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Can a Traffic Offense Be: D.W.B. (Driving While Black)?

March 09, 1997|Tracey Maclin

BOSTON — In 1693, court officials in Philadelphia authorized the constables and citizens of the city to "take up" any Negro seen "gadding abroad" without a pass from his or her master. Of course, this judicial order to stop and imprison any Negro found on the street did not distinguish between free and enslaved blacks. In 1738, militiamen in colonial Virginia were given powers to arrest blacks whose presence excited suspicion and to detain any slave found off his master's property without a pass.

Today, as part of the war on drugs, police officers across the nation have targeted black motorists in a manner reminiscent of the slave patrols employed in colonial America. In places as diverse as Volusia County, Fla., Woodbury, N.J., Eagle County, Colo., and along stretches of Interstate 95 in Maryland, evidence indicates that officers have targeted black motorists for traffic stops.

Once motorists are stopped, officers often "discover" evidence justifying a search of the car for drugs or "request" permission from the motorist for a search. In some places, if permission to search is denied, a drug-sniffing dog will be brought to the scene. Of course, police officials have denied charges of discrimination, but, for many blacks, this practice is so widespread it has its own street label: D.W.B.--"Driving While Black."

A Florida report illustrates the extent of the problem for minority motorists. Police videotapes of traffic stops by the Volusia County Sheriff's Department found that 70% of drivers stopped by officers on Interstate 95 were black or Latino, and more than 80% of the cars searched were driven by blacks and Latinos. Yet, the report also found that the vast majority of drivers on Interstate 95 are white.

The 4th Amendment, which protects against unreasonable governmental searches and seizures, was designed to check the power of the police. As Justice Tracey Maclin, a professor at Boston University School of Law, teaches constitutional law and criminal procedure.

William O. Douglas wrote, "Power is a heady thing, and history shows that the police acting on their own cannot be trusted." Today, too many black motorists have first-hand knowledge that this is still the case.

A generation ago, blacks and others concerned with this type of police abuse would have turned to the U.S. Supreme Court to halt such practices. Ironically, the current court has made it easier for the police to continue these arbitrary and discriminatory intrusions without constitutional restraint.

Last year, two black defendants argued that Washington narcotics officers had conducted a pretext stop--that is, used the existence of a traffic violation as an excuse to stop their car when the officers lacked evidence of a crime. The court ruled that the 4th Amendment did not bar the police from conducting pretext stops, despite the fact that the officers violated departmental rules by making a traffic stop while in plainclothes.

In another case, the court saw no reason to restrain the practice of an Ohio officer who routinely asks motorists detained for traffic violations for permission to search their cars, even in the absence of criminal activity. The officer candidly testified in one case that he asked for consent because "I need the practice" of convincing drivers to allow a search. The court rejected the argument that motorists stopped by police should be informed of their right to leave the scene before being questioned about the contents of their cars and asked to allow a search.

Finally, a few weeks ago, in a Maryland case, the court gave police the additional discretion to order passengers out of the cars they stop for routine traffic violations, even when an officer has no reason to suspect that a passenger has committed a crime or threatens the officer's safety. A decade ago, the court ruled that officers could, without suspicion, order a driver out of a car during a routine stop, and the current court was not convinced that passengers should be treated any differently from drivers.

The impact of these rulings is easy to see: Because every motorist will sometime commit a traffic violation, a curious officer who lacks evidence of criminal conduct will always have a reason to stop a car--even when a reasonable officer would not make such a stop. Any occupant can be ordered out of the vehicle and interrogated about anything the officer wishes. After the reasons for the traffic stop are resolved, an officer is not required to inform the motorist he is free to leave, or required to tell the motorist he need not consent to a search of his car.

Another consequence is that minority motorists will now be subjected to more aggressive and arbitrary police intrusions. What is my proof? Listen to the comments of law-enforcement officials:

A Flint, Mich., officer admitted he stopped the defendants for a traffic offense because "there were three young black male occupants in a car."

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