Racial Profiling (3/14/01)

Racial profiling has been in the news a lot lately and, although every politician is "agin' it", I have yet to see anyone explain what it is.

I suspect that the average guy out there thinks it occurs when an officer stops a Hispanic because he is Hispanic or an officer stops an African American because he is African American.  Well, it is and it isn't.

Police do not have the right to detain anyone based upon their race. It's always been illegal and always will be. So, you ask, what is racial profiling?

The scenario would go something like this: Joe Cop sees a jacked up Monte Carlo going down 287 with four young Hispanic males in it. The cop (who thinks cultural diversity means eating at Taco Bell) believes that most young Hispanics use drugs, ergo, he would like to stop that car and conduct a search.

But even this cop knows he can't do that.

So what does he do? He pulls in behind the vehicle and follows it for the next ten to fifteen minutes. At some point, the driver of the vehicle will commit a traffic violation. Mr. Cop gets to turn on his over head lights and bring the vehicle to a stop. Once he makes contact with the driver and gets his driver's license, he might be lucky enough to find that one of the Hispanics has an outstanding warrant or he might see some drug paraphernalia in "plain view". That will allow him to do a limited search of the car. Additionally, he can always ask the youthful driver for consent to search the vehicle. (i.e. "You don't have anything illegal in there so you wouldn't mind if I took a quick look, do you?").  No probable cause is needed before an officer asks someone for a consent to search.

The cop may just get real lucky and get to arrest four kids for less than a quarter ounce of marijuana.

Some of you liberal, free thinkers out there (and I know there are at least two of you)  might be saying: "Hey, that's not right! The cop shouldn't be able to stop the kids on a minor traffic violation when his real intent is to just stop and check them out because they are Hispanic".

That, my friends, is perfectly legal. There is even a name for it in the law: "a pretext stop".

This bizarre practice has been sanctioned by the Texas Court of Criminal Appeals in the last few years when it said that it did not violate the Texas Constitution (see Crittenden v. State, 899 S.W.2d 668, 674 (Tex.Crim.App.1995)) or the federal constitution (see  Garcia v. State, 827 S.W.2d 937, 944 (Tex.Crim.App.1992)).  The Court could not have been plainer when it said: "an  objectively valid traffic stop is not unlawful . . .  just because the detaining officer had some ulterior motive for making it."  Don't expect any help from the Supreme Court either. Those folks have held that the constitutional reasonableness of a traffic stop does not depend on the actual motivation of the individual officers involved.  See Whren v. United States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996).

Of course, since racial profiling is such a hot topic, your lawmakers are jumping on the bandwagon to stomp it out. Some of the bills are completely oblivious to the problem by making it illegal to stop someone based on race unless there is reason to believe the person committed an "offense". See, e.g., HB 1250. Since a traffic violation is an "offense", that proposed law would remedy nothing.

One legislator that appears to have his head on straight is Rep. Ron Wilson of Austin. His bill proposes that police agencies keep track of the race of those individuals that are stopped and, if a pattern of discrimination is apparent, fire the cop that is doing it. Additionally, (and you have to look at the bottom of the bill) his proposed legislation would outlaw the "pretext stops" described above.

That might be easier said than done, however. How would you ever prove that an officer stopped a car because of a traffic violation as a pretext for his desire to simply stop a car driven by a minority? Not a chance.  In the end, it's a bit like trying to legislate morality. We just have to rely upon the cops to do the right thing.

Barry Green served as District Attorney for Wise and Jack Counties from 1993 through 2000. He is now a partner in the Decatur law firm of Smith & Green, P.C.

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