 776 (Ga. Ct. App. 1982). 60 United States v. Nembhard, 676 F.2d 193, 196 (6th Cir. 1982), cert. denied, 104 S. Ct. 90 (1983). 61 United States v.Vasquez, 612 F.2d 1338, 1340 (2nd Cir. 1979). 62 United States v. Pulvano, 629 F.2d 1151, 1153 (5th Cir. 1980). 63 Commonwealth v. Jackson, 428 Pa. Super. 246, 248 (Pa. Super. Ct. 1993). 64 Charles L. Becton, “The Drug Courier Profile: ‘All Seems Infected that th’ Infected Spy, As All Looks Yellow to the Juandic’d Eye,’” 65 North Carolina Law Review 417, 442 (1987) (citations omitted).

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65 Douglas et al., “Criminal Profiling from Crime Scene Analysis,” 4 Behavioral Sciences & the Law,” 401, 405 (1986). 66 United States v. Mendenhall, 446 U.S. 544, 562 (1980). 67 United States v.Taylor, 917 F.2d 1402, 1407 n.8 (6th Cir. 1990); United States v. Hooper, 935 F.2d 484, 499 (2nd Cir. 1991) (Pratt, J., dissenting). 68 The Drug Enforcement Administration, 1986 Annual Report (1986 and photo reprint 1987) as quoted in Joseph P. D’Ambrosio, “The Drug Courier Profile and Airport Stops: Reasonable Intrusions or Suspicionless Seizures?,” 12 Nova Law Review 273 (1987). 69 United States v. Mendenhall, 1976 U.S. Dist. LEXIS 12228 (E.D. Mich. 1976). 70 See supra note 35. 71 Michigan Department of State Police v. Sitz, 496 U.S. 444, 451 (1990). 72 National Treasury Employees Union v. Von Raab, 489 U.S. 656, 668–71 (1989); and Skinner v. Railway Labor Executives’ Association, 489 U.S. 602 (1989). 73 United States v. Ramsey, 431 U.S. 606, 616 (1977) (“That searches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border, should, by now, require no extended demonstration.”). 74 Brendan I. Koerner, The Skies Belong to Us: Love and Terror in the Golden Age of Hijacking (New York: Crown Publishing, 2013), Kindle Edition, location 3338. 75 Id. 76 Victor Merina, “Joe Morgan’s Suit Protests ‘Profile of Drug Dealer’ that Led to Arrest,” Los Angeles Times, August 11, 1990, 77 Id. 78 Id. 79 Id. 80 Harris v. United States, 422 F.3d 322, 325 (6th Cir. 2005). 81 Id. 82 United States v. Rogers, 436 F. Supp. 1, 7 (E.D. Mich. 1976). 83 Harris, 422 F.3d at 325. 84 Id. 85 Thomas Sheeran, “1968 Olympic Gold Medal Winner Sues,” February 21, 1998, Associated Press, 86 Id. 87 Harris, 422 F.3d. 88 Sheeran, “1968 Olympic,” supra note 85. 89 “Here the Government concedes that its agents had neither a warrant nor probable cause to believe that the respondent was carrying narcotics when the agents conducted a search of the respondent’s person.” United States v. Mendenhall, 446 U.S. 544, 550 (U.S. 1980). 90 Powell said the Court must assume the encounter constituted a “stop” under the Fourth Amendment because the government in the lower court proceedings had conceded that issue and the Supreme Court has a rule against reversing judgments on grounds not raised below. Mendenhall, 446 U.S. at 560 (Powell, J., concurring). 91 Id., 564–5. 92 Brief of Respondent, *8, Id. (No. 78–182), 1 U.S. S. Ct. Briefs LEXIS 1385. 93 Id., *24. 94 Appendix, at *22–3, Id. (No. 78–1821), 1979 U.S. S. Ct. Briefs LEXIS 1094. 95 United States v. Collis, 528 F. Supp. 1023, 1031 (E.D. Mich. 1981) (internal citations omitted). 96 Id., *20.

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97 Brignoni-Ponce was published in June 1975, and Mendenhall was arrested on February 10, 1976. Evidence that law enforcement officers are trained to abide by the Court’s rulings on the Fourth Amendment is found in the prosecution’s brief to the Court in Mendenhall where the government argued it needed “this Court’s plenary review in order to provide needed guidance to law enforcement agencies like DEA in the structuring of their programs and in the training and supervision of their agents.” Brief for Petitioner at *16, Id. (No. 78–1821), 1979 U.S. S. Ct. Briefs LEXIS 1093. 98 United States v. Brignoni-Ponce, 422 U.S. 873, 885–6 (1975). 99 Mendenhall, 446 U.S. at 562. 100 Id., n.11 at 573 (“there is no indication that the asserted successes of the ‘drug courier program’ have been obtained by reliance on the kind of nearly random stop involved in this case. Indeed, the statistics Mr. Justice Powell cites on the success of the program at the Detroit Airport refer to the results of searches following stops ‘based upon information acquired from the airline ticket agents, from [the agents’] independent police work,’ and occasional tips, as well as observations of behavior at the airport. Here, however, it is undisputed that the DEA agents’ suspicion that Ms. Mendenhall was engaged in criminal activity was based solely on their observations of her conduct in the airport terminal.”) (internal citations omitted). 101 Id., 547, note 1. 102 Id., 551. 103 Id., 553. 104 Id., 547–8. 105 Id., 553–4. 106 Harris v. United States, 422 F.3d 322, 325 (6th Cir. 2005). 107 Mendenhall, 446 U.S. at 547–8. 108 Id., 550. 109 Id., n.12 at 575 (White, J., dissenting). 110 Id., 554. 111 Id., 553. 112 Id., 553–4. 113 Schneckloth v. Bustamonte, 412 U.S. 218, 229 (1973). 114 Mendenhall, 446 U.S. at 554. 115 Baumgartner v. United States, 322 U.S. 665, 673–4 (1944). 116 See Snyder v. Phelps, 562 U.S. 443 (2011) (holding that Westboro Baptist Church’s protest displaying signs saying “God Hates Fags,” “Fags Doom Nations,” and “Thank God for Dead Soldiers” near a private family’s funeral for their son killed in combat is protected speech under the First Amendment); Cavanaugh v. Bartelt, 178 F. Supp. 3d 819 (D. Neb. 2016) (noting plaintiff ’s arguments based in his belief of the divine Flying Spaghetti Monster). 117 Joseph Goldstein and Nate Schweber, “Man’s Death After Chokehold Raises Old Issue for the Police,” New York Times, July 19, 2014, A1. 118 Merina, “Joe Morgan’s Suit Protests,” supra note 76. 119 See Appendix at *26–7, Mendenhall 446 U.S. 544 (1980) (78–1821). 120 Id., *32. 121 Id., *53. 122 Agent Anderson gave the following testimony: Q. Had she tried to leave that room when she was being accompanied by the female officer, would you have known? A. If she had attempted to leave the room? Q. Yes. A. Well yes, I could say that I would have known. Q. And if she had tried to leave prior to being searched by the female officer, would you have stopped her? A. Yes. Id., *29.

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123 Mendenhall, 446 U.S. at 549. 124 United States v. Cordell, 723 F.2d 1283, 1287–8 (7th Cir. Ill. 1983). 125 United States v. Berry, 670 F.2d 583, 608 n.3 (Judge Thomas A. Clark dissenting) (5th Cir. Ga. 1982). 126 Response Brief, at *11, Mendenhall, 446 U.S. 544 (1980) (No. 78–1821), 1979 U.S. S. Ct. Briefs LEXIS 1385. 127 Id. 128 Reid v. Georgia, 448 U.S. 438 (1980). 129 Id., 441. 130 Id., 439. 131 The Court issued a limited ruling in Reid. The lower court decision had been issued prior to Mendenhall and the lower courts had not considered the issue of whether the defendant had been seized. Id. at 443 (Powell, J., concurring). The Supreme Court therefore also did not consider that question, and it simply ruled that “the agent could not as a matter of law, have reasonably suspected the petitioner of criminal activity on the basis of these observed circumstances.” Id. at 441 (majority opinion). The case was remanded back to the Georgia Supreme Court on that basis and the state court then determined that there had in fact been no seizure. State v. Reid, 276 S.E.2d 617 (Ga. 1981). Had Reid first waited for the police to seize him, and then attempted to run away, the exclusionary rule would presumably have been invoked. 132 Becton, “The Drug Courier Profile,” supra note 64, at 459; Linda Greenhouse, “Drug Courier Profile Facing Review,” New York Times, December 1, 1981, A23; United States v. Berry, 670 F.2d 583, 192 (5th Cir. 1982). 133 Becton, “The Drug Courier Profile,” supra note 64, at 463. 134 United States v. Martinez-Fuerte, 428 U.S. 543 (1976). 135 Id., 558. 136 United States v. Brignoni-Ponce, 422 U.S. 873, 878–9 (1975) (citation omitted); Martinez-Fuerte, 428 U.S. at 551 (citations omitted). 137 Martinez-Fuerte, 428 U.S at n.17, 543 (citing Brignoni-Ponce, 422, U.S. at 886–7). 138 Brief for The American Civil Liberties Union, Amicus Curiae, at *35–6, United States v. Mendenhall, 446 U.S. 544 (1980) (No. 78–1821), 1979 U.S. S. Ct. Briefs LEXIS 1381. 139 See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 930 (1992). 140 Brignoni-Ponce, 422 U.S. at 879; Martinez-Fuerte, 428 U.S. at n.16, 563. 141 Martinez-Fuerte, 428 U.S. at n.16 and 17, 563–4. 142 Id., 554. 143 Brignoni-Ponce, 422 U.S. at 880 (citation omitted). 144 Martinez-Fuerte, 428 U.S. at 547. 145 Id., 558 (citing Brignoni-Ponce, 422 U.S. at 880). 146 Brignoni-Ponce, 422 U.S. at 880. 147 David Stout, “Customs Service Will Review Drug-Search Process for Bias,” New York Times, April 9, 1999, A18; see also, Chapter 6, note 123.


In reviewing the propriety of an officer’s conduct, courts do not have available empirical studies dealing with inferences from suspicious behavior, and this Court cannot reasonably demand scientific certainty when none exists. (Chief Justice Rehnquist, Illinois v. Wardlow, 528 U.S. 119, 119 (2000))1

Justice Potter Stewart retired from the Supreme Court in 1981. It is rather befitting that the Justice who invented a colorblind approach to Fourth Amendment adjudication had managed “to maintain a low profile” and remain anonymous to the general public despite having served for twenty-three years on the Supreme Court.2 He has not even been “the subject of much scholarly attention.”3 It is even more ironic that he is best remembered for having said, “I know it when I see it,” in a case dealing with hard-core pornography.4 In his approach to constitutional law Stewart has been described as having “a strong tendency to decide issues on the narrowest terms available” because as he once said, “[n]o one is wise enough to see around the next corner.”5 The few law review retrospectives that appeared after his retirement focused on his Fourth Amendment jurisprudence. Stewart authored more than fifty Fourth Amendment opinions, including, of course, Schneckloth and Mendenhall. A law review retrospective, entitled “A Lawyer’s Lawyer, a Judge’s Judge,” characterized Stewart as a Fourth Amendment “strict constructionist” for whom “any exceptions must be drawn narrowly.”6 Stewart’s best remembered Fourth Amendment decision involved questions that inevitably arise in a nation governed by an eighteenth-century document. The Search and Seizure clause had originally been conceived as protecting against

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physical intrusions or seizures of material objects. In Katz v. United States (1967), the FBI had placed a listening device on the outside of a public phone booth to gather evidence against a bookie. Is it possible to “seize a conversation”? Is there a legitimate expectation of privacy in a public phone booth? Stewart, writing for the majority, famously declared the Constitution protects people, not places, and even declared that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment.”7 A dozen years later, Stewart took a similar position in Smith v. Maryland (1979).8 In Smith, the victim of a robbery described the suspect and informed the police she had observed a 1975 Monte Carlo near the scene of the crime. The woman subsequently began receiving threatening and obscene calls from the self-identified robber. After receiving one such call, she stepped out on her front porch and observed a Monte Carlo moving slowly down her street. The police later observed a man, who fitted the suspect’s description, driving down the woman’s block in a 1975 Monte Carlo.9 The police traced the license plate of the car and, acting without a warrant, they requested the phone company to place a pen register on the driver’s home phone.10 A pen register records numbers dialed but does not intercept conversations. After the pen register indicated the driver had called the victim’s home, he was arrested and identified by the woman in a lineup. The Supreme Court held that the defendant did not have a “legitimate expectation of privacy” regarding the numbers dialed on his phone.11 No conversations were recorded, and pen registers are routinely used by telephone companies for various business purposes such as billing operations, detecting fraud, and checking for defective dial tones. However, Stewart dissented, arguing that the conviction of the robber and potential sex offender should be reversed because the numbers dialed from a private phone are constitutionally protected.12 There are longstanding criticisms of the judicially constructed exclusionary rule. The Supreme Court first used the exclusionary rule in 1914 and, as late as 1949, two-thirds of the states had declined to adopt it. When Benjamin Cardozo was still a New York jurist, he claimed the rule was both “too strict and too lax” and complained that “The criminal is to go free because the constable has blundered.”13 Every other country in the world has rejected the idea.14 Since judges are human, the exclusionary rule is invariably applied inconsistently. Freeing a menace to society is at best an indirect method of deterring police misconduct and judges may be excused if they sometimes appear to bend the rules. However, Stewart’s Smith and Mendenhall opinions, separated by only one year, evince an almost schizophrenic quality. By almost any measurement it is hard to understand Stewart’s thinking. Smith represented a much graver threat to public safety, while Mendenhall had suffered a far greater intrusion of her privacy. The police could easily have

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secured a warrant for the pen register in Smith, but they apparently thought it unnecessary. In Mendenhall, by contrast, Drug Enforcement Administration (DEA) agents continued making “profile”-based stops after repeated rulings by numerous federal circuit courts that such stops were unconstitutional. Racial bias was not a factor in Smith’s apprehension, whereas the arresting agent in Mendenhall testified he had stopped her because she was a black woman traveling alone. Even the authors of one predictably praiseworthy law journal retrospective on Stewart characterized Mendenhall as representing his “most troubling” Fourth Amendment decision.15 They also warned that although Stewart’s “insistence upon narrow exceptions to the warrant requirement enhances fourth amendment protections, his approach to consent risks its becoming one broad exception to the fourth amendment.”16 It did not take long before the forewarned risk came to fruition. Shortly after Mendenhall was issued, institutionalized racial profiling expanded to bus terminals and train depots and an exponentially greater number of people were affected. However, it took one last airport “drug courier profile” to help set the stage for this next episode. In 1983, after Stewart had retired, the Supreme Court issued Florida v. Royer.17 Royer was stopped in Miami Airport for the following reasons: (a) Royer was carrying American Tourister luggage, which appeared to be heavy, (b) he was young, apparently between 25–35, (c) he was casually dressed, (d) he appeared pale and nervous, looking around at other people, (e) he paid for his ticket in cash with a large number of bills, and (f) rather than completing the airline identification tag to be attached to checked baggage, which had space for a name, address, and telephone number, he wrote only a name and the destination.18 Unlike Mendenhall and Reid, Royer was arrested not by DEA agents, but by a local Dade County drug smuggling squad which had been patrolling the Florida airport since 1977.19 He was also stopped before embarkation.20 In other respects, the stop was fairly typical. After the police discovered Royer was traveling under an alias, they informed him that he was suspected of trafficking narcotics.21 While retaining his ticket and identification, the police asked him to accompany them to their “office,” which was basically a “large closet.”22 While Royer sat in the closet, agents retrieved Royer’s luggage from the airline and “requested” his consent to conduct a search.23 Once again, the prosecution in this case conceded that the police lacked probable cause to search Royer’s luggage, one item of which had been prised open, and the police again acknowledged Royer would not have been allowed to leave had he attempted to do so.24 Once again, the Court issued another splintered decision.

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Only two Justices joined Justice White’s judgment of the Court, which held the initial encounter had been constitutional but the seizure and search unconstitutional. Two Justices issued separate concurring opinions. Justice Blackmun issued a dissenting opinion, which no other Justice signed, and two Justices signed Justice Rehnquist’s dissent which declared that “if my aunt were a man, she would be my uncle.”25 Rehnquist believed that Royer had consented to the entire encounter and that the Court should defer to the agents’ expertise as evidenced by the eight-year-old Van Lewis statistics.26 In other words, the Court issued a 3–1–1 opinion finding a Fourth Amendment violation, with four judges dissenting. A third highly contentious and splintered decision did not make life any easier for trial court judges. However, not everyone was complaining. The head of the Dade County drug smuggling squad, Sergeant Skip Pearson, was interviewed after Royer’s conviction had been overturned. “That’s O.K.,” Pearson said after the Supreme Court declared his men had violated Royer’s constitutional rights. “There was nothing they could have done that could have made any difference to us.”27 Pearson’s blithe dismissal of the power of the United States Supreme Court may surprise the reader. However, numerous federal appellate courts had ruled against the use of the airport “drug courier profile,” but that did nothing to prevent the operation from expanding to airports across the nation and being adopted by local police forces, as evidenced in Royer. The reporter who interviewed Sergeant Pearson explained the apparent discrepancy. After the Sixth Circuit had declared the McCaleb stop to have been unconstitutional, the DEA simply switched to “other versions” of the profile.28 Pearson was also not overly concerned about the Royer decision because he evidently understood the judiciary only has the power of judgment, not enforcement. “Maybe Royer will bring better guidelines for us,” Pearson said, “but we’re not going to go out of business and quit catching drug dealers.”29 Pearson offered no information regarding possible changes to his squad’s modus operandi, but the Supreme Court reporter, Linda Greenhouse, homed in on the pivotal sentence in Justice White’s decision, which addressed precisely that topic: by returning his ticket and driver’s license, and informing him that he was free to go if he so desired, the officers might have obviated any claim that the encounter was anything but a consensual matter from start to finish.30 Thus, as Greenhouse noted, the Court was suggesting that with “some rather minor modifications in the detectives’ procedure . . . [the police] might have avoided the constitutional problem.”31 The reader will recall White had dissented in Mendenhall, even though those agents had returned that defendant’s ticket and driver’s license before they

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requested she accompany them to their office. White had forcefully rejected Stewart’s reasonable person standard by arguing it was “based on the notion that consent can be assumed from the absence of proof that a suspect resisted police authority.”32 Yet, in Royer, White hinted he might have found consent had the police simply returned the suspect’s papers before they locked him in a closet, retrieved his luggage without his permission, and then prised open one of his suitcases.33 The Court was clearly gravitating toward Stewart’s position and, as we shall see, the issue of consent would eventually turn on one simple question: did the police retain or return a person’s identification and passenger ticket after the initial questioning?

Racial Profiling in America, Stage Two: Buses and Trains There is no equivalent to the Van Lewis decision to mark the advent of the second stage of institutionalized racial profiling. No one has taken credit for being the first to adopt Markonni’s techniques and apply them to long-distance bus and train passengers. The media also gave scant attention to the bus and train sweeps. If more reporters traveled Greyhound, perhaps the practice would have received more coverage. A review of the case law reveals that arrests had begun by 1983 and decisions began appearing in 1984.34 However, far fewer cases were published compared with the airport searches.35 There is a simple explanation for the dearth of relevant case law: rising crime led state governments to impose longer sentences for criminal offenses, which, in turn, increased plea bargaining and saw a corresponding reduction in the number of criminal trials. A specific example illustrates the dynamic. In 1973, an ex-convict in Kentucky passed a forged check. It was his third offense, which subjected him to a life sentence under the state’s recently enacted habitual criminal statute. The prosecutor offered the defendant five years in a plea bargain deal, threatening him with life if he insisted on going to trial. The defendant opted for trial, was found guilty, and received a life sentence. The Sixth Circuit Court of Appeals held that by threatening the defendant with a “retaliatory action for insisting upon his constitutional right to stand trial,” the prosecutor had violated the defendant’s due process rights.36 The Supreme Court, in a majority opinion authored by Stewart, reversed and upheld the life sentence for passing a forged check written in the amount of $88.30.37 Increased criminal sentences not only kept convicts in jail longer, but they also had the unintended effect of making criminal defendants more willing to plead guilty in exchange for reduced charges. As we shall see in Chapter 7, sentencing has become so draconian that even the innocent sometimes plead guilty. State felony convictions secured through trial decreased from 8% in 1976 to just 2.3% by 2009, and the ratio of federal criminal defendants who opt for a jury trial decreased from about 25% in 1977 to just 3% in 2012.38 Thus, by the time

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the second stage of institutionalized racial profiling had begun in the mid-1980s, plea bargaining had largely replaced trials. The dearth of case law and absence of media coverage make the second stage of institutionalized profiling the most difficult to document. Sweeps of bus and train passengers seem to have originated in Florida, possibly in Broward County. Nick Navarro, who served as Broward County Sheriff from 1984 to 1992, was probably the most famous sheriff in America during those years. The self-described “Cuban Cop” worked as a technical advisor to Al Pacino for his role in Scarface, and he later starred in the first season of the reality police program Cops after permitting the show to be filmed in his jurisdiction.39 He even penned a memoir.40 Navarro certainly led an interesting life. Raised in Cuba, he left Havana for the United States in 1950 after attending two years of college and joined the Federal Bureau of Narcotics in 1963, where he worked undercover chasing drug dealers in New York City. In his autobiography, he wrote that New York was more dangerous than Miami because of “the depth of corruption within the city’s own law enforcement ranks.” His fear was that his cover “could be blown at any time by our own side.”41 Navarro eventually moved from New York to Florida and, in 1977, he was assigned to work the Fort Lauderdale/Hollywood International Airport. Navarro’s reaction to his new assignment sheds light on how Paul Markonni might have felt when he was assigned to Detroit Metropolitan Airport. Known around the office as “Siberia,” it had long been the posting an officer was given if apparently he or she couldn’t handle anything else. Being transferred to the airport was generally a career killer . . . The airport was a vast wasteland in which one merely passed the time until it was feasible to retire.42 Navarro was unhappy about the transfer, but he made the most of it. Soon after my transfer, I went to Sheriff Stack with an idea. The DEA had developed a profile of people that were likely to be transporters of drugs or high amounts of cash. It was an adaptation of the Sky Marshals’ “profile of skyjackers” idea, which a DEA agent out of the Detroit office had modified for smugglers.43 According to Navarro, his operation was a huge success; teams from New York, Los Angeles, and Miami later came to observe his men, and his career was resurrected. In 1984, he was elected Sheriff in Broward County. Remarkably, Navarro claims he was the first Sheriff in Broward County history to enter office with a law enforcement background.44 Navarro comes across like one of his contemporaries from New York City, Popeye Doyle, the police officer Gene Hackman played in The French

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Connection. He even talked like Doyle: “after a while one can tell who’s dirty and who isn’t.”45 He appears to have been sincerely motivated to rid the streets of the scourge of narcotics and perfectly willing to bend the rules to do so. For example, from 1989 to 1991, while Sheriff, he “used his own crime lab to cook up batches of crack cocaine,” and then sent undercover officers onto the street to sell the crack in reverse-sting operations. Even the DEA spokesman was somewhat taken aback: “I never heard of that in my life before.” And, as a local defense attorney observed, “I would think the emphasis would be on ridding it from the streets.”46 Navarro did not discuss the bus sweeps at great length in his memoir and most of his focus is on his disputes with the rulings issued by local judges. It seems he deserves credit not for creating the operation, but for carrying it out more aggressively than other sheriffs. In any event, in the early 1980s, Florida judges were confronted with a new and controversial law enforcement technique and were asked to apply the Supreme Court’s splintered decisions on the airport “profile” cases to the new bus sweep program. Perhaps no court struggled with this challenge more than Florida’s Fourth District Court of Appeals, which decided three important cases involving Navarro’s men between April and October 1987.

Three Cases in Florida’s Fourth District The facts in the first case, Bostick v. State (1987), were fairly typical. Terrance Bostick was a passenger on a Greyhound bus traveling from Miami to Atlanta. While the bus was stopped for a layover in Fort Lauderdale, it was boarded by Officers Joseph Nutt and Steven Rubino of the Broward County Sheriff’s Department. Eyeing the passengers, the officers, admittedly without articulable suspicion, picked out Bostick and asked to inspect his ticket and identification. Bostick had been lying down on the bench-style last row of seats at the rear of the bus when the officers approached him.47 According to the prosecution, Officer Nutt asked Bostick if the red bag he was using as a cushion was his and, if so, could he have permission to search it. Bostick agreed, and following the search, Officer Rubino noticed a blue bag in the overhead storage area near Bostick. Again, Bostick was asked if he owned the bag and if he would give permission for its search and, again, Bostick agreed. The bag contained 400 grams of cocaine. Bostick’s version was slightly different. He testified that he had been gently napping when something came in contact with his feet. He awoke and discovered a police officer asking to see his bus ticket and identification. He disputed granting consent to search his blue bag, and he denied that either officer ever informed him that he had the right to decline their requests.48 The trial judge ruled Bostick’s Fourth Amendment rights had not been violated. Two of the three judges sitting on the Fourth District Court of Appeals

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panel affirmed the conviction in a ruling with no analysis, but all three judges on the panel were clearly troubled. They all concurred the case was “of great public importance,” and they certified the following question to the state Supreme Court: MAY THE POLICE WITHOUT ARTICULABLE SUSPICION BOARD A BUS AND ASK AT RANDOM, FOR, AND RECEIVE, CONSENT TO SEARCH A PASSENGER’S LUGGAGE WHERE THEY ADVISE THE PASSENGER THAT HE HAS THE RIGHT TO REFUSE CONSENT TO SEARCH?49 (Capitalization in original) One appellate judge, Gavin K. Letts, even went so far as to write a separate opinion, arguing Bostick’s conviction should be overturned. Referring to Mendenhall and Royer, he admitted to have extensively studied [these] two United States Supreme Court opinions . . . in search of counsel and guidance. With the utmost of respect, I have some trouble reconciling these two decisions and I do not find them entirely consistent with one another. Certainly, their results are opposite.50 Letts stated he understood that he was obligated under Mendenhall to determine whether “in view of all of the circumstances surrounding the incident a reasonable person would have believed he was not free to leave.”51 However, he offered his reader a numbered list of all the relevant facts in Royer and Bostick to illustrate how “some of the . . . facts in Royer favor a consensual encounter while others reflect a seizure. In the same vein, factors pro and con exist in the case at bar.”52 Although Mendenhall and Royer were contradictory, according to Letts the bigger issue was the underlying “reasonable person” test: my version of common sense tells me that a paid and ticketed passenger will not voluntarily forfeit his destination and get up and exit a bus in the middle of his journey, during a temporary stopover, while two policemen, one with a pouched gun in his hand, are standing over him in a narrow aisle asking him questions and requesting permission to search his luggage. It is not a question of whether he actually was free to leave, as all of us trained lawyers know he was. The test is whether a layman would reasonably be expected to believe he was free to leave under these circumstances. I conclude he would not.53 (Emphasis in original) Sheriff Navarro was not entirely consistent when he explained what criteria his men used in selecting bus passengers to search. He claimed in his memoir that

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his men only “selected individuals who seemed to fit our profile.”54 He never explained what Bostick had done to trigger the “profile,” but even a sleeping passenger might conform to a “profile” based on his race, gender, style of dress, and the bus route. However, how can the police say a person who can be neither seen nor heard triggered a profile? That question arose a few months later, in August, when the same court published a decision in a case, State v. Avery (1988), involving a search which took place on an Amtrak train.55 This time, the three-judge panel unanimously ruled that the defendant’s constitutional rights had been violated. The officers had no warrant to search any part of the train and no articulable reason to believe that any passenger on the train might be transporting illegal drugs. The officers knocked on the door of the private sleeping compartment occupied by Alvarez, who was lying in bed in his stocking feet. After he opened the door, the officers positioned themselves in the doorway partially blocking the exit. The officers then identified themselves and requested and obtained Alvarez’ train ticket and identification.56 The third case, State v. Kerwick, was published in October 1988. The panel again unanimously voted to suppress the evidence and it appears the court’s patience was beginning to wear thin. In Kerwick, the police approached a car parked at the Fort Lauderdale Amtrak train station. The defendant had been doing nothing illegal or suspicious. They asked to “check” her luggage. When they found a smaller bag contained in a large suitcase, they cut it open without first “requesting” to do so and discovered cocaine. The Kerwick court evinced a decidedly more skeptical view of the cooperative nature of Americans than that professed by the United States Supreme Court in Mendenhall: The Court has no doubt, that any citizen would object to the type of action taken by the officers in this case, and finds such activity a search and seizure which is, at best, ‘unreasonable’, and, at worst, a flagrant denial of this Defendant’s First and Fourth Amendment rights.57 (Emphasis in original) The state court then unleashed a “vehement attack” which Sheriff Navarro claimed “astonished” him.58 [T]he evidence in this case has evoked images of other days, under other flags, when no man traveled his nation’s roads or railways without fear of unwarranted interruption, by individuals who held temporary power in the Government. The spectre of American citizens being asked, by badge-wielding police, for identification, travel papers—in short a raison d’etre—is foreign to any fair reading of the Constitution, and its guarantee

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of human liberties. This is not Hitler’s Berlin, nor Stalin’s Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police officers approach every person on board buses and trains (“that time permits”) and check identification, tickets, ask to search luggage—all in the name of “voluntary cooperation” with law enforcement—to the shocking extent that just one officer, Damiano, admitted that during the previous nine months, he, himself, had searched in excess of three thousand bags! In the Court’s opinion, the founders of the Republic would be thunderstruck. It certainly shocks the Court’s conscience that the American public would be “asked,” at badge-point, without the slightest suspicion, to interrupt their schedules, travels and individual liberties to permit such intrusions. This Court would ill-expect any citizen to reject, or refuse, to cooperate when faced with the trappings of power like badges and identification cards. And these officers know that—that is one reason that they display those trappings. It is much like the feeling that an ordinary citizen has on seeing a patrol car behind him, or observing blue lights flashing, or being confronted by a police officer asking questions.59 (Emphasis in original) Navarro said he was “not sure what inspired” this criticism, but that in his view it “flew directly in the face” of U.S. Supreme Court rulings, “which consistently upheld random search and seizure.”60 One wonders why Navarro’s men bothered with a profile if random stops and searches are constitutional. In fact, if the police may randomly stop people at random and search them at random, one may ask: what is the purpose of the Fourth Amendment? The Florida Supreme Court soon had the opportunity to consider these questions when it heard the appeal in Bostick. Navarro could not have been pleased with the result. The Florida Supreme Court not only found a Fourth Amendment violation and quoted the above passage verbatim, but it also took a highly unusual measure. It attempted to put an end to bus sweeps by declaring the operation to be per se unconstitutional.61

The Refusenik’s Dilemma After losing in Florida Supreme Court, government prosecutors then appealed the Bostick decision to the United States Supreme Court.62 In 1992, with the Bostick ruling, the Court issued its most important decision related to institutionalized racial profiling since its 1980 Mendenhall ruling. Florida v. Bostick (1992) completed what Mendenhall had begun: the complete abandonment of the probable cause requirement of the Fourth Amendment. Coincidentally, Stewart’s replacement, Justice Sandra Day O’Connor, authored the majority opinion. We have already discussed how the question of whether Mendenhall had done anything suspicious was essentially irrelevant because Stewart’s decision

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held that she had consented to the entire encounter. Nonetheless, Stewart did list the specific reasons why the defendant’s conduct after disembarking “appeared to the agents to be characteristic of persons unlawfully carrying narcotics.”63 Stewart also noted how the agents’ suspicions were heightened after they discovered Mendenhall was flying under a false name.64 And, Powell’s concurrence listed the Van Lewis statistics to attest to the agents’ success rate at spotting potential criminal behavior.65 Mendenhall turned on the question of consent, but passages in the decision read as if the Court was still asking whether the police had had articulable suspicion. In Bostick, however, it was undisputed that the defendant was gently napping when the police approached him. Nonetheless, O’Connor was not at all troubled by this fact: We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.66 (Emphasis added) The above sentence reveals Sheriff Navarro had a better grasp of Fourth Amendment law than the Florida courts. It begins by indirectly referring to Mendenhall as allowing for the police to “approach” people at “random.” The second half of the sentence illustrates how Mendenhall supplanted the probable cause requirement of the Fourth Amendment with a “reasonable person” doctrine. After declaring the constitutionality of randomly approaching passengers in airports, O’Connor proceeded to ask “whether the same rule applies to police encounters that take place on a bus.”67 The answer is obvious. If random “encounters” are permissible in airports, they must also be permissible on buses. If the police may “request” of one woman to “agree” to be strip-searched, they may make the same request of all Americans. O’Connor did acknowledge a crucial difference between Mendenhall and Bostick. Mendenhall had had the theoretical option to “walk on by” when the agents first approached her. However, as Bostick pointed out, “there is nowhere to go on a bus.”68 His only choice was to disembark and, had he done so, “he would have risked being stranded and losing whatever baggage he had locked away in the luggage compartment.”69 This was precisely why the Florida Supreme Court had adopted a per se rule prohibiting the bus sweeps. O’Connor offered an alternative solution. Mendenhall’s “walk on by” test became the “I feel free” doctrine. O’Connor explained the new version “is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter. This formulation follows logically from prior cases and breaks no new ground”70 (emphasis added).

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In dissent, Justice Thurgood Marshall emphasized the “dragnet style” of the operation.71 It is certainly true that the airport operation had been conducted on a smaller scale than the bus sweeps. DEA agents rarely if ever boarded planes and questioned a planeload of passengers. They instead approached individual passengers in airport terminals. However, it is obviously easier to hop on and off a bus or train. It is also less troublesome to delay a bus’s departure than that of an airplane. But these are not constitutional issues; they are logistical considerations. The protections contained in the Bill of Rights are not triggered when a critical mass of people is affected. The Constitution does not protect the rights of groups; it protects the rights of the individual. Thus, Marshall was wrong to argue in his dissent that the scale of the bus sweeps rendered them unconstitutional: These sweeps are conducted in “dragnet” style. The police admittedly act without an “articulable suspicion” in deciding which buses to board and which passengers to approach for interviewing. By proceeding systematically in this fashion, the police are able to engage in a tremendously high volume of searches . . . (single officer employing sweep technique able to search over 3,000 bags in nine-month period). The percentage of successful drug interdictions is low . . . (sweep of 100 buses resulted in seven arrests).72 Instead of focusing on the scale of the operation, Marshall should have argued Mendenhall’s reasonable person doctrine is simply incompatible with traditional Fourth Amendment analysis. He should have vociferously rejected O’Connor’s claim, as quoted below, that the reasonable person doctrine (as used in Royer and two additional cases we have not examined—another airport “drug courier profile” case, Florida v. Rodriquez, and an illegal immigration case, Delgado)—is compatible with Terry:73 The dissent reserves its strongest criticism for the proposition that police officers can approach individuals and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado are just a few examples. As we have explained, today’s decision follows logically from those decisions and breaks no new ground. Unless the dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken.74 Chapter 2 argued that the deference Judge Joiner paid to the “highly skilled” and “completely honest” DEA agents in his Van Lewis ruling represented a form of eminence-based decision making. O’Connor’s argument that Marshall’s “criticism is not well taken” because it was advocating “overruling a long, unbroken line of decisions dating back more than 20 years” illustrates how common law systems are particularly prone to eminence-based fallacies.75 O’Connor asserted

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that since the Court had adopted a “reasonable person” standard in Mendenhall and then applied that test in a number of subsequent cases, Marshall should defer to the wisdom of those previous decisions. O’Connor’s stare decisis argument ignores how Stewart’s reasonable person test in Mendenhall actually rejected the seminal Terry v. Ohio (1968) decision and the traditional understanding of the Fourth Amendment. Terry specifically warned against applying judicially constructed tests in Fourth Amendment cases because such disputes are always so fact specific: “there is ‘no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails.’”76 Rather than using a judicial test, Terry stated the police officer must be able to articulate why the suspect’s behavior could be viewed as suspicious: “And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.”77 Terry thus explicitly warned against trusting police officers as Joiner advocated in Van Lewis, and it rejected the construction of a judicially created “reasonable person” test as offered in Mendenhall. It is rather ironic that the “reasonable person” is always presented as an “objective” test that eliminates the subjective views of the judge because it is actually so abstract and amoeboid that it invites subjectivity. There has never been any empirical research to determine how a reasonable person might react when confronted by the police; that determination is always made by a judge. “Scientific knowledge on consent searches is nonexistent,” as Professor Illya Lichtenberg has noted. “No published data currently exist on consent searches: who, what, where, and how often.”78 It appears Lichtenberg is the only scholar to publish any type of scientific analysis regarding consent-based searches. Perhaps the only time the Court has directly conceded this empirical vacuum occurred in a traffic stop case, Brendlin v. California (2007),79 when Justice Breyer acknowledged during oral argument that the law points us to the direction of what would a person reasonably think in general in such circumstances, and we can look at five million cases, but we don’t know. So what do we do if we don’t know? I can follow my instinct. My instinct is he would feel he wasn’t free because the red light’s flashing. That’s just one person’s instinct. Or I could say, let’s look for some studies . . . [but] there are none . . . What should I do? . . . Look for more studies? Follow my instinct? . . . Justice Scalia: Maybe we can just pass until the studies are done? (Laughter).80 To a certain extent, Scalia had a point; the Court has to issue rulings based on the evidence presented to them. And one might claim the traditional approach to Fourth Amendment adjudication also has no empirical foundation.

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The Court in Terry cited no data regarding the probability of how often men who secretly confer on a street corner after repeatedly peering into a jewelry store will subsequently commit armed robbery. However, the question of whether certain behavior is indicative of criminal behavior is much more grounded in experiential knowledge than the issue of how a hypothetical “reasonable person” would react in a given situation. The former is based on actual observation and life experience, whereas the latter relies entirely on speculation and instinct. Almost every time a police officer stops an individual based on a pattern of suspicious behavior, she will have her hypothesis proven or disproven. For example, in Terry, one of the men was in fact carrying a concealed firearm. It is also possible to move beyond anecdotal evidence and personal experience by compiling detailed data to test whether certain types of behavior are indicative of criminal intent. The DEA agents in the airport cases could easily have recorded the number of stops and searches that resulted in the discovery of contraband and the type of behavior they witnessed prior to stops. The officers who later conducted the bus and train sweeps also could have recorded the number of people questioned and searched. Perhaps no data was maintained during these operations because the hit rates were abysmally low. As Marshall’s dissent indicates, a sweep of one hundred buses had resulted in just seven arrests. If just seven people per bus were searched, that would mean about 1% of the searches led to the discovery of contraband. But how do we test whether a “reasonable person” would have felt free to refuse an officer’s requests in a specific situation? Where do we find this “reasonable person”? The traditional Fourth Amendment approach to adjudication may not be perfect, but at least the concept of “articulable suspicion” is not based entirely on speculation. Although the Supreme Court has now been applying the “reasonable person” test for almost four decades, it has yet to address what happens if an officer is confronted with a “reasonable person” who declines to comply with their requests. Can the police use a person’s refusal as a sign of guilt? Does refusal create probable cause to conduct a search? The answer to these questions, according to the police, appears to be yes. The issue arose in at least two bus sweep cases that were conducted in the District of Columbia. In both cases, the officers testified that refusal can raise suspicions and lead to further investigation. For example, consider the following: According to Detective Hanson, when passengers who appear nervous refuse to consent to an interview, certain members of his unit then take it upon themselves to notify authorities at the next stop. These “refuseniks” may then be approached again, by officers further down the line, in order to obtain their consent to undergo a search for drugs.81

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Under the Fourth Amendment, you are perfectly free to refuse an officer’s request to be searched. But, if you do, you are probably hiding something, and that creates probable cause and now you no longer have the right to refuse to be searched. This logic is reminiscent of the seventeenth-century “ordeal by water” testing of witches. The accused would be tied to a “dunking stool.” If she floated it indicated witchcraft and the punishment was death; if she sank she was innocent.

Why Not a Miranda for Searches? When the U.S. Supreme Court issued Bostick, it did not directly address whether the defendant’s Fourth Amendment rights had been violated. The Court instead only struck down the Supreme Court of Florida’s per se prohibition against the practice of “working the buses,” and it remanded the case “for further proceedings not inconsistent with this opinion.” In layman’s terms, the case was sent back to the Florida Supreme Court to determine the specific question of whether Bostick had consented to the search. The answer was obvious because the Florida Supreme Court’s original decision had explicitly stated Bostick’s Fourth Amendment rights had been violated: We find, first, that Bostick in fact was “seized” by the officers and, second, that any consent he gave to search his luggage was not free from the taint of the illegal detention.82 After the case was remanded, three of the seven state court judges persisted, and held that “under the totality of the circumstances presented in this case, Bostick ‘was not free to decline the officers’ requests or otherwise terminate the encounter’”83 (emphasis in original). However, in an unsigned per curiam decision, a majority of four simply stated that “In light of the Supreme Court’s opinion, we now approve the decision of the district court.”84 By upholding Bostick’s conviction, the court obviously sought to avoid a second embarrassing reversal. Anyone who has had the honor of working as a judicial clerk knows that judges do not appreciate getting reversed on appeal. It is also true that Presidents often look to the federal circuit courts to fill vacancies on the United States Supreme Court. Freeing someone caught red-handed trafficking narcotics is not generally regarded as an effective strategy in securing a Supreme Court nomination. Thus, it is less surprising that the Supreme Court of Florida reversed its original finding in Bostick than that the Eleventh Circuit Federal Court of Appeals persisted in finding constitutional violations in its bus sweep rulings. (State courts generally hear cases involving state police arrests and state law, whereas the federal courts will hear cases involving federal officers and federal law.) In 1998, the Eleventh Circuit decided a Florida bus sweep decision, where federal officers boarded a bus, giving no indication that passengers had the right

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to leave or decline to be searched.85 In its ruling, the circuit court, well aware of the controlling precedent, referred to Bostick and noted that the “Supreme Court has steadfastly rejected the notion of imposing per se rules on police officers conducting warrantless searches.”86 The federal court also cited Mendenhall’s “reasonable person” doctrine, acknowledging how Schneckloth had rejected the doctrine of informed consent.87 All three cases pointed to a conviction, yet the Eleventh Circuit nonetheless insisted that the police must give “some indication to passengers that their cooperation was voluntary rather than mandatory.” It seems obvious to us that if police officers genuinely want to ensure that their encounters with bus passengers remain absolutely voluntary, they can simply say so. Without such notice in this case, we do not feel a reasonable person would have felt able to decline the agents’ requests.88 In United States v. Drayton (2002), the Supreme Court rejected the Eleventh Circuit’s holding that officers must advise bus passengers of their right to refuse.89 Justice Anthony Kennedy authored the majority opinion. Although it is not clear if Kennedy’s argument was based on empirical evidence or personal experience, the Justice confidently explained that long-distance bus passengers feel comforted, not distressed, when uniformed law officers carrying firearms board a bus and begin questioning passengers: Officers are often required to wear uniforms and in many circumstances this is cause for assurance, not discomfort. Much the same can be said for wearing sidearms. That most law enforcement officers are armed is a fact well known to the public . . . bus passengers answer officers’ questions and otherwise cooperate not because of coercion but because the passengers know that their participation enhances their own safety and the safety of those around them.90 Federal circuit court judges must be a stubborn lot because five years after Drayton, Gerard E. Lynch, who sits on the Second Circuit, had the temerity to deliver a paper entitled, “Why Not a Miranda for Searches?” As Lynch noted, it is difficult to explain why so many “people with everything to hide and a constitutional right to hide it nevertheless give it up freely to the police.”91 Lynch’s argument had been offered by the Ninth Circuit more than thirty years earlier in its soon-to-be-reversed 1971 Schneckloth decision. “Under many circumstances,” the circuit court noted, “a reasonable person might read an officer’s ‘May I’ as the courteous expression of a demand backed by force of law.”92 As the reader will recall, Schneckloth was the decision in which the Supreme Court declined to extend the Miranda warnings to the Fourth Amendment. One irony in the Supreme Court’s refusal to extend the doctrine of informed consent to the Fourth Amendment is that the exact same battle had been

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fought for three decades over “voluntary” confessions. Starting with Brown v. Mississippi (1936), the case mentioned in the Introduction where the black suspect was whipped and hung by his neck from a tree limb, the Court heard over thirty cases from Southern states in which suspects had been subjected to brutal interrogations. Many of the subsequent cases heard by the Court were also racially charged and involved confessions “of shameful provenance and dubious reliability.”93 However, the challenge was deciding exactly how much coercion was constitutionally permissible. In case after case, the Court had to deal with the same problematic questions: did the defendant confess voluntarily of his own free will, presumably because he really was guilty, or was he compelled to incriminate himself by excessively coercive tactics likely to produce confessions at best repellent, and at worst false?94 The Court sought to arrive at an objective standard to guide lower courts on the question of how much pressure can constitutionally be applied during an interrogation, but the goal proved elusive. As one commentator pointed out, the Court first declared in Lisenba v. California (1941) that thirty-two hours of sustained interrogation, followed a few days later by another ten hours, was permissible.95 Three years later, the Court then held in Ashcraft v. Tennessee (1944) that thirty-six continuous hours of interrogation was overly coercive.96 A thin distinction can be made between the facts of the two cases, but drawing such a fine line does not provide much guidance for lower courts faced with a steady stream of confession cases, each of which has facts at least a little different from all the others.97 Lower court judges in these voluntary confession cases experienced the same problem judges later initially grappled with in search cases. “Under the ‘totality of the circumstances’ approach, virtually everything is relevant and nothing is determinative. If you place a premium on clarity, this is not a good sign.”98 The solution was finally arrived at in the 1966 Miranda decision: informed consent.

Obedience to Authority The term “informed consent” did not originate in the law. During these years the medical and psychology fields were grappling with a similar issue. For example, just two years before the defendant in Brown was subjected to his brutal interrogation, the United States Public Health Service began the infamous “Tuskegee Study of Untreated Syphilis in the African American Male.” The study was designed to determine the natural course of untreated latent syphilis in some 400 African American men in Tuskegee, Alabama. The research subjects,

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all of whom had syphilis when they were enrolled in the study, were matched against a control group of 200 uninfected subjects. The subjects were recruited with misleading promises of “special free treatment,” but were denied antibiotic therapy even after it became clear in the 1940s that penicillin was a safe and effective treatment for the disease. Coincidentally, the experiment ended the same year Schneckloth was published.99 During the 1960s, an infamous social psychology experiment conducted by a Yale University professor also deceived its participants, who were then subjected to severe psychological stress. Eventually, in 1974, just a year after Schneckloth was published, Congress created the National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research. The Commission eventually released the Belmont Report, which provides guidelines for human subject research in the United States. The doctrine of informed consent might be a bedrock principle of medical and behavioral research today, but it has yet to be fully embraced by the Supreme Court. The Tuskegee study, and the Yale University social psychology experiment, strongly contributed to the establishment of informed consent in human behavior experiments. Interestingly, not only were these experiments occurring at the same time the Court was grappling with a similar issue; the social psychology experiment was directed at understanding why man is so prone to obey authority. In 1974, Leonard Bickman and Stanley Milgram published a book recounting their experiment, Obedience to Authority. According to Milgram, he had recruited participants for “a scientific study of memory and learning . . . at Yale University,” but the “study” was an elaborate hoax. Volunteers were brought into a laboratory-type room where he met with a “professor” dressed in a gray technician’s coat and a second “volunteer.” The professor and the second “volunteer” were actually actors playing their respective roles. The “professor” would explain that the study he was working on was concerned with “the effects of punishment on learning” and by drawing lots the true volunteer was always chosen to be the “teacher” and the fake volunteer the “learner.” The teacher would witness the learner getting strapped into a chair with electrodes attached to his wrist. The teacher was then seated in front of “an impressive shock generator,” on which there were thirty switches ranging from 15 to 450 volts and accompanying written designations ranging from “SLIGHT SHOCK” to “DANGER—SEVERE SHOCK” to finally, at 450 volts, “XXX.” To make the experiment more convincing, the teacher was even subjected to a mild electric shock beforehand. The learner would intentionally provide incorrect answers and each time an incorrect answer was given the teacher was supposed to increase the level of “punishment” by administering another electric shock. Milgram ran eighteen different variations of his experiment. In one of the variations, the learner said that he had a heart condition. What would a “reasonable” person do when confronted with an experiment where he is asked to

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administer electric shocks to a man with a heart condition? Not one person ever refused to participate. One of the more interesting lessons taught by Milgram’s experiment is how inaccurate people are at predicting human behavior. When Milgram asked psychiatrists, graduate students and faculty in the behavioral sciences, and “middle-class adults” how many people would proceed with the final and potentially deadly 450-volt electric shock, they were all completely wrong. Even the trained psychiatrists predicted that only one subject in a thousand would administer the 450-volt shot.100 Although the different variations of the experiment led to different compliance results, we need only consider the result of one of the most disturbing scenarios. In this particular variation, the teacher would hear stronger and stronger verbal protests as increasing voltage was applied, including a scream of great distress and a plea of withdrawal from the experiment at 300 volts, and a final scream of pain at 315 volts. There would be no reply to subsequent questions. The teacher would be instructed to treat a non-reply as an incorrect answer and to continue administering electric shocks to the learner who was presumably unconscious or dead. In this variation, 62.5% of the subjects continued to deliver shocks to the maximum level, 450 volts.101 Although data on the willingness of criminal suspects to consent to be searched is extremely limited, there is no dispute that these searches affect tens of thousands, if not hundreds of thousands, of people every year. The police so often rely on “consent” to search because consent to search is so often granted.102 For example, one police manual claims that “92% of major narcotics seizures from automobiles in both urban and rural areas have resulted from consent searches” and that a good officer could secure a suspect’s consent to search between 96% and 100% of the time.103 Empirical evidence is also available from Ohio and Maryland. Both states recorded data on all motorists stopped and searched for periods of time. Professor Illya Lichtenberg studied this data and concluded Ohio motorists consented to be searched on average 88.5% of the time in the years from 1987–1991 and 92.2% of the time from 1995–1997.104 In Maryland, in 1995, 96.5% of motorists granted consent to be searched in 1996 and 95.9% granted consent in 1997.105 In the early 1990s, critics of the increasingly widespread prevalence of “consent”-based searches began arguing that Milgram’s experiments undermined the basis of the Court’s Schneckloth decision.106 Although the position of the volunteer “teachers” initially appears analogous to that of suspects who are asked to comply with a police officer’s “request,” this author concurs with those who argue that the Milgram experiments, “while superficially similar to the dilemma of consent searches, are not in fact a very good fit.”107 One difference between Milgram’s experiments and consent searches is that the latter ostensibly involve a request for compliance, but the “professor” ordered the teachers to comply in a series of escalating “prods”:

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Prod Prod Prod Prod

1: 2: 3: 4:

Please continue. The experiment requires you to continue. It is absolutely essential that you continue. You have no other choice but to continue.

A second important difference is that the subject in the Milgram experiments was administering punishment to a third party, whereas suspects who agree to be searched will suffer the consequences personally. Milgram was not testing why someone will act against her own self-interest. Seeking to understand the ease with which the German people obeyed Nazi authority and carried out the Final Solution, Milgram asked, “How does a man behave when he is told by a legitimate authority to act against a third individual?”108 While the Milgram experiments may not explain why suspects consent to be searched, in the eyes of this author, legal scholars have failed to appreciate the insight the experiment offers into the judiciary. The three-actor dynamic of the Milgram experiments, and the question of how a person will behave when he is told by a legitimate authority to act against a third individual, parallels the adjudicatory process.109 The black-robed Supreme Court Justices assume the role of the professor donning a gray lab coat, the lower court judges are the “teacher,” and the criminal defendants are the learner who must be punished. Lower court judges have “no other choice” but to follow Supreme Court precedent. After equating the Florida bus sweeps with the type of police actions seen in Nazi Germany, the Florida Supreme Court reversed itself when the decision was remanded and it dutifully upheld Bostick’s conviction. The judges, after all, were just following precedent. As we have seen, many lower court judges vociferously protested against the first two stages of racial profiling and declared the practice an unconstitutional outrage in their pre-Mendenhall and Bostick decisions. Yet, afterward, the same judges dutifully began upholding convictions. As far as this author is aware, not a single judge ever resigned in protest at what many had previously declared to be a systematic violation of Americans’ constitutional rights. However, one federal cir­cuit court judge made an argument so unusual that it deserves brief consideration.

Kill Them All: God Will Know His Own The previous chapter briefly discussed how Brignoni-Ponce applied a “totality of the circumstances” approach in a case where a motorist was stopped simply because he looked to be Mexican. The Court held that race could not be the sole factor, but it could be one of several factors in justifying an automobile stop in the absence of a traffic violation. It is hardly surprising that after Brignoni-Ponce Border Patrol agents began testifying as instructed. For example, the age, make, model, and speed of vehicles became factors of suspicion. However, a review of the case law reveals

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that while these factors have been applied in a contradictory and inconsistent fashion, the race of the motorist seldom varies. In United States v. Zapata-Ibarra (2000), a Fifth Circuit judge, Jacques L. Weiner, lamented how the “bridgetable conventions” which began with Brignoni-Ponce had led to a “charade of ‘articulating facts.’”110 Citing a long list of cases, Weiner listed the various reasons agents had “articulated” to justify their stops: The vehicle was suspiciously dirty and muddy, or the vehicle was suspiciously squeaky-clean; the driver was suspiciously dirty, shabbily dressed and unkempt, or the driver was too clean; the vehicle was suspiciously traveling fast, or was traveling suspiciously slow (or even was traveling suspiciously at precisely the legal speed limit); the [old car, new car, big car, station wagon, camper, oilfield service truck, SUV, van] is the kind of vehicle typically used for smuggling aliens or drugs; the driver would not make eye contact with the agent, or the driver made eye contact too readily; the driver appeared nervous (or the driver even appeared too cool, calm, and collected); the time of day [early morning, mid-morning, late afternoon, early evening, late evening, middle of the night] is when “they” tend to smuggle contraband or aliens; the vehicle was riding suspiciously low (overloaded), or suspiciously high (equipped with heavy duty shocks and springs); the passengers were slumped suspiciously in their seats, presumably to avoid detection, or the passengers were sitting suspiciously ramrod-erect; the vehicle suspiciously slowed when being overtaken by the patrol car traveling at a high rate of speed with its highbeam lights on, or the vehicle suspiciously maintained its same speed and direction despite being overtaken by a patrol car traveling at a high speed with its high-beam lights on; and on and on ad nauseam.111 The question judges really ask according to Weiner is not whether the search was reasonable, but whether it was successful: in actuality, a successful search is all that we now require to conclude in hindsight that the stop was legally reasonable, our trial courts in south and west Texas will likely never again encounter a legally “unreasonable” vehicle stop at a suppression hearing: Stops that produce no contraband never make it to a suppression hearing, so only successful stops are heard and under the current state of our jurisprudence, any successful stop is a constitutional stop.112 One might assume that if an officer has “reasonable suspicion” to stop a vehicle, a reasonable number of stops will lead to arrests. However, in Zapata-Ibarra, the prosecution attempted to strengthen the case by citing how 200 stops had led to thirty apprehensions. As Weiner noted,

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These statistics really prove that 85% of the stops were mistakes! In other words, 85% of the time law-abiding citizens were hassled, inconvenienced, aggravated, frightened, and conceivably delayed for work or school or church or even made to miss airline flights, doctors’ appointments, important business meetings, social or family functions, or the like for doing nothing more suspicious than traveling legally, legitimately, and entirely within their constitutional rights on a public road that happens to be used occasionally for illicit purposes.113 Weiner characterized this 15% success rate, which is much higher than the success rate of the bus sweep and airport operations, as evidence of an “Albigensian approach” to adjudication. Aware that not all readers are familiar with the term, Weiner defined it in a footnote: History records that when, during the campaign to eliminate the antiRome heresy centered in the Albi region of southwestern France, the leader of the forces loyal to the Pope ordered his troops to slay the heretics, some soldiers inquired how they could distinguish the heretics from the faithful, whereupon the Cistercian abbot commanded, “Kill them all; God will know His own.”

Inarticulable or Unspeakable? As noted above, the second stage of racial profiling has been the most challenging to document because of a dearth of case law and media reports. The author must concede that although the program resulted in a massive violation of the Americans’ constitutional rights, there is no definitive proof that minorities were specifically targeted because of the lack of data. However, as Marshall’s Bostick dissent noted, some officers in these cases did testify that they focused on passengers who were “young and black” or that “they knew that the couriers, more often than not, were young black males.”114 As Marshall suggested, “the basis of the decision to single out particular passengers during a suspicionless sweep is less likely to be inarticulable than unspeakable.”115

Notes 1 Chief Justice Rehnquist, Illinois v.Wardlow, 528 U.S. 119, 119 (2000). 2 Helaine Meresman Barnett et al., “A Lawyer’s Lawyer, A Judge’s Judge: Justice Potter Stewart and the Fourth Amendment,” 51 University of Cincinnati Review 509, 514 (1982). 3 Id., 531. 4 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964). 5 Robert S. Marsel, “The Constitutional Jurisprudence of Justice Potter Stewart: Reflections of a Life of Public Service” 55 Tennessee Law Review 1, 13–14 (1987) (internal citation omitted).

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6 Barnett et al., “A Lawyer’s Lawyer,” supra note 2, at 514–16. 7 Katz v. United States, 389 U.S. 347, 357 (1967). 8 442 U.S. 735. 9 Id., 737. 10 Id. 11 Id., 742. 12 Id., 747 (Stewart, J., dissenting). Neither the majority opinion nor Stewart’s dissent in Smith discussed the threat the defendant posed to the victim and society at large because such considerations are theoretically irrelevant in the application of the exclusionary rule. The Court instead asked only whether the defendant’s “expectation of privacy” extended to pen registers. 13 The exclusionary rule was first applied in Weeks v. United States, 232 U.S. 383 (1914). A history of the development of the rule and its reception in the states may be found in the case in which the Supreme Court first applied it against state police forces, Mapp v. Ohio, 367 U.S. 643 (1961). Cardozo’s criticisms may be found in People v. Defore, 242 N.Y. 13, 21–2 (1926). 14 Adam Liptak, “U.S. Is Alone in Rejecting All Evidence if Police Err,” New York Times, July 19, 2008, A1. 15 Barnett et al., “A Lawyer’s Lawyer,” supra note 2, at 531. 16 Id., 536. 17 Florida v. Royer, 460 U.S. 491 (1983). 18 Id., n.1 at 493. 19 Reginald Stuart, “Drug Squad Tell of Success in Using Profile,” New York Times, March 23, 1983, 14. 20 Id. 21 Royer, 460 U.S. at 494. 22 Id. 23 Id. 24 Id., 496 (“the State conceded in the Florida courts that Royer would not have been free to leave the interrogation room had he asked to do so”). 25 Id., 528 (Rehnquist, J., dissenting). 26 Id., n.6 at 525 (“Few statistics have been kept on the effectiveness of ‘profile’ usage, but the data available suggest it has been a success. In the first few months of a ‘profile’ program at the Detroit Metropolitan Airport, 141 persons were searched in 96 different encounters; drugs were discovered in 77 of the searches.”). 27 Stuart, “Drug Squad,” supra note 19. 28 Id. 29 Id. 30 Royer, 460 U.S at 504. 31 Linda Greenhouse, “Holding of Drug Suspect Ruled an Illegal Arrest,” New York Times, March 24, 1983, A18. 32 United States v. Mendenhall, 446 U.S. 544, 577 (1980) (White, J., dissenting). 33 Royer, 460 U.S. at 504 (“First, by returning his ticket and driver’s license, and informing him that he was free to go if he so desired, the officers might have obviated any claim that the encounter was anything but a consensual matter from start to finish”). 34 See State v. Bullock, 460 So. 2d 517 (Fla. Dist. Ct. App. 1984). An unpublished appellate case, Zukor v. State, 1986 Fla. App. LEXIS 7734 (Fla. Dist. Ct. App. 1986), refers to an arrest apparently made in 1983. 35 A total of 140 published opinions involving the airport “drug courier profile” were issued between 1976 and 1986. Charles L. Becton, “The Drug Courier Profile: ‘All Seems Infected that th’ Infected Spy, As All Looks Yellow to the Jaundic’d Eye,’” 65 North Carolina Law Review 417, 417 (1987). Although it is difficult to offer an exact count on the number of lower court decisions involving the bus and train sweeps,

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these operations produced far fewer cases even though many more passengers were undoubtedly subjected to them. In addition to Mendenhall, Reid, and Royer, the Supreme Court also issued two additional cases involving the airport “drug courier profile”: Florida v. Rodriguez, 469 U.S. 1 (1984) and United States v. Sokolow, 490 U.S. 1 (1989). The Supreme Court would issue only two decisions on the bus/train sweeps: Florida v. Bostick, 501 U.S. 429 (1991) and United States v. Drayton, 536 U.S. 194 (2002). 36 Hayes v. Cowan, 547 F.2d 42, 45 (6th Cir. 1976). 37 Bordenkircher v. Hayes, 434 U.S. 357 (1978). 38 Matthew Clarke, “Dramatic Increase in Percentage of Criminal Cases Being Plea Bargained,” Prison Legal News, January 15, 2013, 20. 39 Brittany Wallman, “Former Broward Sheriff Nick Navarro Dies at 81,” Sun Sentinel, September 28, 2011, 40 Nick Navarro with Jeff Sadler, The Cuban Cop (Boca Raton, FL: Transmedia Publishing, 1998). 41 Id., 21. 42 Id., 50. 43 Id., 52. 44 Id., 88. 45 Id., 53. 46 Warren Richey, “Navarro’s Crack Lab Upheld by Federal Judges,” Sun Sentinel, February 19, 1995, 366_1_federal-judges-crack-federal-court; and Larry Keller, “Sherriff ’s Office Makes Own Crack for Stings,” Sun Sentinel, April 18, 1989, 47 The facts derive from Florida v. Bostick, 501 U.S. 429, 432 (1991); Bostick v. State, 554 So. 2d 1153 (1989); and Bostick v. State, 510 So. 2d 321 (Fla. Dist. Ct. App. 1987). This summation of the relevant facts borrows from Michael J. Reed, Jr., “Florida v. Bostick: The Fourth Amendment Takes a Back Seat to the Drug War,” 27 New England Law Review 825, 836–9 (1993). 48 Bostick, 501 U.S. at 432. 49 Bostick, 510 So. 2d at 322. 50 Id. 51 Id., 323. 52 Id. 53 Id., 322–3. 54 Navarro, The Cuban Cop, supra note 40, at 224. 55 531 So. 2d 182 (Fla. Dist. Ct. App. 1988). 56 Alvarez v. State, 515 So. 2d 286, 287–8 (Fla. Dist. Ct. App. 1987). 57 State v. Kerwick, 512 So. 2d 347, 348 (Fla. Dist. Ct. App. 1987). 58 Navarro, The Cuban Cop, supra note 40, at 221. 59 Kerwick, 512 So. 2d at 348–9. 60 Navarro, The Cuban Cop, supra note 40, at 221. 61 Bostick v. State, 554 So. 2d 1153 (1989). 62 Florida v. Bostick, 501 U.S. 429 (1991). 63 United States v. Mendenhall, 446 U.S. 544, 547 (1980). 64 Id., 547–8. 65 Id., 562 (Powell, J., concurring). 66 Bostick, 501 U.S. at 431. 67 Id. 68 Id., 435. 69 Id.

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70 Id., 436–7. 71 Id., 441 (Marshall, J., dissenting). 72 Id., 441–2 (Marshall, J., dissenting) (internal citations omitted). 73 Florida v. Rodriguez, 469 U.S. 1 (1984); and Immigration & Naturalization Service v. Delgado, 466 U.S. 210 (1984). 74 Bostick, 501 U.S. at 439. 75 Id. 76 Terry v. Ohio, 392 U.S. 1, 21 (1968) (quoting Camara v. Municipal Court, 387 U.S. 523, 534–5 and 536–7 (1967)). 77 Terry, 392 U.S. at 21. 78 Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry into the “Consensual” Police–Citizen Encounter, 147–51 (1999) (unpublished Ph.D. dissertation, Rutgers University) (quoted in Steven L. Chanenson, “Get the Facts, Jack! Empirical Research and the Changing Constitutional Landscape of Consent Searches,” 71 Tennessee Law Review 399, 446 (2004). 79 Brendlin v. California, 551 U.S. 249 (2007). 80 Transcript of Oral Argument at *43–4, Id. (No. 06–8120). 81 United States v. Felder, 732 F. Supp. 204, 205 (D.D.C. 1990); see also United States v. Cothran, 729 F. Supp. 153, 156 (D.D.C. 1990). 82 Bostick v. State, 554 So. 2d 1153, 1156 (Fla. 1989). 83 Bostick v. State, 593 So. 2d 494, 496 (Fla. 1992) (Barkett, J., dissenting). 84 Id., 495. 85 United States v.Washington, 151 F.3d 1354 (11th Cir. 1998). 86 Id., 1357. 87 Id. 88 Id. 89 536 U.S. 194. 90 Id., 204–5. 91 Gerard E. Lynch,“Why Not a Miranda for Searches?” 5 Ohio State Journal of Criminal Law 233, 235 (2007). 92 Bustamonte v. Schneckloth, 448 F.2d 699, 701 (9th Cir. Cal. 1971). 93 Lynch, “Why Not a Miranda,” supra note 91, at 236. 94 Id. 95 314 U.S. 219. 96 322 U.S. 143. 97 George C. Thomas III and Richard A. Leo, “The Effects of Miranda v. Arizona: ‘Embedded’ in Our National Culture?” 29 Crime & Justice 203, 204 (2002). 98 Lawrence Herman, “The Supreme Court, the Attorney General, and the Good Old Days of Police Interrogation,” 48 Ohio State Law Journal, 733 745 (1987). 99 See James H. Jones, Bad Blood:The Tuskegee Syphilis Experiment (New York: The Free Press, 2001). 100 Stanley Milgram, Obedience to Authority (New York: Pinter & Martin Ltd., 2013), 27–31. 101 Id., 56–8. 102 In one city, it was estimated that 98% of the searches were by consent. Paul Sutton, “The Fourth Amendment in Action: An Empirical View of the Search Warrant Process,” 22 Criminal Law Bulletin 405, 415 (1986); Joshua Dressler, Understanding Criminal Procedure 17.01, at 241 (2nd ed. 1997) (discussing estimates that 98% of warrantless searches are conducted via consent). 103 Charles Remsberg, Tactics for Criminal Patrol: Vehicle Stops, Drug Discovery and Officer Survival (Northbrook, IL: Calibre Press, 1995), 211. 104 Illya Lichtenberg, “Miranda in Ohio: The Effects of Robinette on the ‘Voluntary’ Waiver of Fourth Amendment Rights,” 44 Howard Law Journal 349, 365–6 (2001). 105 Id., 366–7.

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106 See, e.g., Daniel L. Rotenberg, “An Essay on Consent(less) Police Searches,” 69 Washington University Law Quarterly 175, 187–9 (1991) (acknowledging that it is “risky” to apply Milgram’s experiment to consent searches, but nevertheless concluding that Milgram demonstrates that “police authority” is the main reason that individuals consent to searches). 107 Ric Simmons, “Not ‘Voluntary’ but Still Reasonable: A New Paradigm for Understanding the Consent Search Doctrine,” 80 Indiana Law Journal 773, 807 (2005). 108 Milgram, Obedience to Authority, supra note 100, at 6. 109 Id. 110 223 F.3d 281 (5th Cir. 2000). 111 Id., 283 (internal citations omitted). 112 Id., 284 (emphasis in original). 113 Id., 284–5. 114 Florida v. Bostick, 501 U.S. 429, note 1 at 441 (1991) (Marshall, J., dissenting) (citations omitted). 115 Id.


The bureaucratic machine has a vested interest in playing cops and robbers. Both the Bureau of Narcotics and the Mafia want strong laws against the sale and use of drugs because if drugs are sold at cost there would be no money in it for anyone. (Gore Vidal, September 26, 1970)1

The third stage of institutionalized racial profiling began in close proximity, both temporally and geographically, with the second. In 1985, roughly two years after the bus sweeps had begun, a Florida highway patrolman began making “investigative stops” of motorists. This patrolman claimed that he had developed a “drug courier profile” which he could use to identify which cars on the highway were transporting narcotics. Although “drug courier profiles” were becoming a familiar law enforcement tool, a new legal question arose when racial profiling reached the highways. We have already seen how the biggest issue in the airport and bus sweep cases revolved around the idea of “consent.” Mendenhall and Bostick were both said to have consented to being questioned and searched. The Supreme Court was very careful in these decisions not to use the word “stop” to refer to the initial interaction between the defendants and the police because a “stop” automatically invokes constitutional protection and requires “probable cause” or at least “reasonable suspicion.” It might seem to the average layperson that she has been “stopped” if an officer of the law approaches her and “requests” to see her ticket and identification; begins asking her questions about her place of embarkation and reason for traveling; and then “requests” to search her luggage and person. However, recall how Justice O’Connor characterized this scenario in Bostick:

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the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.2 (Emphasis added) Bostick was not “stopped” by the police; he was “approached.” A layman not versed in the law might protest that O’Connor made a distinction without a difference, but that would be incorrect. It made all the difference in the world to Bostick because the evidence would have been suppressed had the officer “stopped” him. Neither the prosecution nor the police even attempted to argue that he had done anything suspicious. A stubborn layman will persist and argue O’Connor did use the word “search,” and the Fourth Amendment demands a judicial warrant or at least probable cause to conduct a search. Yes, but in a spirit of apparent cooperation, Bostick waived his constitutional rights and consented to be searched. How do we know Bostick consented? Bostick did not sign a consent form, and no audio or video recordings were made. No bus passengers who witnessed the event were called to testify. Moreover, as Stewart explained in his Schneckloth opinion, the prosecution bears the burden of proof regarding police conduct in these situations. “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.”3 The only evidence offered was the police officer’s testimony which was contradicted by Bostick. However, as the Supreme Court indicated in Bostick, such conflicts happen all the time and are nothing to be concerned about: Needless to say, there is conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.4 The reason why a new legal issue arose during the third stage of racial profiling is that it was no longer possible to employ judicial sophistry to transform a “stop” into an “encounter.” One might have the theoretical option to walk on by when “approached” by an armed federal officer in an airport or to feel “free to decline” when sitting on a bus, but motorists are legally obligated to pull over when a police car signals for them to do so. Thus, there could be no disputing that the initial “encounter” in the third stage of racial profiling constituted a “stop,” triggering Fourth Amendment protections. The principal challenge for prosecutors and the police was how to justify stopping motorists

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to question them and possibly search their vehicles for drugs. We can date the start of this new debate to a specific traffic stop that was conducted in Volusia County, Florida. On June 5, 1985, at 3:00 am, Florida Highway Patrol (FHP) Trooper Bob Vogel’s marked patrol car was sitting on the median of Interstate 95. Vogel was using its headlights to illuminate northbound vehicles so he could observe the occupants. Vogel spotted two individuals in their thirties traveling at 50 mph in a car with out-of-state plates. The car was being driven in an “overly cautious” manner, and the driver did not look at Vogel as he passed the squad car. Vogel gave pursuit and the occupants were discovered to be transporting narcotics. Vogel would later testify that he stopped the car based on its conformity to a “drug courier profile” he had developed. United States v. Smith marks the advent of the third stage of racial profiling in America. It is the first published case involving Vogel and the use of his “drug courier profile.”5 Although Vogel usually worked alone, on this occasion a Drug Enforcement Administration (DEA) agent was with him. Vogel and the federal agent were working on a “special operation to intercept drug couriers on Interstate 95.”6 That “special operation” was, no doubt, the origins of Operation Pipeline, the DEA training program which taught local law enforcement agencies in forty-eight states, including New Jersey, to use a “drug courier profile” to identify motorists who might be transporting narcotics.7 The program presumably got its name from the DEA training video, Operation Pipeline, in which twenty-nine of the thirty traffickers depicted were Latinos. According to most accounts Vogel “was the creator” of the program’s “modus operandi”; he personally claims to have been its “inspiration”; and Operation Pipeline instructors have said that the program adopted Vogel’s techniques.8 He spoke at the official launch of the program and, as previously noted, he may even have helped produce the infamous Operation Pipeline video because he has said he “created a video that became a prominent training tool” for the DEA.9 Ultimately, the DEA trained some 27,000 officers across the country in how to use Vogel’s techniques.10 Vogel grew up in a suburb of Pittsburgh and graduated from college with a degree in criminal justice.11 He joined the FHP in 1972 after volunteering for combat duty in Vietnam with the Marine Corps.12 He created his highway “drug courier profile” almost exactly ten years after Markonni had created his. As Markonni had done, Vogel constructed his “profile” based on similarities in drug couriers he had previously caught transporting contraband.13 Vogel came up with the idea of designing a drug courier profile after attending a DEA training session which he said had opened his eyes to the severity of the nation’s drug problem.14 The DEA program apparently convinced Vogel that aiding stranded motorists and investigating hit-and-run accidents were mere diversions: “While I stopped people for traffic violations, investigated a hit-and-run, or aided a

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motorist in trouble, drug dealers were bringing in millions of illegal substances right through our county for sale elsewhere.”15 He even concedes he was criticized by superiors for turning a blind eye to driving under the influence (DUI) offenders in order to concentrate on drug couriers.16 Although the DEA program did not explain how to incorporate drug detection into traffic patrol, Vogel felt he was “cut out for this type of work,” and vowed to dedicate himself to “putting a roadblock in the path of drug couriers.”17 Vogel, like Markonni, is well known in law enforcement circles for pioneering the use of “drug courier profiles,” but they had very different personalities. Markonni never penned a memoir and gave only one interview with the press that this author is aware of.18 He even resisted using the term “profile” to describe his “list of deviant characteristics.”19 Markonni apparently viewed his job as a career, not a vocation. Vogel, on the other hand, professed an almost religious-like devotion to the cause: “I felt I was put on this earth to serve my community by battling drugs.”20 According to Vogel, he excelled at his mission in life: “My success rate was amazing, even to me.”21 Indeed, after first gaining local recognition, two national television news magazines, 60 Minutes and 20/20, broadcast profiles of him. Vogel’s devotion to public service did little harm to his personal career. Roughly three years after designing the first “drug courier profile” for highways, Vogel won election to serve as Volusia County Sheriff in 1988 and he later published a memoir. Vogel also differed from Navarro. He did not bend the rules; he diligently studied them and searched for loopholes. He would have been an excellent tax lawyer. I spent countless hours attending courses and lectures about search and seizure laws. I had numerous conversations with the state attorney’s office and the FHP attorneys to be certain of the lawful procedure to follow. As I proceeded ahead with drug interdiction, I wanted to be as informed and legal as I could be that any arrests I made could hold up in court.22 Vogel’s efforts to understand the minute details of criminal procedure were atypical; he was not your average highway patrolman. In his autobiography, he notes how the FHP actively discouraged its officers from pursuing higher education because it was seen as a means of pursuing a different career.23 Vogel, on the other hand, worked a midnight patrol shift so he could take classes during the day while pursuing his undergraduate degree in criminal justice.24 He then enrolled in graduate school and completed several courses before the pressures of work and a newborn baby proved too great.25 As we shall see, it is likely that he was as well versed in the law as any highway patrolman in the country when he decided he would focus on stopping drug couriers, as opposed to enforcing traffic regulations.

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Vogel had two options in terms of stopping suspected drug couriers. The first was to make pretext stops. Trail the vehicle, wait to witness a minor traffic infraction, and then use that violation to justify the stop. Even though traffic violations give rise to probable cause to make a stop, there are two problems with this approach. If Vogel stopped a car and discovered drugs, how would he testify if a defense attorney asked why he had chosen to stop that particular vehicle? Would he admit he had used the traffic violation as a mere pretext to allow him to search for drugs? Or would he lie and claim that he had stopped the car in question solely because of the traffic violation and only later became suspicious of a narcotics infraction? The second problem with using traffic violations as a pretext to stop motorists is that drug couriers have a very strong incentive to obey all the traffic rules and regulations. If Vogel saw a motorist he suspected of being a drug courier and the motorist did not commit a violation, he would have to let her get away. Vogel’s second option was more straightforward: stop law-abiding motorists and admit he was doing so based on their conformity to his “drug courier profile.” However, this approach also posed a question: Would judges agree that conformity to his “profile” gave rise to reasonable suspicion? The attorneys he consulted could not have provided definitive answers to these questions. In terms of the first scenario, pretext stops, the Supreme Court of Florida would not rule on whether the police could use a minor traffic infraction as a pretext to stop motorists until 1990, and the United States Supreme Court would not rule on that issue until 1996.26 In terms of his second option, stopping cars on the basis of a “drug courier profile,” such stops were virtually unprecedented, but local state attorneys argued in an unpublished case in 1985 that it was analogous to the airport “drug courier profile,” and therefore should be deemed to be constitutional.27 Besides the airport “drug courier profile” decisions, the most relevant precedent were the illegal immigration cases, Brignoni-Ponce and Martinez-Fuerte, which had held officers can stop motorists based on reasonable suspicion and even condoned using race as a criterion of suspicion. However, these cases could be interpreted as limited to illegal immigration stops made near the Mexican border.

Trooper Vogel Tests Local Judges on Their Understanding of the Law After Vogel discovered how uncertain the law was, the Vietnam War veteran took matters into his own hands. “For six weeks in 1985, Vogel, with approval from his department and the state attorney’s office in Volusia, made stops based solely on the profile to see if the profile would stand up in court.”28 It was during this period that Vogel made the stop that led to the Smith decision. In choosing to pursue “profile” stops, Vogel confronted a challenge even greater than what Markonni had faced. Markonni, having dispensed with

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traditional investigations, reduced the average surveillance time from weeks or months to just minutes. Vogel in turn had just seconds to identify potential drug couriers driving past him at 55 mph or faster. Vogel may have refined Markonni’s technique, but he made a critical mistake. He committed his “profile” to paper. The Orlando Sentinel published Vogel’s “profile” in March 1986. The reader is invited to guess how many of the twelve criteria would be triggered in the following hypothetical scenario: at 8:00 pm, a casually dressed thirty-yearold black male, with no passengers, is spotted driving north on I-95, at or below the speed limit. Rental cars; Out-of-state tags; Traveling north on I-95; At or slower than the speed limit; From 6:30 pm to 4:30 am; peak hour is 3:00 am; Occupied by one or two people; two is most common; Mean age: thirty-two; 60% blacks, 40% others; Nearly all males; Usually casually dressed; Nervous behavior, such as hands shaking; Vehicle weaving.29 According to Vogel, he based his “profile” on similarities he found in about thirty arrests he had made.30 The deficiencies are obvious: the sample size was far too small; the danger of personal bias was far too high; and allegations of racial bias were far too common. During the summer of 1985 defense attorneys began arguing that arrest records proved FHP troopers were targeting minority motorists.31 The full extent of the officers’ egregious behavior would remain hidden until 1992, when the Orlando Sentinel published a Pulitzer Prizewinning investigative report.32 However, there was certainly reason to believe Vogel was selectively targeting African Americans by the time 60 Minutes aired a profile of him in April 1987.

60 Minutes 60 Minutes presented Vogel in an exceedingly positive light, as a highway trooper who had single-handedly developed a secret weapon in the War on

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Drugs. It downplayed, but did not entirely ignore, allegations of racial bias. The reporter, Harry Reasoner, interviewed a local defense attorney, Dan Warren, who had formerly served as a judge and a local prosecutor. Vogel later claimed in his autobiography that Warren had “led a crusade against me” by raising “the question of race” and accusing him of “bias against minorities.”33 After Warren obliquely referred to racial profiling, Reasoner asked him if he was “in effect saying that the profile boils down to an officer being inarticulably suspicious of blacks?” “Correct,” Warren replied. The video then switched to Reasoner asking Vogel, “Is it a racist profile?” No sir, it’s not. My profile that I use does not address race whatsoever. The number of persons that I’ve arrested in the past three years are approximately 130 people, 58% of those persons are black, 42% white. Thus, a defense attorney, representing drug couriers who had been caught red-handed, makes an unsupported allegation that the arresting officer is racist. Vogel, identified as the most successful highway patrol agent in the country, denies it. Reasoner asked Vogel no follow-up questions regarding his assertion his profile “does not address race whatsoever.” Perhaps by 1987 Vogel had crossed out the line, “60% blacks, 40% others,” but one might conclude this particular criterion did “address race.” 60 Minutes also made no mention of a newspaper report that in 1985 a Volusia County FHP trooper had said under oath “that the profile targets black men between 20 and 50.”34 Even if Reasoner’s background investigation had failed to uncover these facts, Vogel’s assertion that 58% of the people he had arrested were black and 42% were white demanded a follow-up question. Did he not arrest any Latinos? Apparently he had, as revealed by a prosecutor’s odd refutation to the allegation Vogel was targeting blacks: “Lately he has arrested more Latin males.” In other words, Vogel was overstating the percentage of “whites” he had arrested by conflating whites and Latinos. (In fairness to Vogel, the FBI also conflated whites with Hispanics in its crime reports during these years.) Vogel also claimed in the interview that “nearly every time that I’m out on the interstate working I make a major drug arrest, a major arrest being a felony arrest.”35 When Reasoner asked him how many arrests he had made in total he replied, “In the past nearly three years I’ve arrested approximately 130 persons and made 77 drug cases.” (Vogel had made 77 major drug cases but arrested 130 suspects because some cars would have had multiple occupants.) Although in his autobiography Vogel discusses frequently working overtime, let’s assume over the course of three years he had worked just four days a week, forty-eight weeks a year.36 If so, he would have worked a total of 576 days. If Vogel were making a “major drug arrest” almost every day he worked, he would have “made” more than seventy-seven “drug cases.”

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Reasoner also never asked Vogel how many stops he made in an average day. Vogel had previously claimed in a local newspaper that he generally stopped four cars a shift, and he found drugs in about one out of every four cars.37 If this were true, it would mean Vogel had worked about twenty-five days a year for the previous three years. Although Vogel’s numbers are suspect, if we accept his claim that he stopped only four cars a shift, and we assume he had worked 576 days over the course of three years, that would mean he had stopped approximately 2,300 vehicles. Yet, if he had made 77 major arrests by stopping 2,300 cars, his “hit rate” as measured by stops was about 3%. Although Vogel appears to be prone to exaggeration, he certainly captured the attention of the DEA and, as noted, he became the inspiration of Operation Pipeline. A sergeant of the program once explained that the key was “sheer numbers.” “Our guys make a lot of stops. You’ve got to kiss a lot of frogs before you find a prince.”38 Operation Pipeline supervisors encouraged troopers to make at least eight to ten stops a day.39 If this target was set by Vogel, the self-proclaimed “inspiration” of the program, he was discovering drugs in roughly 1% of the cars he stopped. Was Vogel any more successful using his “profile” than he would have been stopping cars at random? Vogel explains in his autobiography that while he was constructing his “profile” he actually considered a third method for making stops not previously mentioned: setting up a narcotics roadblock. However, Vogel rejected the idea because roadblocks are “intrusive” and would result in “stopping a great number of innocent people and delaying them unnecessarily.”40 Thus, in order to avoid inconveniencing the general population, Vogel limited his stops to only those types of people who matched his profile. Apparently police forces across the country shared Vogel’s concern because while the vast majority adopted the DEA’s “drug courier profile,” very few experimented with narcotic roadblocks. One exception was in Indianapolis, Indiana, where six narcotic roadblocks were conducted between August and November 1998.41 It is hard to imagine drug traffickers were more common in 1998 Indiana than in Florida during the age of Miami Vice. Yet, 5% of the motorists stopped in the Indianapolis checkpoints were arrested for drugrelated offenses and another 4% for various other crimes. Although the 9% hit rate of these purely random stops was considerably higher than the hit rate of the airport “drug courier profile” as reported by various DEA airport agents, and almost certainly higher than Vogel’s rate, the Supreme Court held the Indianapolis narcotic checkpoint stops to be unconstitutional because police lacked “individualized suspicion.” Perhaps the most cogent part of the 60 Minutes segment occurs when Reasoner explains how Vogel had conducted a series of pure profile stops: there were a series of arrests made in a period of 1985 that were called profile stops. Vogel stopped the cars purely on the basis of the profile,

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even though they had broken no traffic laws. These arrests were declared unconstitutional by a local judge, but the state attorney’s office plans to appeal these cases all the way to the Supreme Court if necessary.42 Reasoner turned to the defense attorney, Warren, for an explanation of why Vogel and local prosecutors had conducted their experiment and how they wanted to test the constitutionality of pure “profile” stops. Warren: They may want to go to the Supreme Court of the United States and get some kind of definitive ruling on this issue. Reasoner: Is that a good idea? Warren: Well, the present make-up of the Court, [long pause] it may not be a good idea for my clients.43

Smith As noted, the 1986 Smith decision is the nation’s first published highway “drug courier profile” decision. Although the defendant’s vehicle had briefly traversed the white line on the right side of the highway, Vogel testified at trial that he had not stopped the car on that basis. He made an “investigative stop” for drugs and did so purely on the basis of conformity to his profile. Vogel summoned a police dog after stopping the car, and the dog arrived forty minutes later and signaled for drugs.44 In an unpublished decision, the trial court ruled in Vogel’s favor and upheld the constitutionality of “profile” stops by declaring that “the drug courier profile provided sufficient support for the stop of the vehicle.”45 The district court also declared that no traffic violation had occurred because any weaving was likely caused by the driver looking into his rear-view mirror after Vogel came up behind him. As would be expected, the defendant appealed his conviction to the Eleventh Circuit. The prosecution then made a curious change of course. The trial court had ruled that although there had been no traffic violation, Vogel’s profile had provided “sufficient support” to make the stop. Yet, on appeal, the prosecution abandoned their “profile” argument which had prevailed and instead “relie[d] entirely on an attack on the district court’s ruling that the traffic stop rationale was invalid as pretextual.”46 The prosecution argued on appeal that Vogel “could reasonably have stopped the appellant’s automobile” to investigate for intoxication after the car briefly crossed the highway shoulder line47 (emphasis in original). Not only did the prosecution abandon its winning argument; its new claim directly contradicted Vogel’s trial testimony that he had stopped the car because it was being driven in an overly cautious manner.48 The Eleventh Circuit noted that the “Government’s position is, to say the least, ironic.”49

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The appellate court prosecutors did not explain their odd legal strategy. Perhaps they were afraid of an adverse precedent being created on the use of Vogel’s profile. Or, perhaps the prosecution feared Vogel’s “profile” had been discredited by media reports which had recently appeared. As noted, it was reported that an FHP officer had admitted under oath that troopers were targeting black motorists, and the profile, with its reference to blacks comprising 60% of drug couriers, had also been published in a local newspaper. Moreover, other newspaper accounts had declared Vogel “looks for a black man in his early 30s who dresses casually and drives an out of state rental car north on I-95 at or below the speed limit”; or Vogel’s drug smuggler is “usually a black man in his early 30s.”50 Thus, the prosecution might have thought relying on Vogel’s “profile” to justify the stop would open the door to an Equal Protection defense. Whatever their reasons, the Eleventh Circuit still had to decide whether “profile” stops were permissible because that had been the basis of the trial court’s decision. The Eleventh Circuit was no more impressed by Vogel’s “profile” than the Sixth Circuit had been with Markonni’s “profile”: Trooper Vogel stopped the car because the appellants matched a few nondistinguishing characteristics contained on a drug courier profile and, additionally, because Vogel was bothered by the way the driver of the car chose not to look at him. Vogel’s suspicion therefore was not the result of “reasonable inferences” from “unusual conduct” (Terry), but was instead a classic example of those “inarticulate hunches” that are insufficient to justify a seizure under the fourth amendment.51 The Eleventh Circuit next addressed the prosecution’s “ironic” new argument. As the court explained, “its agent testified that he became suspicious of the vehicle because it was driven in an overly cautious manner, yet the government now contends that the stop was reasonable because the car was being driven carelessly.”52 Although Vogel had not made the stop on the pretext of a traffic violation, “the government’s theory that Vogel could reasonably have stopped appellants’ automobile places the pretext issue squarely before us,” the circuit court explained.53 The Eleventh Circuit in ruling against pretext stops created what has come to be known as the “reasonable officer” or the “would have” test: “in determining when an investigatory stop is unreasonably pretextual, the proper inquiry . . . is not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.”54 (Emphasis in original) The Smith court rejected “profile” stops and it rejected the prosecution’s pretext argument. However, the ruling was limited to pretext stops in the

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exceedingly rare situation where no traffic violation was allegedly committed. “We need not now decide when, if ever, a stop for probable cause resulting from an observed traffic violation might be invalid as pretextual for it is clear that there was no probable cause here.”55 The obvious question became what courts would do if Vogel used a traffic violation as a pretext for making an “investigative stop.” The following year, United States v. Miller (1987) presented exactly that issue.56

Miller By the time the Eleventh Circuit heard Miller, the 60 Minutes profile had been broadcast, making Vogel a local celebrity. Newspaper articles in Florida had raised questions as to whether he was targeting black motorists, but there were also editorials supporting the use of his “profile” and police captains called him “a one-man narcotics task force.”57 Vogel was becoming so popular a local state court judge even admitted to having received “some heat” after ruling against him.58 However, federal court judges are appointed for life and not easily intimidated. The Eleventh Circuit began its decision in Miller by declaring it “involved the same Florida state trooper, using the same drug courier profile on the same highway [as involved in Smith].”59 In fact, even the alleged traffic violation was the same: weaving. Vogel had testified at trial that after using his turn signal to pass two slower-moving vehicles, Miller had returned to the right line and allowed his right wheels to cross over the white painted lane marker by about four inches. It is not clear why the trial courts in Smith and Miller differed on whether crossing the white lane marker constitutes a traffic violation under Florida law, but they did.60 The Miller court explained the “primary task is to decide whether [Smith] controls the case.”61 It concluded Smith governed because in both cases “the stop was pretextual,” and Vogel had again conceded that “the stop would have been made . . . whether or not there was a traffic violation.”62 Since Smith controlled, and the facts were “nearly identical,” the stop “was not legitimate.”63 Thus, the Eleventh Circuit had indisputably ruled that pretext traffic violation stops were unconstitutional within its jurisdiction. The next issue was whether the seized contraband was admissible as evidence. The government argued even if the stop was unconstitutional, “the fact that Miller had signed a voluntary consent to search form excuses the unreasonable stop and sufficiently attenuates the taint of the search so as to legitimate the search.”64 The judges disagreed and argued a traffic stop is an “unsettling show of authority” that may “create substantial anxiety.”65 The court therefore held that the consent form was “invalid” because there was “no significant lapse of time between the unlawful detention and the consent,” and no “intervening circumstances dissipated the effect of the unlawful detention.”66 Interestingly, the Eleventh Circuit completely ignored the Mendenhall decision, which offered

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strong support for the government’s position, but Miller did address an issue which no Supreme Court Justice raised in Mendenhall: The record does not reveal how many unsuccessful searches Trooper Vogel has conducted or how many innocent travelers the officer has detained. Common sense suggests that those numbers may be significant. As well as protecting alleged criminals who are wrongfully stopped or searched, the Fourth Amendment of the Constitution protects these innocent citizens as well.67

The Supreme Court of Florida After failing twice in federal court, prosecutors decided to try their luck and reargue the same two issues in the state court system. In our federal system, state courts must follow United States Supreme Court precedent, but not necessarily rulings issued by federal circuit courts.68 Therefore, the Eleventh Circuit’s decisions against profile stops in Smith, and against pretext stops in Miller, would have been considered “persuasive,” but not binding precedent in Florida state courts. The same two issues, profile stops and pretext stops, reached the Florida Supreme Court in 1988 and 1990. In 1988, in a case involving a traffic stop for a bent “license tag,” the Florida Supreme Court had to rule on the constitutionality of pretext stops.69 It had to choose between adopting the Eleventh Circuit’s “would have” test or the “could have” test, which was eventually adopted by the majority of federal and state courts.70 The “would have” test attempts to limit the discretion of the law enforcement agent by allowing judges to ask whether a reasonable officer would have made the traffic stop. For example, if everyone on the highway is speeding but the police stop black drivers disproportionately, or if a driver gets stopped for a trivial offense which is usually ignored, judges can question whether bias played a role. The “could have” test, on the other hand, is more straightforward. It simply asks whether the officer had the authority to execute the traffic stop. If the driver committed a traffic violation, that is the end of the inquiry; the officer’s subjective intent becomes irrelevant under the “could have” test. Even though the “could have” test is the “easiest test to follow,” the Supreme Court of Florida rejected it because “the fourth amendment constraints on intrusive searches and seizures transcend other concerns.”71 Allowing the police to make unlimited stops based upon the faintest suspicion would open the door to serious constitutional violations. It is difficult to operate a vehicle without committing some trivial violation— especially one discovered after the detention. In the case under review, it appears the police decided to stop [the defendant] before noticing the

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bent tag. Moreover, it is unlikely that a reasonable officer would have stopped [the defendant] solely for this violation.72 (Emphasis in original) After being told a second time that pretext traffic stops are unconstitutional, the state attorneys once again reversed course and, in the next case, argued the highway “drug courier profile” provided the requisite reasonable suspicion to execute a traffic stop. Thus, in 1990, the Florida Supreme Court considered a pure profile stop in State v. Johnson (Johnson).73 The FHP trooper involved in Johnson had testified at trial that he had stopped the car because nine criteria contained in his profile had been triggered. However, the only remotely suspicious criterion was the hour the car was stopped. (1) the car was driving at 4:15 am; (2) the driver was alone; (3) the driver was about thirty years of age; (4) the car had out-of-state tags; (5) the car was of a large model type; (6) the driver was male; (7) the driver was wearing casual clothes; (8) the driver was being “overly cautious” by driving at precisely the speed limit; (9) the car was driving on a known drug corridor, Interstate 95.74 “Were we to approve this profile,” the state Supreme Court declared, “we might just as well approve a profile based on racial or ethnic characteristics, religious background, sex or any other completely innocent trait.”75 Perhaps the reader has already guessed the name of the arresting officer in Johnson: Robert Vogel. The Eleventh Circuit and the Supreme Court of Florida had issued four rulings over the course of five years prohibiting pretext stops as well as “profile” stops. Vogel had been the arresting officer in three of these cases. Yet, according to Vogel, the only thing that made him more proud than his “amazing” success rate in identifying drug couriers was the “high rate” in which judges upheld his arrests.76 It is important to note Vogel’s constitutional violations in Smith, Miller, and Johnson were not good-faith mistakes. He was deliberately testing the limits of the law.

Dirty Harry, Robert Vogel A system has evolved in America which allows, if not encourages, police officers to push the boundaries of the Constitution and then puts the onus on judges to draw lines which invariably appear arbitrary. This dynamic was perhaps best captured in Clint Eastwood’s film, Dirty Harry. In a famous scene a district attorney lectures Harry about infringing constitutional rights, asking, “Where the hell does it say you’ve got a right to kick down doors, torture suspects, deny medical attention and legal counsel? Where have you

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been? Does Escobedo ring a bell? Miranda? I mean, you must’ve heard of the Fourth Amendment. What I’m saying is, that man had rights.” “Well, I’m all broken up about that man’s rights,” Harry responds.77 Although Dirty Harry portrays district attorneys in the role of policing the police, that dynamic was entirely absent in New Jersey and Florida. In New Jersey, the Attorney General conspired with the Superintendent of Police to deny the existence of racial profiling, and state prosecutors in Florida not only approved Vogel’s experiment but they also most likely helped him design it.78 Another difference is that Clint Eastwood, at the end of Dirty Harry, throws his badge away, disgusted with the constitutional protections offered to suspects and the restraints placed on police. For better or worse, the Constitution prevails. Vogel, on the other hand, was not penalized for his constitutional transgressions; he was rewarded. In 1988, campaigning on the publicity generated by 60 Minutes, Vogel was elected Volusia County Sheriff. Winning 60% of the vote, he took over an agency with 653 employees, 306 sworn officers, and an 18.7-million-dollar budget. The Florida Attorney General administered the oath of office, and “sprinkled throughout” the ceremony were “judges, lawyers, deputies, police and county officials.”79

Take the Cash On January 3, 1989, Vogel served his first day in office as Sheriff of Volusia County. He must have been reading up on the law again because he immediately pioneered a new strategy that would help change law enforcement across the nation. His plan was brilliantly simple. All his troopers had to do was turn their heads and face north instead of south. Northbound motorists might be transporting drugs, but southbound buyers would be carrying cash. Police normally destroy the narcotics they confiscate but, under Florida law, they can keep up to 85% of the cash they seize. In June 1989, it was first reported Sheriff Vogel had directed his men to begin focusing their efforts on civil asset forfeiture.80 If a motorist was suspected of drug dealing, the troopers seized their cash, even in cases in which no drugs were discovered and no criminal charges were filed. If the occupants appeared nervous, told conflicting stories about where they were going, or used rubber bands to bind their cash, it could be seized. Civil asset forfeiture can be traced back to English law. Initially the practice was limited to forfeiture of maritime vessels engaged in piracy, smuggling, or the slave trade. If the government seized a ship that was being used in violation of law prohibiting the importation of slaves, for example, it would confiscate the ship. The government expanded the practice during Prohibition to allow confiscations of vehicles and equipment used to transport and manufacture alcohol, and it later adopted civil asset forfeiture in the War on Drugs, with the passage

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of the Comprehensive Drug Abuse Prevention and Control Act of 1970.81 The 1970 Act mirrored Prohibition laws because it allowed for the seizure of drugs as well as manufacturing, storage, and transportation equipment used in drug activities.82 However, the 1970 federal law had little effect, as evidenced by its use in only ninety-eight cases in the first ten years after its enactment.83 Vogel relied exclusively on Florida law to justify his department’s seizures until 1992.84 It is not clear what standard of proof his troopers believed was required to execute a seizure because the principles of the law were so unsettled.85 For example, a 1983 appellate decision explains how the trial judge was confused regarding the most fundamental legal question imaginable—whether to apply the rules of criminal or civil procedure.86 There was so little judicial precedent because previous law enforcement agents in Florida had seldom invoked the power, and none had ever thought to make it a deliberate policy. In fact, as far as this author can determine, Vogel was the nation’s first local law enforcement agent to realize he could use this then obscure legal doctrine to pioneer a radically new concept of policing: policing for profit. His autobiography does not reveal how he developed this strategy, but it does note that Mel Stack, a former state attorney who followed Vogel to the FHP, “worked hard to make sure we did it right.”87 Perhaps Vogel got the idea through his collaboration with the DEA because its agents had begun seizing currency from airline passengers. In 1978, Congress expanded the forfeiture law to allow federal agents to seize not just the conveyances of narcotics, such as boats or cars, but also proceeds traceable to drug transactions.88 Unlike the 1970 amendment, which had been signed into law by President Nixon, the change under President Carter had a large impact. It resulted in a twentyfold increase in the value of DEA forfeitures in just one year, and suddenly cases with odd names such as “United States v. $73,272, United States Currency” began appearing.89 As early as 1980, DEA agents began making “cash-only seizures,” seizing cash from passengers who were not carrying drugs.90 Ticket clerks, baggage handlers, and other airport employees were asked to lend a helping hand to law enforcement by alerting authorities to suspicious passengers. Their vigilance in protecting their fellow American citizens against the scourge of narcotics was illustrated in 1992, when 60 Minutes sent its African American producer, Harry A. Radliffe II, to buy a plane ticket with cash in New York, Atlanta, and other cities. All of Radliffe’s cash was confiscated within minutes of every purchase.91 Perhaps the fact that airport employees pocketed 10% of the proceeds whenever they provided an alert leading to a seizure “colored” their judgment. It would be interesting to know if Vogel ever met Markonni and compared profiles. In 1988, the year Vogel was elected Sheriff, the Eleventh Circuit issued a decision involving a seizure by none other than Paul Markonni of approximately $30,000 taken from a passenger flying to Florida.92 Perhaps it is just

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coincidental, but shortly thereafter, Vogel’s men began testifying in cash-only forfeiture hearings that drivers who carried a lot of luggage were as suspicious as those who had very little. In various cases, officers also testified it was suspicious to carry cash in the denominations most favored by drug dealers: the $1, $5, $10, $20, $50, and $100 bills.93 But, as one reporter observed, “that leaves few alternatives for others.”94 Those not versed in the intricacies of the American justice system may find it surprising that an officer of the law can stop a motorist, seize her cash without charging her with any crime or even a traffic violation, and then deposit that money into his department’s coffers. Moreover, since civil asset forfeiture falls under civil rather than criminal law, the constitutional rights awarded to criminal defendants are also inapplicable. Depending upon the jurisdiction, the standard of proof required to successfully claim property through civil asset forfeiture is often considerably lower than what is required to secure a criminal conviction— a preponderance of the evidence versus beyond a reasonable doubt.95 The first judicial hearing on a civil asset forfeiture case involving one of Vogel’s troopers was heard in June 1989. Deputy Frank Josenhans stopped two men in their twenties for a broken taillight.96 The men had no narcotics or illegal weapons but they had $1,800 in cash in their trunk. The motorists said they had put the money in the trunk because of a broken door lock. According to the state, Josenhans seized the money because “the men’s conversation taped in the police car sounded suspicious; they gave conflicting stories, and the money was wrapped in rubber bands.” The men were never charged with any crime, nor were they given a traffic ticket, but they did lose possession of the cash. The $1,800 belonged to Alvin Simmons, a construction worker. He tried litigating the matter pro se since he was not entitled to an attorney under civil law and he could not afford one. At the time of this preliminary hearing, just six months into Vogel’s first term in office, $360,000 had already been confiscated from motorists in Volusia County.97 Although the preliminary hearing involved a mere $1,800, “Law officers throughout Florida [were] watching” it, according to the Orlando Sentinel.98 Numerous sheriffs were quoted as saying if the court were to approve civil asset forfeiture in a case in which no drugs were found, they too would adopt the strategy. All but one offered statements to the effect that if “the court says we can do it cash seizures [sic], we’ll do it,” or that if the court were to allow a “cash-only” seizure it would “be a big plus.”99 Only Sheriff Perry of St. Johns County expressed reservations. “You’ve got to be responsible about those kinds of actions, or the courts will take those rights away from you,” Perry said.100 Alvin Simmons could not possibly have chosen a worse case to litigate pro se and he gave up after the preliminary judicial hearing. As Supreme Court of Florida would soon complain, the “murky” law of civil asset forfeiture was characterized by “procedural quagmires on account of the failure of the statute to provide measures to be followed,” and defined by an “absence of a

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clearly established procedure.”101 After it was reported in September 1989 that Simmons had failed to follow up on his claim, local reporters, but certainly not local law enforcement agents, lost interest in the issue.102

A Broad Mandate A year after Vogel became Sheriff, ABC broadcast a profile of him on its news magazine show, 20/20.103 The 20/20 segment reveals how Vogel’s office had already confiscated enough funds to expand its operations by creating a marine unit equipped with six speedboats and a helicopter. The segment begins with an odd juxtaposition. Barbara Walters introduces the segment by asking, “Are our police handcuffed in fighting the drug war? Do laws meant to protect our basic rights actually defeat effective law enforcement?” Shortly thereafter, we see Vogel driving one of his new speedboats with a helicopter flying overhead. The marine unit even makes a pretext stop of a shrimping boat by first claiming they want to check the boat’s registration, and then bringing a dog on board to search for drugs. Had drugs been discovered, Vogel could have added the fishing craft to his nautical collection. Despite Walters’ introduction, 20/20 presented a more balanced story than the 60 Minutes profile. Tom Jarriel was the reporter on the segment. The broadcast showed not just guilty motorists being stopped, but also innocent ones, as the viewer sees three minorities being placed in the back of a locked squad car while the police search their vehicle. Unbeknownst to them, the squad car is equipped with hidden microphones so the police can listen to their conversation. Nothing illegal is found. As the dazed and confused occupants stagger out of the squad car, Jarriel’s voiceover observes: “Stopped, locked up, delayed, searched, including their luggage, secretly videotaped and voice recorded, they were finally set free with a warning traffic ticket as their only offense.” The encounter ends with the trooper cheerfully telling them, “Have a nice day” as he returns to his patrol car. When the profile was aired on January 26, 1990, pretext stops had already been banned by the Eleventh Circuit as well as the Supreme Court of Florida, and “profile” stops had also been banned by the former. Based on the fact that one of his first official acts as Sheriff of Volusia County had been to create a new anti-drug squad, which he christened the “Selective Enforcement Team,” it appears Vogel was not overly concerned with these decisions. The 20/20 report leaves little doubt Vogel’s Selective Enforcement Team lived up to its name because squad members unabashedly stated that they focused on motorists’ appearances, not their driving. They never say race is a factor, but instead explain they are looking for one of two somewhat indistinguishable indicators: “If we got a person that doesn’t match a car, or a car that doesn’t match a person.” The five-man unit was not just targeting mismatched motorists, but was also aggressively enforcing the law by making “dozens and dozens” of

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stops a day.104 In fact, several years later, it was estimated the five-man unit had made “tens of thousands” of stops during its three-year existence.105 At one point, the viewer sees an FHP trooper sitting on the side of a highway; watching an endless stream of cars passing by. As the cars rush past, Jarriel can be heard asking with disbelief, “Sitting on the interstate, watching cars whizz by, one or two a second, how do they decide which ones to stop?” Vogel then appears on screen and responds by saying that, “Well, Deputies stop vehicles based on a traffic violation.” “But Sheriff, just about everybody out there is speeding, doing 60, 65 miles an hour, doesn’t it give you a broad mandate?” Jarriel never suggests the troopers are using a profile, but Vogel’s Freudian slip of a convoluted reply certainly raises that possibility: “Well I’m certainly not stating, or denying the fact that, our personnel are using a profile of any sort, which they do.” It appears Jarriel was not expecting this answer because, like an attorney who gets an unexpected answer on direct examination, he steered the conversation back with a leading question: “They’re using traffic control though to get to drug suspects, without the traffic violation they couldn’t get to drug suspects, correct?” “Well that’s true,” Vogel replies. The next part of the segment then discusses the propriety of pretext stops while ignoring Vogel’s concession that his men were doing something even more questionable, making “profile” stops of motorists who failed to “match” their car. Toward the end of the segment, Jarriel interviews the same defense attorney who had appeared on 60 Minutes, Dan Warren. A former judge and prosecutor, Warren has an entirely different demeanor during this interview. On 60 Minutes he had indirectly accused Trooper Vogel of racial profiling, but during this interview his anger is palpable, as he spits out the words “profiling stops” and “Selective Enforcement Team.” Warren discusses a case in which his client, a black male, was traveling with a white woman. A kilo of cocaine was found in their car, and the entire stop was recorded by the squad car’s video camera. Prior to the discovery of the cocaine, the man is seen outside his car sitting on the grass and, as Jarriel observes, “following every order of the police.” One of the deputies moves in to handcuff him, and he then stands up. He is ordered to sit down which he does, but while he is on the ground, and apparently handcuffed, the patrolman punches him in the face, breaking his nose, splitting his lip, and rendering him unconscious. The officer then stands over the unconscious man and reads him his Miranda rights. Professor Arthur Miller of Harvard Law School is interviewed at the conclusion of the broadcast. Miller explains why the stops being made by the Selective Enforcement Team were unconstitutional. If the stop is a pure pretext for the search, it’s illegal. Much of what struck me on that tape, struck me as pretextual stops, where the infraction is so ridiculously small where no law enforcement officer would ever have made the stop.

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Professor Miller was making three “ivory tower”-type assumptions. Many African American viewers would have laughed at his “no law enforcement officer” would make pretext stops assertion; the term “driving while black” had already been coined.106 Miller, who undoubtedly knew the Supreme Court of Florida and the Eleventh Circuit Court of Appeals had already ruled against pretext stops, also seemed a bit shocked that the police were not abiding by these rulings. But Vogel was so unfazed he had agreed to let ABC film his aptly named Selective Enforcement Team making pretext stops for national television. The Harvard Law Professor must also have assumed the United States Supreme Court, which would not rule on the constitutionality of pretext stops until 1996, would strike them down. But when it finally took up the issue, the Court unanimously ruled pretext stops permissible.107

“We Don’t Have to Prove the Fact That They Are Guilty” In 1991 the Supreme Court of Florida once again partook in what was becoming an almost annual tradition. It issued another ruling which failed to curb a controversial law enforcement technique pioneered by Vogel. Law enforcement agencies across Florida had adopted Vogel’s civil asset forfeiture strategy, as illustrated by the 1991 case involving a local lawyer, Charles DeCarlo. DeCarlo had made the costly mistake of saying undercover law enforcement agents could use his property to land a plane he thought would be carrying cocaine. The police then seized the 60-acre tract of land on which the airstrip was located, his personal home, a 40-acre recreational vehicle/mobile home subdivision he owned, a bathhouse, and hundreds of acres of additional Florida land.108 At one point, DeCarlo met the agents in a restaurant he owned to discuss the plan; the agents also seized the restaurant. The Supreme Court of Florida’s ruling in the DeCarlo case clearly attempted to protect against abuses in civil asset forfeiture actions. The court demanded the state bear the burden of proof at trial and that the government provide clear and convincing evidence of criminality as opposed to the lower standard of a preponderance of the evidence as favored by the state.109 However, there is no reason to believe this ruling had any more effect than its previous decisions. From 1989, the first year of the operation, through 1991, Vogel’s Selective Enforcement Team seized seven million dollars. In fact, as he proudly declares in his autobiography, Vogel had begun training “law officers from Arizona to Georgia” in his new strategy.110 Volusia County seizures did not decline until June 1992 and judicial rulings played no role. What brought about the change was an investigative report published by the Orlando Sentinel: “Tainted Cash or Easy Money.”111 After reviewing case files of forfeiture actions which were winding their way through the legal system, two reporters concluded that no charges had been filed in 199 of 262 seizure cases, and only four drivers got all their money back.

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Not surprisingly, the report highlighted the most egregious examples of abuse, including one case in which a twenty-one-year-old black Navy reservist’s $3,989 was confiscated. His Navy uniform was in the trunk of the car along with his cash. However, the officer, Deputy Bobby Jones, noticed the uniform was wrinkled and the shoes scuffed, “things no military man should allow.” Even after the motorist provided Navy pay stubs to show the source of the money, the Sheriff’s Office still kept $1,000 and 25% of the remaining $2,989 went to the man’s lawyer.112 The report concedes the majority of the $8 million that had been seized by the Selective Enforcement Team appeared to have been “drug money.” In a quarter of the cases arrests were made, many of the motorists had had previous drug convictions, and some did not protest against the seizures. However, there were still many troubling cases highlighted in the article. Vogel did not share the reporters’ concern that no charges were filed, let alone a conviction secured, in 75% of the cases: “If you don’t like the statutes . . . then you get the doggone statutes changed. We don’t have to prove the fact that they are guilty.”113 Vogel also was not bothered by the fact that 90% of the motorists involved in these cases were black or Hispanic. “What this data tells me,” Vogel commented, “is the majority of money being transported for drug activity involves blacks and Hispanics.”114 A second possible explanation for the racial disparity in the arrest rate for drivers was that the Selective Enforcement Team was selectively enforcing the law. Indeed, a local attorney gave the reporters a police videotape that had captured thirty-one stops made over the course of four days by Deputy Robert Jones. This videotape was the subject of yet another article criticizing Vogel because it supported the newspaper’s earlier allegations of discrimination.115 Every stop made on the tape was for a minor infraction. Twenty-five of the thirty-one drivers Jones stopped were black or Hispanic. Jones searched one of the six white drivers, but eleven of the twenty-three black or Hispanic drivers.116 Considering the fact that Trooper Vogel had constructed his “profile” on the basis of about thirty arrests,117 it is certainly ironic that Sheriff Vogel dismissed the videotape capturing thirty-one stops as “an unscientific sample from which no conclusions can be drawn.”118 Vogel was right, but more data was available: roughly 148 hours of videotapes which captured more than 1,000 stops. The tapes existed because Vogel had been having his men record all their stops for later review.119 Vogel could have ordered a clerk to review these tapes. In fact, considering how long he had been accused of racial bias, if officers were not disproportionately stopping minorities, one wonders why did he not order them to record the race of all the drivers they stopped to protect himself from spurious allegations. In any event, Vogel first defended his office by arguing the thirtyone stops constituted an “unscientific sample,” but then refused to turn over the videotapes depicting over 1,000 stops.120 Vogel only permitted the reporters to see the videotapes when the Volusia County Attorney and the state Attorney

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General’s office advised him he was required to do so under state law because they were public records.121 The tapes captured 1,084 stops. Although precise figures on the racial breakdown of I-95 motorists in that location during those years are not available, a five-day sampling of the stretch of I-95 patrolled by Vogel’s men revealed roughly 5% of the motorists were “dark skinned.”122 Yet, 69% of the motorists stopped on the videotapes were black or Hispanic, 82% of the motorists searched were black or Hispanic, and only nine of the 1,084 drivers stopped, less than 1%, received traffic tickets. In many stops, black motorists complain they had been stopped previously. Three stops are particularly memorable. In one stop a “bewildered” black man tried to explain he had already been stopped seven times; in a second, a black man, who was stopped twice in just minutes, stood by shaking his head in frustration as his car was searched.123 In a third stop, Sergeant Dale Anderson asked the white motorist how he was doing. When the man said, “Not very good,” Anderson replied, “Could be worse—could be black.”124 Anderson was subsequently promoted to lieutenant and head of the patrol unit for Spring Hill, a predominantly black area.125 The tapes also demonstrate that seizing cash, rather than enforcing the law, had become the principal goal: Drivers who actually admitted to crimes—including drug and alcohol offenses—were almost never charged or cited. A man who said he had a marijuana joint in his car was let go. Another told a deputy—in slurred speech—that he had been drinking and probably shouldn’t be behind the wheel. “I’m sorry I’m in the condition I’m in [one motorist confessed], I do feel like I shouldn’t be driving.” Anderson let the man go, saying “You know, with all this Mothers Against Drunk Driving (expletive), I’m telling you, it’s going to cost you two grand to get a lawyer.” Sixtyseven drivers had no driver’s license or had a suspended license, in some instances because of convictions for driving while under the influence of alcohol. They were let go. The vast majority of stops, 87%, were in the southbound lanes, where any drug traffickers would be more likely to be carrying cash to Miami, the entry point for most illegal drugs brought into the country. Only 13% of the stops were in northbound lanes, where the catch more likely would be drugs.126 By the time of the article’s publication in August 1992, Sheriff Vogel had been in office for almost four years and was just beginning his reelection campaign. Florida Governor Lawton Chiles announced he was forming a panel to investigate Vogel’s squad and others throughout the state. Two months later, Vogel won his reelection by a landslide, capturing 69% of the vote, an even higher percentage than his previous election. Soon after, Attorney General Janet Reno declared her own national investigation into civil asset forfeiture

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and asked the FBI to launch a criminal investigation into charges into Sheriff Vogel’s department.127 Despite these efforts, media reports soon revealed Vogel had trained law enforcement agents from “Arizona to Georgia” quite effectively because asset forfeiture had spread throughout the United States. In 1993 alone, equally disturbing investigative reports on various locales were published by the Christian Science Monitor, the San Jose Mercury News, The Indianapolis Star, the Arizona Tribune, the News Tribune, and the New York Times.128 In 1994, the New York Times described how the police department of Sulphur, Louisiana, population 20,552, had seized about $5 million in the previous five years, most of it in cash, and at least half from drivers passing along I-10.129 Nonetheless, despite these investigative reports, the programs continued unabated.130 In 2013, more than twenty years after the Orlando Sentinel published its report, New Yorker published an article chronicling abuses in Texas that were far, far worse than anything that had happened under Vogel’s command. Particularly memorable is the story of a law enforcement agent threatening to place a mother’s children in protective services unless she turned over her cash. The article created “a lot of buzz in the media and among the educated segment of the population, who are not usually the victims of forfeiture abuse, and therefore know little or nothing about it.”131

Black People Just Can’t Seem to Do It After the Orlando Sentinel broke the story and Vogel’s office became the target of civil and criminal inquiries, his deputies found themselves being deposed about whether they had been ordered to racially profile minority drivers. According to two deputies, such orders had been given. Deputy Frank Josenhans, and Deputy Lou Garcia who worked with the canine unit, both told authorities that in early 1989 Sheriff Vogel held a meeting on the median of the I-95 and told his men to “look for blacks and Hispanics.”132 During the meeting, Vogel allegedly said, “There goes one now,” when he saw a black motorist drive past.133 The chances a black driver would get pulled over were so high that, on one occasion, the same black motorist was stopped by three different troopers.134 Josenhans testified he once told Deputy Jones, “you’ve got to start stopping whites.” “I can’t tell with whites,” Jones replied.135 After they made these allegations against Vogel, Josenhans was reassigned to work at the Volusia County Branch Jail (sometimes given the assignment of fingerprinting prisoners) and Garcia was suspended for twenty months until he gave up his whistleblower lawsuit and quit the department.136 Neither man would work with the highway patrol again. Vogel, on the other hand, was reelected to his third term of office in 1996. In the end, the media attention and governmental investigations had the same effect in Florida that they had had in New Jersey: nothing changed.

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The Orlando Sentinel conducted an investigative report of 3,800 traffic stops and 500 searches by the Metro Dade drug squad from 1996 to early 1997. It was revealed that black motorists were 6.5 times more likely to be searched than white motorists. Officials brushed it off as a mere “coincidence” and not a reflection of possible racial bias.137 In 1999, Gary Webb, a California state investigator who first broke the Operation Pipeline story by publishing an explosive article with Esquire about his time with the program, interviewed Garcia. Vogel always denied allegations he ever directly ordered his men to target black and Hispanic drivers. Garcia explained it was not as if direct orders were needed. I knew who they were stopping. I saw the people. It was blacks, mostly, and they were all being pulled over for weaving. The black race was the only race I know of that wasn’t able to stay in a lane. Black people just couldn’t seem to do it.138

Notes 1 Gore Vidal, “Drugs: Case for Legalizing Marijuana,” New York Times, September 26, 1970, 29. 2 Florida v. Bostick, 501 U.S. 429, 431 (1991). 3 Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). 4 Bostick, 501 U.S. at 432 (internal citation omitted). 5 United States v. Smith, 799 F.2d 704, 706 (11th Cir. Fla. 1986). 6 Id., 705. 7 David Kocieniewski, “New Jersey Argues that the U.S. Wrote the Book on Racial Profiling,” New York Times, November 28, 2000, A1.; see also “New Jersey Black and Latino Caucus, Report on Discriminatory Practices Within the New Jersey State Police,” 26 Seton Hall Legislative Journal 273 (2002). 8 D.M. Tanovich, “Using the Charter to Stop Racial Profiling: The Development of an Equality-Based Conception of Arbitrary Detention,” 40 Osgoode Hall Law Journal, 145, 151 (2002); David A. Harris, Profiles in Injustice:Why Racial Profiling Cannot Work (New York: The New Press, 2002), 22. 9 Bob Vogel with Jeff Sadler, Fighting to Win: Sheriff Bob Vogel (Nashville, TN: Turner, 2001), 61 and 67. 10 Gary Webb, “Driving While Black: Tracking Unspoken Law-Enforcement Racism,” Esquire, April 1999, 11 Al Truesdell, “Trooper Has a Knack for Drug Busts Highway Seizures Make Officer Hero and Target,” May 6, 1985, news/0300000147_1_seizures-vogel-drug-busts. 12 Id. 13 Vogel, Fighting to Win, supra note 9, at 49; and Al Truesdell,“Trooper Snares Smugglers with Own Guidelines,” Orlando Sentinel, March 3, 1986, http://articles.orlandosentinel. com/1986-03-03/news/0200310109_1_vogel-johnson-smugglers. 14 Vogel, Fighting to Win, supra note 9, at 47. 15 Id. 16 Id., 68. 17 Id., 49.

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18 Kevin Sack, “On the Trail of Airport Drug Traffic: Profile of Couriers Gives Agents a List of Telltale Characteristics,” Atlanta Journal Constitution, May 10, 1985, A1. 19 United States v. Floyd, 418 F. Supp. 724, 725 (E.D. Mich. 1976). 20 Vogel, Fighting to Win, supra note 9, at 56. 21 Id., 57. 22 Id., 50. 23 Id., 44. 24 Id. 25 Id. 26 State v. Johnson, 561 So. 2d 1139 (1990); and Whren v. United States, 517 U.S. 806 (1996). 27 Al Truesdell, “Prosecutor: Drug Profile Ruling Won’t Affect Volusia,” Orlando Sentinel, June 29, 1985, 0310150230_1_volusia-county-drug-courier-profile-palm-beach. 28 Al Truesdell,“FHP Can’t Stop Cars on Hunch Appeal Court Restricts Drug Courier Profile,” Orlando Sentinel, April 17, 1987, 29 “Vogel’s Drug Courier Profile,” Orlando Sentinel, March 3, 1986, http://articles. (The article simply lists the criteria with no explanation or discussion.) On the same date the same newspaper published a second article listing virtually the same criteria which had been revealed in a case that would eventually reach the Florida Supreme Court, State v. Johnson, 561 So. 2d 1139 (Fla. 1990). 30 Vogel, Fighting to Win, supra note 9, at 49–54; and Truesdell,“Trooper Snares Smugglers,” supra note 13. 31 M. Anthony Lednovich, “Troopers Target Florida Vehicles to Halt Drug Flow,” Orlando Sentinel, June 8, 1985, news/0300350238_1_florida-license-plates-new-jersey-drug-courier-profile. 32 Jeff Brazil and Steve Berry, “Tainted Cash or Easy Money?” Orlando Sentinel, June 14, 1992, seizures-kea-drug-squad/3. 33 Vogel, Fighting to Win, supra note 9, at 59. 34 Truesdell, “Prosecutor,” supra note 27. 35 Quotation taken from 60 Minutes profile of Trooper Vogel, broadcast on April 26, 1987. Available on YouTube, Drug Interdiction on I-95 in Volusia County, Florida in 1986 (Trooper Robert Vogel),, dialogue transcribed by the author. See also Truesdell, “Trooper Snares Smugglers,” supra note 13. 36 Vogel, Fighting to Win, supra note 9, at 49. 37 Al Truesdell, “Trooper Snares Smugglers,” supra note 13. 38 Webb, “Driving While Black,” supra note 10. 39 Gary Webb, “Operation Pipeline: Pulling Over Minority Motorists as an Excuse to Search Their Cars,” in Abuse Your Illusions: The Disinformation Guide to Media Mirages and Establishment Lies, ed. Russ Kick (New York: Disinformation Co., 2003), 149. 40 Vogel, Fighting to Win, supra note 9, at 49–50. 41 City of Indianapolis v. Edmond, 531 U.S. 32 (2000). 42 60 Minutes profile supra note 35, interview appears at roughly the eleven-minute mark (all dialogue transcribed by the author). 43 Id., at twelve-minute mark. 44 United States v. Smith, 799 F.2d 704, 706 (11th Cir. Fla. 1986). 45 Id., n.3 at 707. 46 Id., 707. 47 Id., 710. 48 Id., 705.

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49 Id., 708. 50 “Arrests Must Not Trample Rights,” Sun Sentinel, September 1, 1986, http://articles.; and Robin Benedick, “Judge: Trooper’s Hunches Not Enough, Drug Suspects Can’t be Stopped Based on 6th Sense,” Orlando Sentinel, August 20, 1986, http://articles. See also Rob Morse, “Big Spenders Beware, FHP Has Your Profile,” Orlando Sentinel, June 10, 1985,; and Truesdell, “Drug Profile Ruling,” supra note 27. 51 Smith, 799 F.2d at 707. 52 Id., 708. 53 Id. 54 Id., 709. 55 Id. (citations omitted). 56 821 F.2d 546 (11th Cir. 1987). 57 “Courier Profile a Big Help in War Against Illegal Drugs,” Orlando Sentinel, July 18, 1985, drug-courier-profile-illegal-drugs-drug smugglers; Truesdell, “Trooper Has a Knack,” supra note 11. 58 Benedick, “Judge,” supra note 50. 59 Miller, 821 F.2d, at 546. 60 Id., 546–7. 61 Id., 547. 62 Id., 549. 63 Id., 547–9 (citations omitted). 64 Id., 549. 65 Id., 550 (citation omitted). 66 Id. 67 Id. 68 Although the above assertion represents the conventional wisdom, the Eighth and Ninth Circuits have claimed that state courts must follow their lead on federal questions. See Amanda Frost, “Inferiority Complex: Should State Courts Follow Lower Federal Court Precedent on the Meaning of Federal Law?” 68 Vanderbilt Law Review, 53, 56 (2015). 69 Kehoe v. State, 521 So. 2d 1094, 1095 (Fla. 1988). 70 See United States v. Johnson, 63 F.3d 242, 245–7 (3rd Cir. 1995); United States v. Jeffus, 22 F.3d 554, 556–7 (4th Cir. 1994); United States v. Scopo, 19 F.3d 777, 782–4 (2nd Cir. 1994); United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993); United States v. Meyers, 990 F.2d 1083, 1085 (8th Cir. 1993); United States v. Mitchell, 951 F.2d 1291, 1295 (D.C. Cir. 1991); United States v. Trigg, 925 F.2d 1064, 1065 (7th Cir. 1991); United States v. Causey, 834 F.2d 1179, 1184–5 (5th Cir. 1987). 71 Kehoe, 521 So. 2d, at 1097. 72 Id. 73 State v. Johnson, 561 So. 2d 1139 (Fla. 1990). 74 Id., 1140. 75 Id., 1143. 76 Vogel, Fighting to Win, supra note 9, at 68. 77 Dirty Harry (Malpaso Productions Co., 1971), quotation available at https:// 78 Truesdell, “FHP Can’t Stop,” supra note 28.

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79 Bo Poertner, “Vogel Soon to Pin on Sheriff ’s Star,” Orlando Sentinel, December 28, 1988,; Bo Poertner, “Vogel Steps Into Sheriff ’s Shoes: New Lawman Promises to ‘Take Back The Streets,’” Orlando Sentinel, December 30, 1988, 80 See, e.g., Beth Taylor, “Volusia Cash Seizures Go to Court: Law Officers Await Verdict on Taking Money Without an Arrest,” Orlando Sentinel, June 11, 1989, 81 United States v. Bajakajian, 524 U.S. 321 n.7 at 332 (1998) (stating that with the passing of the Comprehensive Drug Abuse Prevention and Control Act, “Congress resurrected the English common law of punitive forfeiture to combat organized crime and major drug trafficking . . . the Senate Judiciary Committee admitted that the revival of these common law proceedings ‘represents an innovative attempt to call on our common law heritage to meet an essentially modern problem’”). 82 21 U.S.C. 881(a) (2001). 83 GAO, “Asset Forfeiture: A Seldom Used Tool in Combating Drug Trafficking,” 7 (1981), as quoted in Eric Blumenson and Eva Nilsen, “Policing for Profit: The Drug War’s Hidden Economic Agenda,” 65 University of Chicago Law Review, 35, note 40 at 45; see also Jeff Yates and Andrew B. Whitford, “Race in the War on Drugs: The Social Consequences of Presidential Rhetoric,” 6 Journal of Empirical Legal Studies, 874, 877–81 (2009). 84 Jeff Brazil, “Only 1 Seizure Made Since Report,” Orlando Sentinel, December 18, 1992, 85 According to Vogel, hearings would be held which “would rule on the probable cause issue,” but a 1991 Supreme Court of Florida case discusses the lower court’s disagreements as to “the appropriate burden and standard of proof.” Department of Law Enforcement v. Real Property, 588 So. 2d 957, 967 (Fla. 1991). 86 In re Approximately Forty-Eight Thousand Nine Hundred Dollars ($48900.00) in United States Currency, 432 So. 2d 1382, 1386 (Fla. Dist. Ct. App. 4th Dist. 1983). 87 Vogel, Fighting to Win, supra note 9, at 97. 88 Psychotropic Substances Act of 1978, Pub L No 95–633, 92 Stat 3768, codified at 21 USC § 881(a)(6) (1994). Proceeds are broadly defined to include cash, negotiable instruments, securities, and other things of value. 89 710 F.2d 283 (7th Cir. 1983). 90 Id. 91 Henry Hyde, Forfeiting Our Property Rights: Is Your Property Safe from Seizure, (Washington, D.C.: Cato Institute, 1995). 60 Minutes broadcast of April 5, 1992, You’re Under Arrest. 92 United States v. U. S. Currency Totalling $29,500.00, 677 F. Supp. 1181 (N.D. Ga. 1988). 93 Jeff Brazil and Steve Berry, “Tainted Cash or Easy Money?” Orlando Sentinel, June 14, 1992, seizures-kea-drug-squad/3. 94 Id. 95 The Institute for Justice has published a chart detailing the standard of proof required by law in all fifty states. Policing for Profit, Institute for Justice, policing-for-profit-first-edition/part-i-policing-for-profit. 96 Taylor, “Volusia Cash Seizures,” supra note 80.

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97 Id. 98 Id. 99 Id. 100 Id. 101 Department of Law Enforcement v. Real Property, 588 So. 2d 957, 966 (Fla. 1991) (internal citations omitted). 102 Craig Quintana, “2nd Judge Lets Volusia Sheriff Seize Cash from I-95 Motorists,” Orlando Sentinel, September 15, 1989, 103 The 20/20 episode is available on YouTube. 20/20, Drug Interdiction on Volusia County Roadways in Early 1990’s Sheriff Robert Vogel,YouTube (March 19, 2011), All the dialogue from this episode has been transcribed by this author. 104 The 20/20 report states there were five men in the unit;Vogel in his autobiography said there were just four.Vogel, Fighting to Win, supra note 9, at 98. 105 Steve Berry, “I-95 Trial to Include Key Study,” Orlando Sentinel, January 7, 1995, 106 The term “driving while black” appeared in the New York Times in an article by Tim Golden: “Residents and Police Share Lingering Doubts in Teaneck,” New York Times, May 21, 1990, B4. The reader will also recall that civil liberty groups received hundreds of complaints four years earlier in New Jersey from minority motorists who said they had been stopped for no reason. Joseph F. Sullivan, “New Jersey Police Are Accused of Minority Arrest Campaigns,” New York Times, February 19, 1990, B3. 107 Whren v. United States, 517 U.S. 806 (1996). 108 Department of Law Enforcement v. Real Property, 588 So. 2d 957, 959 (Fla. 1991); see also Kelly Turner, “Drug Case Will be Prosecuted in Marion,” Ocala Star-Banner, May 17, 1990, d=bbhPAAAAIBAJ&sjid=FwcEAAAAIBAJ&pg=2766,6335367&hl=en. 109 Department of Law Enforcement, 588 So. 2d at 967. 110 Vogel, Fighting to Win, supra note 9, at 134. 111 Brazil, “Tainted Cash,” supra note 93. 112 Id. 113 Id. 114 Henry Pierson Curtis, “Statistics Show a Pattern of Discrimination,” Orlando Sentinel, August 23, 1992, 9208230488_1_drug-squad-black-and-hispanic-traffic-stops. 115 The article does not reveal how the reporters obtained the videotape.Vogel says the reporters got it from an “Orlando-area attorney.” Vogel, Fighting to Win, supra note 9, at 137. 116 Jeff Brazil, “Videotape Gives a Look at Volusia Squad’s Tactics,” Orlando Sentinel, June 17, 1992, drivers-sentinel-stop-a-car. 117 Vogel, Fighting to Win,” supra note 9, at 49–54; and Truesdell, “Trooper Snares Smugglers,” supra note 13. 118 Brazil, “Videotape Gives a Look,” supra note 116. 119 Vogel, Fighting to Win, supra note 9, at 108. 120 Brazil, “Videotape Gives a Look,” supra note 116. 121 Jeff Brazil and Steve Berry, “Color of Driver is Key to Stops in I-95 Videos,” Orlando Sentinel, July 21, 2015, news/9208230541_1_stop-and-search-sentinel-drivers-stopped/2. In his autobiography Vogel states that when the reporters asked to see the tapes, “naturally we made them available, as we were required to do.”Vogel, Fighting to Win, 149. 122 Curtis, “Statistics Show a Pattern of Discrimination,” supra note 115.

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123 124 125 126 127 128

129 130

131 132 133 134 135 136

137 138

Brazil and Berry, “Color of Driver is Key,” supra note 122. Id. Id. Id. Steve Berry, “FBI to Look at Vogel’s I-95 Policy,” Orlando Sentinel, July 16, 1993, John Dillin, “The Government’s Big Grab,” The Christian Science Monitor (five-part series starting September 28, 1993); Gary Webb, “The Forfeiture Racket,” San Jose Mercury News (nine-article series appearing August to September 1993); Erica Franklin, “Questions Arise About Fairness of Forfeiture Laws,” The Indianapolis Star, October 24-5, 1993, A1; “Policing for Profits,” Arizona Tribune, November 21–6, 1993; Russell Carolo and Doreen Marchionni, “Seizure Laws Have Been Wheels of Fortune for Tacoma Police,” The News Tribune, June 20, 1994, A1; “Inequity Seen in Drug Forfeiture Law,” New York Times, September 3, 1993, A17. David Heilbroner, “The Law Goes on a Treasure Hunt,” New York Times Magazine, December 11, 1994, 70–2. A four-part series by John Burnett on National Public Radio from June 15–19, 2008 provided many examples of civil forfeiture abuse by southern sheriffs and police seeking to raise money for their departments. Some were aided by federal prosecutors: Sarah Stillman, “Taken,” New Yorker (Aug. 12 and 19, 2013). Steve Berry and Mary Murphy, “2nd Volusia Deputy Says Vogel Ordered Minorities Stopped,” Orlando Sentinel, February 19, 1994, http://articles.orlandosentinel. com/1994-02-19/news/9402190360_1_drug-squad-josenhans-vogel. Steve Berry, “Witnesses Call Vogel’s Drug Policy Racist,” Orlando Sentinel, January 11, 1995, drug-squad-vogel-selena. Id. Pat LaMee and Mary Murphy, “Deputy: I-95 Officer Targeted Blacks,” Orlando Sentinel, March 16, 1994, 9403160372_1_josenhans-black-male-vogel. Id.; Sandra Pedicini, “Volusia to Pay Deputy $175,000 to End Suit,” Orlando Sentinel, September 11, 1999, 9909110071_1_volusia-county-sheriff-josenhans-drug-squad; Mickie Anderson, “Volusia County Deputy Drops Whistle-Blower Lawsuit,” Orlando Sentinel, January 27, 1996, lou-garcia-volusia-county-deputy-drug-interdiction. Henry Pierson Curtis, “Orange Sheriff ’s Drug Patrol Wins 1, Loses 1 Over Tactics,” Orlando Sentinel, August 20, 1997, news/9708191030_1_drug-squad-license-plate-holders-ruling. Webb, “Driving While Black,” supra note 10.


Yossarian: “Is Orr crazy?” “He sure is,” Doc Daneeka said. “Can you ground him?” “I sure can but first he has to ask me to. That’s part of the rule.” “Then why doesn’t he ask you to?” “Because he’s crazy,” Doc Daneeka said. “He has to be crazy to keep flying combat missions after all the close calls he’s had. Sure I can ground Orr. But first he has to ask me to.” “That’s all he has to do to be grounded?” “That’s all. Let him ask me.” “And then you can ground him?” Yossarian asked. “No, then I can’t ground him.” “You mean there’s a catch?” “Sure there is a catch,” Doc Daneeka replied. “Catch-22. Anyone who wants to get out of combat duty isn’t really crazy.” “That’s some catch, that Catch-22,” he observed. “It’s the best there is,” Doc Daneeka replied. (Joseph Heller, Catch-22)1

Robert Vogel never could have imagined the enormous ramifications his sixweek experiment making profile stops in 1985 would ultimately have. A total of eleven federal circuit courts would eventually consider the exact question first asked by the Eleventh Circuit in Smith: what is the “proper inquiry” for judges when examining the constitutionality of a Fourth Amendment stop—that a “reasonable officer would have” made the stop or that an officer “could have” made the stop? Most of these courts ultimately rejected Smith and adopted the “could have” test.2 Under this test, if a motorist commits even the most minor

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of traffic violations, a police officer can stop her: “so long as police do no more than they are objectively authorized and legally permitted to do, their motives in doing so are irrelevant and hence not subject to inquiry.”3 The United States Supreme Court resolved the circuit court split in Whren v. United States (1996), but law professors did not celebrate the ruling.4 Whren quickly “launched a firestorm of virtually unanimous criticism.”5 “Most legal scholars have excoriated” it for being “legally incorrect, technically flawed, and fundamentally unfair.”6 The critique of Whren, expressed in the vast majority of over 1,300 law review articles totaling tens of thousands of pages, can be boiled down to a single assertion: the Supreme Court granted the police too much discretion because they rejected the Eleventh Circuit’s “would have” or “reasonable officer test,” and instead opted for the “could have” test.7 However, if these critics had heard of a certain Florida highway trooper, they would have realized it mattered little which test was chosen. The more restrictive “would have” test is routinely and easily circumvented by police officers. As we shall see, the police are even taught how to evade the rule. Perhaps the reader noticed that Whren was decided the same year as Soto, the case which declared racial profiling to be a de facto policy on the New Jersey Turnpike. Both cases received attention by scholars and law practitioners in 1996, but there was a third racial profiling-related decision that same year which captured the imagination of the American public. Although that case is virtually forgotten today, it is critical for our purposes because it helped foreclose all possibility the Supreme Court might use Whren to rein in police discretion.

Bayless Less than three weeks after the Court granted certiorari in Whren, former Judge Harold Baer, Jr., a federal district court judge sitting in lower Manhattan, granted a motion to suppress in United States v. Bayless (1996).8 Like Whren and Soto, the issue in Bayless was whether to invoke the exclusionary rule and suppress evidence discovered as the result of an alleged Fourth Amendment violation. Carol Bayless and the arresting officer, Richard Carroll, agreed that she was spotted in a slow-moving vehicle driving with out-of-state plates in Washington Heights, a “high-drug area” in upper Manhattan. She was then observed sitting in the double-parked car when four black men came out of an apartment building and placed two large duffel bags in the trunk of her car. According to Officer Carroll, the scene was suspicious because the four men approached the car in a single file; they did not speak to Bayless while opening the trunk and placing the duffel bags inside; and at least one of the men began running when the officers approached them in an unmarked car. Bayless said she did interact with the men, and claimed one of them handed her the car keys. More significantly, she testified none of the men fled after spotting the unmarked police vehicle. Judge Baer said he believed Bayless’s version of events because her

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candor and the breadth and nature of her statements give her statement great credibility. Specifically, in her videotaped statement, the defendant admits to her role in the transaction and that of her son and his associates. The defendant also detailed her involvement in 20 other similar transactions and all this without any promise of immunity or even special consideration.9 Judge Baer would soon regret he did not end his analysis with that statement. Motions to suppress are rarely granted, but it is safe to say no other trial judge’s ruling has ever provoked such an “avalanche of criticism.”10 “The outrage” Bayless provoked “was not so much a reaction to the judge’s legal reasoning as to his disparaging remarks about the police.”11 His “disparaging” comments, limited to just the following two sentences, immediately turned Baer into an object of national scorn: Even before this prosecution and the public hearing and final report of the Mollen Commission, residents in this neighborhood tended to regard police officers as corrupt, abusive and violent. After the attendant publicity surrounding the above events, had the men not run when the cops began to stare at them, it would have been unusual.12 The “Mollen Commission” Baer referred to was a two-year investigation into police abuse and corruption which had just been completed in 1994. America’s “Top Cop,” William Bratton, who has served as police commissioner in Boston, New York, and Los Angeles, has described what happened at one of the precincts that was the subject of the Mollen Commission: When crack hit New York in the eighties, it hit that neighborhood [the 30th Precinct] particularly hard . . . Over time, a number of the cops started busting drug dealers so they could steal their money and resell their drugs. As the investigations by the Mollen Commission, Manhattan district attorney, and the U.S. attorney had conclusively shown, from 1986 to 1994 officers there systematically robbed drug dealers of drugs and money, beat up suspects, engaged in drug trafficking, extortion, assault, evidence tampering, perjury, civil rights violations, and income-tax evasion. They didn’t just steal from routine busts, they actively searched out known drug spots to rob them. There were ninety officers assigned to patrol the precinct; thirty-three were believed to be involved, including two sergeants.13 The Mollen Commission announced its findings less than a year before Bayless was arrested. One of the officers who testified during the hearings told “of how, from 1986 to 1990, he and fellow officers used lead-lined gloves called

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‘sapgloves’ and heavy flashlights to assault men, women and teen-agers—anyone they encountered on illegal raids.”14 Another officer testified to planting guns on “innocent bystanders to secure an arrest.”15 The testimony was so upsetting that an officer, who was serving as a consultant to the commission, was reported to have broken down in tears in the men’s room.16 The Commission reached the following conclusion: Today’s corruption is not the corruption of the Knapp Commission days [1970–1972]. Corruption then was largely a corruption of accommodation, of criminals and police officers giving and taking bribes, buying and selling protection. Corruption was, in its essence, consensual. Today’s corruption is characterized by brutality, theft, abuse of authority and active police criminality.17 Shortly before he was appointed to the federal bench, Baer had served on the Mollen Commission. In 1995, he co-authored an article describing the findings: The distinction between the criminal and the corrupt cop has disappeared. Corrupt cops no longer merely use their authority to exact payoffs; they now actively engage in criminal activity. Corruption assumes the nature of its provenance. Paralleling the violent world of narcotics trafficking, police corruption has become aggressive, extortionate and an often violent abuse of authority by officers who actively seek out opportunities to profit from the criminals they are sworn to arrest.18 If the Mollen Commission made Baer skeptical of the police, the reaction to Bayless must have turned him into an absolute cynic regarding politicians. The Mollen Commission’s findings of systemic police drug trafficking, extortion, and tampering with evidence caused no uproar outside the Big Apple. However, Baer’s two-sentence critique of the police led President Clinton, who had appointed him to the federal bench, to call for his resignation. The Speaker of the House agreed; Newt Gingrich and 150 additional members of Congress signed a letter to that effect. Senate Majority Leader, Bob Dole, and Republican Whip, Tom DeLay, called for his impeachment.19 The anger in Washington was echoed by New York City Mayor, Rudy Giuliani, Governor, George Pataki, and Police Commissioner, William Bratton.20 The attacks were so extreme that then Chief Judge, John O. Newman of the Second Circuit Court of Appeals, and three former chief judges issued an extraordinary joint statement claiming the attacks “threaten to weaken the constitutional structure of this nation.”21 Interestingly, these same politicians had had a more nuanced response to the Mollen Commission: silence. If President Clinton, DeLay, Gingrich, or Dole ever said one word about the egregious abuses uncovered by the Mollen

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Commission, Google and LexisNexis searches fail to find them. In a humiliating reversal, Baer soon reversed his original holding upon a motion for “reconside­ ration,” and thus upheld the constitutionality of the search.22 Baer announced this new decision just three weeks before the Supreme Court heard argument in Whren. The question of whether the police had probable cause in Bayless turned on the question of whether one or more of the men had in fact fled after placing the duffel bags into the car. Judge Baer’s claim that it would be “unusual” for residents of Washington Heights not to flee from police officers was gratuitously critical, but dicta nonetheless. Had Judge Baer suppressed not just the evidence but also his own pique, the case would have gone unnoticed. Or, as a despondent Bayless told a reporter after Baer’s reversal, the case would never have attracted any attention if Judge Baer had not “gotten on his soapbox.” Twelve hours after her arrest, Bayless had confessed to the crime, detailed her and her son’s involvement in twenty other transactions, and did so “without any promise of immunity or even special consideration.” She was an entirely credible witness and could not possibly have predicted how the question of whether the men had fled would prove to be pivotal. Thus, Judge Baer believed she was telling the truth about what she would have considered to be a minor detail during her confession. Judge Baer’s service on the Mollen Commission undoubtedly led to his heedless criticism, but as Bayless said after the rehearing, “it’s like my case doesn’t have anything to do with me or the facts. It has to do with everything else.”23 Thus amidst the Bayless firestorm, the Court heard oral argument in Whren.

Whren On the evening of June 10, 1993, in Washington, D.C., James Brown was driving an SUV with temporary tags in a “high-drug area.” Michael Whren was sitting in the front passenger seat. A team of four or five vice-squad officers of the District of Columbia Metropolitan Police Department (MPD), who were patrolling the area in an unmarked police car, noticed the SUV as it was stopped at a stop sign because it remained there for an unusually long time.24 These officers, in their unmarked vehicle, were prohibited from enforcing traffic laws unless the violation was “so grave as to pose an immediate threat to others.”25 (The goal of such police regulations is to avoid confrontations such as occurred in New York City in 1993. In that incident, a foreign-born medical doctor was stopped by two plainclothes narcotics officers who blocked his path with their unmarked car and approached him, displaying their badges. Apparently unsure of their identity, the doctor put the car in reverse, struck one of the officers, and was then shot dead.)26 Two officers testified at the suppression hearing, Ephraim Soto and Homer Littlejohn. At an earlier preliminary hearing, Soto had been asked how long the

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defendants’ truck had remained at the traffic sign and he responded, “I don’t even know how long they were stopped there.”27 Soto’s power of recall had curiously improved by the time he testified at the suppression hearing because he could then remember the truck had “remained stopped at the intersection for what seemed an unusually long time—more than 20 seconds.”28 He also said that after the police vehicle made a U-turn to head back toward the truck, “the Pathfinder turned suddenly to its right, without signaling, and sped off at an unreasonable speed.”29 The four or five undercover vice officers followed and pulled up alongside the vehicle after it had stopped at a red light. Soto stepped out of the police car; approached the driver’s door; identified himself as a police officer; and “immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren’s hands.”30 The officers arrested Brown and Whren and recovered several types of illegal drugs from a search of the Pathfinder.31 Soto testified under oath that he and his fellow vice-squad officers stopped the Pathfinder not to issue a ticket but instead to have a friendly chat. He wanted to ask why the driver had stopped at the stop sign for such a long time and just “to talk to him.” The only circumstances that I would issue tickets—I’m a vice investigator; I’m not out there to give tickets—is for reckless driving, something that in my personal view would somehow endanger the safety of anybody who’s walking around the street or even the occupants of a vehicle, maybe children or whatever . . . I wasn’t going to issue a ticket to him at all. That was not my intention at all. My intentions was to pull him over and talk to him [about the traffic violations].32 It is hard to fathom how a child could be endangered by a stationary car paused at a stop sign. Not surprisingly, defense counsel addressed the elephant in the room: “Isn’t it true that your decision to stop the Pathfinder was because you believed that two young black men in a Pathfinder with temporary tags were suspicious; isn’t that true?”33 It is not clear exactly how long Officer Soto paused before answering this question; perhaps as long as the Pathfinder had sat at the stop sign. In any event, Soto’s pause also raised suspicions, and the judge asked him why he had “hesitate[d] a long time” before answering that “very straightforward question.”34 Soto stated that he had “wanted to really think” and “analyze the question.” When he finally answered he made an unprompted denial the stop was based on a “racial profile.”35 However, according to Soto’s partner, Officer Littlejohn, they had stopped the Pathfinder not because of an alleged traffic violation, but to investigate for drugs. Sir, they were leaving a high-drug area. We did not know they had drugs in that vehicle at that time, just had a reasonable suspicion as to their actions as to why they were stopped at the stop sign for so long.36

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At the conclusion of the suppression hearing the trial judge ruled there had been no constitutional violation because there was no dispute over the facts of the traffic stop: the one thing that was not controverted . . . is the facts surrounding the stop. There may be different ways in which one can interpret it but, truly, the facts of the stop were not controverted. There was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop. It may not be what some of us believe should be done, or when it should be done, or how it should be done, but the facts stand uncontroverted, and the court is going to accept the testimony of Officer Soto.37 Some might agree the stop in Whren was neither “what” nor “when” nor “how” it should be done, but the declaration that the “facts stand uncontroverted” is difficult to digest. In addition to the conflicting testimony related to the motivation for the stop, numerous other related facts were undeniably controverted. Officer Soto alleged three traffic violations at the suppression hearing: pausing at the stop sign for an unreasonable amount of time; speeding; and failure to use a turn signal. However, there was no traffic regulation regarding the length of time one is allowed to remain paused at a stop sign;38 Officer Soto never said what speed the Pathfinder traveled, only that it was in his opinion “unreasonable”; and he had not raised the alleged failure to use a turn signal at the preliminary hearing and had also failed to allege that violation on the police report.39 Officer Littlejohn never even claimed to have seen either the turn signal violation or the speeding violation, just the pause at the traffic sign.40 In other words, the one alleged violation that was uncontroverted, the pause at the stop sign, did not even constitute a traffic violation. Yet, according to the judge, “the facts stand uncontroverted,” and the stop by a whole team of undercover vice officers, which was specifically prohibited by police regulations, was just a “normal traffic stop.”41

Mr. Feldman Doesn’t Care The D.C. Circuit Court of Appeals confirmed the decision and held the district court judge had correctly chosen the “could have” test to determine whether traffic stops are constitutional. The appellate court argued that the advantage of the “could have” or “reasonable officer” test is that “it eliminates the necessity for the court’s inquiring into an officer’s subjective state of mind.”42 It seems fair to ask: if the “could have” test “eliminates the necessity for the court’s inquiring into an officer’s subjective state of mind,” why was the only issue in Whren the arresting officer’s subjective state of mind? A more forthright admission is the “could have” test is preferable because it allows judges to ignore defense inquiries into an officer’s subjective state of mind, as well as obvious

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contradictions in police testimony, as long as at least one of the arresting officers makes a half-hearted attempt to allege a traffic violation had been committed, even if that violation had not been listed on the police report or mentioned in preliminary hearings. Although the D.C. Circuit may have skirted the ethical issues raised by pretext stops, the written transcript of the oral argument in Whren reveals the United States Supreme Court had the moral fortitude to confront these challenging questions head on. Justice Ginsberg asked the government’s attorney whether there was “anything else” (besides race) that could account for why the officers had made the stop when the traffic violations “were not particularly egregious.” When government’s counsel, a Mr. Feldman, attempted to argue speeding constitutes an egregious traffic violation, he was quickly cut off by an unidentified Justice (whom the author suspects was Justice Scalia): “Of course, you really don’t care, Mr. Feldman, do you?” “No,” Mr. Feldman answered. “Let’s be honest” [continued the Justice, before he was interrupted by laughter. After the laughter died down, the same Justice completed his sentence], “so long as he has a proper reason to stop, pretextual or not, you’re [sic] don’t care.” “That’s correct,” Mr. Feldman responded. “You’re just being nice to Justice Ginsberg in trying to give her some reasons why—” and the Justice was again interrupted by more laughter.43 The “could have” test echoes the insalubrious solicitation of a three-card Monte dealer: pick a card, any card; give us a pretext, any pretext. Despite the levity of the oral argument, Justice Scalia saved the best joke for the unanimous opinion he authored. After discussing Fourth Amendment precedent, Justice Scalia made the following observation: “We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”44 The “could have” test, in other words, does not just eliminate the necessity of examining the arresting officer’s subjective state of mind; it actually prohibits it. Defendants are foreclosed from making such arguments because “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”45 Only criminal law scholars and practitioners would get the punch-line contained in the following two sentences: We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment.46

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What Scalia was saying in these two sentences is that the Constitution certainly prohibits selective enforcement, but Whren’s counsel had made the unfortunate mistake of pointing to the wrong Amendment. A racial profiling allegation must be asserted under the Equal Protection Clause of the Fourteenth Amendment, not the Fourth. Scalia omitted to mention the fact that the Supreme Court has never clarified whether a criminal defendant may seek the exclusion of evidence as a remedy to a selective enforcement of the law violation under the Fourteenth Amendment.47 Victims of racial profiling are thus “foreclose[d]” from making a “selective enforcement of the law” argument under the Fourth Amendment, which is the Amendment which provides the remedy—the suppression of the evidence. They are, rest assured, perfectly free to allege a racial profiling defense under the Fourteenth Amendment’s Equal Protection Clause. However, it is not clear if a remedy even exists under that Amendment, and if it does, what the remedy is, or what level of police misconduct is required to trigger the granting of this hypothetical remedy. The Court has never even “suggested what scope such a remedy might take or the breadth of law enforcement conduct from which it would offer constitutional protection.”48 The Fourteenth Amendment was ratified in 1868. Jim Crow became prevalent roughly twenty years later, and it persisted until Congress banned segregation in 1964. By 1974, institutionalized racial profiling had begun in Detroit Metropolitan Airport. Over the past forty years, millions of innocent minorities have been stopped and searched based upon “drug courier profiles” that, at least initially, openly incorporated race as a criterion of suspicion. Yet, a century and a half after the ratification of the Fourteenth Amendment, through the many decades of Jim Crow and institutionalized racial profiling, the Court has yet to have the “occasion” to determine the remedy for an Equal Protection violation in a criminal proceeding. Of course, had the Court been at all inclined to address that subject, Whren provided the perfect opportunity to do so. However, Scalia’s only mention of the subject is limited to the two sentences quoted above. It is interesting how the two sentences which provoked a public outrage in 1996 were the ones authored by Judge Baer, not Justice Scalia.

A New Badge Despite all the humor in Whren, as a New Jersey court had declared five years earlier, it is “morally incongruous for the State to flout constitutional protections and at the same time demand that its citizens obey the law.”49 The shooting occurred two years after Whren, so racial profiling, at least among whites, had not yet become a national issue. However, the legal community already knew how the police were using the most trivial traffic violations to target minority motorists. In its brief for the Court, Whren’s counsel cited numerous cases from across the nation, where police officers had testified they were stopping cars based on a “drug courier profile” featuring race as a criterion.50 In an apparent

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reference to Operation Pipeline, police officers were quoted as explaining they had been taught to do so in training seminars.51 The defense brief even cited the Orlando Sentinel’s investigative report based on the videotape made by Sheriff Vogel’s officers.52 By 1996, highways had become a two-tiered system not unlike the system of segregated railroad cars in Louisiana, which the Court had upheld exactly one hundred years prior in Plessy v. Ferguson (1896). Whites drive in the express lane. These drivers need not worry about being subjected to profile stops, pretext stops, or even narcotic roadblocks after the Court banned them in City of Indianapolis v. Edmond (2000).53 Minorities are assigned to the local lane, and cars in this lane may be subjected to unexpected delays periodically. Just as black men had to avoid looking at a white woman during the days of Jim Crow, black motorists must be careful not to touch the white shoulder line while driving on the highway today. Colorblindness has afflicted Supreme Court Justices for some time, and it is no coincidence that Plessy and Whren are justified by the same judicial sleight of hand: the use of a “reasonable” person test that permits the court to ignore the motivations of state actors. The Plessy majority never asked what reason, other than racial animus, could possibly have motivated the Louisiana legislature to enact a law mandating segregated railroad cars. The Court, under an “objective” reading of the law, instead concluded no reasonable person would be offended by state-imposed racial segregation: Laws permitting, and even requiring, their separation in places where they are liable to be brought into contact do not necessarily imply the inferiority of either race to the other.54 The Court declared that if Plessy had mistakenly concluded segregation laws were discriminatory, well, that was his own damn fault: We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.55 Just as the Plessy Court refused to ask why the state legislature had enacted laws mandating segregation, exactly one hundred years later, the Whren Court adopted the “could have” test which serves to “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”56 Just as “objectivity” in Plessy stamped a “badge of inferiority” upon African Americans, the “objective” test in Whren has condoned a new badge: a badge of criminality. Scalia even managed once

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again to add insult to injury by implying that even if the vice officers were guilty of selective enforcement, well, that was just tough luck. Whren’s counsel had failed to cite the proper Amendment.57

That Supercharged Constitutional Knowledge As troubling as a decision as Whren was, we should be careful not to exaggerate its impact. Even if the Supreme Court had ruled differently, the only weapon against selective law enforcement practices that was being offered, the “reasonable officer” test, was useless. That test requires judges to second-guess the police. And, as Judge Baer could attest, that is a dangerous role for trial judges to play. A study of Washington State illustrates the futility of the “could have” test. Three years after Whren, the Washington State Supreme Court adopted the reasonable officer test based on its interpretation of its state constitution.58 In 2009, Professor Margaret Lawton concluded, based on her review of almost ten years of available case law, that Washington courts rarely seem to find that an officer acted for pretextual reasons . . . While, on the one hand, this might suggest that the use of pretext by the police is less prevalent than thought, it could also suggest that courts are reluctant to pick apart an officer’s motivations for making a stop, with the possible accompanying risk of elevating a pretextual motive over a valid, constitutional one, and suppressing validly recovered evidence.59 Although Lawton’s review of almost a decade of traffic stop case law is an impressive feat, the fifteen-minute 20/20 segment on Sheriff Vogel had already proven her point. As noted in the last chapter, the Eleventh Circuit Court of Appeals and the Florida Supreme Court had both adopted the “would have” test and rejected “profile” stops in a series of four cases, three of which involved Trooper Vogel. Yet, Vogel was lionized, elected Sheriff, and then allowed his Selective Enforcement Team to be filmed for national television making pretext stops whenever they spotted “a person that doesn’t match a car, or a car that doesn’t match a person.” Bayless, Soto, and Whren were all decided during the first six months of 1996. The Soto decision demonstrates how the right judge, in the right circumstances, was capable of resisting public opinion and protecting minorities from the selective enforcement of the law. Judge Francis’s patient handling of the suppression hearing, and his well-crafted decision, allowed him to suppress the evidence found against seventeen criminal defendants. Rather than provoking a public outcry, the Justice Department quietly began investigating the New Jersey police department. However, consider what Judge Francis had to contend with.

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It took several years and a tremendous amount of judicial resources to complete the suppression hearing. The defendants had been arrested between the years 1988 and 1991; the decision was not issued until March 1996. How many state court judges would have devoted this amount of time and energy? During the proceedings, the police flagrantly engaged in the obstruction of justice by refusing to produce their training manuals and feigning ignorance of the existence of a video which they themselves had helped produce, the infamous Operation Pipeline video.60 And, after the decision was issued, the State Attorney’s internal investigation revealed the problem of racial profiling was “even worse than critics had alleged.”61 Yet, rather than seeking to reform the police department, the state District Attorney’s office instead fought to have Soto overturned on appeal. In fact, the state was likely to win that appeal because Whren was issued three months later. Soto probably would have been overturned because even if it is “morally incongruous for the State to flout constitutional protections and at the same time demand that its citizens obey the law,” it is apparently even more troubling when litigants point to the wrong amendment when alleging a constitutional violation.62 If a litigant alleges her freedom of speech has been violated, but mistakenly argues such rights are protected by the Second Amendment, and the case eventually reaches the Supreme Court before anyone notices the error, should her case be dismissed? It had made not an iota of difference in terms of the evidence, witness testimony, oral argument, or written briefs. All Whren’s counsel had to do was to type the word “Fourteenth” instead of “Fourth.” Of course, if they had, the Supreme Court might have declined to hear the case because the issue of what remedy the Fourteenth Amendment offers in a criminal proceeding would have been unavoidable. The public’s reaction to Bayless and the Supreme Court’s ruling in Whren, bookends to the Soto decision, illustrates how Judge Francis was walking a tightrope buffeted by political and legal crosswinds. However, his lodestar was not the “would have” test; it was the Lamberth study which provided him with statistical evidence proving there was at the very least a “de facto policy of targeting minorities for investigation and arrest.”63 Without such empirical evidence, he would have been reduced to asking whether “a reasonable officer would have made the stop in the absence of the invalid purpose.”64 It is hard to imagine a more flimsy protection of a constitutional right, especially when one considers how police are trained to avoid being second-guessed by judges.

Tactics for Criminal Patrol The fact that racial profiling would have continued unabated, even had the Supreme Court chosen the “reasonable officer” test, is best illustrated not by case law, but by a police training manual considered to be a “classic” in the field.65 Charles Remsberg’s Tactics for Criminal Patrol (Tactics) is “used by police

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agencies throughout the nation.”66 In a section entitled “How can I protect myself against accusations of profiling or pretextual stops?” Tactics instructs officers to maintain a written log of all these stops so if you’re accused of profiling or pretextual stops, you can bring your daily logbook to court and document that pulling over motorists for “stickler” reasons is part of your customary pattern—not a glaring exception conveniently dusted off in the defendant’s case.67 In other words, the best defense against a racial profiling allegation is to practice racial profiling on a regular and consistent basis. It is peculiar how Tactics encourages maintaining a written log of all traffic stops to avoid racial profiling allegations, because police lobbyists have lobbied against laws requiring such logs when politicians have sought to abolish racial profiling practices. In 1997, Representative John Conyers introduced The Traffic Stops Statistics Act.68 The bill required the Department of Justice to collect and analyze data on all traffic stops around the country, including the race of the driver, whether a search took place, and the legal justification for the search. The timing of Conyers’ bill was quite fortuitous; Congress took up consideration of it shortly before the shooting in New Jersey would make racial profiling a front-page issue. An amended version of the bill emerged with a unanimous recommendation from the Republican-controlled U.S. House Judiciary Committee, and was passed with no opposition by the House of Representatives in March 1998.69 One month later, just as the bill reached the Senate, the shooting occurred. Remarkably, the bill nonetheless stalled in a Senate committee, where it reportedly died because of “heavy lobbying” by police groups, including the National Association of Police Organizations and the National Troopers Coalition. In the immediate aftermath of the shooting, these lobbyists argued that there was “no pressing need or justification for this study,” and that it would create “unnecessary paperwork.”70 They even claimed the police would “resent being asked to collect data on the race or ethnic background of those they stop and often search.”71 Tactics also offers informative advice regarding the “could have” test by summarizing the level of discretion that that test offers: “Is it legal to be curious about a car or driver first, then find a traffic infraction to justify pulling him over so I can make contact and check him out? Most places, yes.”72 Moreover, since virtually all motorists commit traffic violations every time they drive, officers are advised to acquire an “intimate and resourceful working knowledge of the motor vehicle codes, as well as knowing the outer limits of what prosecutors and courts in your jurisdiction will stand for.”73 The manual lists a few helpful examples of “the more trivial [traffic] infractions” (emphasis in original) that will justify a stop: “having a taillight out or a cracked windshield, changing lanes

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without signaling, impeding traffic, following too closely, failing to dim lights, speeding 3 to 5 mph over the limit . . . and so on.”74 As an Operation Pipeline instructor once proclaimed, “the vehicle code gives me fifteen hundred reasons to pull you over.”75 Another officer, who apparently had mastered the vehicle code as well as the “outer limits” of what judges in his jurisdiction would stand for, even more memorably declared: “I’ve got that supercharged knowledge of the Constitution that allows me to do this right.”76

Ain’t That Peculiar? One of Whren’s many ironies is that it rejected the argument that “the temporary detention of a motorist . . . is inconsistent with the Fourth Amendment’s prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws”77 (emphasis added and deleted).78 Defendants may be “foreclose[d]” from comparing the arresting officer’s actions with those of a “reasonable officer” but, as we saw in Mendenhall, when it comes to the arrestee, the Supreme Court has declared they must conform to a “reasonable person” standard when the police, lacking probable cause, stop and search them. In Chapter 4 we asked why “people with everything to hide and a constitutional right to hide it nevertheless give it up freely to the police.”79 We discovered how suspects might misinterpret a politely framed request to constitute a police order. Before we examine Tactics’ answer to the question of why so many suspects carrying contraband consent to be searched, we might ask why the defendants in Whren did not even bother to hide their drugs. After the Pathfinder sped away from the police at an “unreasonable” speed and the police eventually caught up to them and ordered them to pull over, Whren allegedly greeted Officer Soto while holding two large bags of cocaine in his hands.80 This author wondered for years why Whren failed to hide the cocaine under his seat or in the glove compartment. Thus, it was not entirely surprising to discover that several years after Whren, the arresting officers Littlejohn and Soto were the subject of a scathing newspaper exposé reporting how they had engaged in excessive use of force; planted evidence; perjured themselves to secure drug convictions; and exacted retribution against a witness who testified he had seen the officers plant evidence on a suspect. They even allegedly conducted a fruitless search of a man paralyzed from the waist down, picking him up from his chair, dropping him to the ground, and then pulling down his pants “while he lay prostrate—in a procedure known commonly in the neighborhood as “butt-checking.’”81 Perjury among the police is so common they have coined a word for it: “testilying.”82 According to Judge Alex Kozinski of the Ninth Circuit, it is “an open secret long shared by prosecutors, defense lawyers and judges that perjury is widespread among law enforcement officers.”83 Even America’s “Top Cop,”

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William Bratton, has explained that although a “lot of police chiefs would not admit there is a problem with ‘testilying’ it is a problem—for the profession. You have to face up to it.”84 The practice has long been documented.85 According to Bratton, the exclusionary rule encourages lawlessness. “Many cops have contempt for the exclusionary rule and the entire system that, supposedly to correct a cop, could set a predator free.”86 Therefore, to avoid the application of the exclusionary rule, Bratton claims that cops will often invent a traffic violation or claim that they discovered contraband in plain sight. The exclusionary rule “has never caused cops to follow the law; it has caused cops to violate the law and then lie about the laws they violate.”87 The danger is “it’s a slippery slope when you start picking and choosing which lies you’re going to tell under oath.”88 However, even if police abuse and perjury is widespread, it has apparently never been officially sanctioned, and the subject of this book is how racial profiling has been institutionalized by the police and repeatedly upheld by the Supreme Court. Therefore, rather than challenging the assertion in Tactics that “92% of major narcotics seizures from automobiles in both urban and rural areas have resulted from consent searches,” we will accept that number at face value and instead attempt to answer a question which has haunted the pages of law review articles for some time:89 Why do “people with everything to hide and a constitutional right to hide it nevertheless give it up freely to the police”?90

That Magic Moment Twenty years after Mendenhall, Professor Marcy Strauss wrote a law review article, noting that every time she teaches criminal procedure she witnesses “mass incredulity.”91 “Why, one hundred criminal procedure students jointly wonder, would someone ‘voluntarily’ consent to allow a police officer to search the trunk of his car, knowing that massive amounts of cocaine are easily visible there?”92 Strauss chose the preferred method of law scholars to resolve this dilemma: a massive case law review. Strauss read “every published consent case in the last three years at both the federal and state level” (emphasis added). The project must have been a bit tedious: “In case after case, I found that the court simply recited a paragraph on what constituted voluntariness and on the state’s burden to demonstrate that the consent was voluntary.”93 Strauss was distressed to discover that “Although courts pay lip service to the requirement that a person’s consent to a search must be ‘the product of a person’s free will and unconstrained choice’ in order to be valid, in reality that requirement means very little.”94 Yet, after Mendenhall and Bostick, why would it be surprising that lower “courts find consent to be voluntary in all but the most extreme circumstances”?95 Lower court judges are just following precedent. Moreover, as the “Consent to Search” chapter in Tactics illustrates, the police correctly interpret these decisions as elevating form over substance.

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The “Consent to Search” chapter in Tactics begins with the proud declaration that various troopers have between a 96% and 100% success rate in getting motorists to grant them consent. The rate of consent is so high because “The reasons for giving consent are not affected by logic”96 (emphasis in original). Tellingly, the manual criticizes those officers who “try to search every vehicle they stop, as a hedge against offenders who are successfully deceptive during dialogue,” because it is “generally a waste of valuable time.”97 “Consent to Search” then offers detailed instruction on “The Magic Moment.”98 Before reading this passage, it is important to recall the key sentence from the last airport “drug courier case” we examined. Royer involved the passenger who had his luggage prised open while sitting in the closet. Justice White, who had dissented in Mendenhall, suggested that by returning his ticket and driver’s license and informing him that he was free to go if he so desired, the officers might have obviated any claim that the encounter was anything but a consensual matter from start to finish.99 Based on the advice given in Tactics, it is clear that someone in law enforcement read this decision very carefully. Consent must be asked for and granted when a “reasonable” person would believe he is legally free to disregard further contact with you and leave your presence . . . Legally this period begins when you have concluded the reason for the stop (issued him a ticket or warning, for example) and have returned his license, registration, insurance card, and any other documents . . . You may want to mark the end of your official detention by saying casually, as a “throw-away” line: “Okay, you’re free to go, have a safe trip,” as you hand him the papers . . . most courts presume that a reasonable citizen knows that constitutionally he does not have to remain once the purpose for the stop is ended. If he does stay after that point, it’s presumed he’s sticking around “by choice” and engaging in “consensual conversation” with you. Whatever he agrees to then, in the court’s view, is more likely to be voluntary.100 (Emphasis and quotation marks in original) Remsberg explains how most officers seek to avoid an “abrupt break when the detention technically ends and the contact de-escalates into a voluntary encounter.” They do so by keeping “the conversation flowing as they’re filling out the paperwork” and when the driver is given back his documents. As an example, Remsberg quotes an officer who liked to ask about “‘the weather in whatever locale the suspect says he has come from.’” The advantage is that this keeps the driver “‘focused on something nonthreatening at that moment.’” Such a “‘seamless’ transition makes the suspect less likely to register the fact that his status has officially changed.”101

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Psychologically though, the chances are overwhelming that the average person won’t leave at that “break” point, even if he understands intellectually that he could. After all you’re the police and you’re still talking to him. As a practical matter, his freedom to disregard your questions and split simply don’t [sic] occur to him.102 Another technique is to “pretend the idea of searching has occurred to you as an afterthought.” If you’re at the driver’s window or standing outside with him, turn as if you’re going to walk away after you’ve returned his papers, then, still acting the good ol’ boy, turn back and broach the subject cordially, almost as a joke: “Say can I ask you a question?” Wait for him to agree then: “You know, I sure run into a lot of strange things out here. You don’t have any bazookas, or drugs or atomic bombs in the car, do you?” Technically, you’ve confirmed that he’s agreeable to talking to you. Your tone conveys that you’re posing a strictly routine, even stupid, question to which you are of course expecting a negative answer. When the driver says “No,” then casually but quickly pop the $64,000 question: “Well, you wouldn’t mind if I took a look, would you?” [emphasis in original] This phrasing, too, employs psychology in your favor. The implication is the subject will look guilty if he does mind. An assumption is built into the question. It’s psychologically harder to decline than a straightforward: “Can I search your car?”103 Six more pages of psychological advice are offered to gain consent in more specific types of circumstances. It may be impossible to determine who designed these techniques for manufacturing consent, but it could well be that this was Vogel’s biggest contribution to law enforcement, and the focus of the classes he was teaching for the Drug Enforcement Administration (DEA). Chapter 5 has already discussed how Vogel pioneered making drug interdiction “profile” stops, and how he later pioneered the use of civil asset forfeiture. However, the key to both programs is how to constitutionally gain access to the vehicle and conduct a search. It appears that Vogel may have pioneered the “Magic Moment” technique described in Tactics. In his autobiography, written for the public, Vogel described his technique as follows: I would ask questions in a quiet manner, review their documentation, write up the traffic citation and return their documents before proceeding further, so they would have everything in their possession and wouldn’t feel the need to consent to search . . . I took a low-key, friendly approach to the stops, tried to put people at their ease and then quietly ask them for permission after a few minutes.104

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Even more tellingly, when the Orlando Sentinel gained access to those videotapes of more than 1,000 stops that had been recorded by his “Selective Enforcement Team,” a typical stop was described as follows: In the tape, [Officer] Jones informs each driver that he or she has been stopped for a minor traffic violation and asks to see a driver’s license. He is polite and chatty and returns the license before popping the surprise question: “By the way, you’re not carrying any drugs, guns or bombs, are you?” he asks. “You mind if I take a quick look?”105 The reporter in the above-quoted passage consulted four legal experts: two lawyers who had argued before the Florida Supreme Court; a law professor; and a former prosecutor. All four agreed that the technique described above “would make it illegal to seize any contraband”106 because it was based on a “ruse” or a “pretext.”107 However, the lawyers were making a mistake that was still quite common during this era: focusing on the actions of the police, not the reactions of the motorists. They also failed to realize how under the Fourth Amendment, a pretext, any pretext, forecloses all argument that an officer acted unreasonably.

City of Indianapolis v. Edmond Law enforcement certainly had reason to celebrate after winning the Mendenhall, Bostick, Whren trifecta. In fact, in 1999, three years after Whren, it was reported that “state and local police participation in Operation Pipeline has soared.”108 One of the program’s instructors explained why that happened. “After Whren, the game was over. We won.”109 The Court sanctioned all three racial profiling programs despite the fact that all three cases presented facts highly favorable for the defense. Had the Court wanted to put an end to racial profiling in airports, it could not have chosen a better case than one in which a woman had been strip-searched without probable cause. If the Justices had wanted to uphold the Fourth Amendment’s prohibition against unreasonable searches and seizures, the stop of a sleeping bus passenger provided the perfect opportunity. And it is hard to imagine a more flagrant example of a pretext traffic stop than one in which a whole team of vice-squad officers violate their own police department’s regulations and pull over a driver for having paused at a stop sign for a few seconds too long. Law enforcement officers reading these decisions may have been reminded of the old Cole Porter song, “Anything Goes,” but their winning streak ended in 2000. Considering what had already been determined to be permissible, the reader may be surprised to discover what was declared impermissible: narcotic roadblocks. In 1998, just a few months after the shooting had occurred in New Jersey, the police in the City of Indianapolis began experimenting with narcotic

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roadblocks. Before discussing the constitutional issues, we should first note the logistical advantages of conducting roadblocks as compared with making roving patrol stops. Readers who instinctively fear looking into their rear-view mirror and seeing a police car may be surprised to learn that police officers have their own apprehensions—approaching a vehicle and encountering armed drug dealers. Robert Vogel discussed the danger in his autobiography: I worked alone, late at night, without backup. I was obviously taking a chance . . . There was a case of a state trooper who made a traffic stop, was captured by the occupants of the vehicle, taken out-of-state and executed. It happened. I knew it. I tried to take the proper precaution for my own safety. I wore a bulletproof vest, carried a survival knife around my neck, had an extra pistol strapped to my ankle and even carried an extra handcuff key in my back pocket in case I was captured and cuffed with my hands behind me.110 Roving patrol stops will inevitably lead to occasional tragedies because both parties are fearful and guns are so prevalent in America. The controlled environment of roadblock searches makes them considerably safer than roving patrol stops, and they are also less intrusive and less inconvenient because drug detection dogs can immediately circle the stopped vehicles. In roving patrol stops, on the other hand, searches are often conducted by an officer, who goes through the occupants’ personal belongings or, when “consent” is declined, the motorist must wait for the canine unit to be called in. As noted, in the first published case involving Vogel, it took forty minutes for the dog unit to arrive.111 Based on the limited data we have on Operation Pipeline, it seems narcotic roadblocks are also just as effective as roving patrol stops. It was reported that 2% of the stops in California in 1997 resulted in drug arrests, and it appears that Vogel’s arrest rate was no higher than 3%.112 However, 5% of the motorists stopped in the Indianapolis checkpoints were arrested for drug-related offenses and another 4% for various other crimes.113 In other words, the searches had a 9% hit rate. Thus, in terms of the safety of both the officer and the motorist, the intrusiveness and inconvenience imposed upon the motorist, and their effectiveness at catching criminals, roadblocks appear to be vastly superior to roving patrol stops. Properly conducted roadblocks may also protect against Equal Protection of the Law violations. When narcotic roadblocks were challenged in City of Indianapolis v. Edmond (2000), there was no dispute that the roadblocks controlled for possible racial bias on the part of the officers because they were not granted discretion to stop vehicles out of sequence.114 Moreover, since the Supreme Court had already sanctioned sobriety roadblocks a decade before in a case with only a 1.6% success rate, one might have expected it would also

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permit roadblocks to check for narcotics.115 Yet, in a decision rightly described as being “in the vicinity of crazy,” City of Indianapolis created a per se prohibition against narcotic roadblocks.116 It is also puzzling that the Court adopted a per se Fourth Amendment prohibition against narcotic roadblocks because as the Bostick ruling demonstrates, the “Supreme Court has steadfastly rejected the notion of imposing per se rules on police officers conducting warrantless searches.”117 Yet, the same Justice who wrote the decision striking down the Florida Supreme Court’s per se prohibition against bus searches, Sandra Day O’Connor, also wrote the opinion imposing a per se prohibition against narcotic roadblocks. At no point does O’Connor explain why randomized stops, which were permissible in Bostick, became impermissible in City of Indianapolis. Compare the two pivotal sentences: Bostick: We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate.118 (Emphasis added) City of Indianapolis: We are particularly reluctant to recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.119 It is interesting to compare City of Indianapolis not just with Bostick, but also with Mendenhall. Because of the sequenced stops, racial bias was not an issue in City of Indianapolis. In the airport cases, however, agents had virtually unlimited discretion, as admitted by the DEA agent who testified that the “drug courier profile” “in a particular case consists of anything that arouses his suspicions.”120 The narcotics roadblock was also considerably more effective. The police in City of Indianapolis kept detailed statistical records indicating 9% of the stops led to arrests,121 whereas “the sparse statistical data”122 of the DEA program indicates that as little as 2–3% of the stops led to arrests.123 Yet, the Court struck down the non-discretionary sequenced stops involved in City of Indianapolis after upholding a program where DEA agents had repeatedly testified they were targeting minority airline passengers. Moreover, the Mendenhall Court upheld the use of the airport “drug courier profile” in a case in which the arresting officer conceded he had stopped the defendant because she was a black woman. Perhaps City of Indianapolis and Mendenhall, taken together, stand for the proposition that although the Court is “reluctant to recognize exceptions to the general rule of individualized suspicion,” it is willing to do so when the police only target minorities and thus avoid inconveniencing the “general public.”

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Notes 1 Joseph Heller, Catch-22 (New York: Simon & Schuster, 1961), 45–6. 2 The following courts chose the “could have” test: United States v. Johnson, 63 F.3d 242, 245–7 (3rd Cir. 1995); United States v. Jeffus, 22 F.3d 554, 556–7 (4th Cir. 1994); United States v. Scopo, 19 F.3d 777, 782–4 (2nd Cir. 1994); United States v. Ferguson, 8 F.3d 385, 392 (6th Cir. 1993); United States v. Meyers, 990 F.2d 1083, 1085 (8th Cir. 1993); United States v. Mitchell, 951 F.2d 1291, 1295 (D.C. Cir. 1991); United States v. Trigg, 925 F.2d 1064, 1065 (7th Cir. 1991); United States v. Causey, 834 F.2d 1179, 1184–5 (5th Cir. 1987). The Fifth Circuit agreed with the Eleventh Circuit and adopted the “would have” test. United States v. Causey, 834 F.2d 1179, 1184 (5th Cir. 1987). The Tenth Circuit first adopted the reasonable officer test but later reversed course prior because of “inconsistent” results. United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995) (overruling United States v. Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988)); see also People v. Robinson, 767 N.E.2d 638, 648 (N.Y. 2001) (noting that the Tenth Circuit’s experience with the reasonable officer standard supported its decision to adopt Whren’s standard). 3 Causey, 834 F.2d at 1184. 4 517 U.S. 806 (1996). 5 Margaret M. Lawton, “The Road to Whren and Beyond: Does the ‘Would Have Test Work,’” 57 De Paul Law Review 917, 917 (2008). 6 Id., 917–18 (2008) (internal citations omitted); see also Honorable Phyllis W. Beck and Patricia A. Daly, “State Constitutional Analysis of Pretext Stops: Racial Profiling and Public Policy Concerns,” 72 Temple Law Review 597, 597 (1999). 7 See, e.g., Lawton, “The Road to Whren,” supra note 5. 8 921 F. Supp. 211 (S.D.N.Y. 1996).The Court granted certiorari in Whren on January 5, 1996. Whren v. United States, 1996 U.S. LEXIS 692 (U.S. 1996). Bayless was published on January 22, 1996. 9 Bayless, 921 F. Supp. at 236 (footnote omitted). 10 Don Van Natta, Jr.,“Under Pressure, Federal Judge Reverses Decision in Drug Case,” New York Times, April 2, 1996, 1. 11 Don Van Natta, Jr., “Judge’s Drug Ruling Likely to Stand,” New York Times, January 28, 1996, 27. 12 Bayless, 921 F. Supp. at 242. 13 William Bratton with Peter Knobler, Turnaround: How America’s Top Cop Reversed the Crime Epidemic (New York: Random House, 1998), 249–50. An informative but “ethically challenged” documentary related to the Mollen Commission was released in 2014: The Seven Five. Manhola Dargis, “The ‘Seven Five’: A Documentary About a Corrupt New York Cop,” New York Times, May 8, 2015, C11 (“A movie like ‘The Seven Five’ has only minor use as a historical document; its principal function is to package gonzo tales of bad behavior into commercial entertainment that plays down the real suffering behind those stories”). 14 Selwyn Raab, “Detailing Burglars in Blue:Violent Search for Booty,” New York Times, September 30, 1993, 3. 15 Craig Wolff,“From Hearing, Portraits of Disgrace,” NewYork Times, October 1, 1993, 4. 16 Id. 17 The City of New York Commission to Investigate Allegations of Police Corruption and the Anti-Corruption Procedures of the Police Department: Commission Report, 17–18 (1994) (Milton Mollen, Chair) (collection located at Lloyd Sealy Library Special Collections, John Jay College of Criminal Justice) [hereinafter Mollen Commission]. 18 Hon. Harold Baer, Jr. and Joseph P. Armao, “The Mollen Commission Report: An Overview,” 40 The New York Law School Law Review, 73, 76 (1995).

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19 Don Van Natta, Jr., “Publicity Stuns Woman in Washington Hts. Drug Case,” New York Times, April 11, 1995, 5; Alison Mitchell, “Clinton Pressing Judge to Relent,” New York Times, March 22, 1996, 1; Jonathan Groner, “As Judge-Picker, Dole Is No Ronald Reagan,” Legal Times, April 1, 1996, 1; Ian Fisher, “Gingrich Asks Judge’s Ouster for Ruling Out Drug Evidence,” NewYork Times, March 7, 1996, 4; Katharine Q. Seelye, “House G.O.P. Begins Listing a Few Judges to Impeach,” New York Times, March 14, 1997, 24. 20 Van Natta, “Judge’s Drug Ruling,” supra note 11. 21 Id. 22 Judge Baer vacated his original decision on April 1, 1996. United States v. Bayless, 921 F. Supp. 211 (S.D.N.Y. 1996). The Supreme Court heard argument in Whren on April 17, 1996. 23 Bayless, 921 F. Supp. at 236 (footnote omitted); and Van Natta, “Publicity Stuns Woman,” supra note 19. 24 Brief for Petitioner at *12–14, Whren, 517 U.S. 806 (1996) (No. 95–5841), 1996 U.S. S. Ct. Briefs LEXIS 119. 25 D.C. Metropolitan Police Department General Order 303.1(I)(A)(2)(a)(4) (1992). 26 Rose Kim, “Family Wants Answers,” Newsday, March 20, 1993, 4. 27 Brief for Petitioner, supra note 24, at *12 n.5. 28 Whren, 517 U.S. at 808. 29 Id. 30 Id., 808–9. 31 Id. 32 Brief for Petitioner, supra note 24, at *14. 33 Id., at *19 n.11 (internal citation omitted). 34 Id. 35 Id. 36 Id., at *13 n.7 (internal citation omitted). 37 United States v.Whren, 53 F.3d 371, 373 (D.C. Cir. 1995). 38 The violation that was cited, failure to give “full time and attention” to the operation of a motor vehicle, presumably would not apply to stationary vehicles. 39 Brief for Petitioner, supra note 24, at *14 n.6. 40 Id. 41 Whren, 53 F.3d at 373. 42 Id., 375. 43 Transcript of Oral Arguments, Whren v. United States (April 17, 1996), available in WESTLAW, 1996 WL 195296, at 40–1. 44 Whren, 517 U.S. at 813. 45 Id. 46 Id. 47 “We have never determined whether dismissal of the indictment, 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.” United States v. Armstrong, 517 U.S. 456, n.2, 461 (1996). Although Armstrong dealt with a selective prosecution claim directed at a federal prosecutor’s office, the defense in Whren focused on a selective enforcement claim directed at police officers. The distinction is seemingly important but, as will be discussed in the following chapter, judges and commentators alike have usually treated selective prosecution and selective enforcement as if they are synonymous terms. The Court has never sought to clarify this confusion, nor has it articulated what is the proper remedy for a selective enforcement victim. The court has declared that “discrimination in the selection of the grand jury [is] a valid ground for setting aside a criminal conviction.” Rose v. Mitchell, 443 U.S. 545, 559 (1979); and Whitus v. Georgia, 385 U.S. 545, 549–50 (1967).

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48 Brooks Holland,“Safeguarding Equal Protection Rights: The Search for an Exclusionary Rule under the Equal Protection Clause,” 37 American Criminal Law Review 1107, 1110 (2000). 49 State v. Kennedy 247 N.J. Super. 27, 30 (App. Div. 1991). 50 Brief for Petitioner *26–43, Whren, 517 U.S. 806 (1996) (No. 95–5841), 1996 U.S. S. Ct. Briefs LEXIS 119 (internal citations omitted). 51 Id., *39–40 (citing State v. Arroyo, 796 P.2d 684, 688 (Utah 1990)). 52 Id., n.20 at *43. 53 531 U.S. 32 (2000). 54 Plessy v. Ferguson, 153 U.S. 537, 544 (1896). 55 Id., 551. 56 Whren v. United States, 517 U.S. 806, 813 (1996). 57 Id., 813. 58 State v. Ladson, 979 P.2d 833 (Washington 1999). 59 Lawton, “The Road to Whren,” supra note 5, at 957. 60 See Chapter 2, note 2 and the accompanying text; and David Barstow and David Kocieniewski,“Records Show New Jersey Police Withheld Data on Race Profiling,” New York Times, October 12, 2000, B8. 61 Id. 62 State v. Kennedy, 247 N.J. Super. 30 (App. Div. 1991). 63 State v. Soto, 324 N.J. Super. 66, 83 (Law Div. 1996). 64 United States v. Smith, 799 F.2d 704, 709 (11th Cir. Fla. 1986). 65 Preliminary Expert Witness Report of Robert C. Willis at 6, J.G. v. Lingle, No. 13-cv-414-slc (W.D. Wis. Jan. 6, 2014), 2014 WL 7234260. 66 Epp et al., Pulled Over (Chicago, IL: University of Chicago Press, 2014), 36, describe the manual as “widely used” and quote former Los Angeles deputy police chief, Lou Reiter, as saying it is used by agencies across the nation (citation omitted). Although the manual was first published in 1995, if testimonials published on and written by self-described police officers are to be believed, the manual is still quite popular. The fact that used copies on Amazon are often listed for upwards of $100 indicates that there is still considerable demand for the book. 67 Charles Remsberg, Tactics for Criminal Patrol: Vehicle Stops, Drug Discovery and Officer Survival (Northbrook, IL: Calibre Press, 1995), 70. 68 H.R. 118, 105th Cong. (1997). 69 David A. Harris, “New Approaches to Ensuring the Legitimacy of Police Conduct: Racial Profiling Redux,” 22 St. Louis University Public Law Review 73, 84 (2003). 70 Robert L. Jackson, “Push Against Bias in Traffic Stops Arrested,” Los Angeles Times, June 1, 1998, 71 Id. 72 Remsberg, Tactics, supra note 67, at 68. 73 Id., 69. 74 Id. 75 Gary Webb, “Driving While Black: Tracking Unspoken Law-Enforcement Racism,” Esquire, April 1999, 76 Jeffrey Goldberg,“The Color of Suspicion,” NewYork Times Magazine, June 20, 1999, 50. 77 Whren v. United States, 517 U.S. 806, 808 (1996). 78 The words “would have” and not “reasonable officer” are italicized in the original. 79 Gerard E. Lynch,“Why Not a Miranda for Searches?” 5 Ohio State Journal of Criminal Law 233, 235 (2007). 80 Whren, 517 U.S. at 808–9. 81 Jason Cherkis, “Rough Justice: How Four Vice Officers Served as Judge and Jury on the Streets of MPD’s 6th District,” Washington City Paper, October 29, 2007, www.

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82 Mollen Commission, supra note 17, at 36; see also Joe Sexton, “New York Police Often Lie Under Oath, Report Says,” New York Times, Apr. 22, 1994, A1. 83 Stuart Taylor, Jr., “For the Record,” American Law, October 1995, 72. 84 Fredric N. Tulsky, Ted Rohrlich, and John Johnson, “Charges of Police Lying Haunt Cases,” Los Angeles Times, December 6, 1996, 85 One of the best known examples of “testilying” occurred in the New York City “dropsy” cases which arose after the Supreme Court extended the exclusionary rule to state prosecutions in Mapp v. Ohio, 367 U.S. 643 (1967). As Irving Younger, a former prosecutor and criminal court judge, described it: “Before Mapp, the policeman typically testified that he stopped the defendant for little or no reason, searched him, and found narcotics on his person. This had the ring of truth. It was an illegal search . . . but the evidence was admissible . . . Since it made no difference, the policeman testified truthfully. After the decision in Mapp, it made a great deal of difference. For the first few months, New York policemen continued to tell the truth about the circumstances of their searches, with the result that the evidence was suppressed. Then the police made the great discovery that if the defendant drops the narcotics on the ground, after which the policeman arrests him, then the search is reasonable and the evidence is admissible. Spend a few hours in the New York City Criminal Court nowadays, and you will hear case after case in which a policeman testifies that the defendant dropped the narcotics on the ground, whereupon the policeman arrested him. Usually the very language of the testimony is identical from one case to another.” Irving Younger, “The Perjury Routine,” Nation, May 8, 1967, 596–7, as quoted in I. Bennett Capers, “Crime, Legitimacy, and Testilying,” 83 Indiana Law Journal 835, 868 (2008). See also Alan Dershowitz, The Best Defense (New York: Random House, 1982), xxi–xxii; Morgan Cloud, “The Dirty Little Secret,” 43 Emory Law Journal, 1311 (1994); Morgan Cloud, “People v. Simpson: Perspectives on the Implications for the Criminal Justice System: Judges, ‘Testilying’ and the Constitution,” 69 Southern California Law Review, 1341 (1996); Christopher Slobogin, “Reform: The Police: Testilying: Police Perjury and What to Do About It,” 67 University of Colorado Law Review, 1037 (1996); Bennett Capers, “Crime, Legitimacy, and Testilying,” 83 Indiana Law Journal 835 (2008); and Melanie D. Wilson, “Improbable Cause: A Case for Judging Policy by a More Majestic Standard,” 15 Berkeley Journal of Criminal Law 259 (2010). 86 William Bratton with Peter Knobler, Turnaround: How America’s Top Cop Reversed the Crime Epidemic (New York: Random House, 1998), 242. 87 Id. 88 Id. 89 See Daniel L. Rotenberg,“An Essay on Consent(less) Police Searches,” 69 Washington University Law Quarterly 175, 187 (1991) (“What is baffling about consent to search is why it is ever given. Why should anyone surrender to the police, perhaps without a whimper, an interest recognized both practically and legally to be the first order and often resulting in the discovery of evidence that incriminates the consenter?”); see also Paul Sutton, “The Fourth Amendment in Action: An Empirical View of the Search Warrant Process,” 22 Criminal Law Bulletin 405, 416 (1986) (discussing views of judges who find it hard to believe that an individual really consented voluntarily); Higgins v. United States, 209 F.2d 819, 820 (D.C. Cir. 1954) (no sane man would be willing to let police search where contraband would be discovered); United States v. Forbes, 181 F.3d 1, 7 (1st Cir. 1999) (in evaluating credibility, the court found that it was unlikely that the defendant, an individual familiar with the criminal justice system, would consent to the search of a car he knew contained drugs); citations taken from Marcy Strauss, “Reconstructing Consent,” 92 Journal of Criminal Law and Criminology 211, note 2 at 211 (2001). 90 Lynch, “Why Not a Miranda,” supra note 79, at 235.

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91 Marcy Strauss, “Reconstructing Consent,” 92 Journal of Criminal Law & Criminology 211 (2002). 92 Id. 93 Id., 222. 94 Id., 212 and 221. A second study, a six-year review of consent cases in the D.C. Circuit, uncovered not a single case in which the court held the consent was involuntary. David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press, 1999), 32. 95 Remsberg, Tactics, supra note 67, at 211. 96 Id. 97 Id., 213. 98 Id., 213–16. 99 Florida v. Royer, 460 U.S. 491, 504 (1983). 100 Remsberg, Tactics, supra note 67, at 213–14. 101 Id., 215. 102 Id. 103 Id., 215–-16. 104 Bob Vogel with Jeff Sadler, Fighting to Win: Sheriff Bob Vogel (Nashville, TN: Turner, 2001), 52–4. 105 Steve Berry, “A Sample of Videotaped Roadside Stops by Volusia’s Drug Squad Gets Poor Reviews From 4 Lawyers,” Orlando Sentinel, August 23, 1992, http:// 106 Id. 107 Id. 108 Webb, “Driving While Black,” supra note 75. 109 Id. 110 Vogel, Fighting to Win, supra note 87, at 53. 111 United States v. Smith, 799 F.2d 704, 706 (11th Cir. Fla. 1986). 112 See Chapter 5, notes 36–9 and accompanying text. 113 See City of Indianapolis v. Edmond, 531 U.S. 32, 35–6 (2000). 114 Id. 115 Only two arrests for inebriation were made for 126 stops in the case of Michigan Department of State Police v. Sitz, 496 U.S. 444, 454–5 (1990). The Court has allowed for searches in the absence of individualized suspicion in a variety of other circumstances including the random drug testing of high school students participating in interscholastic athletics (Vernonia School District 47J v. Acton, 515 U.S. 646, 661–3 (1995)); the routine inspection of automobile junkyards (New York v. Burger, 482 U.S. 691, 708–9 (1987)); the mandatory drug testing of all law enforcement personnel engaged in drug interdiction efforts (National Treasury Employees Union v. Von Raab, 489 U.S. 656, 668–71 (1989)); the random drug and alcohol testing of railroad employees (Skinner v. Railway Labor Executives’ Association, 489 U.S. 602, 628–33 (1989)); and, as we have seen, the establishment of fixed highway checkpoints in the vicinity of the Mexican border to question the occupants of vehicles about their immigration status (United States v. Martinez-Fuerte, 428 U.S. 543, 556–8 (1976)). 116 William Stuntz, “Local Policing After the Terror,” 111 Yale Law Journal 2137, 2169 (2002). 117 United States v.Washington, 151 F.3d 1354, 1356–7 (11th Cir. 1998). 118 Florida v. Bostick, 501 U.S. 429, 431 (1991). 119 City of Indianapolis v. Edmond, 531 U.S. 32, 43 (2000). 120 United States v. Chamblis, 425 F. Supp. 1330, 1333 (E.D. Mich. 1977). 121 Edmond v. Goldsmith, 183 F.3d 659, 661 (7th Cir. 1999).

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122 Commonwealth v. Jackson, 428 Pa. Super. 246, note 3 at 250 (Pa. Super. Ct. 1993). 123 See United States v. Moya, 561 F. Supp. 1, 4 (N.D. Ill. 1981) (stating that an agent testified that “he routinely approaches two or three people a day . . . but [makes] arrests only 3–5% of the time”); United States v. Hooper, 935 F.2d 484, 500 (2nd Cir. 1991) (Pratt, J., dissenting) (noting that two DEA agents stationed in Buffalo “detained 600 suspects in 1989, yet their hunches that year resulted in only ten arrests”). A slightly higher rate was reported in Commonwealth v. Jackson, 428 Pa. Super. 246, note 3 at 250 (Pa. Super. Ct. Aug. 2, 1993) (“Police working the airport drug interdiction unit interdicted 1,542 travelers and arrested 131 suspected drug couriers—a mere eight per cent”) (emphasis in original).


The bulk of American crime control over the past generation has proceeded on an empirical foundation closer to faith healing than to science. (Franklin E. Zimring, The City That Became Safe: New York’s Lesson for Urban Crime and its Control)1

This chapter arrives where we began. The first chapter explained how the 1998 shooting in New Jersey revealed to Americans that institutionalized racial profiling had taken root across the United States. The subsequent five chapters then recounted how selective enforcement practices had become so pervasive. These five chapters focused on the development of “drug courier profiles” as well as the Supreme Court’s sanctioning of random police “encounters,” “consent”based searches, and “pretext” traffic stops. In 1998 a new form of institutionalized racial profiling was emerging, one which targeted the most basic form of travel. Young men of color walking on the streets of New York City found themselves repeatedly being stopped and frisked. Before addressing the New York Police Department’s (NYPD’s) stopand-frisk program, we will first examine the three years which followed the 1998 shooting to ask why efforts to end racial profiling failed. The period following the 1998 New Jersey shooting was very similar to the aftermath of the 2014 shooting of Michael Brown in Ferguson, Missouri. Both shootings were followed by subsequent national scandals over incidents involving allegations of excessive police force and racial discrimination. Many readers today might recall the names of recent victims such as Michael Brown, Philando Castile, and Eric Garner, but perhaps not Amadou Diallo. In 1999, Diallo had been standing in his building’s doorway in the Bronx when four undercover NYPD officers jumped out of a van.2 As an immigrant from Guinea, Diallo

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may not have understood what was happening. He reached for his wallet. Perhaps he wanted to hand the officers his identification or maybe he thought he was being robbed.3 In any event, the officers thought he was reaching for a gun and, after the lead officer tripped, the others mistakenly thought he had been shot.4 The officers then fired forty-one shots, and Diallo was struck nineteen times.5 After the shootings in New Jersey and the Bronx, a third police scandal involving allegations of racial bias and false arrests soon began unfolding in Tulia, Texas. The national dialogue over policing prompted numerous African American celebrities, including Wesley Snipes, Will Smith, Marcus Allen, and even Johnnie Cochran, to recount their own personal experiences being the subjects of racial profiling.6 There was at least one critical difference between how the nation reacted to the scandals unfolding at the end of the millennium compared with more recent events today. Twenty years ago there was strong bipartisan support to end racial profiling. As noted in Chapter 1, presidential candidates in the 2000 election argued over who would be more effective in ending targeted policing and, in 2001, President Bush, in his first State of the Union speech, instructed Attorney General John Ashcroft to “develop specific recommendations to end racial profiling.”7 Ashcroft himself had earlier declared that “there should be no loopholes or safe harbors for racial profiling. Official discrimination of this sort is wrong and unconstitutional no matter what the context.”8 The Justice Department filed civil lawsuits alleging racial profiling and through a combination of consent decrees, state legislation, and voluntary action, over one hundred police departments and agencies agreed to forgo racial profiling and/or begin collecting relevant data.9 The promises made by Bush and Ashcroft to end racial profiling appear to have been entirely sincere and certainly differ from the more recent rhetoric offered by President Trump and Attorney General Jeff Sessions. Perhaps it was easier to advance arguments against discrimination twenty years ago because polls then indicated the American public largely supported such measures. In 1999, for the first time, a Gallup poll asked the following question: It has been reported that some police officers stop motorists of certain racial or ethnic groups because the officers believe that these groups are more likely than others to commit certain types of crimes. Do you believe that this practice, known as “racial profiling,” is widespread or not? Fifty-nine percent of respondents said they thought this practice was widespread and 81% reported they disapproved of it.10 Although the 1999 poll is instructive, it does not capture the complexity of the issue. The reader will recall that Judge Baer caused a national uproar just three years earlier by issuing a two-sentence critique of the police in the Bayless decision. The seeming dichotomy of these two responses—the public’s overwhelming disapproval of racial profiling according to Gallup and its condemnation of the

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Bayless decision which accused the police of racial profiling—may be explained by the fact that most Americans are just as opposed to using legal technicalities to free criminals caught red-handed as they are in allowing the police to use trivial traffic violations to target black or Latino motorists. However, as we have seen, the Supreme Court disagrees with both assertions. It is also possible that the public was receptive to the idea of abolishing racial profiling in 1999 because crime had fallen dramatically during the latter half of the 1990s, and the national homicide rate decreased by nearly 40% over the course of this decade.11 Whatever the explanation, many Americans decided after the 1998 shooting in New Jersey that racial profiling was a real phenomenon that needed to be corrected. One would expect that at some point lawsuits challenging the pervasive practice would have reached the United States Supreme Court. However, the Supreme Court has yet to issue a single decision addressing the merits of a racial profiling claim.

A Supreme Silence The Introduction noted that although “there is hardly a political question in the United States which does not sooner or later turn into a judicial one,” the term “racial profiling” has appeared in only three decisions of the United States Supreme Court, and all in passing.12 While other scholars have noted how “Fourth Amendment case law . . . is remarkably silent on the racial dimension of encounters between citizen and police,” few have attempted to explain the Court’s supreme silence.13 The reason for this odd state of affairs is that the Court has promulgated several doctrines that make it virtually impossible for criminal defendants, or even perfectly innocent civil litigants, to challenge discriminatory law enforcement practices. Whether by design or accident, the Supreme Court has maintained its silence by insuring the vast majority of racial profiling claims will fail at the trial court level. One of the most important doctrines in terms of discouraging racial profiling allegations is the exclusionary rule. Just as journalists uncovering a political scandal “follow the money,” criminal defendants seeking their exoneration follow the remedy, and they select the shortest possible route to get to their destination. The exclusionary rule encourages defendants to emphasize legal technicalities rather than allege racial bias. For example, in United States v. Jones (2012), law enforcement agents obtained a warrant to place a tracking device on a suspected drug trafficker’s vehicle.14 The warrant was valid for ten days and was to be executed within the jurisdiction of Washington D.C. The police placed the device on the car on the eleventh day and after it had been driven to the state of Maryland. The Supreme Court held that the warrant was not valid because of these two technical violations and the resulting evidence had to be suppressed.15 The Jones decision, when contrasted with the time and expense expended in proving the selective enforcement claim against the New Jersey police in the

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Soto decision, perfectly illustrates how technical Fourth Amendment violations are considerably easier to establish than selective enforcement claims. A second judicial doctrine which more directly prohibits selective enforcement claims was discussed in the previous chapter. Whren adopted the “could have” test which “eliminates the necessity for the court’s inquiring into an officer’s subjective state of mind.”16 The result is that in criminal cases arising from traffic stops, the most common police–citizen encounter, selective enforcement defenses become impermissible if the officer alleges a traffic violation had been committed. A third factor discouraging judicial examination of selective enforcement claims is the fact that the Supreme Court has treated the Fourth and Fourteenth Amendments as if they are hermetically sealed units. For example, the entire defense in Whren boiled down to the single assertion that the only reason the vice unit had stopped the defendants was their race, age, and gender. Racial bias had led to an illegal stop; the stop was unconstitutional because it was the result of racial bias. The Fourth and Fourteenth Amendment claims were intertwined and inseparable. However, Scalia brushed aside this defense by declaring allegations pertaining to the selective enforcement of the law must be asserted under the Equal Protection Clause of the Fourteenth Amendment, and Whren’s counsel had only alleged a Fourth Amendment violation.17 Perhaps the reader wonders why Whren’s counsel failed to assert an Equal Protection defense. Chapter 6 suggested the omission may be explained by the fact that is not clear what the remedy is for an Equal Protection violation in the context of a criminal case because the Supreme Court has yet to have the “opportunity” to decide such a case.18 Since the exclusionary rule is invoked under the Fourth Amendment, the lack of an equivalent measure under the Fourteenth Amendment may have discouraged Whren’s attorneys from pursuing that legal claim. However, it is also likely that Whren’s counsel had concluded they could not overcome Supreme Court doctrines which effectively preclude racial profiling claims from being asserted. In fact, one of these three doctrines, the “similarly situated” rule, had been promulgated just a month before Whren was decided. The reader is duly warned that the three judicial doctrines which have rendered selective enforcement violations largely immune from judicial inquiry are somewhat complex. However, one cannot understand how racial profiling has continued unabated in the face of public opposition and sincere political efforts to eradicate it after the 1998 Shooting without examining three cases: United States v. Armstrong (1996);19 McCleskey v. Kemp (1987);20 and Los Angeles v. Lyons (1983).21 The impregnability of the barriers presented by these three cases explains why institutionalized discriminatory policing has been perpetuated for decades without any intervention by the Supreme Court. The most astounding fact in the history of racial profiling is that, as far as this author can determine, not a single criminal defendant, other than those involved in New Jersey Soto ruling, has ever won a racial profiling defense asserted under the

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United States Constitution.22 Armstrong, McCleskey, and Lyons demonstrate that rather than remaining silent on the issue of racial profiling, the Court has spoken volumes by precluding any such claims from advancing.

United States v. Armstrong: The “Similarly Situated” Doctrine Christopher Armstrong and his co-defendants were indicted under federal law for dealing crack cocaine. They asserted an Equal Protection claim alleging that federal prosecutors in Los Angeles had failed to bring charges against a single white defendant for crack cocaine offenses during the previous three years. Whites were being prosecuted in state court under state law, but there was a significant “disparity between the severity of the punishment between federal law and that imposed by state law for the same conduct.”23 For example, one of the Armstrong defendants faced a potential life sentence in federal court, but possibly just six years if tried in state court.24 The Equal Protection Clause requires that “similarly situated individuals” be treated equally. The government may not draw distinctions between individuals based on “immutable characteristics,” such as race or gender.25 The police cannot arrest blacks for using crack cocaine, while ignoring white users; black defendants cannot be sentenced to life sentences for dealing crack, while white dealers get six years. The Armstrong defendants submitted three affidavits to support their claim that, although whites were also users and dealers of crack, only black defendants in Los Angeles were being prosecuted under the considerably harsher federal penalties. In the first affidavit, the intake coordinator at a drug treatment center stated that approximately half of all crack users and sellers were white; a second affidavit reported that all twenty-four of the crack defendants represented by the Federal Public Defender in 1991 were black; and an experienced defense attorney reported many non-black defendants were prosecuted for crack offense in California state courts. The defendants then sought a judicial order requiring the United States Attorney’s office to supply a racial breakdown of the crack defendants it had prosecuted during the previous three years. The trial judge granted the defendants’ discovery request; the government refused to obey the judicial order; and the case was appealed to the Ninth Circuit.26 It is important to understand the dispute focused on a discovery request, the pre-trial stage during which litigants exchange relevant documents and information. The Ninth Circuit, sitting en banc (meaning rather than the normal three-judge panel, all eleven Ninth Circuit judges decided the case), explained why the lower court’s ruling was proper: To obtain discovery the defendants need not prove impermissible discrimination . . . If such conclusive determinations could be made without

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discovery, there would be no need for discovery in the first place. Thus, the evidence necessary to obtain a discovery order when a charge of selective prosecution has been made is obviously substantially less than that needed to prove the charge itself.27 The Ninth Circuit also explained how it would be practically impossible for the Armstrong defendants to prove their allegation without discovery because the necessary information would be completely in the hands of the government. The broad discretion that prosecutors possess over charging decisions means that they alone will often possess the only information that would demonstrate such discrimination. As a result, the data necessary to a showing of selective prosecution are far less accessible to the defendants than to the government.28 The Supreme Court reversed on the basis of a rather surprising argument. Chief Justice Rehnquist attempted to refute the claim that only blacks were being prosecuted in federal court for trafficking crack cocaine with statistics showing that the overwhelming majority of those convicted in federal court for dealing crack cocaine were black: The Court of Appeals reached its decision in part because it started “with the presumption that people of all races commit all types of crimes— not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.” It cited no authority for this proposition, which seems contradicted by the most recent statistics of the United States Sentencing Commission. Those statistics show: More than 90% of the persons sentenced in 1994 for crack cocaine trafficking were black; 93.4% of convicted LSD dealers were white; and 91% of those convicted for pornography or prostitution were white. Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue.29 (Emphasis in original) As the sole dissenting Justice politely noted, the statistics Rehnquist cited “are entirely consistent with the allegation of selective prosecution. The relevant comparison, rather, would be with the percentages of blacks and whites who commit those crimes.”30 If federal prosecutors only prosecute black defendants for dealing crack, exceedingly few white defendants will be convicted of this charge in federal court. The irony is that the same circular reasoning which had led the police to implement racial profiling policies was later adopted by the Supreme Court to prohibit legal challenges from being asserted against those practices.

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It is easy to criticize Rehnquist’s rationale, but the actual ruling—the requirement that defendants must prove “similarly situated individuals of a different race were not prosecuted”—makes it almost impossible for criminal defendants to challenge selective enforcement police practices. Consider, for example, the “disharmonic convergence” of Armstrong and Whren.31 In order to prevail under an Equal Protection claim, Whren’s counsel would have had to prowl the streets to discover “similarly situated” whites who were not being stopped for pausing at stop signs for an “unreasonable” length of time. Good luck with that! A few scholars have argued that judges should confine Armstrong’s “similarly situated” doctrine to cases in which criminal defendants make allegations that prosecutors are guilty of selective prosecution of the law because that was what Armstrong had asserted.32 Applying the “similarly situated” doctrine to claims that the police have engaged in the selective enforcement of the law creates a “certain perversity.”33 It goes without saying that police do not keep records of people whom they might have stopped but did not. Because records of these individuals do not exist, it is difficult to imagine how the typical plaintiff could ever identify specific persons who were similarly situated when the plaintiff was stopped.34 Although the argument that Armstrong’s “similarly situated” doctrine should be confined to selective prosecution claims is perfectly logical, “courts have largely ignored the distinction, frequently using selective enforcement and selective prosecution as interchangeable terms, or viewing selective enforcement as a subset of selective prosecution.”35 1996 was certainly a year marked by curious coincidences. A month after Armstrong made it practically impossible for criminal defendants to successful assert Equal Protection violation claims, Scalia dismissed Whren’s selective enforcement defense for having failed to assert an Equal Protection violation claim. It is also interesting how Armstrong and Whren were both issued within three months after the Soto defendants convinced Judge Francis that highway troopers in New Jersey had adopted a “de facto policy of targeting minorities for investigation and arrest.”36 The decisions immunize both the department and the individual officer. Armstrong precludes criminal defendants from obtaining the necessary data from law enforcement agencies; Whren prohibits inquiries into the subjective mind of the arresting officer. Not surprisingly, after Armstrong and Whren, no criminal defendant has subsequently succeeded in asserting such claims under the United States Constitution. As Yogi Berra once noted, sometimes things just seem to be too coincidental to be a coincidence.

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McCleskey v. Kemp: The “Purposeful Discrimination” Doctrine The Soto defendants were certainly fortunate their case preceded Armstrong and Whren. However, even prior to 1996, criminal defendants prevailed on Equal Protection claims about as often as Charlie Brown succeeded in kicking that football before Lucy snatched it away. Consider, for example, a second selective prosecution case, McCleskey v. Kemp (1987). In McCleskey, a black defendant received the death penalty for killing a white police officer. McCleskey’s appeal was supported by “the most comprehensive statistical analysis ever done on the racial demographics of capital sentencing in a single state.”37 This multi-regression analysis (the Baldus study) convincingly established that sentencing in Georgia capital punishment cases was being influenced by the victim’s race. Murder defendants with white victims were more than four times as likely to receive the death sentence as defendants with black victims.38 (Armstrong’s “similarly situated” doctrine was not at issue in McCleskey because it was presumably relatively easy to access data on the race of murderers and their victims.) This author wholeheartedly agrees with Harvard Law Professor, Randall Kennedy, who once declared that he was more concerned with the plight of black communities whose welfare is slighted by criminal justice systems that respond more forcefully to the killing of whites than the killing of blacks than [he was] with the plight of convicted murderers, black or white.39 Kennedy also warned that diminishing race-of-the-victim disparities while maintaining capital punishment might actually lead to the execution of more black defendants.40 However, McCleskey, when considered in conjunction with Whren and Armstrong, supports one scholar’s assertion that the Supreme Court’s interpretation of the Equal Protection Clause “should be declared a federal disaster area.”41 Justice Powell began his majority opinion with the observation that a defendant who alleges an Equal Protection violation has the burden of proving “the existence of purposeful discrimination”42 (emphasis added). McCleskey held that statistical data, standing alone, is “clearly insufficient to support an inference that any of the decision makers in McCleskey’s case acted with discriminatory purpose.”43 In order to prevail under the Equal Protection Clause, the Court declared that “McCleskey must prove that the decision makers in his case acted with discriminatory purpose”44 (emphasis in original). However, McCleskey had offered “no evidence specific to his own case that would support an inference that racial considerations played a part in his sentence.”45 Statistics, in other words, cannot prove the “subjective intention” of specific state actors.

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Consider the disharmonic convergence of Armstrong’s “similarly situated” doctrine, McCleskey’s “purposeful discrimination” requirement, and Whren’s “could have” test. Armstrong’s “similarly situated” doctrine demands defendants provide evidence of “similarly situated individuals of a different race were not prosecuted,” which can normally can be done only by statistical evidence.46 However, the ruling in Armstrong made it practically impossible for criminal defendants to obtain relevant data from law enforcement agencies even in the rare instances in which such data exists. Those exceedingly few criminal defendants who are fortunate enough to obtain the data must then overcome the hurdle posed by McCleskey which held that statistical studies standing alone are not enough because they cannot prove purposeful discrimination on the part of specific state actors. Defense counsel must instead focus on specific individuals; the defense must explore the subjective intentions of specific state actors and prove “purposeful discrimination.”47 However, that is exactly what Whren prohibits. “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” Scalia declared in that case.48 These doctrines could substitute as the names of infielders in a new Abbott and Costello routine. Although selective enforcement allegations invariably fail, the reader would be mistaken to conclude the same fate awaits other types of Equal Protection claims. Consider, for example, affirmative action. In the mid-1970s, at the same time that police began institutionalizing racial profiling policies, institutions of higher education began adopting affirmative action programs. Since then, the Supreme Court has yet to address the merits of a single racial profiling claim, but it has had the “opportunity” to issue five major decisions related to affirmative action in education.49 And the Equal Employment Opportunity Commission website lists close to fifty major Supreme Court decisions on its website related to affirmative action employment programs.50 Fortunately for litigants opposing affirmative action, the burden of proof is dramatically different than that found in selective enforcement challenges. In affirmative action, the burden of proof is on the state, not the individual challenging the state action. The Court has declared that since affirmative action involves racial classifications, “strict scrutiny” applies, and the schools must bear the burden of proving an absence of alternatives that do not include race as a means to diversify the student body.51 Without entering into the debate over the merits or constitutionality of affirmative action, it is possible to make a simple observation: the plaintiffs in these “reverse racism”-type cases seem to be predominantly white. One might argue that civil litigants challenging affirmative action are considerably more sympathetic than criminal defendants caught with illegal contraband asserting racial profiling allegations. However, even completely innocent black litigants who have mounted civil challenges against racial profiling have yet to convince the Court to hear the merits of their claims. What makes the situation particularly perplexing is that the potential universe of litigants who have been

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adversely affected by racial profiling, although immeasurable, is undoubtedly immeasurably higher than those potentially harmed by affirmative action programs. Thus, the question arises, how is it possible that the Court has issued so many rulings on reverse discrimination disputes while not yet issuing a single ruling on the merits of a selective enforcement claim advanced in the context of a civil lawsuit?

Los Angeles v. Lyons: The “Future Injury” Doctrine In order to file a claim in federal court, a litigant must have what is called “standing.” Federal courts will not hear hypothetical cases or issue advisory opinions. There must be a real case or controversy, meaning that the plaintiff must either have suffered a direct injury or be likely to suffer such an injury if a specific wrong is not redressed. The doctrine precludes lawsuits where a taxpayer may disagree with an item in the national budget or a citizen may want to challenge the constitutionality of a foreign conflict such as the Vietnam War.52 A young soldier drafted into the army might have standing, but a fifty-year-old constitutional law professor will not. Consider how the “standing” doctrine has been applied in affirmative action cases compared with selective enforcement challenges. Los Angeles v. Lyons began with a trivial traffic violation; Lyons was pulled over for a burnt-out tail light.53 The City of Los Angeles never presented any evidence challenging the following account of what happened. The officers greeted him with drawn revolvers as he exited from his car. Lyons was told to face his car and spread his legs. He did so. He was then ordered to clasp his hands and put them on top of his head. He again complied. After one of the officers completed a patdown search, Lyons dropped his hands, but was ordered to place them back above his head, and one of the officers grabbed Lyons’ hands and slammed them onto his head. Lyons complained about the pain caused by the ring of keys he was holding in his hand. Within 5 to 10 seconds, the officer began to choke Lyons by applying a forearm against his throat. As Lyons struggled for air, the officer handcuffed him, but continued to apply the chokehold until he blacked out. When Lyons regained consciousness, he was lying face down on the ground, choking, gasping for air, and spitting up blood and dirt. He had urinated and defecated. He was issued a traffic citation and released.54 Lyons sought injunctive relief barring the unnecessary use of these types of control holds. Although it was “undisputed that chokeholds pose a high and unpredictable risk of serious injury or death,” training bulletins allowed officers to use the control holds to “subdue any resistance by the suspects,” and to permit an officer, “where . . . resisted, but not necessarily threatened with serious bodily

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harm or death . . . to subdue a suspect who forcibly resists an officer”55 (emphasis added). (What happened to Lyons was of course very similar to what later happened to Eric Garner when he was selling loose cigarettes in New York City.) The Court ruled that although Lyons could seek compensation for the pain and injury he had already suffered, judges should assume “[plaintiffs] will conduct their activities within the law and so avoid prosecution and conviction.”56 Lyons therefore lacked standing to seek injunctive relief to forestall future reoccurrences.57 In other words, Lyons could easily avoid being subjected to deadly chokeholds in the future by checking his tail lights, brake lights, and headlights before driving. Of course, if a light bulb were to blow out while he was en route, or if his wheels were to momentarily touch the white shoulder line, well, the miscreant would simply be out of luck and get what was coming to him. Although plaintiffs may seek damages for past injuries, Lyons made it virtually impossible for civil litigants to obtain equitable relief in order to protect their fellow citizens from being subjected to selective enforcement practices. All an officer has to do is cite a trivial traffic violation, and even entirely sympathetic plaintiffs like Lyons are prohibited from seeking injunctive relief prohibiting racial profiling. An example of how lower courts have dutifully applied this doctrine is Farm Labor Organizing Committee v. Ohio State Highway Patrol (2000).58 The plaintiffs alleged that the police were stopping vehicles based on the ethnic appearance of the occupants; that they had been interrogated about their immigration status; and that their immigration documents had been confiscated due to their Hispanic appearance. The plaintiffs sought injunctive relief. The judge, however, relying on the Lyons “future injury” doctrine, declared that the defendants cannot prove imminency of future injury unless they assert that they will again commit traffic violations for which they expect to be stopped. Where a party can prevent all risk of constitutional injury by controlling his conduct (without sacrificing any of his rights, privileges, or immunities), his claim of standing, which is predicated on a future unlawful act on his part, is of dubious legitimacy.59 The judge in Farm Labor recognized the inequity of the outcome. He even commented on how the police may commit Equal Protection violations by engaging in selective enforcement practices, but Lyons precludes citizens from challenging these state policies because they lack “standing”: [I]t is possible to have standing to assert a claim for damages to redress past injury, while, at the same time, not have standing to enjoin the practice that gave rise to those damages. This may be so even if the practice is likely to continue . . . Indeed, that is the irony of this case and cases like it.60

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Considering our nation’s history, it is indeed rather ironic that blacks lack standing when challenging racial profiling, but whites skirt the obstacle when challenging affirmative action. Affirmative action opponents need not identify similarly situated individuals of a different race who were less qualified but nonetheless obtained the sought-after benefit. Unlike Lyons, white affirmative action litigants also do not need to establish that they will suffer a future injury. College graduates with no intention of getting a second undergraduate degree may file lawsuits alleging they were not admitted to the preferred university because of race-based policies. In fact, affirmative action litigants do not even need to show that absent the alleged discrimination they would have gained admission to their sought-after school or successfully have secured a government contract in the first place. Neither future injury nor past injury affects their standing.61 Consider, for example, Fisher v. University of Texas (2013).62 In this case, Abigail Fisher, a white woman, alleged she had not been admitted into the University of Texas because of her race. It was far from certain that she would have been admitted to the University of Texas even under a race-neutral system.63 She was also not required to demonstrate a “similarly situated” citizen of another race was granted admission. Moreover, Fisher had already graduated from another university, so it was not clear what her “future injury” was.64 The Court omitted all mention of these issues in its ruling. The entire Lyons decision focused on the issue of “standing,” but not a word about the issue is mentioned in Fisher. The Supreme Court certainly deserves blame for the persistence of institutionalized racial profiling over the past four decades. It sanctioned selective enforcement policies in Mendenhall, Bostick, and Whren, and made it almost impossible to challenge racial profiling in Armstrong, McCleskey, and Lyons. However, the Court did not design or implement racial profiling practices; they originated elsewhere. In understanding the existence of racial profiling in America, at least four other factors deserve mention: (1) the insular character of local law enforcement agencies; (2) the fragmented nature of our nation’s law enforcement system; (3) the inability of Congress to supervise this decentralized system; and (4) the effects of 9/11.

The Systemic Dysfunction of City Police The history of policing in America is replete with stories of discrimination and corruption. Individual law enforcement agencies have suffered scandals for the better part of a century. Consider, for example, the corruption scandals that have plagued the NYPD. In 1894, the Lexow Committee hearings uncovered police involvement in extortion, bribery, counterfeiting, voter intimidation, election fraud, brutality, and scams. The 1913 Curran Committee investigated police extortion of brothels and illegal gambling houses. The Seabury Committee of 1930 exposed a conspiracy consisting of judges, attorneys, police, and bail bondsmen which extorted the life savings from completely innocent defendants

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who had been framed and were facing jail sentences. In 1950, the Harry Gross investigation led to the convictions of twenty-two policemen and the dismissal or resignation of 240 others. The previously discussed Knapp Commission, brought about by the Frank Serpico shooting, investigated police corruption from 1970–1972. Finally, the Mollen Commission, discussed in Chapter 5, was active from 1992 to 1994. Corruption has been a consistent problem, in part, because the police were traditionally used as the collection agents of urban political machines. “Police departments,” according to Christopher Agee, “had been sustaining machine politics since their creation in the mid-19th century.”65 Agee’s history of the San Francisco police department explains how the arrangement worked in that city: Political elites appointed and promoted loyal police officers, then relied on those officers to fill their campaign coffers with graft collected from the local underworld. City officials found their appointees among existing pools of loyal constituencies; in San Francisco, the white, male, heavily Catholic city leadership maintained a nearly all-white, all-male, and all-Catholic police force.66 Professor Franklin Zimring has also concluded that “inbreeding was a systemic dysfunction of city police . . . as were racial and ethnic discrimination, lack of diversity, and many of the other common effects of insular white working-class hegemony in mid-century American life.”67 It is hardly surprising that an insular institution, with a long history of “white working-class hegemony,” would produce the perfect Petri dish to breed racially biased beliefs. This institutional history also helps explain why law enforcement typically rejected empirical research. As the reader has undoubtedly noted, it appears law enforcement agencies across the nation adopted racial profiling policies based entirely on anecdotal evidence. Such beliefs are particularly prone to bias in the type of insular institutional arrangements that typically defined law enforcement in America. In fairness to the police, it could be argued that the Supreme Court prohi­ bited the type of empirical research required to test the underlying assumptions incorporated into “drug courier profiles.” Chapter 6 briefly mentioned that the Supreme Court, in City of Indianapolis v. Edmond (2002), prohibited narcotic roadblocks because motorists were being stopped at random.68 It is impossible to conduct a randomized control study to discover the ethnic, racial, or nationalities of drug couriers if you are not permitted to stop people at random. However, even if they had been permitted to do so, law enforcement agencies were highly unlikely to have conducted such experiments. That fragmented and insular municipal police departments did not produce rigorous empirical research evaluating the effectiveness of police performance can hardly be regarded as an organizational surprise.

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There is no research budget associated with any local police academy, and if there was any form of research imperative in most insular muni­ cipal police organizations it was probably the secret-keeping opposite of “publish or perish.”69

Dysfunctional Federal Law Enforcement Policies: The Byrne Program The federal-state division of powers is a third factor which has contributed to the stubborn persistence of racial profiling. The federal government’s first sustained effort to battle unorganized crime occurred with the 1968 Omnibus Crime Control and Safe Streets Act, which established the Law Enforcement Assistance Administration (LEAA). Although states were expected to use federal grants to fund their criminal justice systems, many states had more imaginative ideas. Indiana used the money to send cards to citizens, “urging them to pledge their commitment to the Ten Commandments as a crime prevention measure.” Florida enlarged the governor’s office, and Louisiana lent its money back to the federal government by investing in U.S. Treasury bills and then collecting the interest.70 The program became a political patronage boondoggle and finally died an ignominious death during the Reagan Administration. Reagan is today remembered as being tough on crime but, besides killing the LEAA, the President also vetoed a major crime bill in 1983 that would have created a federal “Drug Czar.” Reagan complained it “would have created more bureaucrats, not agents in the field—more paperwork, not more arrests.”71 The argument was sensible. “Many members of Congress believed that the federal government could not efficiently administer thousands of direct grants to local units of government and that allocating funds directly to local governments would lead to uncoordinated and fragmented local efforts.”72 Congress responded to Reagan’s concerns in the 1986 Anti-Drug Abuse Act (ADDA), which contained $230 million in new federal funds.73 The ADDA sought to overcome the nation’s decentralized law enforcement system and its lack of “inter-jurisdictional cooperation, limited information-sharing and infrequent joint operations.”74 Congress wanted to increase funding for the War on Drugs, but it remembered how the 1968 LEAA, which had allocated federal funds in the form of block grants, led to an increase in political patronage rather than bringing about a decrease in the crime rate or drug addiction.75 The proposed solution was to create Multi-Jurisdictional Task Forces (MJTFs), and have the federal money go directly to the police and not state politicians.76 The money given to the MJTFs became known as Byrne grants because the program was renamed and amended in 1988 in honor of a New York City police officer, Edward Byrne. Byrne had been murdered while guarding the home of a witness in a drug case. The ambush attack offers a stark example of how dangerous city streets had become. Byrne, a twenty-two-year-old rookie

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cop, was assigned to guard the house of a Guyanese immigrant, named Arjune, who was schedule to testify in court against an imprisoned neighborhood drug dealer named Howard “Pappy” Mason. The witness’s house had already been firebombed twice, and he had faced multiple death threats.77 While in jail, the drug kingpin, Mason, ordered the assassination of the police officer guarding Arjune’s house. One of the four men charged in Byrne’s murder said that the killing was meant to send the message that “we lose one, they lose one.”78 This 1988 ambush slaying of a New York City police officer was a shock to the nation and President Reagan called his family to offer his condolences.79 The Byrne murder helped create a bipartisan consensus for federal involvement in the fight against narcotics, and the Byrne program quickly became Washington’s primary means to fund drug law enforcement at the local level. By 1991, there were 904 MJTFs covering 83% of the population, with up to sixty-three MJTFs operating within individual states.80 Unfortunately, the design of the Byrne program practically invited police corruption because of the lack of oversight. This flaw is a result of how lawmakers responded to President Reagan’s criticisms in his veto of the 1983 “Drug Czar” crime bill. Congress was seeking to overcome two interrelated policing problems arising from federalism. Law enforcement is intensely fragmented and that structure makes it difficult for the federal government to effectively manage its funding. Any system of administration requires a substantial bureaucracy, which will consume a large portion of the allocated resources. Moreover, since federal funding invariably leads to state and local agencies competing for the same resources, it often exacerbates fragmentation and reduces inter-jurisdictional cooperation. Congress therefore decided to direct as much funding as possible to pay for police officers, not administrators, and have these officers work across jurisdictional lines in MJTFs. It also required matching funds from state and local governments. The unintended result is that MJTF forces often elude meaningful oversight because there is no clear chain of command. The combination of state, local, and in some cases, federal agencies divides responsibility, encourages passing the buck, and leaves no particular elected government in control. Consequently, task forces must operate surreptitiously at the margins of legitimate activity, utilizing undercover police, spies, informants, stings, and entrapment. Such secret and deceptive activities further complicate any effort to make task forces accountable, while simultaneously inviting corruption.81 Congress sought to achieve a commendable goal, but the result was entirely foreseeable. Narcotics interdiction has led to more abuse and corruption than any other type of policing. As one politician explained, “Anyone in police

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management will tell you that narcotics interdiction is where you must have your tightest operation. You have to have close supervision of your people.”82 It took little time for the inevitable to occur. In 1989, according to the Ninth Circuit Court of Appeals, an independently operated Byrne MJTF unit operating in Oakland, California was given the following guidance by their leader, Sergeant Daniel Broussard: He told them, for example, that a lot of “dirty” drug money would be passing through their hands, and that it would not really matter if they kept some of it for themselves. The suspects, he noted, would be in no position to complain if some of their money came up missing. He also regularly exhorted Task Force officers to keep their arrest numbers up. All the officers were aware that the federal grant that funded their unit, and on which their jobs depended, was good for only eighteen to twenty-four months. Broussard warned that they would need statistics to show that the federal money was well spent and thus to secure another grant. On more than one occasion, he sent the Task Force out to begin a shift with comments like, “Let’s go out and kick ass,” and “Everybody goes to jail tonight for everything, all right?”83 As Broussard’s instructions make clear, the Byrne program inadvertently created a new form of “policing for profit,” one that is even more pernicious than civil asset forfeiture. By basing funding on arrest numbers, “an officer’s choice of who (sic) and what to target may mean the difference between a paycheck and a pink slip.”84 Broussard’s task force was typical because it operated as “an independent unit within the [Oakland Housing Authority Police Department].”85 The men in the unit were later found guilty of various abuses perpetrated against the predominantly black housing complex residents including the following account involving task force officer Scott Dwyer: On October 26, 1989, the Task Force stopped Keith Rogers. Dwyer began to search him for drugs and found a small baggie of marijuana. Dwyer continued the search, but Rogers grew belligerent when Dwyer moved to search his underwear. In response, Dwyer tried to rip Rogers’ underwear off him, then used a buck knife to cut it off, saying, “Fuck your rights. What about your rights now?” Broussard then directed the officers to drive Rogers to an area outside a closed [Oakland Housing Authority] complex. Arriving there, the officers bent Rogers over the front of a patrol vehicle and held him there. Dwyer put on a pair rubber gloves and said, “The doctor is in,” then proceeded to perform a rectal search on Rogers. Rogers was visible from the street during this search. No drugs were found.86

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Tulia Despite incidents such as these, the Byrne program did not receive national attention until 1999 when an undercover operation in Tulia, Texas led to the arrest of forty-seven suspects, thirty-eight of whom were black. Roughly 350 African Americans lived in Tulia at the time, half of whom were children. In one single bust, 20% of the black adults in Tulia were hauled away for dealing cocaine. As some observers asked, if so many were dealing, who was buying? Moreover, even though “most of the defendants had been roused at dawn and taken completely by surprise, not one of them was caught holding cocaine of any kind, crack or powder.”87 The alleged kingpin, Joe Moore, had an unlikely side venture: raising 200 hogs. After a four-hour trial, the hog-farming cocaine kingpin, who did not even own a telephone, was given a ninety-year sentence.88 A PBS documentary entitled “Tulia Texas” portrays how Moore’s life sentence convinced many innocent defendants to plead guilty to reduced charges. The arrests were the result of a single officer’s undercover operation. That officer, Tom Coleman, deserves extended consideration in any history of racial profiling. However, Nate Blakeslee has already chronicled the story in his excellent work, Tulia: Race, Cocaine, and Corruption in a Small Texas Town.89 The only evidence the authorities had against the “vast majority” of the suspects was Coleman’s testimony and the cocaine he allegedly purchased. However, Coleman, who liked showing off a fake KKK membership card, was wanted for arrest himself while he was conducting the operation.90 Even the white powder in evidence actually contained very little cocaine because Coleman apparently made one real purchase and then diluted the cocaine so he could pocket subsequent “buy money.”91 As the trials proceeded, reporters began noting troubling facts, including that Coleman never wore a wire and did not videotape his buys or have a second officer observe him. It was also odd that most of the buys allegedly involved powder cocaine because marijuana and crack were the most commonly used drugs. Moreover, Coleman grossly misidentified suspects in a handful of cases that were quietly disposed of by the District Attorney after the indictments were issued.92 The scandal was a reflection of how the Byrne program operated in Texas: The more counties a task force project director could sign up, the more sources of matching funds he had access to, and the bigger the potential grant from Washington. In west Texas, the new task forces tended to be huge, encompassing as many as two dozen sparsely populated counties. All that was required, however, was an agreement between two neighboring counties, and a new task force was open for business. By the late 1990s, there were four dozen outfits employing over 700 officers . . . It soon became clear that the jump out boys, as they came to be called, were not like state police narcs. The Texas Department of Public Safety has

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always prided itself on its professionalism. Applicants must pass written, physical, and psychological tests, and the officers are relatively well compensated, by Texas standards . . . For task force agents, by contrast, the trip from patrol deputy in a one-stoplight town to undercover narc might involve a single two-week training course.93 Blakeslee’s book includes a fascinating micro socio-economic analysis of how policing has changed over the years. The history is related through the life of the alleged cocaine kingpin, Moore, who once ran a bar in an area of Tulia called the Flats. Tulia was located in a “dry” county so it was illegal to sell alcohol, but the Flats offered both alcohol and gambling. [T]he Flats boasted as many as five cafés running at any one time, in an area no bigger than an acre and a half. Opening a café required little start-up capital, and there were few other business opportunities for black entrepreneurs looking to make a living at something other than manual labor. The neighborhood was outside of the city limits and largely ignored by city police . . . As long as Moore kept his business on the black side of the tracks, [the local police] gave him little trouble. Deputies wrote him an occasional ticket for bootlegging but made no attempt to shut down the bar . . . The Tulia police did not regularly patrol the Flats for over thirty years, and things could get wild in the neighborhood, until the mid-1970s at least . . . With so little law enforcement presence, the neighborhood had an element of the Old West to it. Many gamblers packed guns, and shootings and stabbings were not unheard of in the cafés. Whoever was considered the unofficial boss of the Flats—Earlie Smith for many years and later Moore himself—was expected to keep people in line. Most of the trouble, at least in Moore’s memory, came from unscrupulous out-of-towners. “If they win they money, they can leave with they money. But they think they gonna come there and take they money, they probably be layin’ out dead. ’Cause they would kill you here,” he said. “One thing about it, they would kill you” . . . For twenty years, beginning in the early 1950s, official justice in the Flats resided in one figure, Swisher County Sheriff Darrell Smith. A kind of paternalism permeated law enforcement in the Flats during Smith’s reign. In retrospect at least, it seemed more or less benevolent to many of the older generation of blacks in Tulia. If Smith ran somebody in for fighting, or worse, the matter could often be resolved the next morning with a visit to the jail from the perpetrator’s employer. The farmers and ranchers of Swisher County didn’t elect the sheriff to lock up their hired hands with crops in the field and precious hours—and dollars—slipping away. Trials in which both the perpetrator and the victim were local blacks or Latinos were generally considered a waste of time and resources.94

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During the days of old Jim Crow, at least in the South, it was financially beneficial to under-police black neighborhoods and, if the victim was black, crime might go unpunished. After policing for profit became prevalent, considerably more aggressive law enforcement resulted. The innocent sometimes falsely confessed, not because of brutal interrogations, but because of draconian sentencing. Once again, the Supreme Court doctrine has played a pivotal role in this state of affairs. As the reader will recall, the Supreme Court from the 1930s through the 1960s overturned numerous convictions of defendants who had been subjected to the “third degree,” but its rulings on how much coercion is legal were inconsistent. The Court finally adopted the doctrine of “informed consent” in its 1966 Miranda decision. Later, in 1978, a more conservative Court heard Bordenkircher v. Hayes.95 Kentucky had passed “a three strikes”-type law and an ex-convict was charged with passing a forged check written in the amount of $88.30.96 The prosecutor had offered the defendant five years in a plea bargain deal, but threatened him with life if he insisted on going to trial. The defendant demanded his constitutional right to trial, was convicted, and sentenced to life imprisonment. The Supreme Court upheld the outcome.97 The Tulia defendants were facing exactly the same dilemma. Many were being threatened with life sentences if they insisted on a trial, but a reduced charge for plea bargaining. The Tulia defendants, relatively speaking, were lucky. If just a few innocent defendants had been arrested and sentenced, they might still be in jail; arresting 20% of the black adult population in one day inevitably raised some eyebrows. However, under the Byrne program more arrests led to more funding and Coleman won Texas’s “Outstanding Lawman of the Year Award” in 1999.98 Four years later, in 2003, Governor Rick Perry signed pardons for thirty-five of the defendants; in 2005 Coleman went on trial, and was convicted for perjury. In this author’s eyes, the Tulia scandal was considerably worse than what happened in either New Jersey or Florida. More than twenty defendants spent between two to four years in jail before being pardoned. Coleman, on the other hand, was sentenced to ten years’ probation for perjury and forced to pay $7,500 in restitution, not to any defendant, but to Swisher County.99 Tulia was also no isolated event. A 2002 American Civil Liberties Union (ACLU) report identified seventeen scandals involving Byrne anti-drug task forces in Texas alone, “including cases of falsifying government records, witness tampering, fabricating evidence, stealing drugs from evidence lockers, selling drugs to children, largescale racial profiling, sexual harassment, and other abuses of official capacity.”100 By 1999 Americans witnessed the slow unraveling of the Christine Whitman Administration’s conspiracy to suppress evidence of its racial profiling policies; Amadou Diallo was then killed by the police in a hail of bullets as he stood in the doorway of his apartment building; and this was followed by the shocking Tulia scandal. Numerous other scandals erupted and one African American celebrity after the next began recounting their personal experiences being profiled.

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As noted, over one hundred police departments and agencies soon agreed to forgo racial profiling and/or begin collecting relevant data.101 The enactment of such laws and decrees were steps in the right direction, but at least one writer predicted in 2001 that the “toothless” laws and decrees would have a minimal impact because of an “assumption in many of these efforts that statistics are only useful as a one or two-year study to find out if police are ‘racist.’”102 The problem with the measures, he predicted, was that they had failed to suggest specific reforms or use for the data. “Once these studies have run their course, unless the data shows very dramatic disparities, the laws and political momentum behind them fade away.”103 Unfortunately, this pessimistic prediction has been proven true. No precise national figures are possible because of the decentralized system of law enforcement in America and the resistance on the part of many local agencies to keep detailed records of stops and searches when no arrests are made. However, numerous investigative reports by journalists of various localities have concluded that black motorists are to this day considerably more likely to be stopped and searched for drugs or even for cash.104 An example of the persistence of systemic racial profiling was revealed by the 2016 shooting death of Philando Castile. Castile’s death received nationwide publicity because his fiancée began livestreaming the incident immediately after he was shot. Viewers could see the horrific image of Castile’s bloody torso slumped over in the driver’s seat.105 Subsequent investigations revealed that the school cafeteria worker, paid less than $20 an hour, had been pulled over at least fifty-two times in thirteen years.106 Castile had been charged with seventy-nine different minor traffic violations of which forty-eight were eventually dismissed.107 Those who have escaped such experiences can only imagine Castile’s frustration. The more than $6,000 in traffic violations he accumulated would have cost him more than 300 hours of his pre-tax salary.108 It is unclear how many days he spent in traffic court, but we do know his car was repeatedly impounded.109 After his death, his mother recalled telling him, “Every time you get in that car and leave out the door you come back with another ticket.”110 If Castile had been stopped for offenses, such as speeding or reckless driving, we could conclude the police were only doing their job. However, according to an analysis conducted by NPR, only six of the stops were for “things a police officer would notice from outside a car—things like speeding or having a broken muffler.”111 Instead, most of Castile’s offenses were for matters that would not have been discovered until after the stop, such as not having proof of insurance.112 Perhaps the police were running his license plate on a computerized system before stopping him and seeing the car had been cited for previous violations. However, one would then have to ask why so many officers had chosen to run one particular motorist’s license plate out of all the vehicles on the highway. No one knows how many times Castile was stopped and given a verbal warning, but we do know he was a young black man with dreadlocks.

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Castile’s repeated encounters with law enforcement indicate how all the consent decrees, legislative actions, and political declarations made in the wake of the New Jersey shooting and the Tulia scandal ultimately failed to stop racial profiling. His death also symbolizes the dangers innocent motorists are subjected to by efforts to use roving patrol stops based on trivial traffic violations to enforce narcotic laws. The fact that Castile was being repeatedly stopped and was eventually shot during the Barack Obama administration is also indicative of how racial profiling has flourished no matter which political party occupies the White House. In addition to the aforementioned role of the judiciary, the nation’s decentralized system of law enforcement and the federal division of powers, there is at least one additional critical factor which has led to the remarkable persistence of institutionalized racial profiling in America: 9/11.

September 11, 2001 On the morning of September 11, 2001, New Jersey’s Attorney General, John Farmer, Jr., was discussing the state’s progress in eliminating racial profiling at a meeting of legislators and law enforcement officials, when the nation was attacked.113 He later told a gathering of Sikhs that the police might need to “stop, question, and scrutinize New Jerseyians who look Middle Eastern solely because of their ethnicity.”114 Farmer disputed that such questioning constituted racial profiling as defined by the consent decree New Jersey had reached with the Justice Department after Soto and the shooting. As Farmer explained, the decree “allows race or ethnicity to be considered when it is related to specific suspect information, and there are nearly two hundred ‘be on the lookout’ warnings currently for people of the same ethnicity as the alleged hijackers.”115 Farmer also wrote the following in a newspaper column: More than 6,000 people are dead, some would argue, because of insufficient attention to racial or ethnic profiles at our airports . . . Let’s be blunt: How can law enforcement not consider ethnicity in investigating these crimes when that identifier is an essential characteristic of the hijackers and their supposed confederates and sponsors, and when law enforcement’s ignorance of the community heightens the importance of such broadly shared characteristics? Law enforcement tactics must be calibrated to address the magnitude of the threat society faces.116 As previously noted, 59% of Americans in 1999 said they thought racial profiling was widespread and 81% disapproved of it. After 9/11, however, 58% of Americans said they supported subjecting people of Middle Eastern descent to more intensive security checks than other travelers even if they were American citizens; 49% supported issuing them special identification cards; and 32% agreed with authorizing “special surveillance.”117 Sixty-eight percent of

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Americans also approved law enforcement “randomly stopping people who may fit the profile of suspected terrorists,” and a majority supported requiring people of Arab descent, including U.S. citizens, to “undergo special, more intensive security checks before boarding airplanes.”118 Conservative political pundits found a more receptive audience after 9/11 for articles entitled “The Case for Profiling” and “Racial Profiling Also Has a Good Side.”119 These authors noted the absurdity of strip-searching eighty-yearold Irish nuns, and declared “the suicide bombers who attacked us . . . were al-Qaeda: young, Islamic, Arab and male. That is not a stereotype. That is a fact.”120 Thirty years before, the advent of universal passenger screening with metal detectors to stop skyjackers had led to little protest. However, the post 9/11 security measures were too intrusive and time-consuming to be applied universally, and random application seemed not just ineffectual but sometimes absurd. Legal scholars, taking an unwavering stand against all racial profiling, suddenly found themselves swimming against the tide of public opinion. Consider the following argument advanced two years after 9/11: In a nation that claims upwards of 3.5 million persons of Arab ancestry, the ethnic characteristic of Arab descent, standing alone, possesses no useful predictive power for separating the September 11 terrorists’ accomplices and other terrorist wannabes from innocent Americans. It is a variable that is incapable of sufficiently narrowing what I call the “circle of suspicion” to warrant the kind of reliance proprofiling arguments would place upon it.121 Perhaps targeting all persons of Arab ancestry was a futile policy, but “proprofiling” proponents advocated focusing on young men of Arab ancestry, particularly those who had traveled to countries such as Afghanistan or Saudi Arabia. The number falling into that category would have been considerably smaller than 3.5 million. The dilemma confronting police in the aftermath of 9/11 is illustrated by an incident that occurred in October, 2001, near Boston. The police stopped the driver of a brown Honda outside a large gas storage facility at 10:30 p.m. The driver had an invalid Lebanese driver’s license, no passport, and a credit card with a different name from the one on his license. When asked what he was doing in the area, the driver said he was about to interview for a job; needless to say, no interviews were occurring at that hour. Before the attacks on New York and Washington, the driver would have been released—indeed, he never would have been detained, because he would not have been questioned. As it happened, he was detained on the traffic charge while police tried to sort out what, if anything, had almost happened at the [gas] storage facility.122

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If the fact that the motorist had a Lebanese driver’s license played any role in the decision to detain him, the officer would have violated Congress’s stricture on racial profiling. There had been no crime report. And, as the reader will recall, Congress defines racial profiling as “the practice of a law enforcement agent or agency relying, to any degree, on race, ethnicity, national origin, or religion in selecting which individual to subject to routine or spontaneous investigatory activities”123 (emphasis added). The Boston incident illustrates the challenges for law enforcement after 9/11 and weakens the argument that race and national origin should never be used as a predictive criterion of suspicion. Moreover, as we saw in Chapter 2, profiling works best in identifying suspects in random and motiveless crimes which involve a form of psychopathology. Terrorism certainly seems to fit the bill.124 Yet, simply because it may be reasonable in certain limited contexts to consider race or national origin in “routine or spontaneous investigatory activities,” that does not justify what has been occurring at airports, train stations, bus terminals, and on the nation’s highways and city streets for the past four decades. Drug addiction and the violence associated with illegal narcotics have certainly killed considerably more Americans than terrorist attacks have. A vigorous governmental response has been demanded by citizens of all racial, religious, and ethnic backgrounds. The complexity of the problem ensures such efforts will sometimes be misguided. However, certain responses in the drug wars have been in the vicinity of crazy. Illegal drug consumption occurs almost everywhere; violence related to drug trafficking has been most pronounced in urban areas. Yet, for decades, police agencies aggressively patrolled perhaps the only place in America where there is virtually no drug consumption, drug trafficking, or violence: airports. Airplanes offer an obvious means of transport but most drugs travel by car or truck within the United States.125 This fishing expedition targeted at minorities was justified by agents, who claimed their “trained eyes,” which were incapable of recognizing celebrated African American athletes, could somehow distinguish anxious passengers from nervous drug couriers.126 Remarkably, in 1977, at the exact moment Markonni’s “drug courier profile” was being spread nationwide, Studio 54 opened in Manhattan. No “trained eye” was required to spot the club’s “altar piece” rising high above the dance floor: “a neon sign representing the man in the moon, with a suspended spoon that rocked to and fro, delivering twinkly snorts of cocaine to his greedy nose.”127 Cocaine consumption was so de rigueur that the proprietors even hired a “pretty girl” whose sole responsibility was to cut perfectly even lines of cocaine for the celebrity denizens to enjoy together.128 Innocent men and women were being strip-searched in airports without probable cause, while celebrity cocaine connoisseurs at Studio 54 were partaking in conspicuous cocaine consumption. The open and notorious use of cocaine in Studio 54 did not lead the authorities to order a drug raid to shut down the nightclub. Rather, it closed after thirty-three glorious months because of tax inspectors. Years later, when

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Trooper Vogel began ignoring potential driving under the influence offenses (DUIs) and stranded motorists so he could instead focus on whether a minority motorist’s wheels touched the white shoulder line, tenants in Washington Heights apartment buildings were hanging signs on their apartment doors saying “FAMILY LIVES HERE” to try and ward off the relentless stream of drug buyers.129 America’s decentralized law enforcement system is not easily manipulated, and many cities failed to meet the challenges posed by rising crime and drug abuse. Many law-abiding residents in high-crime neighborhoods wanted more police protection.130 However, local politicians understood that if they were to raise taxes too much, the affluent would relocate to the suburbs as had occurred across America during the 1960s and 1970s. Some cities ultimately recovered and prospered; others have been left behind. It is perhaps not coincidental that the city which experienced the most dramatic decrease in crime, New York, also experienced the most dramatic revival. However, as the next two chapters will illustrate, New York also instituted the most intensive targeted form of policing that has ever taken place in the history of the nation.

Notes 1 Franklin E. Zimring, The City That Became Safe: New York’s Lesson for Urban Crime and its Control (New York: Oxford University Press, 2012), 194. 2 Michael Cooper, “Officers in Bronx Fire 41 Shots, and an Unarmed Man is Killed,” New York Times, February 5, 1999, 1. 3 Jane Fritsch, “The Diallo Verdict: The Overview; 4 Officers in Diallo Shooting Are Acquitted of All Charges,” New York Times, February 26, 2000, 14. 4 Id. 5 Id. 6 David A. Harris, “The Stories, the Statistics, and the Law:Why ‘Driving While Black’ Matters,” 84 Minnesota Law Review 265, 265 (1999). 7 Address to the Joint Session of Congress by the President, reprinted in 147 Cong Record H433 (February 27, 2001) (unlike the freshman addresses of President George H.W. Bush and Bill Clinton, President Bush treated this speech as simply an “Address to a Joint Session of Congress”). 8 Nomination of Senator John Ashcroft to the Office of Attorney General: Hearings Before the Senate Committee on the Judiciary, 107th Congress (January 22, 2001) (answer from Senator Ashcroft, to written question submitted by Senator Russell D. Feingold) (as quoted in Samuel R. Gross and Debra Livingston, “Racial Profiling, Under Attack,” 102 Columbia Law Review 1413, 1420 (2002)). 9 For a discussion of the actions taken by various states see Sharon L. Davies, “Reflections on the Criminal Justice System after September 11, 2001: Profiling Terror,” 1 Ohio State Journal of Criminal Law 45, 83–5 (2003). 10 See Frank Newport, “Racial Profiling is Seen as Widespread, Particularly Among Young Black Men,” Gallup News Service, December 9, 1999, available at www. However, in a second poll taken weeks after 9/11, a majority of Americans reported they favored targeting Arabs and Muslims in border and airport security searches. See Sam Howe, “Verhovek, Americans Give in to Race Profiling,” New York Times, September 23, 2001, A1 (noting that a CNN/USA

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Today/Gallup poll taken a few days following the September 11 attacks revealed that 58% supported targeting passengers of Middle Eastern descent). 11 The homicide rate in America in 1990 was 9.7 per 100,000. In 1999, it was 5.7. FBI, Uniform Crime Reports. 12 The quote is taken from Alexis DeTocqueville, Democracy in America, editor J.P. Mayer, trans. by George Lawrence (Garden City, NY: Doubleday & Company, 1969), 270.The three cases in which the term “racial profiling” appears are Ashcroft v. al-Kidd, 563 U.S. 731, 739 (U.S. 2011); Illinois v.Wardlow, 528 U.S. 119, 133 nn. 9 and 10 (2000); and Atwater v. City of Lago Vista, 532 U.S. 318, 372 (2001). 13 “Developments in the Law: Race and the Criminal Process,” 101 Harvard Law Review 1472, 1498 (1988). 14 United States v. Jones, 565 U.S. 400, 402–3 (2012). 15 Id., 413. 16 United States v.Whren, 53 F.3d 371, 375 (D.C. Cir. 1995). 17 Albert W. Alschuler,“Racial Profiling and the Constitution,” 2002 University of Chicago Legal Forum 163, 193 (2002); and Whren v. United States, 517 U.S. 806, 813 (1996). 18 See Chapter 6, notes 46–8, and accompanying text. 19 517 U.S. 456. 20 481 U.S. 279. 21 461 U.S. 95. 22 John Rappaport, “An Insurance-Based Typology of Police Misconduct,” 2016 University of Chicago Legal Forum 369, 402 (2016). 23 Armstrong, 517 U.S. at 479 (Stevens, J., dissenting). 24 Id. 25 American Jurisprudence 2d, Constitutional Law, § 833. 26 Armstrong, 517 U.S. at 459–62. 27 United States v. Armstrong, 48 F.3d 1508, 1512 (9th Cir. 1995). 28 Id., 1514. 29 Armstrong, 517 U.S. at 469–70. 30 Id., 482 (Justice Stevens dissenting). 31 My analysis of this “disharmonic convergence” is indebted to Christopher Hall, “Challenging Selective Enforcement of Traffic Regulations After the Disharmonic Convergence: Whren v. United States, United States v. Armstrong, and the Evolution of Police Discretion,” 76 Texas Law Review 1083 (1998). 32 Id. 33 Id., 1107. 34 Michael R. Smith, “Depoliticizing Racial Profiling: Suggestions for the Limited Use and Management of Race in Police Decision-Making,” 15 George Mason University Civil Rights Law Journal 219, 238 (2005). 35 Id., 1111. For examples of courts applying the “similarly situated” doctrine in selective enforcement decisions see United States v. Bullock, 94 F.3d 896, 899 (4th Cir. 1996) (citing Armstrong’s “rigorous standard” for prohibiting the defendant from introducing evidence regarding the arresting officer’s previous arrest record and cross-examining him); United States v. Bell, 86 F.3d 820, 823 (8th Cir. 1996) (rejecting selective enforcement defense on grounds that the claim failed the selective prosecution test enunciated in Armstrong), Futernick v. Sumpter Township, 78 F.3d 1051, 1055 (6th Cir. 1996) (applying principles of selective prosecution to dismiss civil plaintiff ’s claim that Michigan state officials selectively enforced environmental regulations); and Chavez v. Illinois State Police, 27 F. Supp. 2d 1053, 1066 (N.D. Ill. 1998) (“The plaintiffs argue that Armstrong does not apply to this case because Armstrong is a selective prosecution case. The court disagrees. Armstrong is applicable because the Supreme Court specifically based its holding on equal protection principles”). Examples of commentators treating the two concepts interchangeably include Laurie A. Buckenberger, “Comment, Pretextual Arrests: In United States v.

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Scopo the Second Circuit Raises the Price of a Traffic Ticket (Considerably),” 61 Brooklyn Law Review 453, 492–4 (1995); and Randall L. Kennedy, “McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court,” 101 Harvard Law Review 1388 (1988). 36 State v. Soto, 324 N.J. Super. 66 (Law Div. 1996). 37 Kennedy, “McCleskey v. Kemp,” supra note 35, at 1388. 38 McCleskey v. Kemp, 481 U.S. 279, 286 (1987). 39 Kennedy, “McCleskey v. Kemp,” supra note 35, at 1394. 40 Id., 1392. 41 Alschuler, “Racial Profiling,” supra note 17, at 266. 42 McCleskey 481 U.S. at 292. 43 Id., 297. 44 Id., 292. 45 Id., 292–3. 46 The cases in which defendants have been able to survive the “similarly situated” hurdle are rare, but they do exist. See, e.g., Chavez v. Illinois State Police, 251 F.3d 612 (7th Cir. 2001). Most courts which have addressed the issue have agreed that statistical evidence can be substituted, but the data is often rejected for lacking methodological reasons. See, e.g., Marshall v. Columbia Lea Regional Hospital, 345 F.3d 1157 (10th Cir. 2003); United States v. Mesa-Roche, 288 F. Supp. 2d 1172, 1189–90 (D. Kan. 2003); and the previously discussed State v. Kennedy 247 N.J. Super. 27 (App. Div. 1991). 47 McCleskey 481 U.S. at 292. 48 Whren v. United States, 517 U.S. 806, 813 (1996). 49 Regents of the University of California v. Bakke (1978) held that using racial quotas in college admission decisions violated the Equal Protection Clause; Gratz v. Bollinger, 539 U.S. 244 (2003) (ruling the point system used by the University of Michigan for undergraduate admissions was unconstitutional); Grutter v. Bollinger 539 U.S. 306 (2003) (allowing colleges and universities to use race as a component in their admissions policies); Fisher v. Texas 133 S. Ct. 2311 (2013) (rejecting per se ban on affirmative action, but emphasizing that affirmative action programs need to be more strictly reviewed). In 2016, the Court returned to the same school’s raceconscious admissions program and declared it to be constitutional in a 4–3 ruling. Fisher v.Texas, 136 S. Ct. 2198 (2016). 50 See Equal Employment Opportunity Commission website: history/35th/thelaw/supreme_court.html. 51 See, e.g., Adarand Constructors v. Pena, 515 U.S. 200, 227 (1995) (“all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”). 52 For a discussion on how lower courts dealt with legal challenges to the Vietnam War and how the Supreme Court avoided wading into this controversy, see Rodric B. Schoen, “Strange Silence: Vietnam and the Supreme Court,” 33 Washburn Law Journal 275, 304 (1994). 53 461 U.S. 95 (1983). 54 The answer filed by the City of Los Angeles contained “a general denial of the allegations,” but it had “never presented any evidence to challenge Lyons’ account.” Id., n.1 at 114 (1983) (Marshall, J., dissenting). 55 Id., 118. 56 Id., 103 (quoting O’Shea v. Littleton, 414 U.S. 488, 497 (1974)). 57 Id., 102–3. 58 95 F. Supp. 2d 723, 730 (N.D. Ohio 2000). 59 Id., at note 6, 731. See also Chavez v. Illinois State Police, 27 F. Supp. 2d 1053 (N.D. Ill. 1998) (dismissing action to enjoin racial profiling by state highway patrol officers because plaintiffs had failed “to identify similarly situated white motorists who were treated differently from them”).

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60 Farm Labor Organizing, 95 F. Supp. 2d at 730. 61 Northeastern Florida Chapter of the Associated General Contractors of America v Jacksonville, 508 US 656, 666 (1993) (“The ‘injury in fact’ in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit . . . It is the inability to compete on an equal footing in the bidding process, not the loss of a contract.”). 62 133 S. Ct. 2411. 63 See Fisher v. University of Texas at Austin, 645 F. Supp. 2d 587, 597–8 (W.D. Tex. 2009). 64 See Fisher v. University of Texas at Austin, 631 F.3d 213, 217 (5th Cir. 2011) (observing Fisher had disclaimed any intention to reapply to the University of Texas and, thus, could not seek prospective injunctive relief), vacated, 133 S. Ct. 2411 (2013). (Fisher had graduated from college by the time the case reached the Supreme Court. See Brief for Respondents, note 6 at *16–17, Fisher v. University of Texas, 133 S. Ct. 2411 (No. 11–345).) 65 Christopher Lowen Agee, The Streets of San Francisco, Policing and the Creation of a Cosmopolitan Liberal Politics (Chicago, IL: University of Chicago Press, 2016), 20. 66 Id., 8. 67 Zimring, The City, supra note 1, at 103. 68 531 U.S. 32. 69 Zimring, The City, supra note 1, at 103. 70 Elizabeth Hinton, War on Poverty to War on Crime: The Making of Mass Incarceration in America (Cambridge, MA: Harvard University Press, 2016), 148–52. 71 An unnamed “Senior Justice Department official” as quoted in Leslie Maitland, “The New Federalism May Be Bad for the Old Drug Problem,” New York Times, August 23, 1981, 6. 72 Dunworth et al., National Assessment of the Byrne Formula Grant Program, National Institute of Justice, June 1997, 21, pdf. 73 Id., 16 (important amendments were added in 1988 and again in 1990). 74 Id., 47. 75 See Departments of Commerce, Justice and State, Judiciary and Related Agencies Appropriations for 1996, Hearings before Subcommittee of the House Committee on Appropriations, 104th Cong, 1st Sess 489–90 (March 28, 1995) (statement of Joseph E. Brann, Director of the Office of Community Oriented Policing Services) (Brann testifying about the lack of oversight, and that “block-granting law enforcement money led to waste, fraud, and abuse, and not a commensurate reduction in crime”). 76 This program is authorized by the Anti-Drug Abuse Act of 1986 as amended in 1988. Pub L No 100–690, 102 Stat 4329, codified at 42 USC §§ 3750–5 (1994). 77 Greg Howard, “Nearly 25 Years After Infamous Cop Killing, NYPD Commissioner Kelly Asks Board to Deny Murderers Parole,” Village Voice, October 5, 2012, 78 Charles M. Blow, “Look Back to Move Forward,” New York Times, December 31, 2014, A27. 79 Ken Auletta, “Fixing Broken Windows,” New Yorker, September 7, 2015, www. 80 Eric Blumenson and Eva Nilsen, “Policing for Profit: The Drug War’s Hidden Economic Agenda,” 65 Chicago Law Review 35, 43 (1998) (internal citations omitted). 81 Id., 94. 82 Texas State Representative, Terry Keel, as quoted in Nate Blakeslee, Tulia: Race, Cocaine, and Corruption in a Small Texas Town (New York: Public Affairs, 2006), Kindle Edition, 206. 83 United States v. Reese, 2 F.3d 870, 874 (9th Cir. Cal. 1993).

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84 Blumenson and Nilsen, “Policing for Profit,” supra note 80, at 65. 85 Id. 86 Reese, 2 F.3d at 878–9. 87 Blakeslee, Tulia, supra note 82 at 5, 173. 88 Id., 21–2, 57–9. 89 Id. 90 According to Blakeslee, the card Coleman carried came from a town with no genuine KKK movement; he “just liked showing it to people.” Id., 98. 91 Id., 292. 92 Id., 5. 93 Id., 121. 94 Id., 52–4, 191–2. 95 434 U.S. 357. 96 Id. 97 Id. 98 Karena Rahall, “The Green to Blue Pipeline: Defense Contractors and the Police Industrial Complex,” 36 Cardozo Law Review 1785, 1796 (2015). 99 Steve Barnes, “Ex-Narcotics Agent Get 10 Years’ Probation,” New York Times, January 19, 2005, 25752C0A9639C8B63. 100 Edward Byrne Memorial Justice Assistance Grant Program Authorization, 154 Cong Rec H 5805, 5807. 101 See Davies, “Reflections on the Criminal Justice,” supra note 9. 102 Brandon Garrett, “Remedying Racial Profiling,” 33 Columbia Human Rights Law Review 41, 89 (Fall 2001). 103 Id. 104 Sarah Stillman, “Taken,” New Yorker, Aug. 12, 2013; and Sharon LaFraniere and Andrew W. Lehren, “The Disproportionate Risks of Driving While Black,” New York Times, October 25, 2015, A1. 105 E.g., Sharon La Franiere and Mitch Smith, Driver Killed by Officer Had Trail of Tickets, New York Times, July 17, 2016, A1. 106 Id. There are conflicting reports regarding the number of times Castile was stopped. The New York Times reported forty-nine times. See Id. But it also reported fifty-two times. See Mitch Smith, Family of Minnesota Man Killed by Police Calls for Inquiry by a Special Prosecutor, New York Times, July 13, 2016, A10. 107 A.J. Lagoe and Steven Eckert,“KARE 11 Investigates: Racial Profiling in Minnesota,”, August 29, 2016. 108 Eyder Peralta, The Driving and Life and Death of Philando Castile, NPR, July 15, 2016, 109 See La Franiere, “Driver Killed,” supra note 105. 110 Id. 111 Peralta, “The Driving,” supra note 108. 112 Id. 113 Alschuler, “Racial Profiling,” supra note 17, at 197–8. 114 Id., 198. 115 Id. 116 John Farmer, Jr., “Rethinking Racial Profiling,” Newark Star-Ledger, September 23, 2001, § 10, p 1. 117 Sam Howe Verhovek, “Americans Give in to Race Profiling,” New York Times, September 23, 2001, 1. 118 See Henry Weinstein et al., “After the Attack: Law Enforcement: Racial Profiling Gains Support as Search Tactic,” Los Angeles Times, September 24, 2001, A1.

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119 Charles Krauthammer,“The Case for Profiling,” Time Magazine, March 18, 2002, 104; Stephen J. Singer, “Racial Profiling Also Has a Good Side,” Newsday, September 25, 2001, A38. See also Michael Kinsley, “When Is Racial Profiling Okay?” Washington Post, September 30, 2001, B7; and Stanley Crouch, “Drawing the Line on Racial Profiling,” New York Daily News, October 6, 2001, 41. 120 Krauthammer, “The Case for Profiling,” supra note 119. 121 Sharon L. Davies, “Reflections on the Criminal Justice System after September 11, 2001: Profiling Terror,” 1 Ohio State Journal of Criminal Law 45, 52 (2003). 122 William Stuntz, “Local Policing After the Terror,” 111 Yale Law Journal 2137, 2158–9 (2002) (citations omitted). 123 Text of the End Racial Profiling Act of 2013, S. 1038 (113th), congress/bills/113/s1038/text. 124 John E. Douglas et al., “Criminal Profiling from Crime Scene Analysis,” 4 Behavioral Sciences & the Law, 403, 405 (1986). 125 Richard L. Berke,“New Form of Interstate Commerce: How Drugs Spread Through U.S.,” New York Times, August 28, 1989, 1. 126 United States v. Buenaventura-Ariza, 615 F.2d. 29, 35 (2nd Cir. 1980). 127 Peter Conrad, “Studio 54: The Ultimate Den of Vice,” The Guardian, March 14, 2015, 128 Sophie Jane Evans, “Michael Jackson Would Retreat into the DJ Booth to Dance Alone,” Daily Mail, October 14, 2014, michael-jackson-retreat-dj-booth-dance-memoirs-reveal-dark-new-york-s-studio54-including-sex-booze-drug-fuelled-parties.html; and “New York’s Studio 54 Owner Hired ‘Pretty Girl’ to Cut Lines of Cocaine for VIPs,” The Sunday Morning Herald, October 14, 2014, 129 Peter Kerr, “Washington Cocaine Trade Thrives,” New York Times, April 1, 1986, 1. 130 See, e.g., Michael Javen Fortner, Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment (Cambridge, MA: Harvard University Press, 2015).


Welcome to Fear City. (The title of a 1975 pamphlet off-duty police officers distributed to passengers arriving in New York airports)1

In 2011, the New York Police Department (NYPD) recorded making 686,000 stops.2 Eighty-seven percent of those stopped were blacks or Hispanics, 90% of those stopped were male, and 75% were under twenty-five years of age.3 Eightyeight percent of the “suspects” stopped were neither arrested nor even issued a summons.4 In other words, almost 90% of the people stopped were doing nothing wrong. More than 50% of those stopped were also frisked, but only 1.5% of those frisked were carrying a weapon.5 As the New York City comptroller said during a 2013 mayoral campaign debate, the NYPD’s stop-and-frisk program constituted “the biggest form of systemic racial profiling . . . anywhere in the United States of America.”6 To understand how one of the most liberal cities in America could institute such repressive police measures we must go back to a subway ride taken by William Bratton in 1989. Bratton, a rising star in the Boston Police Department, was considering an offer to head the New York City transit police when he came to New York to inspect the subway system. Squeegee men greeted him upon his arrival in Manhattan, and as he later recalled, there were so many unlicensed peddlers on Fifth Avenue that it looked like a “Third World Casbah.”7 When he tried to enter a Manhattan subway station, he discovered the turnstile’s coin slot had been purposefully jammed. [The only way to enter was through a] slam gate being held open by a scruffy-looking character with his hand out; having disabled the turnstiles,

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he was now demanding that riders give him their tokens. Meanwhile, one of his cohorts had his mouth on the coin slots, sucking out the jammed coins and leaving his slobber . . . It was like going into the transit version of Dante’s Inferno.8 Bratton’s maiden voyage was hardly unique. Regular straphangers from that era all have similar memories, but few would have ventured into the tunnels and closed off areas which had been commandeered by the homeless to which Bratton escorted business leaders and government officials to in an effort to increase funding for the transit system. We took our guests to the cul-de-sacs where people had set up homes. The smell of urine and feces and unwashed bodies was often overwhelming. Indeed, you could detect where people were living just by the smell. A population of several thousand people lived in various parts of the subway system. Mattresses lay on the ground, and syringes and crack vials littered the alcoves—watch where you walk. One night, on a three-foot ledge right adjacent to the tracks, a couple was having sex as we passed by.9 By the 1990s, the great American crime wave was well into its fourth decade. Moreover, the underground population illustrates the complexity of the challenges which confronted law enforcement. A certain percentage of the population would likely have been mentally ill and/or addicted to drugs, there would have been ex-felons unable to secure employment or housing due to their prison record, others would have been economically displaced, and there may have been women escaping abusive relationships. How could a police force win a battle against crime when they had little or no control over these contributing factors? In fact, as Bratton later explained in his memoir, The Turnaround, a bipartisan consensus had formed that crime “was caused by societal problems that were impervious to police intervention.”10 Liberals argued that poverty, racism, and economic injustices caused crime; conservatives assigned the blame to the breakdown of family values and the welfare state. The irony is that New York originally created the NYPD, the nation’s first professional police force, after a grisly murder in 1841 led to a public demand for a police force that “would prevent crime, not just catch criminals after the fact.”11 Yet, a century and a half later, citizens had largely given up hope of even catching criminals. Consider the choice commuters confronted in getting to work. Surveys revealed that an increasing number of people, too frightened to venture underground, were abandoning the subways, but motorists fared little better.12 Drivers had begun leaving their cars unlocked in order to avoid the expense of replacing smashed windows. Others left signs declaring “No Radio in Car,” in a degrading and often futile attempt to discourage potential thieves. Bratton’s Deputy Police Commissioner, Jack Maple, once asked, what was next? Would people

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begin to hang a sign around their neck before leaving their homes which read, “No Wallet in Pocket?”13 Whatever their mode of transportation, most people were lucky enough at least not to be working as subway token booth clerks. Youths would prowl outside the bullet-proof glass booths waiting for the lone clerk to open the door so they could rob her. Special automatic fire extinguishers even had to be installed because the more impatient thieves had started pouring gasoline into the money slots to set the booths on fire in order to encourage speedier exits.14 It is hard to imagine anyone would have wanted to take over this system, let alone excel at the task. Yet, Bratton’s short tenure provided a harbinger of his later success as Police Commissioner. In just twenty-one months, from April 1990 to January 1992, felonies were reduced by 27% and robberies by a third.15 More importantly, Bratton encountered Jack Maple, whom Bratton once described as having the smartest mind for policing of anyone he has ever met.16

The Dynamic Duo Maple, a high school dropout who later earned his degree in night school, had started out his career with the New York City’s transit police as a trainee in 1970 when he was assigned to one of the most dangerous neighborhoods in Brooklyn, Bedford-Stuyvesant.17 He would later get hit over the head by a four-foot-long steel pipe by one assailant, shot at by another at such close range that his cheek was burned by the muzzle flash, and worst of all according to him, urinated on by two men during a cold winter night as he huddled by a radiator in a dark closet near a men’s bathroom trying to stay warm.18 Maple not only fought criminals; he also battled his superiors. Transit police officers were not supposed to make arrests “off post,” but Maple was not the type of cop to give up the pursuit of a suspect, and so he was disciplined for chasing crooks out of the subway system.19 According to Maple, he was also criticized for making arrests when they incurred overtime costs. An officer who witnesses a crime near the end of her shift can either ignore it and go home or try to apprehend the suspect and stay late to process the arrest. In Maple’s memoir, he recounts a former New York City Police Chief telling him that by “making these arrests you are incurring overtime that is taking bread out of other people’s mouths.”20 Maple may have caused headaches for his superiors, but his “spectacular” arrest record and valor were impossible to ignore.21 He became the youngest detective in the department at the age of twenty-seven and, in 1988, two years before Bratton took over the transit police, Maple received the highest score in the city on the lieutenant’s exam. In 1994, one of Bratton’s first acts as Police Commissioner was to appoint Maple to be the Deputy Police Commissioner. A federal prosecutor once said that the “Mayor hired Bratton, and Bratton hired Maple, and that created a

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paradigm shift in policing.”22 The promotion from being a lieutenant in the transit police to Deputy Police Commissioner was compared to going to bed as an ensign in the Coast Guard and waking up a three-star admiral in the Navy.23 One of Bratton’s other newly appointed deputy commissioners said he took one look at Maple’s sartorial style, bow tie, fedora hat, and two-tone shoes, and thought, “Well, if he’s got the balls to wear that, he’s got the balls to buck the system.”24 Maple had been bucking the system his whole career, and one of his principal complaints was the defeatist attitude of the police. “We had surrendered the city and the citizens of New York were running up the white flags.”25 Shootings in the city had become so commonplace that homicide was the leading cause of death for New Yorkers between the ages of fifteen and twenty-four.26 Almost 6,000 people were shot in New York City in 1993, and as Maple liked to say, “the difference between a murder and a shooting is usually a quarter of inch; they hit an artery or they don’t.”27 Guns had become so prevalent in the city, even among children and teenagers, that one third of all arrests involving firearms in the first ten months of 1993 involved suspects seven to nineteen years old.28 In January 1994, the mayhem in Gotham became Bratton’s responsibility. Exactly two years later, he appeared on the cover of Time Magazine. The Mayor did not appreciate sharing the spotlight; he fired Bratton three months later. Bratton served just twenty-eight months, but he left his mark. For example, the number of murder victims decreased by 20% in 1994, and an additional 24% in 1995.29 During these two years, the number of murder victims dropped from 1,946 to 1,177.30 His successors adopted his reforms and the murder rate continued declining. The New York City homicide rate went from 26 per 100,000 in 1990 to fewer than 6 per 100,000 by 2009, a rate lower than the city enjoyed in 1961.31 In 1990, 2,245 murders took place; in 2014, just 333.32 Bratton is known internationally because nineteen years after he instituted his reforms, rates of homicide, robbery, and burglary had dropped by over 80%.33 Moreover, as Professor Franklin Zimring has noted, the crime rate and incarceration rate in New York City decreased simultaneously. Beginning in 1997, the total prison and jail population of New Yorkers began a long decline. “By 2002, a smaller number of persons were confined than in the 1990 base year, and by 2008 there were 10,000 fewer criminals being incarcerated from New York City than in 1990.”34 Once again, it is instructive to compare the statistics in New York City with the national trend. Between 1990 and 2008, the national incarceration rate increased by almost 65%, while the New York City rate declined by 28%.35 New York’s remarkable achievement, a simultaneous reduction in the crime and incarceration rates, “has yet to become an important issue in crime control policy discourse,” but as Zimring suggests, “perhaps it should.”36 These remarkable statistics notwithstanding, the NYPD has also been widely criticized for its aggressive stop-and frisk program which was declared unconstitutional in Floyd v. City of New York (2013).37

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Floyd v. City of New York Floyd was a class action lawsuit in which the plaintiffs, alleging they had been unconstitutionally stopped and frisked, sought injunctive relief to curtail the program. Before examining the Floyd ruling, it is appropriate to explain how the plaintiffs in Floyd overcame the unholy trinity of hurdles precluding challenges to selective enforcement practices that were discussed in the previous chapter. First, Judge Shira Scheindlin correctly declared Armstrong’s “similarly situated” doctrine was inapplicable because Armstrong involved a selective prosecution claim, and the Floyd plaintiffs were alleging selective enforcement.38 McCleskey’s “purposeful discrimination” requirement was satisfied because, in addition to statistical data, the plaintiffs also introduced statements made by senior officers as direct evidence of racial bias.39 And Lyons’ “future injury” rule was irrelevant because the plaintiffs had not been stopped for unlawful conduct and several plaintiffs had been stopped multiple times, establishing the likelihood of recurrence.40 The case lasted six years; the trial went on for nine weeks; Scheindlin’s ruling totaled nearly 200 pages. Although the plaintiffs were allowed to argue that the police had implemented a policy of selective enforcement in violation of the Equal Protection Clause, Scheindlin prohibited the city from defending the efficacy of stop-and-frisk. This case is not about the effectiveness of stop and frisk in deterring or combating crime. This Court’s mandate is solely to judge the constitutionality of police behavior, not its effectiveness as a law enforcement tool. (Emphasis in original)41 Ironically, just as the Supreme Court had previously precluded litigants from challenging selective enforcement practices, Judge Scheindlin prohibited the police from defending them. Scheindlin invoked platitudes to justify her reasoning. “The enshrinement of constitutional rights necessarily takes certain policy choices off the table.”42 Be that as it may, there is no per se constitutional prohibition against racial classifications. Racial classifications are permissible if the government can satisfy the “strict scrutiny” test by demonstrating the policy furthers a “compelling interest” while being “narrowly tailored” to meet that interest. Since reducing the murder rate is certainly a “compelling interest,” the issues that should have been debated were whether the program actually accomplished that goal and, if so, whether it was “narrowly tailored.” However, Scheindlin would not even permit “the parties to delve into the question of whether the stop-and-frisk program actually reduces crime” because doing so “would risk turning the trial into a policy debate over the wisdom of the program rather than a judicial proceeding that assesses plaintiffs’ constitutional claims.”43 “I will not take the crime statistics in this trial,” she declared, because “whether it reduces crime or not is not my concern.”44

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Scheindlin’s single-minded focus on the “constitutionality” of stop-and-frisk and her refusal to enter into the “wisdom of the program” reflect a common American obsession. Justice Felix Frankfurter once argued that our “preoccupation” with the Constitution is like praying to a false prophet. In fact, in 1943, Frankfurter repudiated Scheindlin’s approach: Our constant preoccupation with the constitutionality of legislation rather than with its wisdom tends to preoccupation of the American mind with a false value. The tendency of focusing attention on constitutionality is to make constitutionality synonymous with wisdom, to regard a law as all right if it is constitutional.45 Considering the number of pages this book devotes to case law analysis, the reader may be surprised by its claim that Americans are obsessed with the issue of constitutionality. The assertion may appear contradictory, but the bar has been set exceedingly low in critiquing selective enforcement practices. The primary critiques of the previous three stages were that minorities were targeted based on mere anecdotal evidence and the arrest rates indicated the measures were often no more effective than random stops. The racial breakdown of drug dealers and drug couriers, the targets of the first three stages of racial profiling, is unknown. Selectively targeting a racial group, when there is no empirical evidence to establish that members of the group are more likely to be engaged in criminality, is not just unconstitutional, it is unconscionable. Stop-and-frisk, however, was based on empirical crime data. It was also directed at reducing violence by seizing illegal firearms, not preventing consensual transactions. Criminologists agree that homicide is the most reliable of all crime statistics.46 Before we criticize the NYPD for biased practices we must first acknowledge the “ugly realities” of crime statistics.47 Blacks commit a disproportionate amount of violent crime. Most murders are intra-racial; 90% of offenders are male; and only about 10% of victims are killed by a stranger.48 From 1980 to 2008, blacks committed murder at eight times the rate of whites and Latinos combined.49 (The FBI did not classify Latinos as a separate ethnic category until 2013.)50 In New York City, well over 90% of the suspects in shootings, as well as their victims, have been young black and Latino men.51 Judge Scheindlin’s preoccupation with constitutionality led her to ignore the possibility that, by randomly stopping and frisking young black and Latino men, the NYPD was able to save thousands of minority youths from being killed; still more from being shot; and simultaneously thousands from being incarcerated. Floyd represented a missed opportunity to have a constructive debate, within the sober and respectful confines of a courtroom, on the issue of how the police should respond to the disproportionate amount of violent crime committed by minority men. The public arena has been marked by acrimony and recrimination.

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The anger felt by opponents to stop-and-frisk was matched by the frustration of its defenders. The reader will recall how the Blogger, as discussed in the Introduction, claimed that “the NYPD should be seen as an outside force, as an invading army.”52 Mayor Bloomberg, on the other hand, dismissed any such criticism. “I don’t know where they went to school but they certainly didn’t take a math course. Or a logic course.”53 He argued the program was effective because it was targeting the cohort committing most of the violent crime in New York City. By “making it ‘too hot to carry,’ the NYPD is preventing guns from being carried on our streets . . . That is our real goal—preventing violence before it occurs, not responding to the victims after the fact.”54 To confine the debate over stop-and-frisk to the prism of the Fourth Amendment ignores how it may have saved more than human life; it might have helped save the city itself. Those who did not experience New York City during the pre-Bratton era are unlikely to appreciate the degree of lawlessness which existed “back in the day.” Movies such as Death Wish and Taxi Driver, which portray citizens arming themselves to kill muggers and pimps, captured the milieu of that time. A citizen-formed group in the 1980s, the Guardian Angels, became famous for their “safety patrols” on the New York City subways. “Guardian Angels are what we need; New York City Police are so sweet,” one New Yorker quipped in verse.55 The dystopian Escape from New York portrayed the entire island of Manhattan as having been abandoned and turned into a prison. Then, in 1984, life truly began imitating art when the “Subway Vigilante,” Bernard Goetz, shot four muggers on a Saturday afternoon in one of the busiest subways stations in the city, Union Square. Before he ran into the subway tunnel to escape apprehension, Goetz allegedly told one of the would-be muggers, “You don’t look too bad, here’s another.”56 Goetz had been mugged previously.57 The only assailant captured in that first incident was merely charged with criminal mischief for ripping Goetz’s jacket. To add insult to injury, the assailant left the police station before Goetz.58 After that, Goetz got himself a gun. In his view, New York City was “lawless,” the justice system a “joke,” a “sham,” and “a disgrace.”59 Many agreed, but opted for moving vans instead of firearms. New York City lost more than 500,000 residents from 1950 to 1980.60 Entire city blocks had been burned to the ground. Videos of the South Bronx from this era show what looks like a war-ravaged city. Meanwhile, on the Lower East Side, the police were conducting raids deploying tear gas, helicopters, and even a military tank to evict squatters from abandoned buildings.61 Safety was uncertain and danger always near. Although the efficacy of stop-and-frisk was, in this author’s view, the pivotal question in Floyd, if we were to remove that issue from the debate, it should not take 200 pages to conclude that stop-and-frisk was unconstitutional. Just consider the fact that 98.5% of the recorded frisks failed to discover a weapon.62 The Court has long declined to offer a specific numeric value to the concepts

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of reasonable suspicion and probable cause, but it has declared “stops can only be justified by some quantum of individualized suspicion.”63 If the unspecified “quantum” is 1.5%, stop-and-frisk was either illegal or the Fourth Amendment is not worth the parchment it is written on. Had Judge Scheindlin permitted the efficacy defense, the city could have argued the 1.5% hit rate was the wrong figure to consider. The fact that 98.5% of the people frisked were not carrying weapons can be seen as indicating stopand-frisk was working. The number of people caught carrying weapons through airport metal detectors must be infinitesimal, but few people would claim the machines are ineffectual. Ridding the streets of illegal weapons and lowering the murder rate obviously satisfies the compelling interest prong of the “strict scrutiny.” Thus, the legal and moral questions become whether the stop-and-frisk was effective, or whether there was some other explanation for the reduction in crime. Some have argued that policing reforms and the implementation of stop-and-frisk does not account for crime reduction in New York City.64 On the other hand, if policing strategies were in fact responsible for the crime decline, we would still need to assess the relative importance of stop-and-frisk. Thus, before turning to stop-and-frisk, we will first ask whether Bratton’s policing strategies did in fact reduce crime in New York City. If police reforms were responsible for the reduced crime rate, the next question becomes whether stop-and-frisk played a significant role in the improved crime figures.

Socio-Economic Factors and the Crime Rate The great New York City crime decline constituted “the largest crime drop ever documented during periods of social and governmental continuity.”65 Some have discounted the achievement by claiming national crime rates were simultaneously declining. For example, the nation witnessed 1,200 fewer murders in 1994 as compared with 1993.66 However, New York City, which held only 7% of the country’s population, accounted for a third of that decrease.67 In fact, New York City accounted for 60% of the national crime rate decline from 1994 to 1996.68 And, after 1996, the drop in national crime figures would have been partly explained by the fact that Bratton and top deputies, who had resigned in protest of his dismissal, moved to police forces across the country. For example, Bratton would become the Los Angeles Chief of Police, Jack Maple a consultant in New Orleans, and John Timoney headed the Philadelphia and Miami police departments. Socio-economic changes also fail to explain the lower crime rates. Zimring has already analyzed this data and concludes the evidence that “some combination of policing variables account[ed] for much of the New York difference is overwhelming.”69 Manhattan certainly enjoyed an economic revival that roughly coincided with its reduced crime rate, and the most celebrated manifestation

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of these related phenomena has been the transformation of Manhattan’s Times Square. However, by analyzing socio-economic data on a borough-to-borough basis, Zimring shows how socio-economic conditions in the “outer boroughs”— Brooklyn, Queens, and the Bronx—remained relatively stable during the city’s near twenty-year crime decline. According to Zimring, there are four socioeconomic factors most commonly said to affect crime rates: 1. 2. 3. 4.

Economic progress; Social risk factors (school graduation and single parent); Age structure (the high-arrest 18–24 age group); and Population trends for traditional risk groups (Asian and non-Hispanic whites are associated with lower-than-average crime risks, while blacks and Latinos are associated with higher risks).

Zimring’s statistical analysis shows that the outer boroughs enjoyed remarkable improvement in their crime rates even though these four socio-economic factors remained largely stable. (When analyzing economic progress, Zimring compares the local economies with national trends.)70 Zimring thus concludes that “the very large changes in crime risks and rates are not the product of physical, demographic, or economic transformation.”71 There is also a much simpler argument. Any impact by socio-economic factors can be eliminated if we compare crime in the subway system, when Bratton was the transit police chief, versus the streets above during the same time period. Until 1995, the transit police operated independently from the NYPD, and the data was separate. Bratton started in April 1990 and left in January 1992. Two years after he started the job, felonies committed within the subway system had dropped 30%.72 During Bratton’s only full year on the job, 1991, violent crime in the subway (murders, rapes, robberies, and assaults) declined by 15%. However, violent crime for all of New York City, as reported to the FBI, which presumably includes the subway system data, declined by only 2%.73 Moreover, unemployment was at 10% the month Bratton became Police Commissioner and 8.7% when he resigned, which is hardly indicative of a roaring economy.74 Zimring also shows that cocaine and heroin abuse remained constant. Although it has been long assumed that there is a strong correlation between drug addiction and crime, the former remained stable while the latter declined significantly. Since precise data on narcotics consumption is not available, criminologists often use overdose deaths to estimate the level of drug abuse. The number of cocaine and heroin overdose deaths in the mid-2000s had decreased by only 10% since 1990, and Zimring therefore concludes only a marginal decrease in consumption took place.75 It is worth noting that although drug addiction does not necessarily lead to an increase in property or violent crime, there is a correlation between drug dealing and violent crime. The lesson is simple, but often ignored: it’s not the drug,

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it’s the distribution. As the New York Times once noted, the distribution system of crack differed dramatically from how heroin had been sold. “From poppy cultivation to street sales, the trade was dominated by a single organization— the Mafia, which, though ruthless, imposed a certain order on the trade. Gang wars were rare, and police officers were never fired upon.”76 Crack distribution lacked the hierarchical stability of an organized crime structure. One researcher of this era explained the contrast: markets that lacked a high degree of social organization—those dominated by freelance dealers—were notorious for unpredictable and predatory crimes against users, dealers and neighborhood residents alike; [while] those markets that featured complex forms of social organization tended to more purposefully employ violence as a tool to affect the market.77

Policing Strategies and the Crime Rate If socio-economic factors and drug consumption cannot account for the reduction in crime, law enforcement measures presumably provide the explanation.78 The challenge in determining the efficacy of stop-and-frisk is that multiple reforms were instituted simultaneously. The degree to which stop-and-frisk contributed to the reduced crime rate should have been the pivotal question asked during the Floyd trial, but Judge Scheindlin refused to consider the issue. To determine whether stop-and-frisk constituted an institutionalized form of racial profiling that significantly reduced violent crime in New York City, we must briefly review the overall strategies Bratton pursued and then assess the role stop-and-frisk played in the overall success. The incarceration rate is usually the starting point of discussion when considering whether law enforcement measures are effectively discouraging crime. In fact, for a long time, “incapacitation was not merely the dominant mode of crime control endorsed by a broad segment of the policy community; [it was] the only mechanism.”79 While an increased incarceration rate may or may not have contributed to national improvements in the crime rate, such an explanation is obviously inapplicable in New York City, where the incarceration rate fell alongside the crime rate. Policing strategies, possibly including stop-and-frisk, thus apparently accounted for a large percentage of the New York City crime decline. However, since numerous reforms were enacted simultaneously during the Bratton era, it is impossible to separate out the effect of the various independent variables. Nonetheless, a quick review of the policies clearly establishes the efficacy of these reforms. It is often asserted that Bratton was successful because he adopted the famous “Broken Windows” strategy, which had been advanced by George L. Kelling and James Q. Wilson in their Atlantic Monthly article.80 This “quality-of-life” theory claims that by focusing on minor infractions, such as prostitution or

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graffiti, the police can have a disproportionate effect in reducing the overall crime rate. The argument has been summarized as follows: Disorderly activities offend a community’s sensibilities, create a broad sense of disorder, and instill a fear of crime. This leads law-abiding residents and visitors to withdraw from public spaces. The lack of ordinary people going about their activities signals that deviant behavior is tolerated in public locations. Then under the cover of disorder and away from watchful eyes, criminals easily commit more serious offenses . . . and the quality of life in the community declines even further.81 It is sometimes forgotten that Wilson and Kelling also advocated abandoning dangerous neighborhoods and the people who lived in them. “Some neighborhoods are so demoralized and crime-ridden as to make foot patrol useless,” they asserted.82 The authors described “the situation” as being “hopeless,” and declared certain neighborhoods to be “unreclaimable.”83 Whatever explains the source of Bratton’s success, it certainly was not achieved by ordering his officers to retreat from dangerous neighborhoods. In fact, Maple largely dismissed Broken Windows with his claim that “the central image” of the argument suggested “a mystical link between minor incidents of disorder and more serious crimes.” If a building has all its windows intact, the theory goes, it can sit vacant and undisturbed for an indefinite period of time. But if one window is broken and not quickly repaired, all hell breaks loose. The implication is, if the police would take care of the little things, the big things would take care of themselves . . . That’s not how it works. Rapists and killers don’t head for another town when they see graffiti is disappearing in the subway. The average squeegee man doesn’t start accepting contract murders whenever he detects a growing tolerance for squeegeeing.84 The more diplomatic Bratton explained it would be too “simplistic” to attribute the rapid decline in crime in New York City to the quality-of-life enforcement efforts because it was just “one of a number of strategies that were deployed.”85 In addition to an increased enforcement of quality-of-life infractions, six interrelated strategies were implemented: 1. an increase in police manpower (which largely resulted from an expansion initiated by Giuliani’s predecessor Mayor David Dinkins);86 2. anti-corruption campaigns;87 3. improved management and information systems;88 4. getting guns off the streets;89 5. shutting down public drug markets; and90 6. an emphasis on policing high-crime locations.91

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Murder and violent crime usually result from impulsive and “emotionally charged and spontaneous events” as opposed to premeditation and deliberate planning.92 The mere sight of a uniformed officer therefore might deter violent crime. For example, when the city proudly announced in 1992 that crime in the subway had declined dramatically during the previous year under Bratton’s leadership, the first explanation given was that an additional 200 officers had patrolled the subway in 1991 as compared to 1990.93 When Bratton became Police Commissioner in January 1994, he again reaped the benefit of a program increasing the number of patrolmen which had been instituted under former Mayor David Dinkins. The NYPD experienced a 44% increase in manpower during the 1990s, and patrol officers increased by about one third between 1990 and 1995.94 In fact, the murder rate had already declined by 13% during the three years prior to Bratton’s commissionership.95 Corruption of course mitigates the benefits of increased manpower. For example, the NYPD had only limited crime data in the 1990s, but even what existed was often kept from detectives “due in part to concerns that corrupt cops might sell information back to the criminals.”96 Bratton compared the situation with not permitting a physician to see her patient’s lab reports.97 As the previous chapter noted, corruption within the NYPD had proven to be an intractable problem for over a century. The solution was simple but unpopular within the ranks: increase sting operations and random drug testing. Bratton increased sting operations from 50 in 1993, to 500 in 1994, and then to 700 in 1995.98 Cops participating in a drug raid could find themselves arrested if the confiscated cash and drugs did not add up. He also dramatically increased random drug testing, which peaked in 1996 when a total of 16,194 random tests were administered.99 Since these reforms were instituted, the twenty-year cycle of major police corruption scandals occurring in New York City, which dates back to the nineteenth century, finally appears to have been broken. Another factor, which undoubtedly played a significant role in the reduced crime rate, was the implementation of improved management and information systems. One of the most surprising lessons learned from reading police memoirs written during this era is how inept the police were. For example, when Bratton was twenty-nine years old he was placed in command of a district in Boston and proposed a change in how his men should respond to 911 calls. At that point in time, “the basic philosophy with which the Boston Police Department and every other police department . . . embraced 911 . . . was speed.” If a call came in, the next available car was dispatched with no regard whatsoever to the nature of the problem. “You didn’t stack calls. Robbery in progress, cat in a tree, didn’t matter; if there was a car free, whether around the corner or three miles away, you sent him over.”100 Bratton proposed dispatchers prioritize calls according to the nature of the problem and the availability of patrol cars. Surprisingly, this plan was considered

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to constitute “radical change, and change wasn’t readily accepted in the Boston police. Some naysayers, choosing conformity over creativity, said we couldn’t make one district different from all the rest.”101 Undeterred, Bratton, who was ill at the time, went into a critical meeting with the Boston Police Commissioner armed with flip charts with color maps of each newly defined geographical sector, and demonstrated where each car would go and how our manpower would be allocated. I had rehearsed the most persuasive ways of making my case, and I croaked my way through it.102 It is also remarkable how little effort was made to rid the streets of illegal firearms. In 1993 there were 11,222 arrests in which a firearm was confiscated. Yet, from all these arrests, the police only developed four confidential informants to identify illegal firearm dealers and fewer than fifty additional guns were confiscated as a result of tips from these informants.103 After Bratton took over in 1994, the NYPD issued a series of public papers on policing strategies, and the first was entitled “Police Strategy No. 1: Getting Guns off the Streets of New York.”104 The strategy employed another of Maple’s brilliantly simple ideas. Ask suspects who were arrested while carrying an illegal firearm a question: “Where did you get the gun?” They often responded. “We then got search warrants, hit the houses where the other guns were kept, busted the occupants, brought in more guns and suspects, and started the process all over again.”105 One final example of the NYPD’s archaic crime-fighting strategies involves maps. According to one scholar, police have been using pin maps “as long as there have been police stations.”106 It worked by inserting colored pins signifying various types of different crime onto maps to spot patterns. If a series of armed robberies of inebriated revelers have taken place in Greenwich Village during the midnight hours, use undercover officers to play the part and catch the perpetrators. Maple and Bratton institutionalized this basic strategy.107 Maple had perfected his crime-mapping skills in 1988 after being put in charge of the Repeat Robbery Strike Force. He papered his office walls with maps of the 430 subway stations. Maple categorized robberies by numbers to signify whether they had been done with a gun or knife, an individual or a group, a purse or a token booth. He then used color pencils to signify the time of day. The maps were large enough to include a brief description of the perpetrator(s) and their method of operation.108 One can imagine that Bratton must have been quite impressed the first time he walked in Maple’s office and saw Maple’s “Maps of the Future” which “ran from floor to ceiling and around desks and chairs across thirty-five feet of wall space.”109 The detectives working in Maple’s unit also consulted these maps before they interrogated suspects to see if they could be linked to previous robberies. This was the second benefit of such maps. They could link captured suspects

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with previous crimes. When confronted with such evidence, “the crook would wind up giving up several other robberies.”110 Despite their obvious utility, some commanders were resistant to Bratton’s order to institute crime-mapping strategies, as revealed in a discussion Maple once had with the Chief of Patrol, Louis Anemone. Louie, in every precinct they should have maps of robberies, of burglaries, of shootings, narcotics arrests, gun arrests, so they can see how to deploy. There’s no maps in these precincts. Whatever maps there are are four years old. You gotta have them up-to-date. We’ve got a war on crime, how do you go to war without a map? Hannibal had a map and that was in 218 B.C.111 Bratton mandated local precinct commanders adopt Maple’s pin map strategies. Precinct commanders were put on notice that they had to know “when and where the crime was happening” within their jurisdiction and to have a plan to allocate resources accordingly.112 The idea echoed Bratton’s simple idea years before to stack 911 calls. Perhaps the most incredible fact of Bratton and Maple’s storied careers is that in 1995, armed simply with colored push-pins and city maps, “New York accounted for 68% of the nation’s total crime decline.”113 Maple’s “Maps of the Future” eventually developed into “Compstat” and the use of computers to aggregate crime data and spot trends. “Compstat” derives either from the words “compare statistics” or “computer statistics.”114 (The NYPD’s Compstat room is now named in honor of Maple who died of cancer in 2001 at the age of forty-eight.)115 According to Bratton, the strategy resulted from a simple desire to hold local commanders accountable for the crime occurring in their jurisdiction. Improved management and information systems contributed to two additional reforms: the shutting down of public drug markets and the policing of hot spots. The manpower deployment reflects the importance Bratton attached to this policy. The number of officers generally increased during the 1990s, but one unit experienced a growth rate at least double that of any other department: the special narcotics unit.116 The unit employed a “three-prong strategy” to battle narcotics: one centered on the gang or organization behind the sale of drugs, identified through interviews after drug arrests known as debriefings; another centered on the location from which the organization operated; and a third centered on preventing another gang from setting up shop after the first gang was arrested.117 Once again, commonsense reforms also played a role. According to Maple, shootings in New York City peaked in the hours between 8:00 pm and 4:00 am,

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and one would imagine these are also the busiest hours for drug dealing.118 However, the narcotics unit shut down at 7:00 pm, and these officers took the weekends off, as well. In addition, even though drug trafficking was seen as responsible for 30% of the city murders, narcotics and the detective unit ignored each other because of territorial jealousies.119 These problems were easily correctable. The elimination of public drug markets was also possibly driven by improved communication technology. A 2002 ethnographic study of drug dealing in Manhattan’s Lower East Side noted how “street-level markets have disappeared; they have been replaced by drug delivery as the primary way for people to sell and buy drugs.”120 This new form of distribution was marked by a remarkable absence of violence. “Since the delivery organizations have no ‘turf’ to defend and little idea where the competitors are active, there is little incentive to engage in violence with competitors.”121 Other scholars argue a similar phenomenon occurred on the national level: “police efforts have pushed drug dealing off the streets, and thereby reduced opportunities for drug-related violence among those competing in these markets.”122

Stop-and-Frisk Although socio-economic changes and other factors such as modern technology certainly played a role in helping reduce crime in New York City, Zimring’s assertion that “some combination of policing variables account[ed] for much of the New York difference is overwhelming” has been strongly corroborated.123 Thus, the question, for our purposes, becomes how important was the aggressive use of stop-and-frisk. The problem in answering this question is that unlike the other reforms, Bratton and Giuliani never proclaimed that the NYPD was going to institute a massive stop-and-frisk program to target black and Latino men. In fact, it is not even clear when the program started and no one has ever taken credit for the idea. “The evolution of the relatively modest Terry stop into a core NYPD crime-fighting strategy,” as one scholar has said, “is shrouded in mystery.”124 Perhaps the transformation of stop-and-frisk into an institutionalized policy may be traced back to Bratton’s seeing that “scruffy-looking character” and his “cohort” sucking subway tokens out of the turnstiles.125 Such practices, coupled with more common fare evasion, were costing the city about eighty million dollars a year by discouraging the patronage of more civilized commuters.126 As a response, Bratton employed a strategy labeled “the fare-evasion, minisweep.”127 Plainclothes officers spent day and night nabbing turnstile jumpers. These sweeps employed one of Maple’s most important theories. Since it is very difficult to catch a crook in the act, the police must try to “catch crooks when the crooks are off-duty” by “running warrant checks on every arrest or summons, including those for minor quality-of-life violations.”128 According to

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Bratton, the “unanticipated by-product of the sweeps came when we checked the identification and warrant status of everybody we were arresting.”129 During the early stages of the initiative, we found that one out of every seven people arrested for fare evasion was wanted on an outstanding warrant for a previous crime. One out of twenty-one was carrying some type of weapon, whether a box cutter, a knife, or a gun. As so often happens in policing, we had focused on one problem to the exclusion of others. Now we were beginning to understand the linkage between disorder and more serious crimes. We hadn’t thought of it, but it stands to reason that someone coming into the system with the intention to commit a crime is not likely to pay for the privilege.130 When Bratton became Police Commissioner, there was an ample sufficiency of minor infractions to justify stops and possible misdemeanor arrests. “Boom boxes, squeegee people, street prostitutes, public drunks, panhandlers, reckless bicyclists, illegal after-hours joints, graffiti—New York was overrun.”131 And aggressive enforcement against these minor infractions helped prevent violent crime. Time and time again, when cops interrupt someone drinking on the street or a gang of kids drinking on the corner, pat them down, and find a gun or a knife, they have prevented what would have happened two or three hours later when that same person, drunk, pulled out that gun or knife. We prevented the crime before it happened. New York City police would be about prevention, and we would do it lawfully.132 The NYPD was not applying Broken Windows by enforcing minor infractions and hoping more serious crime would also abate. It was using minor infractions as the justification to stop people, demand identification, run warrant checks, and possibly frisk them for illegal weapons. And, since the NYPD was more interested in nabbing off-duty crooks than in reducing drinking in public, the police concentrated minor infraction enforcement in high-crime neighborhoods, while ignoring wealthier, low-crime enclaves. For example, between 2008 and 2011, Brooklyn officers issued an average of eight bike-on-the-sidewalk summonses per year in the tony Park Slope neighborhood, but 2,050 in Bedford-Stuyvesant.133 A second example occurred in 2003, when police officers ticketed people drinking beer at a July 4 party on Rockaway Beach in Queens. Later that weekend, countless people openly imbibed in Central Park during a free New York Philharmonic concert.134 Someone even offered a cocktail to Mayor Bloomberg, who also was in attendance.135 As of the date of this writing, the official Central Park website advises Philharmonic fans that “alcohol is generally tolerated, but there

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are police around, so keep it low-key.”136 Maple defended this approach by offering the following rationale: A bunch of young Wall Street analysts doing Jell-O shots during a pub crawl along Madison Avenue may be just as likely to piss in the street as a crew of robbers drinking malt liquor on a corner in East New York . . . But only one of those groups . . . is likely to include somebody wanted on a warrant or somebody carrying a nine in their waistband.137 Maple’s implication regarding a “crew of robbers drinking malt liquor on a corner in East New York” will not be lost on native New Yorkers. East New York, like Bedford-Stuyvesant, is a predominately black neighborhood, and malt liquor is associated with, and marketed to, a particular demographic. There is also a stereotype, perhaps not entirely inaccurate, that a high percentage of people working on Wall Street are white. To be fair to Maple, both groups are committing infractions: public drinking and urination. Although Maple contended in his memoir that Wall Street analysts “should have to clear the same hurdles before they’re let off with just summonses,” just three paragraphs afterwards, he argued police need “to be more selective about who we [are] arresting on quality-of-life infractions.”138 As Deputy Police Commissioner, Maple confronted the same budgetary constraints and manpower considerations that his supervisors had to contend with when he was a transit cop, which led him to reject “zero-tolerance” policing. Certain infractions committed by certain people should be ignored. When a team of cops fills up a van with arrestees, the booking process can take those cops out of service for a whole day in some cities. That public can’t afford to lose that much police protection for a bunch of first-time offenders, so the units enforcing qualify-of-life must be sent where the maps show concentrations of crime or criminals, and the rules governing the stops have to be designed to catch the sharks, not the dolphins. “Quality-of-Life Plus” is not “zero tolerance.”139 The best evidence that the NYPD has targeted sharks is illustrated by marijuana arrest data. From 1991 to 2001, annual marijuana arrest figures increased by over 6,500% (774 to 51,267).140 Although roughly the same percentage of men and women enjoy cannabis, 93% of those arrested on marijuana charges have been male.141 While arrests for marijuana were increasing at an exponential rate, arrests for a different type of consensual crime were decreasing. During the same ten years, from 1991 to 2001, prostitution arrests declined by 15% (10,451 to 8,822).142 Marijuana laws were being strictly enforced because it provided a legal justification to target the cohort group which commits the overwhelming percentage of violent crime.143 As noted, NYPD statistics reveal that over 90%

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of the suspects in shootings, as well as their victims, have been young black and Latino men.144 White youths are slightly more likely than black youths to smoke pot, and significantly more likely than Latino youths.145 Whites comprise 35% of the New York City population. However, 84% of the arrests have been blacks and Latinos, who comprise 28% and 35% of the population, respectively.146 Although Maple is a revered figure within the law enforcement community, some of the policies he championed became problematic over time. In fact, there are similarities between Maple and our old friend from Volusia County, Florida, Sheriff Robert Vogel. The two shared a fondness for pretext stops. Of course, Vogel, unlike Maple, was enforcing laws against a consensual crime, drug dealing, and he was targeting minority motorists based on his unverified belief that drug couriers are usually black and Latino. Moreover, Vogel even conceded that many of those he was arresting were just “mules.” Organized crime leaders do not personally transport narcotics. They hire “mules,” people whom Vogel characterized as “desperate to make a few extra dollars but who [are] amateurs when it came to the drug business.”147 If arrested, mules hardly ever cooperate because their family members are threatened with execution if they do so.148 These mules are so expendable that drug dealers sometimes even set one up to be captured to distract highway patrolmen while others immediately follow in separate vehicles. Maple, in comparison, focused on violent and property crime, and his strategies were based on reliable data. Nonetheless, he also exploited pretext policing and even compared his approach to prosecuting Al Capone for tax evasion.149 Few people protested Capone’s imprisonment, but people do generally disapprove of pretext-based law enforcement, as illustrated by the impeachment of Bill Clinton. In addition to his sexual peccadilloes, Clinton committed perjury. Although Americans considered his personal behavior reprehensible, his approval ratings soared to 73%, the highest of any president in decades.150 His popularity was based on the perception he was being victimized. The public concluded Congress had used perjury as a pretext for impeachment. Just as the general public condemned the impeachment of Clinton, many New Yorkers would later become deeply troubled by the NYPD’s use of pretext policing in the form of its stop-and-frisk program.151 Maple had forged a revolution in policing by extending the use of pretext stops from the highways to the city streets. And, just as Remsberg’s police manual, Tactics, listed trivial traffic laws that could be used as pretexts to stop motorists, Maple’s memoir listed a number of “minor violations” that could justify stopping pedestrians, including public drinking, noise, and even “wandering.”152 Arresting subway turnstile jumpers and frisking them for weapons is like sending Al Capone to prison on tax evasion charges. Neither is controversial. Targeting young black males for drinking on street corners, while ignoring the same infraction when committed by classical music aficionados in Central

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Park, is more problematic. Arguably, classical music lovers should be allowed to sip their chardonnay because there have never been problems related to public inebriation at these performances. But, how does one justify the moral incongruity of issuing thousands of bike-on-sidewalk summonses in one of the city’s poorest neighborhoods, while ignoring the same infraction in one of the richest? Or, how does one defend the hypocrisy of arresting thousands for putting their feet up on the subway, at a time when Mayor Bloomberg, much to the annoyance of nearby residents, was repeatedly landing and taking off on his private helicopter from a helipad during restricted hours?153 Targeting minorities for minor infractions was not only profoundly problematic on a moral level, it is not clear that it was effective. Recall Bratton’s aforementioned statement regarding the success the transit police had had when implementing fare evasion sweeps: “During the early stages of the initiative, we found that one out of every seven people arrested for fare evasion was wanted on an outstanding warrant for a previous crime” (emphasis added). However, fare evaders soon changed their behavior. [T]he bad guys wised up and began to leave their weapons home and pay their fares. If the cops were going to be out in force, it was better all around not to be armed on the subway. Fewer weapons, fewer robberies and armed robberies, fewer murders, fewer perpetrators, fewer victims.154 The NYPD reduced crime beyond everyone’s wildest expectations, but it is impossible to reduce crime, year after year, decade after decade. The challenge for the Police Commissioner is how to explain this fact to the Mayor and the general public. In 1980, the GOP presidential nominee, Ronald Reagan, famously asked the following question: “Are you better off today than you were four years ago?” The same question is repeatedly asked at the local level. This dynamic manifested itself during Bratton’s short tenure, as revealed by a conversation Maple had with Mayor Giuliani: Maple tried to explain to the mayor that because of the success of our Gun Strategy, fewer people were carrying guns, and that the more we continued to pursue this strategy, the fewer gun arrests we could expect. “No!” he said, gritting his teeth. “This number goes down and this number goes up!” Meaning, the higher the number of arrests, the lower the amount of crime.155 (Emphasis in original) If elective officials continually demand arrest figures rise annually, police must increasingly focus on trivial infractions and even start making random stops to frisk people for illegal contraband. Dolphins then become ensnared in shark nets,

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and controversy ensues. Exactly when this happened is impossible to determine precisely, but it most likely occurred after Bratton and Giuliani left office based on the best available data, UF-250 forms. The NYPD’s UF-250, or the “Stop-Question-Frisk” form, is the perfect innovation for an era of assembly-line policing. It allows officers to check a couple of boxes and fill in information whenever they make a stop. Officers record the time and location where the incident occurred, as well as the names and physical descriptions of the persons stopped. The form lists potential legal justifications, including “Fits Description,” “Actions Indicative of ‘Casing’ Victim or Location,” and “Furtive Movements.” The UF-250 data offers a rough indication of when the aggressive use of stop-and-frisk as a proactive policy began. Although NYPD officers have long been required to fill out UF-250s, compliance remained uneven until 2003 when Judge Scheindlin ordered the NYPD to comply with its internal regulations by completing the forms.156 Stop-and-frisk had received little media attention prior to an incident discussed in the previous chapter, the 1999 NYPD killing of the Guinean immigrant, Amadou Diallo. Investigations of the killing revealed that the aggressive use of stop-and-frisk was probably first implemented as a proactive police tool in conjunction with a small elite undercover unit, the Street Crimes Unit (SCU). The SCU was tasked with seizing illegal weapons and firearms and members of this unit were the ones who shot and killed Diallo.157 SCU officers drove unmarked patrol cars and leapt out when they saw someone suspected of carrying a weapon. There were numerous complaints about their aggressive tactics. For example, a corrections’ officer testified after the Diallo killing that he had been stopped by the unit while picking up his daughter at school. They just came out of their vehicles, about three vehicles, like cowboys from the wild, wild west, with their guns drawn. Luckily I had a shield . . . But if it was a regular Latino out there, we might have been a statistic that you talk about today.158 Unit members wore T-shirts emblazoned with words taken from Ernest Hemingway: “Certainly there is no hunting like the hunting of man, and those who have hunted armed men long enough and liked it, never really care for anything else thereafter.”159 Members of the unit also claimed that they were under intense pressure to seize at least one gun a month. There are guys who are willing to toss anyone who’s walking with his hands in his pockets. We frisk twenty, maybe thirty people a day. Are they all by the book? Of course not; it’s safer and easier to just toss people. And if it’s the 25th of the month and you haven’t gotten your gun yet. Things can get a little desperate.160

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Although the data was not entirely reliable, we do know that the number of completed UF-250s averaged 43,848 during the years from 1990 to 1993.161 There was a slight uptick to 47,665 in Bratton’s first year, 1994, but the number fell the following year to 44,654.162 Even if these figures do not accurately reflect the total number of stops being made, they are still indicative of how little emphasis Bratton placed on the policy. The figures are miniscule compared with what followed and, considering the reliance Bratton put on the accumulation of accurate crime data, the fact that UF-250s were not always completed during his tenure supports the idea that he did not view stop-and-frisk as an essential strategy. Moreover, murder was reduced by almost 40% during his two years in office. Thus, it appears that the aforementioned policing strategies were quite effective without the pervasive use of stop-and-frisk. It was only after Bratton left office that stop-and-frisk began its exponential rise. The number of completed UF-250s increased from 44,654 in 1995, his final year in office, to 114,825 in 1998.163 By 2003 it had risen to 160,851, and then peaked at 685,724 in 2011.164 It appears quite likely that the practice emanated from the SCU and spread outwards. The SCU had been aggressively using the tactic to seize weapons, but it was a small unit comprising only 138 members until Bratton’s successor, Howard Safir, tripled its size in 1997 to 380 officers. In fact, Safir was so impressed with the unit’s success that he said he wished he could “bottle its enthusiasm and force other officers to drink it.”165 In 1997, Safir also declared filing out the UF-250s a “priority” that should be “rigorously enforced.” All these facts indicate that it was Safir who first implemented stop-and-frisk as an aggressive proactive policing strategy.

An Outside Prison Despite Safir’s 1997 order, it is generally agreed that it was not until 2003 that the UF-250 records became reliable.166 The aggregated data revealed the following: ••

•• •• •• ••

The NYPD made over 4.4 million recorded stops from 2004 to 2012 and conducted 2.3 million frisks for weapons (which were successful only 1.5% of the time);167 the NYPD used force in 23% of the stops of blacks and 24% of Hispanics;168 the NYPD issued a summons or made an arrest in only 12% of the stops;169 the most common arrest was for marijuana;170 the number of recorded stops of young black men in 2011 exceeded the total number of young black men living in New York City.171

These figures undercount the total number of stops which actually occurred because not all stops were recorded.172 They also exaggerate the extent of illegal behavior. Under New York law, marijuana possession can only lead to arrest

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when the marijuana is “in a public place . . . burning or open to public view.”173 Even the NYPD has confirmed innumerable reports that NYPD officers will make arrests under this law, despite the fact that the marijuana only comes into view as the result of “a search of the subject’s person or upon direction of the subject to surrender the contents of his/her pockets.”174 Perhaps most disturbingly, roughly twice the number of people stopped were subjected to force than found to be doing anything illegal. The UF-250 forms also revealed the increasing degree to which stops were no longer based on infractions or even reasonable suspicion of an infraction. Between 2004 and 2009, the percentage of stops where the officer failed to state a specific suspected crime rose from 1% to 36%.175 “Furtive movements” was checked on 42% of the forms.176 Even when summonses were issued, many were subsequently dismissed by judges. For example, 51% of all summons issued in 2008 were dismissed, 42% of all summonses in issued in 2010 resulted in either dismissal or adjournment in contemplation of dismissal, and 50% of misdemeanor arrests in 2011 were dismissed.177 It appears that as the quality of the stops deteriorated, dissatisfaction among patrol officers rose. Until at least 1999, stop-and-frisk apparently enjoyed strong departmental support. For example, after the Diallo killing, New York Attorney General Elliot Spitzer investigated stop-and-frisk and issued a report in 1999. The report was quite critical of the implementation of the strategy, but it also acknowledged that “Virtually every interviewee expressed the view that ‘stop & frisk’ is an integral part of the Department’s goal to rid the streets of illegal weapons and violent criminals.”178 However, a few years later, after the number of stops increased exponentially, patrolmen opposed to the idea of making random stops began secretly recording their commanding officers and leaking these tapes to the press.179 In 2002, the year Bloomberg was elected, 97,296 stops were recorded, but that figure grew to 601,285 by 2010.180 The pressure to make so many stops emanated from above, as the patrolmen’s recordings make clear. One sergeant can be heard saying “you can always articulate later,” meaning legal justification could be created after a stop had been made. On another occasion, he wanted everyone exiting a particular building to be stopped regardless of individualized suspicion: “Anybody moving, anybody coming out that building, 250.”181 Another commander, a keen observer of sartorial styles, was recorded saying: I’m tired of bandanas on their waist and I’m tired of these beads. Red and black beads mean Bloods. Their bandanas—if they’re walking down the street and they’ve got a bandana sticking out their ass, coming out there— they’ve got to be stopped. A 250 at least. At least.182 Officer Pedro Serrano was told that he had to stop “the right people, the right time, the right location.” In case Serrano failed to understand, the Deputy

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Inspector explained exactly who the “right people” are: “I have no problem telling you this . . . male blacks. And I told you at roll call, and I have no problem tell[ing] you this, male blacks fourteen to twenty-one.”183 It appears quotas rose with the passage of time. An officer testifying in 2000, after the Diallo shooting, claimed officers were expected to issue twenty-five summonses and make at least two arrests per quarter.184 However, the quotas discussed on the recordings were often twenty summonses and one arrest a month. “If you think one and 20 is breaking your balls, guess what you’ll be doing. You’ll be doing a lot more,” said one supervisor.185 Another commander reinforced this message while injecting a bit of career counseling advice into his diatribe: “Next week, [it’ll be] 25 and one, 35 and one, and until you decide to quit this job and go to work at Pizza Hut, this is what you are going to do until then.”186 If patrolmen were disgruntled, imagine how law-abiding citizens felt. One said the NYPD will “give you a ticket for trespassing ’cause you’re sitting on the bench that’s in front of your building. I can’t sit on the bench in front of my building? Why’s the bench there?” Another person said it’s like living “in an outside prison.”187 Officers corroborated these allegations during the Floyd trial. When asked to define the term “furtive movements,” an officer explained that “usually” a furtive movement is someone “hanging out in front of [a] building, sitting on the benches or something like that.”188 Another testified that the term “is a very broad concept” that could include a person “changing direction,” “walking in a certain way,” or “[a]cting a little suspicious.”189 Even off-duty black police officers were getting stopped. A retired sergeant said he was stopped while jogging through Prospect Park. “I had my ID on me so it didn’t escalate. But what’s suspicious about a jogger? In jogging clothes?”190 It may seem astounding that a police officer would testify that sitting on a bench constitutes a “furtive movement.” However, such claims were the logical extension of what had been occurring since the illegal immigration case, Brignoni-Ponce, when the Court instructed officers to deemphasize race and list other suspicious factors such as the make and model of the automobile that was stopped. Drug Enforcement Administration (DEA) agents in the airport cases learned the lesson and testified that using the bathroom or making a phone call, in addition to race, were suspicious factors. Robert Vogel then made the transition from first listing race as a criterion of suspicion on his profile, to later claiming on 60 Minutes that his profile “does not address race whatsoever,” to eventually saying on 20/20 that he was “not stating, or denying the fact that, our personnel are using a profile of any sort, which they do.” By the time of stop-and-frisk, law enforcement officers might have learned to confine any talk about race to police precincts, but no one was fooled. No one sitting on a bench in Gramercy Park was being stopped by police officers. Minorities had been being stopped without suspicion for decades while walking through airports, sleeping on bus seats, and driving on highways.

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As the Supreme Court sanctioned one form of selective enforcement after the next, the police implemented increasingly aggressive operations until we arrived at the NYPD’s massive stop-and-frisk program. In fact, the scale was so massive that the only way the human mind can comprehend it is to examine it at the community and individual level.

Down to the Well Between January 2006 and March 2010, the police made 52,000 stops in Brownsville, Brooklyn, a small, predominantly black community with a population of just 14,000.191 Young black males aged between fifteen and thirty-four years comprised 11% of this population, but accounted for 68% of the stops.192 That would mean 1,550 black males had been stopped more than 35,000 times or about eight times a year during this period. It is certainly possible that a number of these stops consisted of non-Brownsville residents who were passing through the neighborhood, but the young men who lived there were also presumably stopped additional times while they traveled outside their neighborhood. Of the 13,200 stops made in 2009, only 109 people were arrested.193 The incredibly high number of arrest-less stops is easily explained. Supervisors were imposing quotas. Officers interviewed by the New York Times anonymously said that “certain performance measures were implicitly expected in their monthly activity reports.” “The floor number was 10 a month,” according to one officer. Another said that the “pressure was felt more overtly to get an arrest or a criminal summons, but in lieu of those, extra [stops] would compensate.” Fulfilling the quotas was easy: “Just go to the well.”194 The “well” referred to the lobby of one of the many public housing buildings. Supervisors considered the lobby to be a “legitimate” source for a stop. In at least three of the buildings, the front-door locks had been broken for weeks. Not surprisingly, residents were not in the habit of using keys to open unlocked doors. However, this gave the police a pretext for stopping them for “suspected trespassing.” According to the police, 90% of the people stopped lived in the building, so they would be neither issued a summons nor arrested. However, the stop would be recorded and the officer could fulfill her monthly UF-250 quota.195 Although the Brownsville stops may appear to have been relatively benign albeit unconstitutional, allegations of abuse and unnecessary physical force connected with the stop-and-frisk program were commonplace. Even Attorney General Spitzer’s 1999 report contained detailed accounts of such allegations.196 In 2011, undeniable proof was established when a frustrated seventeen-yearold, Alvin Cruz, recorded his stop. (The complete recording is available on The Nation’s website.)197 Cruz was walking in Harlem when the police stopped him. Since it had happened to him numerous times before, he was prepared and secretly recorded the incident on his phone. The recording begins with Cruz explaining to the

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officer that he had just been stopped and asking why he was being stopped a second time. One of the officers responds by cursing at him, and explaining it is his fault for looking back over his shoulder. When Cruz explains that he had glanced backwards because he feared being stopped a second time, the officer sarcastically says, “You know why [we stopped you], because you look very suspicious.” After having his arm twisted painfully behind his back and being threatened with arrest, Cruz asks on what grounds. “For being a fucking mutt.” “That’s a law, for being a mutt?” Cruz asks. A bizarre moment occurs when the police suddenly recognize Cruz and realize they know his father, a traffic officer. After a few disparaging remarks regarding his father’s lowly position, the officers quickly return to threatening to break Cruz’s arm and punch him in the face. In addition to suffering from similar incidents of police assaults and verbal abuse, an unknown number of people have been falsely arrested. As noted, the NYPD has conceded its officers have arrested individuals for public possession of marijuana after it was only discovered as the result of a search.198 Also, consider the claim that 90% of the people who were stopped while entering unlocked apartment buildings in Brownsville were not given a summons or arrested. This sounds reassuring, until you think about the other 10%. What if a visitor were going to see a friend or relative and knew the front-door lock was broken, or walked through the door as it was held open by an acquaintance or a polite stranger? Moreover, as noted, patrol officers claimed they were under “pressure . . . to get an arrest or a criminal summons, but in lieu of those, extra [stops] would compensate.”199 Other news organizations besides the New York Times also received similar complaints from officers, alleging commanding officers “constantly want you to violate people’s rights and make false statements in order to get the arrest.”200 It is impossible to know how many people the NYPD has falsely arrested, but consider just one individual. In May 2011, Charles Bradley, a black fiftyone-year-old, went to visit his fiancée in the Bronx. A resident recognized him and let him into the building. Bradley knocked on his fiancée’s door, but she is partly deaf and did not hear him. Since he did not have a key, he went downstairs and exited the building. Officer Miguel Santiago saw him leaving, questioned him, and then arrested him for trespass. Santiago’s version of the arrest would later be discredited because the paperwork he filled out contradicted his trial testimony on four key points.201 Moreover, Santiago also admitted having lied on two previous UF-250s to get revenge against an individual his friend was having a dispute with.202 Bradley would spend several hours in police custody; he was stripped, searched, fingerprinted, and held in a cell. He was eventually given a Desk Appearance Ticket with a court date and released. As disturbing as his false arrest must have been, Bradley’s problems were just getting started; he was about to enter the Bronx County Hall of Justice, otherwise known as the “Bronx Gulag.”203

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Notes 1 “Welcome to Fear City” was the title of a 1975 pamphlet off-duty police officers distributed to passengers arriving in New York airports. The pamphlets warned travelers to “stay away if you possibly can.” See Kevin Baker, “Welcome to Fear City: The Inside Story of New York’s Civil War, 40 Years On,” The Guardian, May 18, 2015, 2 Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013). 3 New York City Liberties Union (NYCLU), Stop and Frisk 2011: NYCLU Briefing, 17 (2012), 4 Id. 5 In terms of stops, the NYCLU reported that 55.7% of those stopped were frisked. During the Floyd trial, it was an uncontested fact that 52% of those stopped were frisked. Floyd v. City of New York, 959 F. Supp. 2d 540, 546 (S.D.N.Y. 2013). Analysis in the Floyd trial that only 1.5% of the people frisked were carrying a weapon. Id., 558. 6 Editorial, Public Safety and the Mayor’s Race, New York Times, April 26, 2013, A30. 7 William Bratton with Peter Knobler, Turnaround: How America’s Top Cop Reversed the Crime Epidemic (New York: Random House, 1998), 141. 8 Id. 9 Id., 162. 10 Id., xi. The same year Bratton became Police Commissioner, a reputed scholar declared the following: “The plain fact is that police actions cannot be shown to reduce the amount of crime . . . The damning conclusion that the police are not preventing crime rests entirely on a large body of research undertaken for the most part during the 1970s. Try as they might, researchers were unable, often at considerable cost, to show that the number of police, the amount of money spent on police, or the methods police use had any effect on crime. This is still the consensus among experts.” David H. Bayley, Police for the Future (New York: Oxford University Press, 1994), 9. 11 Edwin G. Burrows and Mike Wallace, Gotham: A History of New York City to 1898 (New York: Oxford University Press, 1998), 142. 12 George L. Kelling and William J. Bratton, “Declining Crime Rates, Insiders’ Views of the New York City Story,” 88 Journal of Law and Criminology 4, 1220 (1998). 13 Jack Maple with Chris Mitchell, Crime Fighter: How You Can Make Your Community Crime Free (New York: Broadway Books, 1999), 27. 14 Kelling and Bratton, “Declining Crime Rates,” supra note 12 at 1220–1. 15 David Remnick, “The Crime Buster,” New Yorker, February 24, 1997, 96. 16 Douglass Martin, “Jack Maple, 48, a Designer of City Crime Control Strategies,” New York Times, August 6, 2001, 7. 17 Remnick, “Crime Buster,” supra note 15, at 104. 18 Id., 95–6; Maple, Crime Fighter, supra note 13, at 11. 19 Remnick, “Crime Buster,” supra note 15, at 97–104; and Maple, Crime Fighter, supra note 13, at 12–18. 20 Maple, Crime Fighter, supra note 13, at 15–17. 21 Remnick, “Crime Buster,” supra note 15, at 94. 22 Id., 97. 23 Id., 96. 24 Id. 25 Maple, Crime Fighter, supra note 13, at 26. 26 Bratton, Turnaround, supra note 7, at 225. 27 Id., 218 (quoting Jack Maple).

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28 Id., 225. 29 Easily accessible historical New York City crime data is available at New York Crime Rates 1960–2016:The Disaster Center, 30 United States Department of Justice, Federal Bureau of Investigation, Uniform Crime Reporting Statistics, JurisbyJuris.cfm. 31 Franklin E. Zimring, The City That Became Safe: New York’s Lesson for Urban Crime and its Control (New York: Oxford University Press, 2012), Kindle Edition, ix–x. 32 Uniform Crime Reports, supra note 30. 33 Zimring, The City, supra note 31, at x. 34 Id., 74. 35 Id. 36 Id., 75. 37 Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013). 38 Id., n.91, at 571. 39 Id., 572–80. 40 Floyd v. City of New York, 283 F.R.D. 153, 169–70 (2012). 41 Floyd, 959 F. Supp. 2d at 556. 42 Id. 43 Floyd v. City of New York, 910 F. Supp. 2d 506, 515 (S.D.N.Y. 2012). 44 See Transcript of Hearing at 58, Floyd, 959 F. Supp. 2d 540 (granting plaintiff ’s motion to exclude evidence of effectiveness of stop-and-frisk) and Id., 556 (stating that “this case is not about the effectiveness of stop and frisk”). 45 West Virginia State Board of Education v. Barnette, 319 U.S. 624, 670 (1943) (Frankfurter, J., dissenting). 46 Even self-professed skeptics of crime statistics acknowledge that homicide numbers are “most likely to be accurate.” See, e.g., John A. Eterno and Eli B. Silverman, The Crime Numbers Game (Boca Raton, FL: CRC Press, 2012), 46. See also Benjamin Bowling, “The Rise and Fall of New York Murder: Zero Tolerance or Crack’s Decline?” 39 British Journal of Criminology 531, 533–4 (1999) (noting how medical examiner records and police statistics regarding suspicious deaths are “broadly similar”); and Steven F. Messner et al., “Policing, Drugs, and the Homicide Decline in New York City in the 1990s,” 45 Criminology 385, 394 (2007) (acknowledging general agreement among criminologists that “official data on homicide are superior to those for other offenses because homicides are likely to be reported and recorded”). 47 Randall Kennedy, Race, Crime and the Law (New York: Pantheon Books, 1997), 145. 48 Uniform Crime Reports, supra note 30, Crime in the United States, Murder Circumstances by Relationship, Expanded Homicide Data, 2014, Table 10, crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/expanded-homicide-data/ expanded_homicide_data_table_10_murdercircumstances_by_relationship_2014. xls; and Id., Crime in the United States, Murder: Race, Ethnicity, and Sex of Victim by Race, Ethnicity, and Sex of Offender [Single Victim / Single Offender], 2013, https://ucr. race_and_sex_of_vicitm_by_race_and_sex_of_offender_2013.xls. 49 Alexia Cooper and Erica L. Smith, United States Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, Homicide Trends in the United States, 1980–2008 (2011), /content/pub/pdf/htus8008.pdf. 50 Uniform Crime Reports, supra note 30, Criminal Justice Information Services Division, 2014, 51 See Raymond W. Kelly, NYPD, Crime and Enforcement Activity in New York City (2012), 11 (reporting racial demographics for over 97% of shootings where race was known).The shooting victims were 74% black, 22% Hispanic, 2.8% white, and 0.5%

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Asian while 96.4% of known shooting suspects were described as black or Hispanic. Bratton has also noted how “statistics told us clearly that a large percentage of crime in New York was being perpetrated by blacks and Hispanics.” Bratton, Turnaround, supra note 7, at 169. 52 NYCResistance, “Caught Hunting Citizens during Thanksgiving Holidays!” YouTube, November 25, 2012, 53 Yoav Gonen, “Bloomberg: ‘We disproportionately stop whites too much and minorities too little’ in stop-frisk checks,” New York Post, June 28, 2013, http://nypost. com/2013/06/28/bloomberg-we-disproportionately-stop-whites-too-much-andminorities-too-little-in-stop-frisk-checks. 54 Kate Taylor, “Stop-and-Frisk Policy ‘Saves Lives,’ Mayor Tells Black Congregation,” New York Times, June 11, 2012, A14. 55 Johnny Thunders, “In Cold Blood,” on In Cold Blood, originally released 1983. 56 Marcia Chambers, “Goetz Spoke to One Youth, Then Shot Again, Police Say,” The New York Times, February 28, 1985, B24. 57 Myra Friedman with Michael Daly, “My Neighbor: Bernie Goetz,” New York Magazine, February 18, 1985, 35–6. 58 Richard Stengel, Marcia Gauger, and Barry Kalb, “A Troubled and Troubling Life,” Time, April 8, 1985, 35. 59 Id. 60 The population decreased from 7,891,957 in 1950 to 7,071,639 in 1980. New York City Open Data, New York City Population by Borough, 1950–2040, 61 Chris Oliver et al., “Tank Kos the Squatters Cop Armor Ends Tussle,” Daily News, May 31, 1995, 62 Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013). 63 Quote taken from City of Indianapolis v. Edmond, 531 U.S. 32, 47 (2000). But in Maryland v. Pringle, 540 U.S. 366, 371 (2003) the Supreme Court declared the following: “The probable-cause standard is incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” See also Ornelas v. United States, 517 U.S. 690, 695–6 (1996). Perhaps the most direct language found in a Supreme Court decision indicating what should be the minimum success rate of police searches under a “reasonable suspicion” standard is found in Navarette v. California, 134 S. Ct. 1683, 1695 (2014), where Justice Scalia writing in dissent argued that at least 5% if not 10% of the entire universe of incidents would need to be an accurate “hit” to be indicative of reasonable suspicion. 64 The famed economist, Steven D. Levitt, has offered a summary of the vast literature and various theories which have been offered to explain the national drop in crime during this period in his article “Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and Six that Do Not,” 18 Journal of Economic Perspectives 1, 163 (2004). 65 Zimring, The City, supra note 31, at x. 66 FBI Uniform Crime Reports, Crime in the United States by Volume and Rate per 100,000 Inhabitants, 1992–2011, 67 The number of murders in New York City declined from 2,420 in 1993 to 2,016 in 1994, Uniform Crime Reports, supra note 30. 68 John A. Eterno and Eli B. Silverman, “The NYPD’s Compstat: Compare Statistics or Sompose Statistics?” 12 International Journal of Police Science and Management 3, 427–8 (2010) (internal citation omitted). 69 Zimring, The City, supra note 31, at 101.

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70 The dramatic transformation of Times Square and Manhattan in general masks the fact that the outer boroughs did not experience a similar economic revival. “In the years after 1990, poverty rates rise until 1995, stay level until 1998, then drop back to the level of the late 1980s by 2000 . . . [T]he 2005 rate of poverty in New York City was the ninth highest of the 20 largest cities of the United States. On this measure of economic disadvantage, there was no time during the years after 1990 when relative success in alleviating poverty could be a basis for singling out New York as a positive outlier.” Zimring, The City, supra note 31, at 69. 71 Id., 78. 72 Michael D. White, “The New York City Police Department, its Crime-Control Strategies and Organization Changes, 1970–2009,” NYPD Paper, August 2001, 15. 73 The violent crime figures for the subway system as reported in Jacques Steinberg, “Subway Crime Fell in 1991, Officials Say,” New York Times, February 21, 1992, 1. 74 Kelling and Bratton, “Declining Crime Rates,” supra note 12, at 1217. 75 The continued use of drugs is also evident on the national level. Drug abuse-related emergency department episodes have increased every year from 1994 to 2002. See Substance Abuse & Mental Health Administration Department of Health & Human Services, Emergency Department Trends from the Drug Abuse Warning Network, Final Estimates 1995–2002, July 2003, figure 3 at 53. 76 Michael Massing, “Crack’s Destructive Sprint Across America,” New York Times, October 1, 1989, 38. 77 Geert Dhondt, “‘More Drugs, Less Crime’: Why Crime Dropped in New York City and the US, 1981–2007,” Working Paper John Jay College of Criminal Justice, 2012, 78 There are other highly speculative theories, including a decrease in childhood lead exposure, the legalization of abortion, and the waning of crack epidemic, but none can explain how New York City accounted for such a high percentage of the nation’s crime drop while Bratton was the Police Commissioner in 1994 and 1995, or why his leadership led to a dramatic decrease in subway crime in 1991 while crime remained stable on the streets above. Two of these theories which have received much attention are the phasing-out of leaded gasoline and legalized abortion. See, e.g., Rick Nevin, “How Lead Exposure Relates to Temporal Changes in IQ, Violent Crime, and Unwed Pregnancy,” 83 Environmental Research Section 1, 1 (2000) (“Long-term trends in populations exposure to gasoline lead were found to be remarkably consistent with subsequent changes in violent crime and unwed pregnancy”); but see Philip J. Cook and John H. Laub, “After the Epidemic: Recent Trends in Youth Violence in the United States,” 29 Crime & Justice 1, 24 (2002) (highlighting variations in homicide data that are not explained by lead exposure). John J. Donohue and Steven Levitt, “The Impact of Legalized Abortion on Crime,” 116 Quarterly Journal of Economics 379, 379 (2001) (“Legalized abortion has contributed significantly to recent crime reductions”). 79 Zimring, The City, supra note 31, at 165. 80 George L. Kelling and James Q. Wilson, “Broken Windows: The Police and Neighborhood Safety,” The Atlantic, March 1982, For examples of authors attributing Bratton’s success to Broken Windows see Richard Bernstein, “A Thinker Attuned to Thinking; James Q. Wilson Has Insights, Like Those on Cutting Crime, That Tend to Prove Out,” New York Times, August 22, 1998, 7; “One Man’s Theory Is Cutting Crime in Urban Streets,” The Christian Science Monitor, February 18, 1997, 81 Andrew Golub, Bruce D. Johnson, and Angela Taylor, “Quality-of-Life Policing: Do Offenders Get the Message?” 26 International Journal of Police Strategies & Management 690, 692 (2003).

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82 Kelling and Wilson, “Broken Windows,” supra note 80. 83 Id. 84 Remnick, “Crime Buster,” supra note 15, at 154. 85 Bratton, Turnaround, supra note 7, at 228. Bratton’s statements on quality-oflife policing have not been entirely consistent. After returning to serve as Police Commissioner under Mayor Bill De Blasio, Bratton wrote the following in a department report: “More than any other factor, what caused this amazing change was Broken Windows, or quality-of-life policing.” As quoted in Ken Auletta, “Fixing Broken Windows,” New Yorker, September 7, 2015, 2015/09/07/fixing-broken-windows. 86 See, e.g., Zimring, The City, supra note 31, at 109. 87 Bratton, Turnaround, supra note 7, at 254–5; Maple, Crime Fighter, supra note 13, at 88. 88 Bratton, Turnaround, supra note 7; Maple, Crime Fighter, supra note 13, at 108. 89 See generally NYPD, Police Strategy No. 1: Getting Guns off the Streets of New York (1994). 90 NYPD, Police Strategy No. 3: Driving Drug Dealers out of New York (1994); NYPD, Police Strategy No. 5: Reclaiming the Public Spaces of New York (1994). 91 See, e.g., Maple, Crime Fighter, supra note 13, at 153–6. 92 Ruth D. Peterson and William C. Bailey,“Is Capital Punishment an Effective Deterrent for Murder? An Examination of Social Science Research, in America’s Experiment with Capital Punishment,” in America’s Experiment with Capital Punishment: Reflections on the Past, Present, and Future of the Ultimate Penal Sanction, ed. James Acker, Robert Bohm, and Charles Lanier (Durham, NC: Carolina Academic Press, 1988), 251–2; see also Ralph D. Ellis and Carol S. Ellis, Theories of Criminal Justice (Wolfeboro, NH: Longwood Press Ltd, 1990), 28 (pointing out that “70% of all murders are what are called ‘sudden murders’” which “usually occur as the result of some very powerful emotion, such as anger, frustration or depression”); Lorraine H. Freed et al., “Factors Preventing Gun Acquisition and Carrying Among Incarcerated Adolescent Males,” 155 Archives of Pediatrics and Adolescent Medicine 335, 335 (2001); and Michael Tonry, “Learning from the Limitations of Deterrence Research,” 37 Crime & Justice 279, 282 (2008). 93 Steinberg, “Subway Crime Fell in 1991,” supra note 73. 94 Zimring, The City, supra note 31, at 111–14. 95 New York Crime Rates, supra note 29. 96 Maple, Crime Fighter, supra note 13, at 88. 97 Bratton, Turnaround, supra note 7, at 254. 98 David L. Lewis,“Big Brother Bratton,” Daily News, August 7, 1995, www.nydailynews. com/archives/news/big-brother-bratton-article-1.701222; and Bratton, Turnaround, supra note 7, at 254–5. 99 Al Baker and Jo Craven McGinty, “N.Y.P.D. Confidential,” New York Times, March 28, 2010, B1. 100 Bratton, Turnaround, supra note 7, at 98. 101 Id., 99. 102 Id. 103 Id., 221 (Maple cites slightly different figures. In 1993 there were “almost 9,000 arrests involving illegal firearms.” Maple, Crime Fighter, supra note 13, at 26). 104 NYPD, Police Strategy No. 1, supra note 89. 105 Bratton, Turnaround, supra note 7, at 220. 106 David H. Bailey, “Police Reform: Who Done It,” 18 Policing and Society: An International Journal of Research and Policy, 7, 11 (2008). 107 Id. 108 Maple, Crime Fighter, supra note 13, at 84–5. 109 Id.

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110 111 112 113 114


116 117 118 119 120

121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141

Id. Bratton, Turnaround, supra note 7, at 219. Id., 233–4. Maple, Crime Fighter, supra note 13, at 109. “Contrary to most accounts, the acronym Compstat is not short for ‘computer statistics.’ Compstat actually arose from a computer file, ‘compare stats’, in which the data were originally stored.” John A. Eterno and Eli B. Silverman, “The New York City Police Department’s Compstat: Dream or Nightmare,” 8 International Journal of Police Science and Management 3, 220 (2006). Thomas Tracy, “Welcome to Jack’s Room: 1 Police Plaza Compstat Room Renamed in Jack Maple’s Honor,” New York Daily News, September 23, 2014, www. Zimring, The City, supra note 31, at 116. McCabe, J.E. “The Narcotics Initiative: An Examination of the NYPD Approach to Drug Enforcement 1995–2001,” 20 Criminal Justice Policy Review, 170, 172 (2009). Maple, Crime Fighter, supra note 13, at 22. Id., 22–3. Ric Curtis, Travis Wendel, and Barry Spunt, We Deliver: The Gentrification of Drug Markets on Manhattan’s Lower East Side, Report published by the National Institute of Justice, U.S. Department of Justice, 3, 197716.pdf. Id., 5. Lawrence Rosenthal, “The Crime Drop and the Fourth Amendment: Toward an Empirical Jurisprudence of Search and Seizure,” 29 New York University Review of Law and Social Change, 641, 661 (2005). Zimring, The City, supra note 31, at 101. Jeffrey Bellin, “The Inverse Relationship Between the Constitutionality and Effectiveness of New York City ‘Stop and Frisk,’” 94 Boston University Law Review 1495, 1503 (2014). Bratton, Turnaround, supra note 7, at 141. Bratton, Turnaround, supra note 7, at 143. Id. Id. Maple, Crime Fighter, supra note 13, at 155. Bratton, Turnaround, supra note 7, at 54. Id., 154. Id., 228. Id., 229. Allegra Kirkland, “There Are Over 1.2 Million Open Arrest Warrants in New York City,” Business Insider, August 6, 2015, York City-2015-8. Michael Cooper, “Mayor Pulls Back on Bridge Tolls, but Still Likes the Idea,” New York Times, July 11, 2003, B1. Michael Daly, “WINE’S COOL – BEER’S A FINE: Park Drinkers Escape Beach Crowd’s Fate,” Daily News, July 9, 2003,” wine-cool-beer-fine-park-drinkers-escape-beach-crowd-fate-article-1.519983. New York Philharmonic in Central Park, Central Park, new-york-philharmonic-in-central-park (last visited November 2, 2017). Maple, Crime Fighter, supra note 13, at 155. Id. Id., 156. Zimring, The City, supra note 31, 121. Id., 124.

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142 This argument draws from Zimring, The City, supra note 31, at 125–7. 143 Men commit roughly 86% of the violent crime in this country. Lawrence A. Greenfeld and Tracy L. Snell, U.S. Department of Justice, Bureau of Justice Statistics, Special Report, Women Offenders, December 1999, wo.pdf. 144 See Raymond W. Kelly, NYPD, Crime and Enforcement Activity in New York City 11 (2012) (reporting racial demographics for over 97% of shootings where race was known).The shooting victims were 74% black, 22% Hispanic, 2.8% white, and 0.5% Asian while 96.4% of known shooting suspects were described as black or Hispanic. Bratton has also noted how “statistics told us clearly that a large percentage of crime in New York was being perpetrated by blacks and Hispanics.” Bratton, Turnaround, supra note 7, at 169. 145 Harry G. Levine and Deborah Peterson Small, Marijuana Arrest Crusade: Racial Bias and Police Policy, 1997–2007, New York Civil Liberties Union, NY, April 2008. 146 Zimring, The City, supra note 31, at 121–3. 147 Bob Vogel with Jeff Sadler, Fighting to Win: Sheriff Bob Vogel (Nashville, TN: Turner, 2001), 48. 148 Id. 149 Bratton, Turnaround, supra note 7, at 228 (quoting Jack Maple). 150 Frank Newport, “Clinton Receives Record High Job Approval Rating After Impeachment Vote and Iraq Air Strikes,” Gallup New Service, December 24, 1998, 151 Bill de Balsio promised to vastly reduce the practice in his successful mayoral campaign and an exit poll revealed that 59% of Democratic primary voters considered the NYPD’s stop-and-frisk practices excessive. “NYPD Chief: Bill de Blasio ‘Full of It’ Over Stop-and-Frisk Publicized Views,” The Guardian, November 15, 2013, 152 Maple, Crime Fighter, supra note 13, at 157–8. 153 Joseph Goldstein and Christine Haughney, “Relax, If You Want, but Don’t Put Your Feet Up,” New York Times, January 7, 2012, A17; Michael M. Grynbaum, “Caught Violating Weekend Copter Ban, Bloomberg Will Alter Flight Plans,” New York Times, May 24, 2012, A25. 154 Bratton, Turnaround, supra note 7, at 154. 155 Id., 271. 156 See New York Attorney General, The NewYork City Police Department’s “Stop & Frisk” Practices: A Report to the People of the State of New York from the Office of the Attorney General (1999), 65 [hereinafter AG Report], pdfs/bureaus/civil_rights/stp_frsk.pdf. The common failure to fill out UF-250s is addressed in the AG Report at 65 (discussing number of completed forms in 1996 and 1997); and William K. Rashbaum, “Review Board Staff Faults Police on Stop-and-Frisk Reports,” New York Times, April 28, 2000, B1 (“Investigators for the Civilian Complaint Review Board have determined that police officers routinely fail to file the required paperwork after frisking or searching people on New York City’s streets”). The judicial order to complete the forms is discussed in Motion for Reconsideration at 1, Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2013) (No. 99-cv-1695-SAS), 2007 WL 2077150; Benjamin Weiser, “Lawsuit Seeks to Curb Street Crimes Unit, Alleging Racially Biased Searches,” New York Times, March 9, 1999, B3. See also Melanie Lefkowitz, “Kerik Orders Community Meetings,” Newsday, Jan. 16, 2001, A3 (reporting on reforms being implemented by the NYPD including “plans to require officers to fill out explanatory forms when they stop and search people”).

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157 David Kocieniewski, “Success of Elite Police Unit Exacts a Toll on the Streets,” New York Times, February 15, 1999, A1. 158 See United States Commission on Civil Rights, Police Practices and Civil Rights in New York City, 2000, chapter 5, 159 Kocieniewski, “Success of Elite Police Unit,” supra note 157. 160 Id. 161 See U.S. Commission on Civil Rights, Police Practices and Civil Rights in New York City, 2000, 92 n.63. 162 Id. 163 Id. 164 Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013). 165 Kocieniewski, “Success of Elite Police Unit,” supra note 157. 166 In 2000 Judge Scheindlin had threatened to hold the NYPD in contempt if they did not start using a database to record UF-250 stops on a monthly basis. Hearing, In the Matter of National Congress of Puerto Rican Rights v. City of New York, May 10, 2000, at 17 (The Honorable Shira A. Scheindlin speaking). (“I can’t see how you can let 13 months go by without putting it on the database.The city is hereby directed to produce all UF-250s for the last 13 months. The city will be in contempt of this order if it doesn’t get it done . . . Update and then update it monthly after that. Maybe you will discover that in fact it’s been databased (sic). It’s hard to believe that with all that’s been going on somebody hasn’t gotten these UF-250’s together”). 167 Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013). 168 Grynbaum, “Caught Violating,” supra note 153. 169 Id. 170 Floyd v. City of New York, 959 F. Supp. 2d 540, 558–9, 576 n.131 (S.D.N.Y. 2013). 171 NYCLU, STOP AND FRISK 2011: NYCLU BRIEFING 17 (2012), www.nyclu. org/sites/default/files/publications/NYCLU_2011_Stop-and-Frisk_Report.pdf. 172 Floyd 959 F. Supp. 2d at 578 (“Officers do not always prepare a UF-250, either because the officer does not believe she made a Terry stop or because the officer failed to prepare the form”). 173 New York Consolidated Laws, Penal, “Criminal possession of marihuana in the fifth degree,” § 221.10. 174 Ailsa Chang, “Alleged Illegal Searches by NYPD May Be Increasing Marijuana Arrests,” WNEW YORK CITY News, April 26, 2011, www.wNew York City. org/articles/wNew York City-news/2011/apr/26/marijuana-arrests; Ailsa Chang, “Marijuana Arrests Dip After NYPD Order, But Allegations of Improper Arrests Continue,” WNEW YORK CITY News, December 8, 2011, www.wnewyorkcity. org/blogs/wnewyorkcity-newsblog/2011/dec/08/marijuana-numbers;Ailsa Chang, “Data Shows Percentage of Wrongful Marijuana Arrests Rose After Kelly’s Order: Bronx Public Defenders,” WNEW YORK CITY News, March 29, 2012, www. Reference to the NYPD making this concession can be found in Floyd, 959 F. Supp. 2d at 576. 175 Floyd, 959 F. Supp. 2d at 559. 176 Id. 177 2008 dismissal rate of summons taken from ABC channel 7 investigative report available on NYCResistance, “What You Didn’t Know About NYPD’s Stop & Frisk Program!”YouTube, January 15, 2013, ist=FLIh8n59eGmYtWwuCJe1DSUA&index=4&t=47s; 2010 statistics taken from Floyd 959 F. Supp. 2d at 576; misdemeanor arrest figures taken from Issa KohlerHausmann, “Managerial Justice and Mass Misdemeanors,” 66 Stanford Law Review 611, 642 (2014).

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178 AG Report, supra note 154, at 70. 179 Many of these recordings can be heard on “What You Didn’t Know,” supra note 177. 180 Al Baker, “Street Stops by New York City Police Have Plummeted,” New York Times, May 31, 2017, A17. 181 Floyd, 959 F. Supp. 2d at 598. 182 Id., 599. 183 Id., 604. 184 United States Commission on Civil Rights, Police Practices and Civil Rights in NewYork City, 2000, chapter 5, note 76, 185 Dana Sauchelli et al., “NYPD Targets Minority Officers with Quota Punishments: Suit,” New York Post, March 2, 2015, 186 Id. 187 Center for Constitutional Rights, Stop and Frisk: The Human Impact, 2012, https:// 188 Floyd, 959 F. Supp. 2d at 561. 189 Id. 190 Michelle Conlin, “Off Duty, Black Cops in New York Feel Threat from Fellow Police,” Reuters, December 23, 2014, 191 Ray Rivera, Al Baker, and Janet Roberts, “A Few Blocks, 4 Years, 52,000 Police Stops,” New York Times, July 11, 2010, A1. 192 Id. 193 Id. 194 Id. 195 Id. 196 AG Report, supra note 156, at 76–87. 197 See Francis Reynolds, “Secret Recording of Stop-and-Frisk Makes it to Federal Court,” The Nation, August 13, 2013, 198 New York Consolidated Laws, Penal, “Criminal Possession of Marijuana in the Fifth Degree,” § 221.10. 199 Id. 200 The ABC newscast is available on New York City Resistance, “What You Didn’t Know,” supra note 177, at 7:24. 201 Ligon v. City of New York, 925 F. Supp. 2d 478, 498–9 (S.D.N.Y. 2013). 202 Id., 499. 203 Kevin Deutsh, “Huge Backlog in ‘Bronx Gulag’ Means Years in Jail Before Day in Court,” Daily News, February 27, 2012,


When all are guilty, no one is. (Hannah Arendt, On Violence)1

Although it is widely known that the number of stop-and-frisks as well as misdemeanor arrests soared in New York City during the Giuliani and Bloomberg administrations, much less attention has been paid to the city’s judicial system and the plight of those arrested. The number of criminal judges in the Bronx, where Charles Bradley had to defend himself against the charge of misdemeanor criminal trespass, was declining by almost 20% at the same time stop-and-frisk was reaching its peak. The number of judges declined from forty-eight in 2008 to just thirty-nine in 2012. These thirty-nine judges were responsible for hearing all misdemeanor cases, which totaled as much as 50,000 annually, as well as felony charges, which may average over 5,000 per annum.2 Yet, judges heard a total of only 300 misdemeanor trials in 2012, with 11,000 cases pending.3 At the start of 2013, there were 952 felony cases that were more than two years old awaiting trial in the Bronx.4 The injustice of this trial backlog led local lawyers to begin referring to that borough’s criminal court system as the “Bronx Gulag.”5 One reason for the long delays is the fact that like most rare commodities, judges are expensive. A single judge, after factoring in support staff and security, costs a million dollars a year.6 It was reported in 2013 that “state court officials have not asked the Legislature for new criminal judges for years.”7 The Bronx County Hall of Justice does not open its doors until 9:30 am, by which time the line outside runs around the block and has to be seen to be believed.8 There is an hour-long break for lunch; the courtrooms close at 4:30 pm.9 How do these overworked judges cope with the strain of their

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unrelenting dockets? “Some judges wander into their crowded courtrooms at 10:15 or later without excuse or apology.”10 The system is so dysfunctional that criminal defendants have been held in jail, usually the notorious Rikers Island, for as long as five years before their cases are heard.11 One defendant accused of murder sat in jail for nearly three years recently before being exonerated when the true killer confessed.12 New York City criminal court houses are characterized by a racial divide. As one reporter observed, “In every courtroom I visited, the people that found themselves behind the bar were almost always black or Hispanic, and the people in front of the bar—the judges, the lawyers, the administrative officials—were almost always white.” Legend has it that a visiting scholar from Germany once innocently asked, “Where do the white people get prosecuted?”13 It is often said, in reference to the American misdemeanor criminal justice system, that the process is the punishment. In New York City, defendants facing marijuana charges are warned to take a plea deal or be prepared to come back repeatedly for court hearings.14 According to one small study, the typical defendant who contests misdemeanor drug charges will appear in court an average of five times over the course of eight months, but many cases last far longer.15 More than 80% of requests for adjournment are made by prosecutors who answer “not ready” when called.16 If the defendant fails to appear, however, whether to care for a sick child, to avoid missing work, or to take a test in school, arrest warrants are issued. In fact, most judges will not excuse a defendant from appearing on a future trial date, even if the prosecutor indicates in advance that she will not be ready to proceed.17 As one defendant said, “The way the courts operate in a million, subtle unspoken ways, is to communicate it’s just not worth the time to fight.”18 This was the reality confronting Bradley after he was stopped without reasonable suspicion and falsely arrested after leaving the building his fiancée lived in. Yet, as punishing as the judicial process was going to be, the civil consequences of having an arrest record posed far graver risks for him. As a security guard, Bradley’s arrest was automatically shared with his licensing authority.19 In order to keep his license and his job, Bradley was required to provide documentation of the status of his case within one month of his arrest.20 However, after being issued a Desk Appearance Ticket, as had happened to Bradley, the average person has to wait four months before the initial court date.21 Bradley was exceptionally fortunate. He sought assistance from a non-profit legal organization, the Bronx Defenders, which happened to be collecting information to mount a legal challenge against the New York Police Department’s (NYPD’s) “Operation Clean Halls.” (This operation was similar to what was happening in Brownsville, except the police were stopping “suspected” trespassers in privately owned apartment buildings as opposed to public housing.) Two lawyers were assigned to assist Bradley. They advised him to get his fiancée to write a notarized letter explaining he had been her invited guest, and they advocated on his behalf with his employer, his licensing agency in

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Albany, and the District Attorney’s Office.22 His attorneys eventually persuaded the prosecutor to drop the charges, and Bradley kept his license and his job. However, as Bradley related with a “quavering” voice and eyes full of tears, “I could have lost everything in my life because of this arrest.”23 Without the Bronx Defenders, Bradley would have been just another stop-and-frisk, one of millions. What are the job prospects for an unemployed fifty-year-old man barred from working in his trained profession? Probably not much better than that of a twenty-year-old with an arrest record. Unfortunately, stop-and-frisk has created an over-abundance of such job candidates. We have already discussed how draconian sentencing sometimes creates perverse incentives for the innocent to plead guilty. According to one report, which analyzed arrest data from 2008, 87% of defendants who were arrested on misdemeanor charges, such as public possession of marijuana or fare evasion, could not make bail that would typically be set at $1,000 or less.24 There were over 16,000 such defendants in 2008, and they spent on average over two weeks in Rikers Island living in close proximity with accused murders and rapists.25 This report raised the possibility that indigent defendants were pleading guilty at arraignment for sentences with no jail time in order to avoid being sent to Rikers Island. Local district attorneys disputed allegations that prosecutors exploit the cash bail system to secure guilty pleas from indigent defendants. Although their explanations seemed sincere, they were nonetheless not entirely reassuring. Pressure to get a defendant to plea is not a factor in setting bail. We have an assistant prosecutor who in about 30 seconds has to come up with a dollar figure that that young person believes is adequate.26 The most common arrest stemming from stop-and-frisk has been for public possession of small amounts of marijuana.27 The criminal penalties include a potential jail sentence of up to three months, possible community service, fines of up to $500, a mandatory court surcharge of $200, and, of course, a criminal record.28 Defendants who want to fight the charge, perhaps because the marijuana had only been discovered upon a police order to empty one’s pockets, making the arrest illegal, must navigate the truly Kafkaesque New York City court system. A poor person of color is born with two strikes against her. Add a criminal conviction and she is quite possibly out; out of a job, out of her apartment, or for immigrants, possibly kicked out of the country. Criminal records are available in every state. They can be accessed on commercial databases, and most employers run background checks.29 Landlords, educational institutions, loan officers, and many others routinely check an applicant’s criminal record.30 Even China now demands a record of non-criminal conviction from American citizens applying for work visas. A criminal conviction has become the Scarlet Letter of modern-day society.

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It is rather ironic that the Bronx Court House is referred to as a Gulag. The term brings to mind show trials of the Soviet era, but how much better is a system which makes defendants wait for years before their trials even begin? At least Stalin made a pretense of holding trials. The Soviet Gulag oversaw forced labor camps. The American Gulag works in reverse: rather than imposing forced labor, it imposes forced idleness. In an age when a well-paying job has become perhaps the most sought-after goal in society, a system has arisen in which an increasing percentage of already disadvantaged citizens are eliminated from the competition. Black and Latino men, and it is mostly men, find themselves randomly stopped and some are invariably arrested. Approximately 49% of black men and 44% of Latino men will be arrested by the age of twentythree.31 These unfortunate souls are herded together, branded with the letter “C,” and expelled from society. They are criminals. There is no reason to believe the Bronx Gulag came about by purposeful design. No one, not even Bradley’s arresting officer, deliberately sought to destroy his life or take away his job. That result would have been yet another inadvertent consequence of a justice system characterized by a brutality of sheer indifference. One criminal defendant in the Bronx, who had spent nearly four years in jail prior to the commencement of his trial, expressed his frustration when he collided with the wall of indifference. “What’s happening?” he asked after a hearing in which the judge and lawyers bantered in front of him as yet another postponement was granted. “They’ll start laughing and giggling. I’m fighting for my life here. For them, it’s everyday business.”32 This brutality of indifference is, of course, not confined to the Bronx Gulag. It can be heard in the voices of police officers, who spew racial epithets while assaulting a seventeen-year-old who had the temerity to look over his shoulder, a teenager whom they recognize and whose father is their colleague. It is manifested when the Supreme Court declares that the constitutional requirement of “standing” prohibits a litigant from arguing police officers should not be trained to apply life-threatening chokeholds to “subdue any resistance by the suspects.”33 It exists in a society that assigns just thirty-nine judges to resolve tens of thousands of criminal cases and permits defendants to sit in jail, day after day, year after year, waiting for their trial to begin. Sometimes this indifference becomes unbearable, as happened with Kalief Browder. In 2010, at the age of sixteen, Browder was arrested for allegedly robbing someone’s backpack. He would spend the next three years living on Rikers Island awaiting trial, maintaining his innocence, and refusing to plea bargain. He lived almost seventeen straight months in solitary confinement while his trial was continually postponed. The prosecution finally dismissed the case in 2013. Not surprisingly, Browder suffered from depression after his release and he had trouble leaving his bedroom. He committed suicide in 2015.34

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Misdemeanor Justice For a man who grew up in New York City during the 1970s, who was once mugged and assaulted on the D train while going over the Manhattan Bridge, there is perhaps no statistic more symbolic of how my hometown has changed than the fact that 1,600 people were arrested in 2011 for putting their feet up on the subway.35 Society, of course, has an alternative method for penalizing trivial infractions: the type of citations used for traffic violations. Traffic violations used to lead to automatic arrests. States later allowed the police to release the motorist at the stationhouse and eventually the use of field citations became ubiquitous.36 Today, as any driver knows, a person who commits a traffic violation can usually plead guilty and pay the fine by mail, or do the equivalent online. Speeding is considerably more dangerous than most of the quality-of-life infractions which today lead to arrests or the issuance of the types of summons which requires a court appearance. So, why have states not adopted a similar system for misdemeanors? Except for persons not carrying a reliable form of identification, such a system would be universally beneficial. The individual would avoid having to appear in court or face possible jail time if she cannot post bail; the government would save the cost of administration. In terms of the state, the average arrest demands between 4 and 13.4 manpower hours of the arresting officers’ time, and then there are the additional costs of possible incarceration and judicial administration.37 Since roughly 50% of summonses for trivial infractions in New York City have been dismissed by judges in recent years, the failure to implement this obvious reform seems particularly perplexing. New York City is, of course, not the only jurisdiction which has aggressively targeted minor infractions. “Since the 1990s, police departments across the country have adopted tactics that intentionally increase the volume of citations and arrests for low-level offenses, flooding lower criminal courts with subfelony cases.”38 This explains how it is possible that 49% of black men and 44% of Latino men will be arrested by the age of twenty-three.39 Issa KohlerHausmann recently spent two years conducting fieldwork on New York City’s criminal justice system, trying to discover a logic behind the madness. The insights she gained from her ethnographic study form the basis of one of the most insightful law journal articles to be published in years.40 In “Managerial Justice and Mass Misdemeanors,” Kohler-Hausmann attempted to answer the following question: Why were so many law enforcement resources deployed and so much tactical emphasis placed on massively expanding arrests for misdemeanor crimes only to feed them into a judicial system that then produced so few convictions and minimal formal punishments?41

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Based on her time observing criminal courtrooms and conducting interviews with the various participants, Kohler-Hausmann has postulated that the main function of courts is no longer to determine whether a defendant has committed the act for which she has been arrested. Just as the police have adopted a proactive model of preventing crime, courts have adopted a managerial model of law enforcement which seeks “to figure out the rule-abiding propensities of people and calibrate formal regulation accordingly.”42 As the reader may recall, a criminal justice system designed to determine the “rule-abiding propensities” of people is exactly what Judge Jack Weinstein, who as of the date of this writing still hears cases in Brooklyn, had prophetically warned against in 1971 when he examined the nation’s first predictive criminal profile, the skyjacker profile.43 Weinstein declared that the idea of using scientific research “to predict who might commit crimes and giving them the special attention of law enforcement agencies is particularly disturbing.”44 This tactic has now taken hold over the entire New York City criminal justice system. The “rule-abiding propensities” of people are predicted through a “marking” process. This system explains why the police so aggressively enforce minor infractions despite the fact that so many charges are eventually dismissed. The key is that even dismissals leave a mark. Except for outright dismissals which are rare, all other dismissals will be duly recorded on a defendant’s “rap sheet.”45 A charge may be dismissed because a prosecutor is not ready for trial within the statutorily mandated time period, or because the charging instrument is facially invalid, or, most commonly, because the defendant plea bargains for an adjournment in contemplation of dismissal. In all these scenarios and more, the disposition will appear on the defendant’s rap sheet for various specified periods of time. Afterwards, the defendant’s prior contact with the criminal justice system will be visible to a prosecutor if the defendant is issued a second summons or is arrested before the “mark” is expunged. Thus, even if 50% of the cases result in some type of dismissal, the overall goal of managerial justice is still being achieved: The overarching imperative is to secure some disposition that allows for a period of monitoring in order to keep track of law enforcement contacts over time—it is not to determine guilt and impose punishment for specific acts. The tools of dismissal and noncriminal violation convictions sort the population flowing through the court by marking them for limited periods of time, and that can provide leverage to impose more serious sanctions if there are subsequent criminal justice contacts.46 Measured by this metric, the glacial pace of the Bronx Gulag works perfectly. The longer it takes a case to be resolved, the longer the person remains within the marking period. Moreover, no time is wasted adjudicating the irrelevant

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question of guilt. No one, other than possibly the defendant, cares whether the accused had her feet up on the subway, was drinking beer in public, or whether she evaded paying her subway fare. For example, Prosecutors typically flip through the paperwork contained in the file for somewhere between one and five minutes before marking down a plea offer or recommendation on the front flap of the file if an offer is going to be made at arraignment.47 The costs of adjudicating all these cases would bankrupt the city and, whether by accident or design, a tremendous cost has thus been imposed upon defendants who demand their right to trial. Such troublemakers will be forced to spend a few weeks on Rikers Island and/or to make numerous trips to the overcrowded courthouse before their cases are finally heard. The rational choice, for many, is to allow the state to make its mark and be on your way. The system operates like a frequent flyer program; repeat customers are awarded “upgrades.” Prosecutors, facing time constraints, “try to build on prior cases, [and] the prior record of the defendant becomes one of the most important determinants of the outcome.”48 Although highly efficient, this type of “adjudication” violates a principle of justice older than the Constitution itself. The common law system generally prohibits prosecutors from informing juries of a criminal defendant’s prior record because of the prejudicial effect. “Propensity” arguments are not permitted because the accused has a right to be tried on the present charges, rather than being convicted because of prior acts. However, in the modern managerial system of criminal justice, there are no trials. Prosecutors have supplanted the role of judge and jury, and they dispose of most cases in just five minutes or less. In fact, the process has become so mechanized that even prosecutors are superfluous: “clerks and paralegals can estimate which cases will be disposable simply by looking at the charging documents and rap sheets.”49 The speed at which the system operates is schizophrenic. Prosecutors spend a minute or two before deciding on the question of bail, but then defendants might sit in jail for years awaiting trial. Egregious results are unavoidable. Kohler-Hausmann’s article recounts the stories of two young men arrested for fare evasion. The first case was highly unusual because it eventually led to a bench trial. Trevon was about to graduate from a community college when he was arrested. It seemed unlikely he had avoided paying his fare because he had proof of having purchased an unlimited metro card, and there was even proof that he had swiped his card at the time and location of his arrest. The prosecutor would have been more likely to dismiss the case had it been his first infraction, but Trevon had a drug conviction on his rap sheet. The prosecutor thus chose to

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believe the police officer, who claimed that Trevon had somehow swiped the card mid-leap after spotting him. Why someone would choose to leap over a turnstile rather than swiping an unlimited metro card was not addressed. Trevon eventually made fourteen court appearances over a period of eight months and spent most days waiting between two and four hours for his case to be called. He was eventually acquitted after a two-day bench trial which demanded the appearance of four witnesses. In the meantime, Trevon said he had lost a job opportunity because the fare-evasion charge resulted in the non-expungement of his otherwise expiring mark on an unrelated drug arrest.50 A second case detailed in Kohler-Hausmann’s article was more typical. A young man was arrested for allegedly using a disabled-person metro card while he was accompanying a group of disabled people for his job. John faced the choice of pleading guilty to an adjournment in contemplation of dismissal and having his arrest accessible to the public for six months before it would be sealed, or fighting the case in a borough which was taking on average 400 days for misdemeanor cases to be heard. If he chose the second option, the arrest record would be publicly accessible until the trial and permanently available if he was found guilty of the infraction. Having already lost his job due to the arrest, John had a rather strong incentive to plead guilty.51 There can be little doubt that if middle-class college students were subjected to the same level of scrutiny, a not insignificant number would find themselves arrested for underage drinking, marijuana possession, petty vandalism, and other minor infractions. Some would undoubtedly become repeat offenders and, under a propensity-based system of justice, the penalties would quickly escalate and they would suffer the collateral damage of expulsion from school and having a publicly available arrest record preventing gainful employment. In fact, this started happening shortly before the Rockefeller drug laws were imposed in New York State. In 1969, the police conducted a series of raids at Stony Brook University, Bard College, the State University Campus at Southampton Long Island, and C.W. Post College in Brookville, Long Island.52 In some of these raids dozens of students were arrested on drug charges. After one of the raids at Stony Brook, the students responded by burning the cars of campus security policemen, smashing windows, and setting fires. A New York Times article on these raids included a startling picture of white male college students being led out of a police van.53 Police raids on college campuses were a short-lived phenomenon, and it is not clear why they suddenly ceased. Perhaps it was because college faculty passed a resolution protesting the raids, or that the New York Times took up the cause of one of the students given a multi-year-long sentence after the Stony Brook raid.54 Whatever the explanation for the sudden change in policy, what is clear is that middle-class college students also undoubtedly commit minor infractions of the law but are rarely subjected to selective enforcement or our “Gulag”-type justice system.

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The parallels between the American Gulag and the old Soviet Gulag even extend to the practice of forced confessions. When someone who cannot afford bail chooses to plead guilty rather than sleep on Rikers Island, or spend the next few months appearing in court, she must first publicly announce her guilt to the world. Judges will ask the following question: “Are you pleading guilty freely and voluntarily, because you are in fact guilty?” One Brooklyn public defender who has gone through this countless times has said he often felt his clients “bristle” when the question was asked. Everyone in the room knows it’s not “freely and voluntarily.” They’re making a decision coerced by money. In many cases, if they had money, they wouldn’t be pleading. But they put their heads down, and they say, “Yes.” It’s a horrible, deflating feeling.55 Our system of mass misdemeanor justice may not be the product of deliberate racial animus, but it is hard not to conclude our society permits such draconian punishment because the costs are borne by the weakest members of society. The NYPD has decided that since blacks and Latinos have been responsible for a disproportionate amount of violent crime, all such young men will be subjected to a level of scrutiny others evade despite the fact that “if any fundamental assumption underlies our system, it is that guilt is personal,” not collective.56 The spread of mass misdemeanor justice across the United States may have led to countless injustices, but there is, at least, a silver lining. Bail bondsmen have profited enormously. Bail bondsmen exploit the desperation on the part of criminal defendants to avoid jail, and they have actively opposed reform efforts in various jurisdictions.57 When New Jersey recently proposed major reforms to its bail system which would substantially impact the income of its 723 licensed bail bondsmen, the industry resisted. Considering how profitable the business was—annual net profit was reported to be six figures—opposition was perhaps to be expected. “These are 3,000 taxpayers who are going to be potentially unemployed,” one such bondsman said, omitting to mention the cost of incarcerating people accused of minor infractions.58 The reforms were eventually passed in New Jersey, but as one federal judge explained in a congressional hearing, the cash bail system constitutes “a thriving industry, a very powerful industry, and a very difficult opponent to challenge.”59 Once again, our federal system of government and the fragmented nature of our criminal justice system make reform a Herculean task.

Utah v. Strieff Mass misdemeanor justice is an exceedingly complex phenomenon, but at the heart of the issue is the practice of using stop-and-frisk to search for evidence of crimes. For example, in the previous discussion of how residents of Brownsville

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were being stopped and sometimes given a citation or even arrested for walking through the unlocked front doors of their apartment buildings, the police asked the people they stopped for identification which they could then use to run warrant checks. As we have seen, Police Commissioner Bratton made identification and warrant checks routine in police encounters. An open arrest warrant, even for a trivial unpaid traffic ticket, permits the officer to make an arrest and then search the suspect for drug paraphernalia or illegal weapons. It was exactly this issue that became the subject of the last Supreme Court case we will discuss, Utah v. Strieff (2016).60 Strieff began with an anonymous tip that “narcotics activity” was occurring at a residence in South Salt Lake City, Utah. Detective Douglas Fackrell subsequently conducted intermittent surveillance of the home for about a week.61 Since he saw a number of visitors leaving just a few minutes after entering the house, he became suspicious the occupants were dealing drugs.62 Fackrell returned to the residence and observed the defendant, Edward Strieff, exit the house and walk toward a nearby convenience store.63 Fackrell followed him and then “ordered Strieff to stop in the parking lot.”64 Fackrell asked for identification, relayed Strieff’s information to a police dispatcher, and learned that Strieff had an outstanding arrest warrant for a traffic violation.65 Fackrell then arrested Strieff pursuant to that warrant, searched Strieff incident to the arrest, and discovered methamphetamine and drug paraphernalia.66 Although the officer had witnessed Strieff coming out of the residence, he had not seen Strieff going in.67 The prosecution conceded Fackrell lacked reasonable suspicion when he made the stop because he did not know if the defendant fell into the category of suspicious short-term visitors.68 Moreover, since the officer had conceded he did not “request” Strieff to stop but had “ordered” him to do so, the Mendenhall doctrine of “consent” was inapplicable. The reader will be little surprised to learn that even though the officer did not have reasonable suspicion to make the stop, and even though Strieff had not consented to the stop, the Court still found no constitutional violation. The Court has constructed a virtual fail-safe Fourth Amendment jurisprudence with back-up exceptions for those exceedingly rare occasions when an officer, lacking probable cause, conducts a search that cannot be justified as “consent”based. One such exception is the doctrine of attenuation. Under this doctrine, evidence discovered through police misconduct is still admissible if the link between an officer’s misconduct and the discovered evidence is “so attenuated as to dissipate the taint.”69 The attenuation doctrine need not concern us here (this author has provided detailed analysis elsewhere).70 Strieff is relevant for this book’s purposes because the Court finally broke its decades-long silence on the issue of racial profiling. Justice Sonia Sotomayor, writing in dissent, received widespread media attention for her scathing words:71

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For generations, black and brown parents have given their children “the talk”—instructing them never to run down the street; always keep your hands where they can be seen . . . all out of fear of how an officer with a gun will react to them . . . [T]his case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.72 It is hard to imagine a more unlikely case for the Court to have finally broken its silence on the issue of racial profiling than one involving a white defendant from Utah. Yet, perhaps because there had been unrelenting media attention paid to the issue of policing in the wake of the Michael Brown shooting, the selective law enforcement controversy arose during oral debate in Strieff. Strieff turned on the question of whether the arresting officer had checked for outstanding warrants as a pretext to search Strieff for drugs, or if the officer’s actions were sincerely related to his self-protection. The defense’s argument was that if the Court did not apply the exclusionary rule in a case in which a police officer, lacking reasonable suspicion, ordered a suspect to stop and produce identification, and then ran a warrant check, it would encourage more such illegal stops. Since the police issue so many summonses for trivial infractions in high-crime areas, there is a good chance anyone they stop may have an outstanding arrest for missing a court date, or for having failed to pay previous fines. There is apparently no database compiling all the nation’s outstanding arrest warrants, but the numbers from individual jurisdictions are illuminating. In Ferguson, Missouri, for example, a city with a population of 21,000, more than 16,000 people have outstanding arrest warrants.73 In New York City, there are 1.2 million outstanding arrest warrants.74 Anyone familiar with the operation of America’s modern mass misdemeanor criminal justice system would hardly be surprised by these statistics. Police Commissioner Bratton had even issued a public statement in 1994 declaring that all summonses would be backed by warrants and that these warrants would issue whenever a defendant failed to appear in court.75 The issue also featured prominently in the most recent New York City mayoral election.76 And countless other jurisdictions have now adopted the New York model. Nonetheless, this twenty-year transformation of the criminal justice system has apparently escaped the attention of the Supreme Court. During the Strieff oral argument, even Justice Elena Kagan, who falls on the liberal side of the spectrum and had been the United States Solicitor General, said she was “surprised beyond measure by how many people have arrest warrants outstanding.”77 Justice Alito scoffed at the idea that some law enforcement agencies would be encouraged to issue more warrants if the Court were to permit police officers to

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stop individuals without reasonable suspicion and check them for outstanding warrants. “Do you think the judges in the traffic—in the traffic courts are going to start issuing a lot of warrants because they want to provide the basis for— for randomly stopping people?”78 But, as Sotomayor pointed out, Alito had a shockingly antiquated conception of how the process works. The issuance of these warrants is now largely automatic and computerized.79 It appears that Sotomayor was the only Justice with even a basic understanding of how today’s mass misdemeanor criminal justice system operates. A defender of the Supreme Court may argue the Justices cannot be expected to be fully versed in the mechanics of today’s criminal justice system, but surely they should be cognizant of their own judicial doctrines. There was no allegation of racial bias in Strieff; the officer had apparently made a good faith mistake. Thus, Justice Anthony Kennedy suggested perhaps the Court should take the subjective intent of the officer into consideration: “Do you think that something else includes a subjective component, whether there was a purpose to see if there was a warrant?”80 Of course, defense counsel in Whren v. United States had sought to explore the “subjective” thoughts of the arresting officer and ask why he had chosen to stop a car for pausing at a stop sign for a few seconds too long.81 To what degree was the stop motivated by the fact that the car in question was being driven by two young black men? However, as the reader will recall, the Court has prohi­ bited defendants from such inquiries. A unanimous Court, including Kennedy, declared that Fourth Amendment law “foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”82 Thus, the attorney for the government politely reminded Kennedy of this fact during the Strieff oral argument. “We think that that inquiry is inconsistent with the way this Court’s Fourth Amendment jurisprudence has evolved.”83 While the remarks of Kagan, Alito, and Kennedy revealed their ignorance, it is hard to know if Justice Thomas was just being cynical when he made the following assertion: Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability.84 Considering how few police officers are exposed to criminal liability after accidentally killing innocent unarmed civilians, it is hard to imagine many fear being held civilly liable for impermissibly asking to see a person’s identification. The Court’s disingenuous arguments and further evisceration of Fourth Amendment protection was not what made Strieff an unusual decision. Strieff is unique because a Supreme Court Justice, Sonia Sotomayor, conceded the

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Court has sanctioned racial profiling: “This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.”85 Sotomayor explained how warrant checks are now a routine part of stop-and-frisk, and that officers often conduct stops “for no reason other than ‘an officer’s desire to check whether the subject had a municipal arrest warrant pending.’”86 Citing Bostick, Sotomayor sarcastically wrote that an “officer may ask for your ‘consent’ to inspect your bag or purse without telling you that you can decline”87 (quotation marks in original). The Justice also pointed out that “an arrest record will result in the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check.”88 Sotomayor’s protestations were in vain; the majority ruled the attenuation doctrine provided an exception to the exclusionary rule and the evidence was not suppressed. It is tempting to argue Strieff represents the final nail in the coffin. The Court has essentially sanctioned the fourth stage of racial profiling; targeting minorities who are simply walking down the street or sitting on a bench. However, the protections of the Fourth Amendment had already been so eviscerated that we should not pretend that a different ruling would have turned the tide. In the vast majority of cases, the officer will remember to testify she “requested” the accused to stop and present her identification. Indeed, in his majority opinion, Clarence Thomas made sure to remind future officers how the game is played. “Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so.”89

The Efficacy of Stop-and-Frisk This author has attempted to approach the subject of racial profiling with an open mind by first asking whether it has been premised on reliable crime data or if it has reduced crime before arguing against the practice. Although stopand-frisk was certainly based on reliable crime data showing that minority males in New York City commit a disproportionate amount of violent crime, the previous chapter argued that Bratton’s police reforms were remarkably effective prior to the mass implementation of random stop-and-frisks. Further evidence that stop-and-frisk was not an effective crime-fighting tool occurred after the program came to a crashing halt in 2013. During that year, Judge Scheindlin declared the program unconstitutional, and it became a central issue in the mayoral campaign.90 The eventual winner, Bill DeBlasio, promised to curb the program. Contrary to the repeated warnings that had been issued by Mayor Bloomberg and Commissioner Kelly, the murder rate continued declining. There were 686,000 recorded stops in New York City in 2011 and 515 murders.91 In 2016, there were just over 12,000 recorded stop-and-frisks, but only 335 murders, a 35% decline.92 Thus the murder rate, the most reliable crime statistic there is, declined dramatically before stop-and-frisk was implemented on a wide-scale basis, as well as after it was rescinded.

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While it is impossible to measure the precise effect of stop-and-frisk, it strongly appears the other reforms were responsible for the lion’s share of the crime reduction. Nonetheless, a number of murders may have been avoided because guns were left at home and not available in a moment of passion. Reasonable people may disagree over how many lives, if any, must be saved to justify random stops targeted at a specific racial demographic. However, there was no reason why the practice had to be applied in an abusive and humiliating fashion. The NYPD cannot escape castigation by placing the blame on individual officers. The top brass of the NYPD could have prevented patrol officers from applying stop-and-frisk in such a brutal manner that the police force became perceived as an “invading army.”93 A solution was easy: the same solution Bratton used to root out the much more intractable problem of corruption among officers fighting illegal drugs—sting operations. Officers should have been secretly monitored and disciplined for using foul language, racial epithets, and unnecessary force, and for making false arrests. However, based on the secret recordings made by patrol officers, it is obvious the institutionalization of racial profiling policies had become much more pervasive and systemic than corruption had ever been. It is unimaginable a roll call commander would have publicly complained during roll call that patrolmen were not stealing enough drugs or cash from street dealers. Yet, when it came to the constitutional rights of “male blacks fourteen to twenty-one,”94 these same commanders felt no compunction in voicing their illegal demands. Although it is far beyond the focus of this book, it is perhaps not entirely unwarranted to note that at the same time minorities in Brownsville were being stopped for walking through unlocked doors or sitting on benches outside of their homes, bankers on Wall Street were fraudulently packaging mortgage derivatives. The damage the Great Recession had on the world economy was so enormous it is beyond calculation. Yet, since 2008, just one banker has gone to prison in the United States for crimes related to the financial crisis.95 Meanwhile, of the almost 10,000 people held in New York City jails each day, three-quarters have not been convicted of any crime.96 They sit in jail simply because they cannot afford bail, and sometimes must wait for years for their cases to come to trial. The city has been arresting people for putting their feet up on the subway at the same time bankers in luxurious office towers were sitting with their feet on their desks while earning multi-million-dollar bonuses for packaging fraudulent derivative securities. If this constitutes “Equal Justice,” one trembles to contemplate what unequal justice might look like.

Notes 1 Hannah Arendt, On Violence (Orlando, FL: Harcourt, 1970), 65. 2 Jennifer Gonnerman, “Before the Law,” New Yorker, October 6, 2014,

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3 William Glaberson, “In Misdemeanor Cases, Long Waits for Elusive Trials,” New York Times, May 1, 2013, A1. 4 Gonnerman, “Before the Law,” supra note 2. 5 Kevin Deutsh, “Huge Backlog in ‘Bronx Gulag’ Means Years in Jail Before Day in Court,” Daily News, February 27, 2012, 6 William Glaberson, “Waiting Years for Day in Court,” New York Times, April 14, 2013, A1. 7 Id. 8 The line can been seen on NYCResistance, “What You Didn’t Know About NYPD’s Stop & Frisk Program!”YouTube, January 15, 2013, Hx0Gj6ys&list=FLIh8n59eGmYtWwuCJe1DSUA&index=4&t=47s. 9 Deutsh, “Huge Backlog,” supra note 5; and “No Day in Court: Marijuana Possession Cases and the Failure of the Bronx Criminal Courts,” Bronx Defenders, 12 (2013), www. 10 Glaberson, “Waiting Years,” supra note 6. 11 Id. 12 Id. 13 John Surico, “What I Saw Spending 16 Hours in Manhattan Criminal Court,” New York Times, May 14, 2015. 14 Glaberson, “In Misdemeanor Cases,” supra note 3. 15 Bronx Defenders, “No Day in Court,” supra note 9, at 12–15. 16 Id., 9–10. 17 Id., 13. 18 Glaberson, “In Misdemeanor Cases,” supra note 3. 19 See “A Plaintiff Reflects on Judge Scheindlin’s Clean Halls Decision,” Bronx Defenders (Feb. 13, 2013), [hereinafter A Plaintiff Reflects]. 20 Complaint at 29, Ligon, 925 F. Supp. 2d 478 (No. 12-cv-02274), 2012 WL 1031760. 21 Bronx Defenders, “No Day in Court,” supra note 9, at 6. 22 “A Plaintiff Reflects,” Bronx Defenders, supra note 19. 23 Id. 24 Mosi Secret, N.Y.C. Misdemeanor Defendants Lack Bail Money, New York Times, December 3, 2010, A27. 25 Id. 26 Id. 27 Floyd v. City of New York, 959 F. Supp. 2d 540, 576 (S.D.N.Y. 2013). 28 New York Consolidated Laws, Penal, “Criminal Possession of Marijuana in the Fifth Degree,” § 221.10. 29 James B. Jacobs, “Mass Incarceration and the Proliferation of Criminal Records,” 3 University of St. Thomas Law Journal 387, 395 (2006) (“There are laws in every state mandating or authorizing the release of individual criminal history records to certain non-criminal justice government agencies—agencies charged with granting licenses to individuals and firms in diverse businesses, ranging from liquor stores and bars to banks and private security firms as well as to agencies that provide programs and services to vulnerable populations including children, the elderly, and the handicapped”); see also United States Department of Justice, “The Attorney General’s Report on Criminal History Background Checks 2,” (2006) (noting that most private employers conduct background searches through private enterprises or through commercial databases that aggregate criminal records). 30 For discussion of the “collateral effects” of criminal conviction, see Eisha Jain, “Arrests as Regulation,” 67 Stanford Law Review 809, 823–6 (2015); James Forman, Jr., “Racial Critiques of Mass Incarceration: Beyond the New Jim Crow,” 87 New York University

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31 32 33 34

35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67

Law Review 21, 28–32 (2012); and “No Day in Court,” Bronx Defenders, supra note 9, at 9. Robert Brame et  al., “Cumulative Prevalence of Arrests from Ages 8 to 23 in a National Sample,” 60 Crime & Delinquency 471, 478 (2014). Glaberson, “Waiting Years,” supra note 6. Los Angeles v. Lyons, 461 U.S. 95, 118 (1983). See Michael Schwirtz and Michael Winerip, “Kalief Browder, Held at Rikers Island for 3 Years Without Trial, Commits Suicide,” New York Times, June 9, 2015, A20; and Jennifer Gonnerman, “Kalief Browder, 1993–2015,” New Yorker, June 7, 2015, www.–2015. See Joseph Goldstein and Christine Haughney, “Relax, if You Want, but Don’t Put Your Feet Up,” New York Times, January 7, 2012, A17. Rachel Harmon, “Why Arrest?” 115 Michigan Law Review 307, 335 (2016). Id., 319 (citations omitted). Issa Kohler-Hausmann, “Managerial Justice and Mass Misdemeanors,” 66 Stanford Law Review 611, 613 (2014). Brame et al., “Cumulative Prevalence,” supra note 31, at 478. Kohler-Hausmann, “Managerial Justice,” supra note 38, at 614. Id. Id. United States v. Lopez, 328 F. Supp. 1077 (E.D.N.Y. 1971). Id., 1082. Kohler-Hausmann, “Managerial Justice,” supra note 38, at 656 (citing an interview with an assistant district attorney). Id., 668. Id., 655. Id., 669. Id., 647. Id., 665–7. Id., 657–60. Richard Severo, “Campus Narcotics Raid Stir Protests,” New York Times, May 31, 1969, 1. Id. Id.; and Paul L. Montgomery, “Inmate 14644 Poses A Question of Justice,” New York Times, August 18, 1972, 33. Nick Pinto, “The Bail Trap,” New York Times, August 16, 2015, Magazine Section, 38. 323 U.S. 214, 243 (1944) See, e.g., Sulaiman Abdur-Rahman,“New Jersey Bail Reform Threatens Bond Agents, Sparks Criminal Justice Debate,” The Trentonian, May 14, 2017, www.trentonian. com/article/TT/20170514/NEWS/170519882. Id. Margaret Talbot, “The Case Against Cash Bail,” New Yorker, August 25, 2015, (quoting the Honorable James Carr), 136 S. Ct. 2056. Id., 2059. Id. Id. State v. Strieff, 2015 UT 2, 6 (Utah 2015). Strieff, 136 S. Ct. at 2060. Id. Id., 2063 (“[H]e had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there.”).

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68 During oral argument, the Utah Solicitor General said “we’ve admitted that this was a miscalculation but it was a close call.” Transcript of Oral Argument at 4, Strieff 136 S. Ct. 2056 (No. 15–1373). 69 Nardone v. United States, 308 U.S. 338, 341 (1939). 70 Guy Padula, “Utah v. Strieff: Lemonade Vendors and Dragnet Policing,” 120 West Virginia Law Review 100 (2018). 71 See, e.g., Matt Ford, “Justice Sotomayor’s Ringing Dissent,” Atlantic, June 20, 2016,; Tal Kopan, “Sotomayor in Fiery Dissent: Illegal Stops ‘Corrode all our Civil Liberties,” CNN, June 21, 2016,; and Mark Joseph Stern, “Read Sonia Sotomayor’s Atomic Bomb of a Dissent Slamming Racial Profiling and Mass Imprisonment,” Slate, June 20, 2016, in_utah_v_strieff_takes_on_police_misconduct.html. 72 Strieff, 136 S. Ct., at 2070–1. 73 United States Department of Justice, Investigation of the Ferguson Police Department 6, 55 (2015). 74 Al Baker, “Brooklyn Program Erasing Warrants for Low-Level Offenses,” New York Times, Oct. 8, 2015, A24. 75 New York City Police Department, Police Strategy No. 5: Reclaiming the Public Spaces of New York (1994), at 229. 76 Michale Barbaro and David W. Chen, “De Blasio Is Elected New York City Mayor in Landslide,” New York Times, November 6, 2013, A1. 77 Transcript of Oral Argument at 12, Strieff 136 S. Ct. 2056, 52 (No. 14–1373). 78 Id., 52. 79 Id., 52–3. 80 Id., 13. 81 Whren v. United States, 517 U.S. 806 (1996). 82 Id., 813. 83 Transcript of Oral Argument at 12, Strieff 136 S. Ct. 2056, 13 (No. 14–1373). 84 Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016) (J. Sotomayor dissenting). 85 Id., 2069. 86 Id., 2068. 87 Id., 2070. 88 Id. 89 Id., 2063. 90 Thomas Kaplan, “G.O.P. Rivals Weigh in on Police’s Stop-and-Frisk Tactics,” New York Times, August 29, 2013, A21. 91 Floyd v. City of New York, 959 F. Supp. 2d 540, 558 (S.D.N.Y. 2013); and NYPD, “Murder in New York City: 2011,” analysis_and_planning/2011_murder_in_nyc.pdf. 92 New York Civil Liberties Union (NYCLU), “Stop and Frisk Data,” en/stop-and-frisk-data; and NYPD, “Crime and Enforcement Activity in New York City: Jan 1–Dec 31, 2015,” and_planning/year_end_2015_enforcement_report.pdf. 93 NYCResistance, “NYPD Cops Caught Hunting Citizens During Thanksgiving Holidays!” YouTube, November 25, 2012, rxoI&t=745s. 94 Floyd, 959 F. Supp. at 604. 95 Jesse Eisinger, “The Fall Guy,” New York Times, May 4, 2014, 34. 96 Madison Pauly, “New York City Came Up with a Brilliant Strategy for Cutting Its Jail Population in Half,” Mother Jones, April 5, 2017, politics/2017/04/rikers-closing-bail-reform.

CONCLUSION Shine a Light

We must remember that the extent of any privilege of search and seizure without warrant which we sustain, the officers interpret and apply themselves and will push to the limit . . . And we must remember that the authority which we concede to conduct searches and seizures without warrant may be exercised by the most unfit and ruthless officers as well as by the fit and responsible, and resorted to in case of petty misdemeanors as well as in the case of the gravest felonies. (Justice Robert Jackson, 1949)1

In writing this book, I have attempted to demonstrate how various state actors, in addition to the Court, were responsible for the rise and spread of institutionalized racial profiling. People at all levels of government, from state governors to highway patrolmen, from attorney generals to locally elected sheriffs, endorsed, defended, and implemented selective enforcement practices. The cumbersome structure of our federal government, as well as the “ugly reality” of violent crime statistics, has also been addressed. However, since the Supreme Court exercises the power of constitutional interpretation, it bears the unique responsibility of having made racial profiling legally permissible. It is possible to defend the Court by pointing to a potential contradiction in the book’s thesis. On numerous occasions, lower court judges have proven incapable of controlling the police. Law enforcement agents and agencies ignored judicial rulings, hindered judicial enquiries, and sometimes treated judges with utter disdain. Would the Supreme Court, it may be asked, have fared any better? Perhaps the Court exhibited valor in having had the discretion to avoid a battle it could not win.

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The claim that even the United States Supreme Court would have proven incapable of effectively prohibiting racial profiling exposes a fundamental flaw in the American system of government. The United States Constitution is founded upon a myth. Compare constitutional law with the laws of science. Science is dictated by reality. Whenever scientific theory is shown to conflict with reality, the theory is altered or discarded. Constitutionalism, on the other hand, does not attempt to describe reality; it seeks to control it—we demand society abide by the laws of man. As Chief Justice John Marshall famously proclaimed more than two centuries ago, “there is no middle ground,” no exceptions or compromises, we are either governed by the Constitution or we are not: It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.2 Theoretically, judges must not even consider the public good when determining whether a law or state action is constitutional. The Supreme Court has often declared that it neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the provisions of the Constitution; and, having done that, its duty ends.3 This was essentially the position Judge Scheindlin took in declaring stop-andfrisk unconstitutional in Floyd. Americans’ “preoccupation” with our Constitution has its beneficial aspects. An irrational faith in our founding document has helped the nation survive the Civil War, economic depressions, and foreign threats. The myth of constitutionalism, however, is threatened by someone pulling back the curtains and revealing the inability of the even the United States Constitution to control society. Nothing better illustrates this point than the nation’s history of racial injustice. Prior to the Civil War, the Constitution was in perfect accord with the legal status of African Americans. In many states, people of African descent had no legal rights. This brutal reality was summarized by the Court in its infamous Dred Scott decision: for more than a century before [the ratification of the Constitution African Americans had] been regarded as beings of an inferior order, and

274 Conclusion

altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.4 Dred Scott was abhorrent but completely ingenuous. Even the most radical abolitionists agreed the Constitution offered no protection against racial oppression which is why they often referred to it as a “pact with the Devil.”5 The dilemma judges face today when they are asked to recognize the existence of institutionalized racial profiling policies can be traced back to the contradiction created by the enactment of the Fourteenth Amendment in 1868 and its promise of Due Process and Equal Protection of the Law. These ideals were soon belied by the rise of organizations using terrorism as a means to maintain white supremacy. Many parents for decades considered lynching to be a picnic event suitable for children.6 Although the contradiction between law and society is no longer as stark, neither is it non-existent. This book began with a small obscure case, Soto v. New Jersey, because it perfectly illustrates the governmental forces a single judge had to confront before issuing a ruling which merely stated the obvious: highway troopers were targeting minority motorists. As Chapter 1 documented, racial profiling was a fact of life recognized in the black community, it had long been alleged by civil rights groups and public defenders, and investigative television reports had aired convincing evidence proving the allegation. Nonetheless, it took a judge of enormous courage and skill to permit a trial which threatened to expose the machinations of the Governor, the Attorney General, and the Chief of Police. Judge Francis declared racial profiling was at least a de facto policy and a constitutional violation. Under our theory of government, the practice should have been abolished but it persisted nonetheless. The problem is that judges only have the power to interpret the law, not enforce it. Even the Supreme Court, when led by its greatest Chief Justice, John Marshall, was incapable of protecting the rights of an oppressed minority. Marshall once tried to protect the legal rights of Cherokees.7 They were living on land within Georgia which was theirs by right of treaty.8 After gold was discovered, the pressure to remove the Cherokees was enormous. The dispute reached the Supreme Court and, in Worcester v. Georgia (1832), Marshall ruled Georgia was violating its treaty by driving them off their land. “John Marshall has made his decision, now let him enforce it,” supposedly declared President Andrew Jackson. Perhaps the story is apocryphal, but there is no doubt Jackson did not protect the Cherokees. They were eventually exiled in the tragedy known as the Trail of Tears. It can be argued Marshall’s ruling only served to weaken the institutional power of the Court. The lesson some might draw is that the Court should avoid issuing rulings which will not be enforced because they only expose the myth of constitutionalism and weaken the glue which holds the nation together.

Conclusion  275

If presidents decide they can ignore judicial orders with impunity, it will destroy the Rule of Law in America. The myth of American constitutionalism is threatened whenever judges are confronted with the choice of upholding the Constitution or issuing a ruling which may go unenforced. The clause which most often raises this dilemma is the Fourteenth Amendment’s promise of Equal Protection of the Law, which becomes intertwined with the guarantee against unreasonable search and seizures in racial profiling cases. Chapter 6 discusses the Bayless decision, in which Judge Baer was publicly and vociferously excoriated by virtually every politician in America for making a two-sentence critique of the police, to illustrate the dangers judges confront when upholding constitutional rights. Miranda v. Arizona was addressed in order to illustrate how even the Justices of the Supreme Court have been castigated for issuing unpopular decisions. Nonetheless, it is possible to recognize these challenges without concluding Supreme Court Justices should abdicate their obligation to uphold the Constitution. It is perhaps just as dangerous to avoid upholding constitutional rights as it is to issue decisions which go unenforced. Both actions undermine the Rule of Law. Therefore, if recognizing injustice and upholding constitutional rights result in the diminution of the Court’s institutional power, perhaps it is a price worth paying. Moreover, it is far from clear we should assume that rulings which go unenforced necessarily diminish the Court’s power. Sometimes, when the Court has been on the right side of history and fought for justice, it has augmented its power even when its rulings have been ignored. The Court’s most cele­ brated decision today remains Brown v. Board of Education (1954). Southern states refused to integrate and, ten years after the decision was issued, just one in eighty-five southern black children attended an integrated school.9 Brown, nonetheless, has undoubtedly increased the moral authority of the Court in the long run. One of the ironies of Brown is that it was adamantly opposed by the future United States Supreme Court Chief Justice, William H. Rehnquist. While working as a law clerk under Justice Robert Jackson, Rehnquist predicted Brown v. Board of Education (1954) would be “a national disgrace,” and made the following assertion: To the argument made by Thurgood, not John, Marshall that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minorities are.10 Rehnquist’s argument was nothing less than a condemnation of constitutional government, an endorsement of majority tyranny, and a harbinger of the types of rulings the Court would issue under his future leadership. Rehnquist essentially

276 Conclusion

argued Americans should accept majority tyranny because nothing can check that power in a democracy. We can condemn Rehnquist’s argument while recognizing its kernel of truth. Governors in southern states proved no more inclined to abide by the Court’s order to integrate local publish schools than Robert Vogel had been willing to respect local judges’ rulings to stop targeting minority motorists. This book does not proclaim that the Supreme Court could have eliminated biased policing. However, it also does not conclude Americans should simply submit to majority tyranny. The judiciary may lack the power to eradicate injustice, but the Supreme Court, in particular, at least has the power to expose it. Brown, for all its flaws, at least succeeded in shining a light on Jim Crow. Brown symbolized the progress America had made. Rehnquist may have detested the decision, but it had its supporters, including some southerners. Perhaps the most celebrated defense of Brown to appear in a law journal was penned by Professor Charles L. Black, Jr., in 1960. Black’s short ten-page law review article had a somewhat confusing title, “The Lawfulness of the Segregation Decisions.”11 The article contains virtually no legal argument; Black eschews jurisprudence and case law analysis in favor of sociological and historical observation. In fact, he advances almost exactly the same argument sociologists over twenty years later would call “colorblind racial ideology.” Black’s argument against segregation remains relevant today because it is also applicable to racial profiling. Black’s essay was obviously written for a specific audience: white northerners blind to the reality of southern mores and naïve enough to be persuaded that perhaps segregation was not driven by racial animus. He tells his northern reader that he had grown up in a segregated Texas city where “it never occurred to anyone, white or colored, to question” the meaning of segregation.12 In the words of Professor Black, those who failed to recognize the inherent inequality of segregation were guilty of a “self-induced blindness” based on a “flagrant contradiction of known fact”13 (emphasis added). But if a whole race of people finds itself confined within a system which is set up and continued for the very purpose of keeping it in an inferior station, and if the question is then solemnly propounded whether such a race is being treated “equally,” I think we ought to exercise one of the sovereign prerogatives of philosophers—that of laughter.14 The Brown decision has been said to illustrate the “Hollow Hope” of using the judicial process to advance social reform.15 Others have claimed Brown even contributed to efforts to install a new racial caste system and the construction of a new colorblind racial ideology.16 It is true that Americans eventually responded to Brown by electing a president who campaigned against Chief Justice Earl Warren and the Supreme Court as much as he ran against his Democratic opponent,

Conclusion  277

Hubert H. Humphrey; a candidate who adopted the “law and order” mantra of white segregationists as his campaign slogan.17 It is also true that Nixon’s cynical “Southern Strategy” was specifically designed to appeal to white racists. There is no denying the fact that six years after Nixon resigned in disgrace, America elected as president a man who declared “I believe in states’ rights” when he launched his 1980 presidential campaign in Philadelphia, Mississippi, infamously known for being the place where three civil rights workers had been brutally murdered in 1964. Perhaps the nation’s reaction to Brown can be interpreted as proving Rehnquist was a realist, not a cynic. While it would be possible to construct an historical narrative of the rise of institutionalized racial profiling and mass incarceration as an historical backlash to the gains achieved by the Civil Rights Movement, it is also true that six years after Brown, the country elected Kennedy, not Nixon, and ten years after Brown, America elected a president who strenuously fought for the most important civil rights legislation since Congress banned segregation in 1875. And, while race played a role in Nixon’s 1968 electoral success, so did the Vietnam War. There are very few single-issue voters. Fortunately, for our purposes, the Constitution is easier to decipher than the meaning of presidential elections. It boldly promises the Equal Protection of the Law and lower courts overwhelmingly strove to uphold this principle when confronted with evidence of selective law enforcement practices. These lower court decisions add more weight to the argument that although racism is still a grave problem, America has made a certain amount of progress. Unfortunately, the Supreme Court changed course after Nixon appointed four Justices during his first term. From the 1930s through the 1960s, the Court frequently overturned lower court decisions in its quest to uphold due process and Equal Protection of the Law; during the past half-century, it has frequently overturned lower court decisions and sanctioned institutionalized racial profiling. The Supreme Court might have proven incapable of eradicating racial profiling, but it could have tried. Instead, various Justices offered disingenuous decisions sanctioning policies which belied the words inscribed on the façade of the building they work in. Sanctioning racial profiling was a Supreme injustice.

A Final Word This book began as an attempt to challenge my Chinese students’ unquestioning faith in the U.S. Constitution. I wanted to disprove their assumption that constitutionalism might provide an easy antidote to the “Rule by Law” system that has been imposed by the Chinese government. I chose racial profiling to illuminate how America has struggled to achieve the ideals it proclaims. Expecting to dispel the illusions of my students, I instead exposed my own profound ignorance of a history that had been occurring throughout the course of my life.

278 Conclusion

Retracing the history of racial profiling and analyzing the cynical contortions of the Supreme Court Justices has been, at times, a rather desultory affair. Therefore, I have chosen to exercise the sovereign prerogative of philosophers by laughing when appropriate. After all, it’s better than the alternative. But my conclusion is a sobering one. Although I believe slow, incremental progress has been made toward racial equality, the role the Supreme Court has played over the past halfcentury has been gravely disturbing. My students, citizens of what is commonly regarded as an authoritarian regime, were shocked by our criminal justice system. That hardly makes me feel proud to be an American, but I feel even worse when I think of what some of my compatriots have suffered. That is why I felt compelled to write this book.

Notes 1 Brinegar v. United States, 338 U.S. 160, 182 (1949) (Jackson dissenting). 2 Marbury v. Madison, 5 U.S. 137, 177 (1803). 3 United States v. Butler, 297 U.S. 1, 63 (1936). 4 Scott v. Sandford, 60 U.S. 393, 407 (1857). 5 For example, abolitionist leader William Lloyd Garrison called the Constitution “a devil’s pact . . . dripping with blood” and, at a July 4 gathering in 1854, he burned a copy of the Constitution, and urged the crowd to shout “Amen.” Barnet Schecter, The Devil’s Own Work: The Civil War Draft Riots and the Fight to Save America (New York: Walker Publishing Co., 2005), 38. 6 Images of parents and their children attending lynchings can be see in James Allen et al., Without Sanctuary: Lynching Photography in America (Santa Fe, NM: Twin Palms Publishers, 2000). 7 Worcester v. Georgia, 31 U.S. 515 (1832). 8 Id. 9 Ian Millhiser, “Brown v. Board of Education Didn’t End Segregation, Big Government Did,” The Nation, May 14, 2014, 10 Memorandum from William H. Rehnquist to Justice Robert H. Jackson, “A Random Thought on the Segregation Cases,” 1, circa December 1952, Robert Houghwout Jackson Papers, Library of Congress, Manuscript Division, Box 184, Folder 5. Rehnquist’s efforts to disown the arguments contained in his memo have been seriously undermined. See Adam Liptak, “New Look at an Old Memo Cases More Doubt on Rehnquist,” New York Times, March 19, 2012, A18. 11 Charles L. Black, Jr., “The Lawfulness of the Segregation Decisions,” 69 Yale Law Journal 421 (1960). 12 Id., 424. 13 Id., 426. 14 Id., 424. 15 Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago, IL: University of Chicago Press, 1991). 16 As James Forman, among others, has noted, many critiques of mass incarceration “start their argument with a historical claim, grounded in a theory of backlash” directed against the gains achieved by the Civil Rights Movement. James Forman, Jr., “Racial Critiques of Mass Incarceration: Beyond the New Jim Crow,” 87 New York University Law Review 21, 34 (2012). 17 Bernard Schwartz, A History of the Supreme Court (New York: Oxford University Press, 1993), 329.


60 Minutes 143–6, 152, 154 ABC 39, 154–5 ACLU see American Civil Liberties Union affirmative action 7, 15, 33, 200, 203 Agee, Christopher 204 airline passengers: drug courier profiles 60–8, 69, 74, 77n80, 83–92, 93–4, 105–6, 114–16; metal detector screening 53, 56, 57, 60, 61, 68–9, 92; skyjacker profile 52–8 Alcala, Joe 71–2 Alito, Samuel 265–6 Allen, Marcus 193 American Bar Association 3 American Civil Liberties Union (ACLU) 105, 210 Anderson, Dale 158 Anderson, Thomas 96, 97, 98, 99, 100, 101–2 Anemone, Louis 234 Anti-Drug Abuse Act (ADDA; 1986) 205 Arizona Tribune 159 arrest warrants, outstanding 236, 239, 264, 265–7 articulable suspicion 10, 14, 54, 82, 96, 97, 125–6, 132 Ashcraft v. Tennessee (1944) 128 Ashcroft, John 193 Atwater, Lee 7

Baer, Harold, Jr. 167–8, 169–70, 174, 176, 193, 275 bail bondsmen 263 Baldus study 199 Barstow, David 50n122 Becton, Charles L. 55n22, 64, 104 Belmont Report 129 Bickman, Leonard 129 Black, Charles L., Jr. 275 Black, Hugo 11 black power 94 Blackmun, Harry A. 11, 71, 115 Blakeslee, Nate 208–9 the “Blogger” 1–2, 15, 227 Bloomberg, Michael 2, 227, 236, 239, 267 Bonilla-Silva, Eduardo 6 Bordenkircher v. Hayes (1978) 116n36, 210 Bostick v. State (1987) 118–20, 126, 183, 267 Boston Police Department 67 Boumedienne, Houari 58 Bradley, Charles 245, 255, 256–7 Bratton, William 67, 168–9, 180, 221–4, 228, 229, 230–4, 235–6, 239, 241, 264, 265 Brendlin v. California (2007) 124 Breyer, Stephen 124 “Broken Windows” strategy 230–1, 236 Bronx Defenders 256–7 Broussard, Daniel 207

280 Index

Browder, Kalief 258 Brown, James 170, 171 Brown, Michael 1, 192, 265 Brown v. Board of Education (1954) 275, 276–7 Brown v. Mississippi (1936) 10–11, 128 Bureau of Narcotics and Dangerous Drugs 60 Burger, Warren 11, 71 bus and train passengers 114, 116–18; Florida’s Fourth District 118–26; Miranda for searches? 126–8; obedience to authority 128–31 Bush, George H. W. 7, 24 Bush, George W. 42, 52, 193 Byrne, Edward 205–6 Byrne program see Multi-Jurisdictional Task Forces (MJRFs); Tulia, Texas Caplovitz, Abigail 45n18 Capone, Al 238 Cardozo, Benjamin 113 Carlos, John 94 Carroll, Richard 167 Carter, Jimmy 152 casing 90 Castile, Philando 192, 211–12 Catch-22 166 Cavanaugh v. Bartelt (2016) 110n116 Census Bureau 105 Cherokee nation 274 Chiles, Lawton 158 chokeholds 201 Christian Science Monitor 159 City of Indianapolis v. Edmond (2000) 175, 183–5, 204, 228n63 city police 203–5 civil asset forfeiture 151–4, 156–9 civil liberty violations 14, 100 civil rights violations 14 Clinton, Bill 24, 30, 169–70, 238 cocaine 30, 31, 32, 33, 34–5, 67, 87, 208, 214–15, 229 Cochran, Johnnie 193 “code-word” politics 6 Coleman, Tom 208, 210 colorblind jurisprudence 8–10, 80–3, 96–7, 100, 104–6, 112, 118–21, 131–3, 172–6, 194–203, 265–7, 275–7 colorblind racial ideology 6–8, 19, 37, 174–6, 276–7 Comprehensive Drug Abuse Prevention and Control Act (1970) 152

Compstat 234 consent see informed consent Constitution of the United States 3, 225; myth of constitutionalism 273–5; preoccupation with 226; rights of the individual 58, 100, 103, 113, 123 constitutional government 3, 275–6 Conyers, John 24, 178 “could have” test 149, 166–7, 172–3, 175, 176, 178–9, 195, 200 crack 30, 31, 32, 34–5, 118, 168, 196–8, 208, 230 crime: and firearms 209, 224, 226, 227, 233, 238, 239–41; incidence of 58–9, 194, 228; New York City 31, 59, 221–4, 228–9, 267–8; and policing strategies 230–5; prevention 12; violent crime 81, 169, 214, 226–7, 229–30, 232; see also drug trade; homicide criminal justice system 3 criminal profiles 75n11; and Fourth Amendment 53–4, 70; skyjacker profile 52–8; see also drug courier profiles criminal records 257 Cruz, Alvin 244–5 Curran Committee (1913) 203 Dade County drug smuggling squad 114–15, 160 Dailey, John 55n21, 58, 61 De Tocqueville, Alexis 6 DEA see Drug Enforcement Administration death penalty 199 DeBlasio, Bill 267 DeCarlo, Charles 156 DeLay, Tom 169–70 Delehey, Charles A. 43, 50n121, 51 Dempsey, Oberia D. 59 Detroit Metropolitan Airport 68–9, 74 Diallo, Amadou 192–3, 210, 240 Dinkins, David 231, 232 Dirty Harry (movie) 150–1 District of Columbia: Circuit Court of Appeals 172–3; Metropolitan Police Department (MPD) 170 DOJ see United States Department of Justice Dole, Bob 169–70 Dred Scott (Scott v. Sandford) 273–4 “driving while black” 24, 27 drug addiction 229

Index  281

drug courier profiles 9, 13, 14, 53, 86–7; in airports 60–8, 69, 74, 77n80, 83–92, 93–4, 105–6, 114–16; minority motorists 138, 140, 142–6, 150; validity of 85–6; see also bus and train passengers; United States v. Floyd; United States v. McCaleb; United States v. Mendenhall; United States v. Rogers; United States v. Van Lewis Drug Enforcement Administration (DEA) 9, 60, 243; civil asset forfeiture 152; Operation Pipeline 51–2, 140, 145; profile stops 182; see also drug courier profiles: in airports drug trade 24, 30, 31–5, 51, 59, 138, 234–5; cocaine 30, 31, 32, 33, 34–5, 67, 87, 208, 214–15, 229; crack 30, 31, 32, 34–5, 118, 168, 196–8, 208, 230; and crime 229–30; heroin 10, 32, 33, 55, 60, 66–7, 87, 229, 230; LSD 197; marijuana 30, 33, 87, 208, 237, 241–2, 256, 257; mules 238; New York City 32, 34–5, 59, 67, 90, 117, 168–9, 205–6, 229, 241–2, 256; Rockefeller laws 32, 262 due process 59 Dwyer, Scott 207 Eastland, James 53 Egan, Edward 67 Eighth Circuit Court of Appeals 86, 107–8n39–40 Eleventh Circuit Court of Appeals 13, 14, 126–7, 146–9, 154 Ellison, Ralph 34 eminence-based decision making 64–5, 87, 123 Equal Employment Opportunity Commission 200 Equal Protection see Fourteenth Amendment exclusionary rule 13–14, 25, 113, 134n11–12, 167, 180, 194–5 Fackrell, Douglas 264, 267 Fahy, John 39 Farm Labor Organizing Committee v. Ohio State Highway Patrol (2000) 202 Farmer, John, Jr. 212 Federal Aviation Administration (FAA) 53, 55, 56, 57, 58, 82 Federal Bureau of Investigation (FBI) 58, 144

federal law enforcement policies 205–7 Federal Public Defender 196 Federal Transportation Association 65 federal–state division of powers 205 Feldman, Mr. 173 FHP see Florida: Highway Patrol Fifth Amendment 11, 71 Fifth Circuit Court of Appeals 86, 132 firearms: crime 209, 224, 226, 227, 233, 238, 239–41; and exclusionary rule 13; police use 24, 28, 119, 127, 169, 184, 193; women 58 First Amendment 100 Fisher v. University of Texas (2013) 203 fixed-checkpoint stops 104 Florida: Fourth District Court of Appeals 118–26; Highway Patrol (FHP) 140, 141, 143, 147, 150, 152, 155; Supreme Court 13, 14, 121, 126, 149–50, 154, 156 Florida v. Bostick (1992) 116, 121–4, 131, 133, 138–9 Florida v. Rodriquez (1984) 123 Florida v. Royer (1983) 114, 119, 181 Florio, Jim 26 Floyd v. City of New York (2013) 224–8, 230, 243, 273 forced confessions 11, 59 Fortas, Abe 11 Fortner, Michael Javen 59 founded suspicion 70, 74, 83 Fourteenth Amendment (Equal Protection) 4, 14–15, 19, 31, 173–4, 184, 195–203, 274, 275, 277; “compelling interest” 19, 33, 225; intermediate scrutiny 33, 105; “narrowly tailored” 19, 33, 225; rational basis 32–3, 105–6; strict scrutiny 19, 33, 47n65, 105, 225, 228 Fourth Amendment 4; and articulable suspicion 10, 14, 54, 82, 125–6, 132; “attenuation doctrine” 148, 264, 267; border exception 82–3; and criminal profiling 53–4, 70; decision to stop/ decision to search 25; exclusionary rule 13–14, 25, 113, 134n11–12, 167, 180, 194–5; and founded suspicion 70, 74, 83; and informed consent 71–2; and Miranda 11; and pen registers 113–14, 134n11; per se prohibition against roadblocks 185; and racial encounters 6; and racial profiling 27, 31, 37, 264–7; reasonable suspicion 25, 31, 54,

282 Index

70, 83–4, 86–8, 95, 97, 103–4, 228; right to privacy 97–8, 103; and societal risk 56, 81–2; Test A: show of force 99, 101; Test B: walk on by 99, 101; Test C: reasonable person test 99–102, 104; totality of the circumstances test 73, 99, 126, 128, 131 Francis, Robert E. 26–7, 35, 38, 40, 41, 51–2, 176–7, 198, 273 Frankfurter, Felix 100, 226 Freeman, Roger M. 83–4 The French Connection (movie; 1971) 67, 89, 98, 117–18 “furtive movements” 89, 240, 242, 243 Fyfe, James 74n2 Gambino family 31 Garcia, Lou 159 Garner, Eric 100, 192, 202 Garrett, Brandon 211n102 Gideon v. Wainwright (1963) 59 Gingrich, Newt 169–70 Ginsberg, Ruth Bader 173 Giuliani, Rudy 35, 169, 235, 239 Goetz, Bernard 227 Great Recession 268 Greenhouse, Linda 115 Gross, Harry 204 guns see firearms Harlan, John Marshall, II 11 Harris, Ronald 93–4, 96, 98, 102 Harris v. United States (1997) 94 Hayes v. Cowan (1976) 116n35 Hemingway, Ernest 240 heroin trade 10, 32, 33, 55, 60, 66–7, 87, 229, 230 Hicks, Carl B. 65 highway two-tier system 175 Hogan, Trooper 42 Holder, Roger 58 Holmes, Oliver Wendell 4 homicide 199, 205–6, 232; rate 7, 58, 59, 194, 224, 226, 228, 267–8 Hughes, Paula 69, 73 human dignity 98 Humphrey, Hubert H. 71, 277 I-95, Maryland 36; see also New Jersey Turnpike Illinois v. Wardlow (2000) 112 Immigration and Naturalization Service 105

Immigration & Naturalization Service v. Delgado (1984) 123 incarceration 3, 7, 9, 11, 59, 71, 224, 230, 256 The Indianapolis Star 159 informed consent 11, 70–4, 84, 85, 92, 127–8, 129–31, 180–2, 210; see also Bostick v. State; Florida v. Royer; United States v. Mendenhall Jackson, Andrew 273 Jackson, Robert 272, 275 Jarriel, Tom 154, 155 Jim Crow 10, 12, 52, 59, 174, 210, 276 John Jay College of Criminal Justice 5 Johnson, Lyndon B. 58, 277 Johnson v. California (2005) 47n66 Joiner, Charles W. 63–5, 68–9, 70–1, 73–4, 83, 85, 99, 123 Jones, Leroy D. 30, 44 Jones, Robert 157, 159 Josenhans, Frank 153, 159 judiciary 6 Justice Department: Civil Rights Division 52 Kadane, Joseph B. 48n79 Kagan, Elena 265 Katz v. United States (1967) 113 Kelling, George L. 230–1 Kelly, Ray 2, 267 Kennedy, Anthony 127, 266 Kennedy, John F. 277 Kennedy, Randall 199 Kennedy, Robert 7 Kerkow, Cathy 58 Khaled, Leila 58 King, Martin Luther 7 Knapp Commission 67, 169, 204 Kocieniewski, David 50n122 Koerner, Brendan, I. 54–5, 57nn35, 38, 58 Kohler-Hausmann, Issa 259–60, 261–2 Korematsu v. United States (1944) 47n65 Kozinski, Alex 179 Lamberth, John 35–6, 48n79, 105, 176–7 “law and order” 6 law enforcement 4–6 Law Enforcement Assistance Administration (LEAA) 205 Lawton, Margaret 176 legislation classifications 32–3

Index  283

Letts, Gavin K. 119 Levitt, Steven D. 248n64 Lexow Committee (1894) 203 Lichtenberg, Illya D. 124, 130 Lisenba v. California (1941) 128 Littlejohn, Homer 170, 171–2, 179 Los Angeles v. Lyons (1983) 195–6, 201–2, 203, 225 LSD trade 197 Luciano, “Lucky” 67 Lynch, Gerard E. 127 McCaleb defendants 69–70, 73–4; see also United States v. McCaleb (1977) McCleskey v. Kemp (1987) 195–6, 199–201, 225 McGovern, George 60 Mafia 67, 230 Mallory v. United States (1957) 59 Mansnerus, Laura 50n122 Maple, Jack 222–4, 228, 231, 233–5, 237, 238, 239 Mapp v. Ohio (1961) 59, 134n12 Marconi, Benjamin 1 marijuana 30, 33, 87, 208, 237, 241–2, 256, 257 Markonni, Paul: civil asset forfeiture 152; drug courier profile 9, 60–8, 69, 74, 83, 84, 86, 88–92, 96, 102, 140–1 Marshall, John 273 Marshall, Thurgood 123, 125, 133, 275 Maryland v. Pringle (2003) 248n63 Mayfield, Curtis 90 Mexican Border Patrol 80–3, 104–5, 131–3 Milgram, Stanley 129–31 Miller, Arthur 155–6 minority motorists 80–3, 104–5, 131–3, 138; drug courier profile 138, 140, 142–6, 150; investigative profile stops 138–40, 148–9, 149–50, 154–5; pretext stops 142, 146, 147–8, 149–50, 154, 155–6, 176, 238; see also State v. Soto; United States v. Bayless; United States v. Miller; United States v. Smith; Whren v. United States Miranda v. Arizona (1966) 5, 11, 59, 71, 210, 275 misdemeanor arrests 259 misdemeanor justice 256–67 Mollen Commission 168–9, 204 Moore, Joe 208, 209 Morgan, Joe 93, 100, 102

Multi-Jurisdictional Task Forces (MJRFs) 205–7 murder see homicide narcotic roadblocks 14, 183–5, 204; per se prohibition 185 narcotics interdiction 206–7 National Association of Police Organizations 178 National Commission for the Protection of Human Subjects of Biomedical and Behavioral Research 129 National Troopers Coalition 178 Navarette v. California (2014) 248n63 Navarro, Nick 117–18, 119–21, 122 Neufeld, Peter 29 New Jersey: bail bondsmen 263; State Police 52, 87, 176 New Jersey Turnpike (1998) 24–7; shooting 24, 27, 28–9; interview 29–35; statistical evidence 35–7; Attorney General’s “Interim Report” 37–8; internal investigation 39–41; perfect crime 41–4; aftermath 192; see also State v. Kennedy; State v. Soto New York City: Bronx County Hall of Justice 245, 255–6, 258, 260–1; Brownsville, Brooklyn 244, 263–4; cash bail system 257, 263; crime 31, 59, 221–4, 228–9, 267–8; drug trade 32, 34–5, 59, 67, 90, 117, 168–9, 205–6, 229, 241–2, 256; Guardian Angels 227; incarceration 224, 256; misdemeanor justice 256–67; outstanding arrest warrants 265; policing strategies and the crime rate 230–5; socio-economic factors and the crime rate 228–9; subway system 221–3, 232 New York Police Department (NYPD) 15, 67; 911 calls 232–3; corruption 203–4, 232; crime-mapping 233–4; drug testing 232; false arrests 245; management and information systems 232; manpower 232; misdemeanor arrests 236, 242, 255, 256–7, 259; narcotics unit 234–5; Operation Clean Halls 256; policing strategies and the crime rate 230–5; sting operations 232, 268; stop-and-frisk program 1, 192, 221, 224–8, 230, 235–45, 257, 267–8; Street Crimes Unit (SCU) 240, 241; transit police 221–2, 223–4, 229; UF-250 forms 240–2, 244, 245

284 Index

New York Times 6, 26, 27, 35, 38, 39, 43, 45n18, 71, 159, 230, 244, 262 New Yorker 159 Newman, John O. 169 News Tribune 159 Ninth Circuit Court of Appeals 86, 196–7, 207 Nixon, Richard: Southern Strategy 7, 277; on crime 51, 59–60, 152; law and order 6, 277; and skyjacking 57; and Supreme Court 11, 63, 71, 276–7 Nutt, Joseph 118 NYPD see New York Police Department Oakland Housing Authority Police Department 207 Obedience to Authority 128–31 O’Bryant [DEA Agent] 93–4 O’Connor, Sandra Day 121, 122, 123–4, 138–9, 185 Omnibus Crime Control and Safe Streets Act (1968) 205 Operation Pipeline 51–2, 140, 145, 160, 175, 177, 179, 183, 184 Orlando Sentinel 143, 153, 156–7, 160, 175, 183 outstanding arrest warrants 236, 239, 264, 265–7 Pagano, Clinton L. 26, 50n122 Paine, Thomas 2 Pataki, George 169 Pearson, Skip 115 pedestrians see stop and frisk pen registers 113–14, 134n11 People v. Dickson (1998) 45n18 perjury 179–80 Perry, Rick 210 Perry, Sheriff 153 Pew Research 8 physical force 10–11, 12 plea bargaining 3, 11, 42, 71, 116–17 Plessy v. Ferguson (1896) 175 police: ambush attacks against 1; misconduct 13, 169; strategies and the crime rate 230–5; use of firearms 24, 28, 119, 127, 169, 184, 193; see also New York Police Department police training 43; Jamaican Posses 51; manual 5, 177–9, 180; see also Operation Pipeline “policing for profit” 18, 152, 207 Powell, Lewis F., Jr. 11, 71, 95–7, 199

pretext stops 238; minority motorists 142, 146, 147–8, 149–50, 154, 155–6, 176, 238; see also stop-and-frisk program probable cause 12, 25, 70–1, 81, 100, 103, 121–2, 125–6, 200, 228 psychological coercion 11 “purposeful discrimination” doctrine 199–201, 225 quality-of-life theory 230–1, 235–6, 237 questions of fact 84, 85 questions of law 84–5 racial classifications 33, 200, 225 racial oppression 1–2, 273–4 racial profiling 3–6, 192–3, 272, 274, 276; anecdotal evidence 204–5; condemnation of 52, 193–4; de facto policy 27; de jure policy 51; defined 27, 80–1, 214; and Equal Protection 14–15; and Fourth Amendment 27, 31, 37, 264–7; and innocence 12; “morally indefensible” 24; “pretext racial profiling” 30–1, 41–2; “pure racial profiling” 30; sources of practices 9; and Supreme Court 6, 33, 194–203, 272–3; terminology 12, 26, 45n18; traffic study 27; see also Florida v. Bostick; New Jersey Turnpike; State v. Kennedy; State v. Soto; United States v. Brignoni-Ponce; United States v. Mendenhall; Utah v. Streiff; Whren v. United States racial profiling programs 12–13; see also airports; bus and train passengers; minority motorists racism 7, 44 Radliffe, Harry A., II 152 random stops and searches 14, 61–2, 68, 81, 82, 92 rap sheets 260–1 rape trials 84–5, 102 Reagan, Ronald 205, 206, 239, 277 reasonable officer test 12, 147, 149–50, 167, 176 reasonable person test 99–102, 104, 123, 124–6, 175, 179, 181 Reasoner, Harry 144–6 Rehnquist, William H. 11, 71, 95, 112, 115, 197–8, 275–6, 277 Reid v. Georgia (1980) 103–4, 111n131 Remsberg, Charles: Tactics for Criminal Patrol 5, 177–9, 180–2, 238

Index  285

Reno, Janet 158–9 reverse discrimination 6–7, 200–1 right to counsel 59 right to privacy 97–8, 103 Rikers Island 256, 257, 261 Rockefeller drug laws (1973) 32, 262 Rogers, Keith 207 Rover, George 39 roving patrol stops 81, 184, 212 Rubino, Steven 118 rule-abiding propensities 260–1 Rule by Law 3 Rule of Law 2–3 Safir, Howard 241 San Francisco police department 204 San Jose Mercury News 159 Santiago, Miguel 245 Scalia, Antonin 124, 173–4, 175–6, 195, 198, 200 Scheindlin, Shira 225–6, 228, 230, 240, 267, 273 Schneckloth v. Bustamonte (1973) 71–4, 99–100, 127 Scott v. Sandford (1857) 273–4 Scottsboro Case 59 Seabury Committee (1930) 203–4 search-and-seizure clause see Fourth Amendment seat-belt infractions 14 Second Circuit Court of Appeals 86–7, 89, 169 selective enforcement 4, 8, 14, 26, 27, 154–9, 183, 194–5, 197–8, 200–3, 225–6, 244, 265, 272; see also United States v. Armstrong selective prosecution 197–8, 199, 225; see also United States v. Armstrong September 11, 2001 212–14 Serpico, Frank 67, 204 Serrano, Pedro 242–3 Sessions, Jeff 193 “similarly situated” doctrine 195, 196–8, 200, 225; see also United States v. Armstrong Simmons, Alvin 153–4 Sixth Amendment 11, 56, 71 Sixth Circuit Court of Appeals 10, 13, 74, 84–6, 90, 92, 94, 116 Skolnick, Jerome 45n18 skyjacker profile 52–8 Smith, Darrell 209 Smith, Tommie 94 Smith v. Maryland (1979) 113–14

Smith, Will 193 Snipes, Wesley 193 Snyder v. Phelps (2011) 110n116 Soto, Ephraim 170–2, 179 Sotomayor, Sonia 264–5, 266–7 Spitzer, Elliot 242, 244 Stack, Mel 152 “standing” doctrine 8, 18, 201–3; “future injury” doctrine 201–3, 225 stare decisis 65, 124 State v. Avery (1988) 120 State v. Johnson (1990) 149–50 State v. Kennedy (1991) 25–6, 27 State v. Kerwick (1988) 120–1 State v. Soto (1996) 25–7, 31, 35, 37, 38, 40–1, 48n79, 48n90, 51–2, 176–7, 274 Steinhagen, Renee 49n120 Stewart, Potter 71, 72–3, 80, 95, 97–8, 104, 112–13, 116, 121–2, 134n11 stop-and-frisk program 1, 192, 221, 224–8, 230, 235–45, 257, 263–8 stop and search decision 25 Strauss, Mary 180 strip-search 94–5, 101–3 Studio 54, Manhattan 214–15 Stuntz, William 34 “subjective intent” 25 Supreme Court 274–5; colorblind jurisprudence 8–10; and Equal Protection Clause 199; exclusionary rule 13–14, 113, 194; and justice 59, 116, 275, 276, 277; and racial profiling 6, 33, 194–203, 272–3; and reverse racism 7; see also Brown v. Board of Education; Brown v. Mississippi; City of Indianapolis v. Edmond; Florida v. Bostick; Florida v. Royer; Miranda v. Arizona; Terry v. Ohio; United States v. Brignoni-Ponce; United States v. Drayton; United States v. Mendenhall; United States v. Ramsey; Utah v. Strieff; Whren v. United States surveillance 4, 5 suspicion: articulable 10, 14, 54, 82, 96, 97, 125–6, 132; founded 70, 74, 83; reasonable 25, 31, 54, 70, 83–4, 86–8, 95, 97, 103–4, 228 Tactics for Criminal Patrol 5, 177–9, 180–2, 238 terrorism 212–15 Terry v. Ohio (1968) 53–4, 65, 83, 89–90, 106n8, 123, 124, 125 “testilying” see perjury

286 Index

Thomas, Clarence 266, 267 Thunders, Johnny 248n55 Time Magazine 224 Timoney, John 228 Traffic Stops Statistics Bill 178 traffic violations 2, 14, 25 Trail of Tears 274 Trump, Donald 193 Tulia, Texas 208–12 Tuskegee Study of Untreated Syphilis in the African American Male 128–9 United States Department of Justice (DOJ) 27, 33, 38, 58 United States Public Health Service 128–9 United States Sentencing Commission 197 United States Supreme Court see Supreme Court United States v. Armstrong (1996) 49n118, 195–8, 200, 225 United States v. Bayless (1996) 167–70, 176, 177, 193–4, 275 United States v. Brignoni-Ponce (1975) 8, 80–3, 96, 104, 105, 110n97, 131, 243 United States v. Chamblis (1977) 90 United States v. Drayton (2002) 127 United States v. Floyd (1976) 77n80, 84 United States v. Jones (2012) 194 United States v. Lopez (1971) 55–8, 63 United States v. McCaleb (1977) 84–5, 92 United States v. Martinez-Fuerte (1976) 104–5 United States v. Mendenhall (1980) 9–10, 77n80, 90, 92; the stop 95–8; custodial interrogation 98–101; the search 101–3, 119; ACLU amicus brief 105; Powell’s concurrence 95–7, 109n90, 110n100, 122; Sixth Circuit Court of Appeals 85–6, 94; Stewart’s opinion 97–103, 113–14, 121–2; Supreme Court decision 94–103, 109n89, 115–16, 183, 185 United States v. Miller (1987) 148–9 United States v. Ramsey (1977) 77n78, 109n73 United States v. Rogers (1976) 83 United States v. Scott (1976) 107n39 United States v. Smith (1986) 140, 146–8, 166 United States v. Van Lewis (1976) 62–8, 105–6, 115; border exception 83; and doctrine of informed consent 70–4; and founded suspicion 70, 74, 83;

independent police work 68–9, 86; three sets of defendants 69–70 United States v. Vasquez (1979) 87 United States v. Washington (1998) 126–7n84 United States v. Weaver (1992) 107–8n40 United States v. Zapata-Ibarra (2000) 132–3 Utah v. Streiff (2016) 263–7 Venkatesh, Sudhir 34 Verniero, Peter G. 27–8, 38, 40–1, 42, 44, 49n120 Vidal, Gore 24, 138 Vogel, Robert 238, 243; 60 Minutes 143–6, 154; ABC profile 154–5; civil asset forfeiture 151–4, 156–9; on consent 181; drug courier profile 14, 140–3, 151, 166; profile stops and pretext stops 149–50, 176, 182–3, 184; Selective Enforcement Team 154–9, 183; State v. Johnson 149–50; United States v. Miller 148–9; United States v. Smith 140, 146–8, 166; Volusia County Sheriff 17, 140, 151, 152–3, 154, 158–9 Walters, Barbara 154 Wankel, Special Agent 90 Warren, Dan 144, 146, 155 Warren, Earl 11, 71, 276 Washington State Supreme Court 176 Webb, Gary 159 Weeks v. United States (1914) 134n12 Weiner, Jacques L. 132–3 Weinstein, Jack 55–6, 63, 66, 260 White, Byron R. 71, 95, 97, 115–16, 181 Whitman, Christine Todd 27–8, 30, 37–8, 40, 41, 42, 44, 52, 210 Whren v. United States (1996) 30–1, 41, 167, 170–6, 177, 179, 183, 195, 198, 200, 266 Will, George 31, 44 Williams, Carl 27–8, 29–30, 31, 34, 37, 40, 41, 44, 49n120, 50n122 Williams, Terry 32, 34–5 Wilson, James Q. 230–1 Wilson, Kenneth 48n90 Woodward, C. Vann 52 Worcester v. Georgia (1832) 274 “would have” test see reasonable officer test Zimring, Franklin E. 191n1, 204, 224, 228–9, 235