1999 Conference materials
Legal Officers Section
International Assn. of Chiefs of Police


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Race Relations in Police Operations:
A Legal and Ethical Perspective
by Carl Milazzo
Former Police Attorney
Ron Hansen * Police Chief
Fayetteville Police Department
467 Hay St.  -  Fayetteville, NC 28301
(910) 433-1819
cmilazzo@hotmail.com
Originally presented at the 106th Annual Conference
International Association of Chiefs of Police
Charlotte, North Carolina
Oct. 30 - Nov. 3, 1999
Updated for the Conference of Arizona Chiefs of Police
Feb. 10, 2000




Table of Contents
I. Introduction
II. Legal Foundations
   A. Fourth Amendment - Unreasonable Search or Seizure
       1. Reasonable Suspicion to Stop
           a. Pretext Stops
           b. Profiling
           c. Race as a Factor
       2. Probable Cause to Arrest
   B. Fourteenth Amendment - Equal Protection
       1. Recognition in Whren of Equal Protection Claim
       2. Selective Prosecution for Crack Cocaine in Federal Court
       3. Equal Protection Challenge to Drug Profile Stop - The Problem of Proof
III. Forums for Challenge
   A. Criminal
      1. Motion to Suppress
      2. Discovery of Impeachment Evidence
   B. Civil
      1. Money Damages
      2. Injunction
   C. Political
      1. Legislatively Mandated Record-keeping
      2. States may give greater rights to citizens than Constitution requires
   D. Internal Administrative Discipline
IV. Training Challenges for Managers
   A. Overcoming Resistance and Increased Hostility by Officers
     1. Resentment at unjust presumptions
     2. Can't Win Attitude
   B. Training Officers What They Can Do, Instead of What They Cannot Do
   C. Encouraging Development of Race Neutral Procedures
     1. Starting Accident Investigation in Alphabetical Order
     2. Document Every Traffic Stop and Require Written Warnings
     3. Video Traffic Stops
     4. Collect Information for Criminal or Academic Analysis
   D. Resist Implementing Overly Restrictive Policies as an Over Reaction
      1. Requiring PC to ask for Consent to Search
      2. Prohibiting Traffic Enforcement in Minority Neighborhoods
    E. Public Education
      1. Brochures
      2. Local Access Television Shows
      3. Websites
      4. Public Speaking
   F. Cultivating Relationships With Leaders In Minority Communities
V. Conclusion
Endnotes


I. Introduction
This presentation looks beyond the contemporary controversy over the use of race in drug courier profiling and examines the broad spectrum of race relations affecting police operations. Racial controversy is not new to law enforcement, nor is it a recent phenomenon in American society. American police do not get enough credit for the enormous amount of positive daily interaction within minority communities. Police are pervasively present within minority communities around the clock successfully solving disputes, responding to calls for service, and addressing community concerns. It is against this backdrop that many in law enforcement are becoming increasingly frustrated by the perception, if not the reality of deteriorating race relations between police and minorities. One thing is certain: police cannot withdraw from racial conflict. Police will continue to operate within minority communities, regardless of the racial composition of either the community or the law enforcement agency. Therefore, officer and supervisory training should not only focus on how to avoid racial conflict, but also on how to ethically and legally perform in an environment where treatment of minorities is critically examined.


II. Legal Foundations of Race Bias Claims in Police Operations
A. Fourth Amendment - Unreasonable Search or Seizure
1. Reasonable Suspicion to Stop
a. Pretext Stops - U.S. v. Whren
{1}
A pretextual stop is where an officer uses a legitimate basis for stopping a car (usually a minor traffic violation) to perform another function not otherwise supported by the facts. Most pretextual stops involve an underlying motivation to search for drugs, and seem to involve minority motorists more than white motorists. The United States Supreme Court decided in Whren that pretext stops are constitutional, but they be more detrimental than beneficial to effective police operations.

The Court ruled consistently with historical interpretations of the Fourth Amendment, deciding that an officer's subjective intention is irrelevant in determining whether there is objective factual justification for a vehicle stop. Despite the constitutionality of the practice, motorists understand that they are being stopped for a different reason than the one provided and are angered by the inference needed to make the stop. The resulting anger could escalate hostility and risk greater physical danger for both the officer and motorist. The anger continues after the stop and is shared within the motorist's peer group. As more anecdotal stories circulate about such stops, the long-term effect on race relations must be balanced against the short-term effect on drug enforcement. Police managers may legitimately weigh race relations as more important than the potential arrest of a drug user or street level dealer.

A further negative effect that many officers may not appreciate is that if a stop is based on reasonable suspicion of drug trafficking, then a frisk of the occupants and passenger compartment of the vehicle may be justified. {2} During a frisk, contraband discovered in plain view may be seized and may provide probable cause for a search or an arrest. {3} However, an officer conducting a pretextual stop for a minor traffic violation will rarely be able to justify sufficient danger to frisk based on the traffic violation and any contraband discovered in plain view during the frisk will likely be excluded as evidence. For example, a driver with an expired inspection sticker may be lawfully stopped, but is certainly not dangerous enough to justify a frisk as opposed to a driver who is stopped with reasonable suspicion for engaging in drug trafficking. Thus, pretextual stops may decrease rather than increase the quality of resulting drug cases because the factual support is more vulnerable to suppression than if the officer simply articulated the factual basis for believing the driver was engaged in a drug offense at the time of the stop.

Officers who do not understand reasonable suspicion, or who have inadequate training and supervision in what constitutes reasonable suspicion tend to unnecessarily substitute the easier, but less competent traffic violation to justify a stop. By correctly interpreting the Fourth Amendment, the Court appeared to give a legal victory to law enforcement, but the decision may be creating temptation for officers to rely on a weaker legal basis to justify otherwise legal stops. This problem has a solution: competent legal training and oversight.


b. Profiling
Probably nothing has caused more controversy than the use of profiles to justify reasonable suspicion to stop a vehicle. Criminal profiling has a legitimate and successful history when applied to serial killers, rapists, hijackers, child molesters and arsonists. {4} Ironically, some criminal profiles show a racial relationship between white males and serial killers, rapists, and child molesters. However, the racial component of profiling appears to be objectionable only when minorities are identified as likely to be engaged in drug trafficking. In both cases, arrest and conviction statistics provide an empirical basis for inclusion in a profile, but in reality police do not conduct thousands of stops every day across America to investigate serial killers, rapists, or child molesters. It may be the sheer number of stops highlighting the distinction and causing a political backlash.

The Supreme Court had an opportunity to consider drug courier profiles in U.S. v. Sokolow, {5} and contrary to popular belief, did not invalidate the use of such profiles. Instead, the Court focused on the legal requirement for an investigative detention - reasonable suspicion based upon articulable facts and the reasonable inferences a trained and experienced officer is entitled to draw from those facts. {6} The dispositive question is whether the profile is rationally related to the suspected crime so that reliance on the profile is reasonable under the Fourth Amendment. To the extent that the profile does little more than combine the common experience of law enforcement officers in evaluating observed behavior, then use of the profile does not diminish the reasonableness of the decision to detain. {7} The Court stated, "A court sitting to determine the existence of reasonable suspicion must require the agent to articulate the factors leading to that conclusion, but the fact that these factors may be set forth in a 'profile' does not somehow detract from their evidentiary significance as seen by a trained agent." {8}
The DEA agents who stopped Sokolow articulated six facts to justify the detention. {9} Importantly, none of the cited facts involved Sokolow's race or ethnic background. Therefore, the Court did not expressly rule on the inclusion of race or ethnic origin in a profile. However, some state and federal appellate courts have addressed that very issue.


c. Application of Sokolow by Lower Courts - Race as a Factor
In U.S. v. Travis {10} the court considered a drug courier profile stop where the agents expressly admitted to considering race as a factor, but not the only factor, to justify the detention. The court stated:

Contrast the result in Travis with what the New Jersey Supreme court stated in State v. Patterson , {12} "[A]n individual's race cannot be considered at all when conclusions are reached or assumed as to a 'profile' suggesting criminal activity." Consider also the response of the Minnesota Court of Appeals to an officer with 18 months of experience stopping a car driven by a white male in a black neighborhood known for prostitution at 2:15 a.m. when the vehicle registration came back to a mostly white suburb 20 miles away: "Once we clear away the smoke from this case, it is clear that the stop of the appellant, which only took place after his probable residence was ascertained, is premised on the belief that after midnight, Caucasion males from the suburbs are only in the Summit University area for no good, and no good is all the Summit University area has to offer." {13}

Finally, the Maryland Supreme Court identified a troublesome application of "profiles" without empirical support. In Derricott v. State {14} the driver allegedly fit a drug courier "profile" because he was a young black male wearing expensive jewelry who was driving a sports car, wearing a beeper and possessed telephone numbers. In response to the State's assertion that the defendant fit a "statistically based profile, " the court noted

Needless to say, officers using the term "profile" may not understand that it is a term of art requiring more than just personal experience.

It is not unusual for federal courts, and some state courts to agree with the analysis in Travis that race can be a relevant factor in making an investigatory stop, but race alone is never sufficient to justify a stop. {15} Although this legal rule may come as a surprise given the current public discourse, the law remains unsettled because of the number of different state courts and federal circuits governing police throughout the country.


2. Probable Cause to Arrest
Regardless of the legitimacy of a given profile, all one can provide is a reasonable suspicion to stop and investigate in most cases. Unless the officer can corroborate more than just the concurrence of observed facts with the profile, the detained subject will have to be released. As the recent spate of proposed legislation to require record-keeping indicates, there is little documentation of stops that do not result in an arrest.

B. Fourteenth Amendment - Equal Protection
1. Recognition in Whren of an Equal Protection Claim
While ruling that pretextual stops do not violate the Fourth Amendment, the Supreme Court stated in Whren, "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 discriminating application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis." {16} Subjective intentions, however, may play a role in equal protection challenges to selective enforcement. The problem, of course is proof. The Court's language suggests that it will entertain a challenge to the use of race in selectively enforcing the law, and will analyze such a challenge under the Equal Protection Clause of the Fourteenth Amendment. The Court did just that in a selective prosecution claim the same year it decided Whren.

2. Selective Prosecution for Crack Cocaine in Federal Court - US. v. Armstrong {17}
The Court may have provided valuable insight into how it may consider the use of race as a basis for enforcement or prosecution. The standard for determining whether selective prosecution causes a disparate impact on a racial group requires the defendant to produce some evidence that similarly situated defendants of other races could have been prosecuted, but were not.{18} The majority opinion is worth quoting at length, to show how the Court views politically correct presumptions that contradict objective factual evidence:

The Court seems comfortable stating the obvious, that there is a racial disparity in the commission of various types of crime. However, another obvious point is that Supreme Court Justices are appointed for life, while police executives are not. Whether or not recognizing the obvious racial distinctions in criminal behavior is useful for crafting enforcement strategies may be risky, as will be shown below.

3. Equal Protection Challenge to Drug Profile Stop - The Problem With Proof
The same federal court that decided Travis in 1995 ruled on an equal protection challenge in 1997. {20} The federal Sixth Circuit Court of Appeals ruled that the defendant was required to prove that he was approached based solely because of his race. Although the defendant provided statistical evidence of the percentage of blacks stopped at the airport where he was detained, the statistics did not include the percentage of blacks travelling by air through that airport or how passengers were chosen in "on-view" cases where passenger lists were used. The court clearly stated, "A person cannot become the target of a police investigation solely on the basis of skin color. Such law enforcement practice is forbidden." {21} Yet in a footnote, the court added, "The court's holding today does not proscribe the use of race when it logically must be employed and does not result in an unfair application of the laws." {22} The court's opinion also impliedly addresses the dissent from Travis I in explaining the difference between a Fourth Amendment challenge to the reasonableness of seizure, and a Fourteenth Amendment Equal Protection claim, "…surveillance cannot be challenged under the Fourth Amendment because it does not involve a seizure. The Fourteenth Amendment, however, prohibits agents from engaging in investigative surveillance of an individual based solely on impermissible factors such as race." {23}


III. Forums for Challenge
A. Criminal
1. Motion to Suppress
As explained above, officers who are not well trained in what constitutes reasonable suspicion jeopardize the evidence they ultimately discover during a legal pretext stop by frisking or searching people they suspect of drug activity, but have only expressed facts sufficient to justify a minor traffic infraction. In addition, an Equal Protection challenge will be available for claims of selective enforcement and selective prosecution.

2. Discovery of Impeachment Evidence - Kyles v. Whitley {24}
Unknown by many officers, and under-appreciated by many police executives, the Supreme Court literally opened the floodgates to using police personnel files to provide evidence of racial bias, untruthfulness, or criminal conduct to impeach an officer who testifies in court. Officers disciplined for racial discrimination may be forever impeached with that evidence when they testify against a minority defendant. Not every allegation in an officer's personnel file is impeachment evidence, but sustained complaints of racial bias or untruthfulness must be disclosed to the defense by the prosecutor during discovery so the officer may be impeached on cross-examination. All witnesses in a trial may be impeached, but ironically, in a criminal prosecution police witnesses may be the only testifying witnesses who work in an environment where investigating and punishing racial bias or untruthfulness is important enough to document. In addition, police must testify in court repeatedly as a job requirement, as opposed to other types of witnesses. Therefore, police managers should become less tolerant and less willing to retain an officer who is disciplined for being untruthful or demonstrating bias. Improperly managed, a department can become crippled over time by retaining officers who can no longer effectively testify in court regarding the cases they investigate.


B. Civil
1. Money Damages
As police know better than anyone, a citizen may file a civil suit and seek damages alleging their constitutional rights have been violated. It is no secret that government entities are not eager to defend equal protection claims of discriminatory law enforcement through expensive and time-consuming litigation. Although settlement creates an implied admission of wrongdoing in the eyes of the public, government entities may still take the position that settlement is a small price to pay to maintain perceived racial harmony or to somehow show good faith by financially acknowledging the validity of the complaint.


2. Injunction
A growing trend in civil litigation against racially discriminatory law enforcement is to seek an injunction prohibiting allegedly discriminatory practices. {25} Government entities may enter into a consent judgment agreeing to refrain from legally authorized law enforcement practices in an attempt to improve race relations, rather than to contest the merits of the allegations. The long-term effect of such unduly restrictive agreements will eventually expose the present misapplication of law needed to avoid current litigation.
C. Political
1. Legislatively Mandated Record-keeping
Perhaps as a response to the inability to factually support Equal Protection claims, many state legislatures and Congress are considering mandatory record-keeping on vehicle stops.{26} In June, 1999 President Clinton did not wait for Congress to act and ordered federal law enforcement agencies to collect race and gender information on people they arrest.


2. States May Give Greater Protection Than Required by the U.S. Constitution
Another growing trend in American law is that some states interpret state constitutions to provide greater individual protection to citizens than the basic minimum required by the U.S. Constitution, even where the language of the state constitution is identical to the U.S. Constitution. In addition, state legislatures may create greater rights for citizens by statute, holding law enforcement to a higher standard than what is required by the Constitution.


D. Internal Administrative Discipline
Either not acknowledged in the current political debate, or discredited as a concept, internal administrative discipline and termination of officers demonstrating racial bias does occur and is an immediately effective method of redress. Officers are more likely to be deterred from misconduct by the prospect of losing days off without pay or their job, than losing a case in court because of a motion to suppress, or a class action lawsuit against the entire agency where the agency settles the suit without bothering to contest the merits.


IV. Training Challenges For Police Managers
A. Overcoming Resistance and Increased Hostility by Officers
1. Resentment at Unjust Presumptions
Officers are justifiably resentful at the adversarial stereotyping of police as dishonest, racist and corrupt. It is impermissible for officers to generalize about a racial group, but racial groups may freely and publicly stereotype police, with government and political support. Therefore, any attempt at broaching the subject of race relations with police will often be met with cynicism and silent repudiation prior to the training.


2. Can't Win Attitude
Many officers believe that there is no viable solution to the problem as long as nobody can speak truthfully. Nobody seems to ask officers how to solve problems plaguing minority communities where they police everyday, but everyone seems to be an expert on how the police should treat minorities better. Officers as well as many others in society will not speak openly about race problems, no matter how obvious they appear to be for fear that only the liberal, anti-discrimination dogma is acceptable. Those who work in public service are particularly susceptible to adverse personnel actions for expressing views on race and crime that may be true, but politically unacceptable. Therefore, any training or policy approach will have to overcome the sense of hopelessness many officers feel.


B. Training Officers On What They Can Do, Instead of What They Cannot Do
Training officers on facts may be more effective than just training them on the law. Ideally the best training will integrate both law and factual examples on how to apply the law. For example, in Tactics for Criminal Patrol {27} the author devotes an entire chapter on drug profiling and vehicle stops entitled, "Looking for Mr. Wrong" describing how drug traffickers beat profiles by hiring couriers from all races, nationalities and ethnic groups. The chapter examines a number of reliable "curiosity ticklers" (none of which include race) that officers can observe before conducting a stop. Using case law in training to show what facts courts rely on to justify reasonable suspicion and probable cause gives an officer something to use in the field, as opposed to a lecture on changing their attitude about minorities.


C. Encouraging Development of Race Neutral Procedures
Departments can internally solicit ideas giving officers a voice in developing procedures that may reduce the number of complaints. Since there is some self-interest in this practice, it may be a way to overcome the hopelessness fostered by a "can't win" attitude. Some ideas adopted by Departments include:


1. Starting Accident Investigations in Alphabetical Order
When arriving at the scene of an accident, an officer will first check to see if there are any injuries. Before starting the investigation, the officer could determine the names of the drivers involved, and begin taking statements in alphabetical order to counter the claim that the white officer went to ask the white driver what happened first and made the black driver wait. This procedure should apply equally to all accidents, regardless of the race of the drivers or the officers. It is much easier to explain this procedure if a complaint is made, and it provides the officers some level of comfort that a race neutral explanation will be more likely to defuse an incorrect perception.


2. Document Every Traffic Stop and Require Written Warnings
Although more time consuming, eliminating verbal warnings and requiring only written warnings for every traffic stop not resulting in an arrest or citation provide an immediate reason to the motorist for why they were stopped, and prevents an officer from providing a more valid reason after a complaint is received. Officers who think they are doing a motorist a favor with a verbal warning cannot anticipate which driver will later complain about discriminatory enforcement.


3. Video Traffic Stops
Admittedly, this is expensive. However, it is becoming more popular and has a better chance of funding in states that are considering legislation to require record-keeping of traffic stops. Governing bodies may consider the cost of in-car video as a risk management investment to maintain quality control and eliminate perception and credibility contests during complaints.


4. Consider Recording Information For Academic or Criminal Analysis
There is no reason why a Department cannot record information on traffic stops without legislative compulsion. An advantage of this is that the Department decides what information is collected in addition to just race, and can see that the results are not misused for political reasons. Working in conjunction with a local university may assure a more rigorous and credible research methodology and statistical analysis than politically compelled studies are known for.
One major concern of many in law enforcement is that if mandatory record-keeping is imposed, it will only confirm what we already know: that certain minorities get stopped, arrested and convicted more often for certain crimes. Our concern is that the result will then be attributed solely to racist law enforcement instead of also considering social and environmental factors like the cultural pathology prevalent within that racial group. Departments can proactively and cooperatively collect such information for objective academic analysis that may address more than just police practices, which could help provide more realistic and practical solutions.


D. Resist Implementing Overly Restrictive Policies as an Over Reaction
Although some police executives may wish to stay silent on the subject of race and crime for fear of reprisal, there is no benefit to running scared in the other direction either. Some managers may fall into the trap of reacting too far by implementing procedures that do nothing to reduce the perception of discriminatory enforcement, but instead hinder officers by restricting them even further than what is legally allowed.


1. Requiring Probable Cause to ask for Consent to Search
The Supreme Court has never required factual justification before asking for consent. Voluntariness is the constitutional standard, and consent may be obtained whether an individual is seized under the Fourth Amendment or free to leave. Requiring officers to articulate probable cause before asking for consent is essentially meaningless, because if an officer had probable cause, then a search or arrest would already be justified. Such a policy simply eliminates consent searches without reducing claims of discriminatory enforcement.


2. Prohibiting Traffic Enforcement in Minority Neighborhoods
Another overreaction would be to remove officers from or decrease patrol presence in minority neighborhoods with the mistaken belief that less contact with minorities will provide fewer opportunities for complaints. Such a solution is simply unrealistic considering the reality of criminal activity and calls for service prevalent in most communities. Withdrawal of police services creates a problem of discriminatory enforcement where one may not have previously existed if race is used as a basis for denying the same level of service as provided to other areas within the jurisdiction.


E. Public Education
With the public emphasis on training officers about social subcultures, it is easy to overlook the need for educating the public about the police subculture as well. If the public had a better understanding about what police work is really like, they may not be as likely to assign their own stereotypical conclusions about what they see or hear. The following ideas go beyond the usual ride-along or citizen police academy program, because although both programs can be valuable in educating the public, they are also more limited in the number of people reached and the length of time the message stays in circulation. Policing is mysterious to most of the general public, and they are easily misled by television, movies, news media, lawyers and self-appointed experts in the community. We should have some collective obligation to immediately counter such perceptions when they are expressed and work proactively to direct some reality into the perceptions.


1. Brochures
Some departments have developed brochures explaining police practices that have the potential to cause confusion or distrust. These brochures can explain what a driver should do if stopped and what to expect from the officer. The brochure can be in a question and answer format, and can be printed in more than one language. These brochures can be handed out during driver training classes, checkpoints, traffic stops, left in the lobby of the police department and other public buildings, and reprinted as a public service in printed news media. An internally produced brochure is unique in that it is not edited by an outside media source, but instead by police professionals who actually know what they are talking about. The public may have more confidence following advice given by the police in a brochure instead of some of the untested and foolish advice circulated by others.


2. Local Access Department Television Shows
Another method of directly reaching the public without outside editorializing is through a department produced television show. Many departments now have access to editing and distribution support through a local cable provider. These shows can be very time consuming to produce and seem deceptively easy to copy. However, they are worth the effort and some of the ideas printed in the brochure can be demonstrated either from in-car video footage, real video filmed during patrol, or a re-enactment. In addition to the numerous other community policing benefits, this type of medium can enhance officer and citizen safety by educating the public on how and why police will react during a stop.


3. Websites
Probably more departments have websites than cable television shows. Needless to say, this type of medium may have a more limited type of audience, but it is also a way of incorporating the best features of both the brochure and the television show with an interactive body of official information and guidance. Caution should be used here, and a department should not rely on this method exclusively to save recurring printing costs or labor intensive television producing because some of the most volatile populations are simply not going to be technologically or economically advanced enough to get their information about police from the Internet. However, other secondary producers like television and newspaper outlets may use your site for researching more accurate information, especially if the information becomes public knowledge.


4. Public Speaking
Police managers often do not realize how often their own officers and command staff have an opportunity to engage in public speaking, from community watch groups, to school groups, to curious bystanders at the crime scene tape. There should be some speaking themes constantly reinforced throughout the department, stressing the importance of finding every opportunity to include explanations about what police do and why, consistent with what is already in the brochure. Just as you may anticipate what questions you will be asked in various public settings, you need not wait to insert unsolicited comments about the reality of police work. You should stress that the damage done by irresponsible speculation is not just to the police image, but to the very citizens who inadvertently rely on bad advice and make bad decisions precipitating an unnecessarily negative police encounter.


F. Cultivate Relationships With Leaders In Minority Communities
It is difficult to manage a police department without being annoyed by self-appointed "leaders" of a community that they truly do not lead. It sometimes seems that the louder and more antagonistic these "leaders" become, the more public recognition they get from mainstream media and politicians, creating a self-fulfilling prophecy. Police are unique in the public sector because they have a more pervasive and inside view of the various communities they serve. This unique perspective enables police to more easily identify the true leaders who can influence a community's perceptions. These hidden leaders often appear in the churches and established businesses within a community and can sometimes carry more respect and influence within the community than the blowhards featured by the mainstream media. Police executives need to keep an open and continuous dialogue with the true leaders of a community, especially when certain self-appointed leaders continue to antagonize and treat any overture from police as an opportunity to negotiate or bargain away some method of law enforcement.


This option may be quite difficult during a time of crisis, but eventually it will have to happen. It is obviously better to plan for and work on these relationships before there is public crisis. Having an established relationship during a time of crisis allows a more effective and immediate means of communication within a given community than mainstream media can do. Rumor control during a time of crisis can reduce the potential for dangerous encounters between police and citizens based on misunderstandings or even malicious attempts at spreading inaccurate information.


V. Conclusion
Policing traditionally requires managing conflict, and race relations can cause some of the most uncomfortable conflict one can face. A responsible manager should find ways to manage the potential conflict. An effective manager should not wait for politically imposed solutions that aggravate the conflict, but should instead persist in developing solutions based on law, facts, and ethics. The following summary should be considered when developing training or policy:


1. Although federal case law tends to recognize the factual relationship between the commission of certain types of crimes and various racial classifications, some states appear less willing to adopt the federal standard. From a management perspective, the deterioration of race relations may outweigh the potential impact on drug offenses.


2. Don't look at race relations as a black and white issue, or your officers may begin to see themselves as adversarial to blacks. All races are equally interested in race relations. With our geographic diversity, certain racial or ethnic groups are more predominant in particular communities, yet the perceptions of discriminatory enforcement may be similar.


3. Training should integrate ethics, law, and facts, using substantial amounts of case law as teaching material. Although diversity training is popular with employers, it is rarely the most effective method of changing institutional culture within a law enforcement agency. Legal, factual and ethical integration of training is more effective because it is more practical and less likely to meet resistance.


4. Discriminatory enforcement complaints will continue regardless of the amount of training and supervision officers receive because perceptions are not always the same, correct or rational. However, good training and supervision should help eliminate inadvertent bias and intentional discrimination. Recognize the limitations of any attempt at improving and maintaining race relations, but do not use them as an excuse for inaction.


Endnotes
1. 517 U.S. 806, 116 S.Ct. 1769 (1996).


2. State v. Butler, 331 N.C. 227, 234, 415 S.E.2d 719, 723 (1992) ("In concluding that defendant, as a person reasonaby suspected of involvement in drug traffic, might be armed [the officer] was entitled to formulate 'common sense conclusions' about the 'modes or patterns of operation of certain kinds of lawbreakers'").


3. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469 (1983).


4. Turvey, Criminal Profiling: An Introduction to Behavioral Evidence Analysis, Academic Press, San Diego (1999).


5. 490 U.S. 1, 109 S.Ct. 1581 (1989)


6. For a more thorough analysis of the Supreme Court's treatment of drug courier stops, see Lafave, Search and Seizure, 3rd Ed., §9.4(e).


7. See § 3.6 Constitutional Rights of the Accused, 3d Ed., Clark, Boardman, Callaghan, 9-96.


8. 490 U.S. at 10, 109 S.Ct. at 1587.


9. (1) he paid $2,100 for two airplane tickets from a roll of $20 bills; (2) he traveled under a name that did not match the telephone number for the name under which he travelled; (3) his original destination was Miami, a source city for drugs; (4) he stayed in Miami for 48 hours, even though a round trip from Honolulu to Miami takes 20 hours; (5) he appeared nervous during his trip; (6) he checked no luggage.


10. 837 F.Supp. 1386 (E.D. Ky. 1993) (known as Travis I), aff'd 62 F.3d 170 (6th Cir. 1995), cert. denied 116 S.Ct. 738 (1996) (known as Travis II).


11. 837 F.Supp. at 1392; see also U.S. v. Condelee, 915 F.2d 1206 (8th Cir. 1990)(DEA agent with 17 years of experience detained a black female deplaning in Kansas City after arriving from Los Angeles because he knew two Los Angeles street gangs were using "sharply dressed black female couriers" and lawfully obtained her admission that drugs were in her purse because he had reasonable suspicion.)


12. 270 N.J. Super. 550, 637 S.2d 593, 598 (Law Div. 1993), aff'd 270 N.J. Super. 562, 637 A.2d 599 (App. Div. 1994).


13. City of St. Paul v. Uber, 450 N.W.2d 623 (Minn. App. 1990); see also U.S. v. Ruiz, 961 F.Supp. 1524 (D.Utah 1997) (race or ethnic background not a proper factor in determining reasonable suspicion or probable cause unless it matches the description of an offender or fits facts relevant to a specific person, place, or circumstance of offense).


14. 327 Md. 582, 611 A.2d 592 (1992).


15. See U.S. v. Kim, 25 F.3d 1426, cert. denied, 513 S.Ct. 1030, 115 S.Ct. 607; Brown v. City of Oneonta, 911 F.Supp. 580 (N.D.N.Y. 1996), reconsidered in part 916 F.Supp. 176, rev'd in part & appeal dismissed in part, 106 F.3d 1125; Ewen v. State, 518 So.2d 1285, rev. denied 528 So.2d 1181 (Fla. App. 4th Dist. 1987) (white male in black neighborhood parked across crack house at night and black male known to officers as drug dealer leaned into car window, in officer's experience white male in that neighborhood at night meant a drug buy). See also Johnson, "A Menace to Society": The Use of Criminal Profiles and Its Effects on Black Males, 38 How.L.J. 629, 652 (1995)(opposing, but recognizing that "race remains a legitimate factor to be used in drug courier profile cases.").


16. 116 S.Ct.1769, 1774 (1996).


17. 517 U.S. 465, 116 S.Ct.1480 (1996).


18. Id. at 469, 1488.


19. Id. at 469-70, 1489.


20. U.S. v. Avery, 137 F.3d 343 (6th Cir. 1997).


21. Id. At 354.


22. Id. At 354, fn. 5.


23. Id.


24. 115 S.Ct. 1555 (1995).


25. "Marked for Humiliation," ABA Journal, Feb. 1999, p. 46. See also, Gerald v. Oklahoma Department of Public Safety, et. al., CIV 676R (W.D. Oklahoma)(pending).


26. Effective January 1, 2000 North Carolina G.S. 114-10 will require state law enforcement agencies to record the race of drivers stopped, among other information. Since North Carolina does not allow a driver's race to be identified on a driver's license, it is worth watching how the Highway Patrol develops a procedure for compliance.


27. Subtitled Vehicle Stops, Drug Discovery, and Officer Survival, Remsburg, Charles, Calibre Press, Northbrook, IL (1997).


For Further Reading:
D'Souza, Dinesh: The End of Racism
Taylor, Jared: Paved With Good Intentions
Wicker, Tom: Tragic Failure

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