Traffic stops as criminal investigations: Pretext stops should be disallowed in Minnesota

Minnesota’s criminal justice system has among the worst racial disparities in the country. We incarcerate African-Americans in our state prisons at a rate of 1,219 per 100,000 of their representation in the general population, while the rate is 111 for Caucasians. While poverty and other societal factors play a role, there is little doubt that implicit bias, which exacerbates racial disparities, impacts decisions made by prosecutors, judges, police, probation officers and public defenders.  

Existing in our subconscious, implicit bias causes us to have feelings and attitudes about other people based on race and other characteristics. Although we form these biases at a very young age, we are often not aware of them. Because implicit bias is predictive of our behavior, a decision by the U.S. Supreme Court over 20 years ago virtually ensured that racial disparities in traffic stops would continue to be widespread.   

In 1996, a unanimous Supreme Court decided that pretext traffic stops by police officers were constitutional. The case, United States v. Whren, allows police officers to use minor traffic violations  — such as failure to signal a lane change, not wearing a seatbelt, or going a mile or two over the speed limit — to justify stopping a car to investigate other potential wrongdoing. As long as the officer can identify a violation of the traffic code, the stop does not violate the Fourth Amendment’s protection against unreasonable seizures, despite being a pretext for investigation of unrelated criminal activity. 

Minnesota Supreme Court’s concerns

Less than one year later, the Minnesota Supreme Court acknowledged the potential abuse of traffic stops after Whren. Confronted with whether a driver voluntarily consented to a search after a pretext stop, the court wrote, “Underlying our consideration of the consent issue are our serious concerns related to the ‘pretext problem,’ inasmuch as the Supreme Court has now made clear that the constitutional reasonableness of a traffic stop does not turn on the actual motivations of the officer involved.”

One of the Minnesota Supreme Court’s concerns was that very few drivers can go very far without violating some aspect of the traffic code. In other words, if officers want to investigate a driver for any reason, they simply follow the car long enough to find a minor traffic violation to justify the stop. The second issue was, “that police, who have enormous discretion in enforcing traffic laws, may take advantage of their right to stop motorists for routine traffic violations in order to target members of groups identified by factors that are totally impermissible as a basis for law enforcement activity.” One of these impermissible factors is, of course, race.

How should we interpret these substantial racial disparities? Are the police racially profiling black drivers in Minneapolis? If so, is this based on the explicit or implicit belief that they are more likely to commit crimes? Are the police proactively patrolling areas where gun violence occurs and stopping black drivers at a disproportional rate because they happen to live in those areas? How many searches after traffic stops actually yield guns, and is this an effective use of limited police resources? Are the searches that reveal nothing harming police relationships with black community members? These are difficult questions to answer.

For many, these disparities are proof of “driving while black.” Instead of giving the driver a ticket or warning for the alleged violation, the officer asks personal questions, unrelated to the stop, about where the driver is going or why he is in that neighborhood. A black driver is now compelled to justify his whereabouts, despite not being suspected of any particular crime. The officer may ask for consent to search the car, which drivers often give because they believe they have no choice.   

Stakes are high for black drivers

Some would say this type of interaction is a minor price to pay for effective law enforcement, especially if the driver has nothing to hide. But what about Philando Castile, the 32-year-old black man killed by a cop who pulled him over claiming he looked like a robbery suspect because of “the wide-set nose”? Before he was killed, Castile was stopped by law enforcement in the Twin Cities 46 times for minor traffic violations. The reality is that any interaction between the police and black drivers has the potential to result in physical or psychological harm. The stakes for black drivers are too high to brush off traffic stops as an inconvenience. And research tells us that racially profiling drivers is not an effective law enforcement tool.   

To study racial profiling and routine traffic stops, North Carolina, in 1999, became the first state to mandate that state troopers record demographic data for every traffic stop on the highway. Three years later, the legislature expanded the law to include all police departments and every traffic stop in the state. Extensive demographic data now exists for over 20 million traffic stops in North Carolina.

The authors of the book “Suspect Citizens” analyzed this data and discovered that black drivers were about twice as likely as white drivers to be stopped by the police. Once pulled over, they were twice as likely to be searched. Young black men were also searched at an “alarmingly high rate,” which led to mistrust of police by black community members.

The racial disparities did not disappear when the police made stops to investigate specific offenses, such as drinking and driving. Nor were a few officers, perhaps those more likely to stop black drivers, responsible for the disparities. Officers were less likely to find contraband on black drivers, so the police were not simply looking in the right place. According to one of the authors, “When all is said and done, racially disparate search rates appear to happen because police tend to hold unwarranted suspicions about young men of color.”

The authors drew several conclusions. First, using the traffic code for criminal investigations was an extremely inefficient use of police resources because only 12 percent of searches after stops resulted in arrests for contraband. Second, because the traffic stops were racially biased, they generated tremendous mistrust of the police in targeted communities. Third, implicit bias and institutional procedures were the basis for the traffic stop patterns. As a result, they recommended that traffic stops be used to protect the community from unsafe driving behavior, not as a pretext to stop and search a car.

Many in law enforcement described the data as “deeply flawed.” According to Chapel Hill Police Chief Chris Blue, “I think there was some resistance among law enforcement to embrace the findings. Police officers go into this work for noble reasons. … So when you see results that suggest your work is having disproportionate impacts, that’s hard to stomach.”

Credited with improving the department’s work

Blue, however, was one of the first police chiefs to implement some of the recommendations, which he credits with improving the department’s work. He said that his officers still made traffic stops, but “the quality of their traffic stops has gone up, the number of unnecessary searches has gone down and the number of searches that has resulted in contraband actually being seized, guns, has gone up.”

In Hennepin County alone, there are more than 35 law enforcement agencies. While individual police departments can adopt practices designed to reduce racial disparities, a patchwork of policies across the state would not be as effective as a judicial solution. Our Supreme Court has also historically interpreted our state Constitution to provide greater protections under the Fourth Amendment.  

Twenty years ago, the Minnesota Supreme Court articulated serious concerns about traffic stops and potential racial bias after the Whren decision. We now have more research on how implicit bias can impact perceptions, even by the most well-intentioned police officers. And we have data revealing large racial disparities in traffic stops by the Minneapolis Police Department.

Reducing racial disparities in traffic stops in Minnesota is more critical now than ever before. The police are struggling to build relationships with black community members. Philando Castile’s shooting, after a pretext stop, should be a tragic reminder that these interactions are not a minor inconvenience for black drivers. These reasons alone should make our courts interpret our state Constitution to provide greater protection under the Fourth Amendment by banning the use of pretext stops by law enforcement in this state.   

Mary F. Moriarty is Hennepin County’s chief public defender.

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