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September/October 1999 Controlled Substances By Peter Schoenburg; Stephen McCue Peter Schoenburg is a partner in the firm of Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg, Albuquerque, NM. His practice includes the defense of drug and white-collar cases in federal and state court. He is a frequent lecturer on criminal law and trial advocacy and a member of The Champion Advisory Board. Stephen McCue is the Federal Public Defender for the District of New Mexico. He has proudly fought in the “War on Drugs” since 1986. Practical Problems in Confronting Racial Profiling On Our Highways The recurrent, systemic problem of racial profiling in police stops is currently the rage in the press. Carl Williams, New Jersey’s Chief of Troopers, was dismissed in March by Governor Christie Todd Whitman, soon after a news article quoted him as defending racial profiling because “mostly minorities” trafficked in marijuana and cocaine.1 At the same time, the state dropped an appeal of a federal court ruling that a policy of racial profiling was in operation on the New Jersey Turnpike. At a two-day Justice Department conference on “Police Integrity / Trust Building,” President Clinton, on June 9, 1999, issued an executive order that instructed the Treasury, Justice and Interior Departments to develop, within 120 days, a plan for collecting data on the race, gender and ethnicity of people agency officers stop to question or arrest. Field tests on those plans would begin within 60 days after that. “We all have an obligation to move beyond anecdotes to find exactly who is being stopped and why, ” Clinton said. Although the executive order would cover “only a fraction” of the nation’s law enforcement officers, Clinton hoped it would spur state and local agencies to begin collecting such data too. The President also voiced support for the Traffic Stops Statistics Study Act (HR 1443) introduced in April 1999 by Rep. John Conners (D-MI.). The act would provide funds for states to collect similar data. The bill was sponsored in the Senate (S. 821) by Frank Laugenberg (D-NJ), and Russel Feingould (D-WI.). Ironically, while political attention and public outrage over racial profiling by law enforcement is growing, the Supreme Court sensitivity to the Fourth Amendment issues implicated is contracting. Whren and Armstrong: The Disharmonic Convergence2 In Whren v. United States,3 the Supreme Court found that pretextual police conduct does not violate the Fourth Amendment, regardless of whether the violation for which a motorist was stopped was merely a pretext for the actual motive behind the stop. Any stop for a legitimate traffic violation is valid. The Court adopted the “could have” test and rejected the “would have” test. The presence of any probable cause ends the Fourth Amendment inquiry into the reasonableness of the stop. Justice Scalia recognizes that the constitutional reasonableness of traffic stops sometimes will depend on the motivation of the individual officers involved. “We, of course, agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race.” Scalia’s advice is dangerous, however, because the defense practitioner must next do battle with the second head of this judicially created Cerberus in the form of United States v. Armstrong.4 In Armstrong, the federal defender in Los Angeles challenged a crack cocaine indictment on selective prosecution grounds because in 1991, all 24 cases in the office involving crack were against African-American defendants. The Supreme Court shut the door on discovery on an equal protection claim of selective prosecution, holding that the defendant must show the government did not prosecute similarly situated individuals of a different race. The Court held defendant must make a threshold showing of discriminatory effect and discriminatory purpose. Mounting a typical selective/pretextual claim since Whren and Armstrong is practically a mission impossible. A sobering example is United States v. Bell.5 Bell was riding his bike without a headlamp in a police-enforced “zero tolerance area,” which coincided with the predominantly African- American neighborhood of Des Moines, Iowa. He proved that the only persons ever arrested on that charge were African American. A bike shop owner testified that 98 percent of all the bikes in Des Moines failed to have headlamps. Des Moines is predominantly white. Despite that compelling record, the Eighth Circuit found refuge in Armstrong and denied the discovery claim, finding that Bell had failed to demonstrate that white bicyclists violated the statute and police chose not to arrest them. Raising a Fourth Amendment Challenge to Selective Enforcement One solution: file a modified Fourth Amendment claim of selective enforcement. The fact is that Armstrong was a case involving prosecutorial discretion and it should not apply to cases involving police discretion and selective enforcement in traffic stops. Prosecutors have traditionally retained broad discretion in deciding who to prosecute. e.g., Wayte v. United States.6 In contrast, courts have actively limited police discretion through the warrant requirement, bright line rules for the police to follow in search and seizure cases, and the deterrence goals of the exclusionary rule. In short, do not fall into Scalia’s trap. Courts must set aside the “similarly situated” requirement taken from selective prosecution law, and not apply it to cases of selective enforcement, because courts have always acted as a buffer between citizens and police. The Fourth Amendment, not the equal protection clause and Armstrong, protects citizens of this country from unreasonable searches and seizures. The scope of “reasonableness” is implicated where systemic racial discrimination is practiced by law enforcement.7 The defense should first allege that police have embarked on a course of conduct targeting minorities for investigation and arrest, and argue that suppression of evidence is the appropriate remedy. See, for example, the pre-Whren and Armstrong case of State v. Kennedy,8 which presented a prima facia case demonstrating the high percentage of cases involving traffic stops on the highway of motorists who were black or Hispanic. Gathering the Data Ideas on how to develop a prima facia case in your area are: 1. Pull data on police stops and race or ethnicity of defendants in your local NACDL chapter (and seek the federal data when it is compiled). 2. Document the race and ethnic mix of all drivers on the highways at issue. 3. Track individual police misconduct and behavior. 4. Collect and share police training information. 5. Collect and share all police video tapes of traffic stops. 6. Trolling — send investigators and others down the highway to measure the police response. 7. Gather and pull individual officers’ Internal Affairs files documenting public complaints. We are practicing in a unique moment in history, where public outrage exceeds judicial sensitivity to an issue. It is our job to bring that outrage into the courtroom, get results for our clients, and stop widespread police lawlessness.9 Notes 1. Blacks constitute 13 percent of the country’s drug users; 37 percent of those arrested on drug charges; 55 percent of those convicted; and 74 percent of all drug offenders sentenced to prison. See ACLU Freedom Network report, Driving While Black, June 1999 at http://www.aclu.org/profiling/report/ind 2. See an excellent law review article by the same title: 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 Tex. L. Rev. 1083 (Texas Law Rev., April, 1998) by Christopher Hall. 3. 517 U.S. 806, 116 S. Ct. 1769 (1996). 4. 417 U.S. 456, 116 S. Ct. 1480 (1996). 5. 86 F.3d 820, 822 (8th Cir. 1996). 6. 470 U.S. 598 (1985). 7. 76 Tex. L. Rev. at 1113. 8. 588 A.2d 834, 838 (1991). 9. Would any readers be interested in starting a discussion site on the NACDL website on this issue to share ideas, approaches, and the kinds of discovery available? Readers with ideas, interesting state or federal cases, police reports, pretrial motions, studies, state legislative changes, novel defenses, etc., should contact: Controlled Substances Peter Schoenburg/Steve McCue 320 Central Ave SW, Suite 30 Albuquerque NM 87102 Phone (505) 243-1443 Fax (505) 242-7845 rothlawabq@aol.com | |||||||||
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National Association of Criminal Defense Lawyers (NACDL) 1660 L St., NW, 12th Floor, Washington, DC 20036 (202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org | |||||||||
