Challenging Traffic Stops as Violative of Equal Protection

by Jill Paperno Author of "Representing the Accused: A Practical Guide to Criminal Defense" As every criminal defense lawyer knows, pretext stops are the bane of our (and more importantly, our clients’) existence. We have all long suffered under the burden of U.S. v. Whren, 517 U.S. 806 (1996) and People v. Robinson 97 N.Y.2d 341 (2001), cases in which first the Supreme Court and then the New York Court of Appeals concluded that even if the officer’s primary reason in stopping someone was racist, courts would not examine an officer’s motivation in engaging in these stops, and such stops are not illegal. Study after study demonstrates what was predicted by defendants’ counsel in both cases and considered and rejected by both courts. Pretext stops are rife with racial disparities, and searches resulting from such stops suffer from the same biases. For more information about the history of pretext stops, the studies, the harms caused by these stops, and what is going on around the country, check out this report issued by Empire Justice Center in January of this year: https://empirejustice.org/wp-content/uploads/2023/04/Stop-the-Stops-Empire-Justices-Preliminary-Report-on-Racial-Disparities-in-Pretext-Stops.pdf But there are some glimmers of hope in case law, statutes and policies developing across the country. Many of these developments are described in the Empire Justice report. But we want to focus on some recent cases and practice suggestions based on these cases. First, a little refresher. Pretext stops are stops by police officers of motorists, cyclists and even pedestrians, generally for low-level, non-safety Vehicle and Traffic Law violations. The reason they are referred to as “pretext stops” is that the stopping officer actually wants to detain someone for another reason, like an investigation in which there is insufficient legal basis, or a completely unlawful reason like racial profiling. As noted above, in Whren the Supreme Court permitted officers to engage in these stops. While the New York State Constitution sometimes provides greater protection of rights, in Robinson, the New York Court of Appeals refused to do so when it came to pretext stops. While each case said that arrests based on membership in a protected class would violate the Equal Protection Clause, both cases pointed defendants in the direction of civil lawsuits, presumably while they were serving time in prison for the criminal charges based on evidence seized as a result of these biased stops. Interestingly, prior to Whren and Robinson, there were New York Appellate Division cases that barred use of evidence obtained in pretext stops. Last fall, the Third Department issued a decision in People v. Jones 219 AD3d 150. The Court returned the case to the trial court for consideration of whether arresting officers engaged in racial profiling, and if so, whether the evidence seized should be suppressed. In Jones, the Court stated, (W)e conclude that the Robinson standard does not preclude a challenge to a traffic stop predicated on racial profiling, at least under our state constitution. Correspondingly, the remedy for such an unconstitutional stop would be suppression of the evidence seized. In that regard, we are mindful that the First Department reached a contrary conclusion in (cases listed in the decision). Such a limitation would effectively render a defendant's constitutional rights meaningless in the criminal context – an outcome we do not accept. For a defendant's constitutional rights to be meaningful, the exclusionary rule must apply (see generally People v. Jones, 2 N.Y.3d 235, 241–242, [2004]). In reaching this conclusion, we are mindful that both the majority and dissent in Robinson rejected as unworkable the “primary motivation” subjective test for a traffic stop (see People v. Robinson, 97 N.Y.2d at 353). We abide by that conclusion. Whether a traffic stop was premised on racial profiling must be assessed objectively with reference to the facts and circumstances of the encounter. Such considerations may include, for example, whether the arresting officers were involved in a plausible investigation prior to executing the vehicle stop. Also important — and certainly most relevant here — is consideration of the officers’ actions and comments during the encounter. People v. Jones, 210 A.D.3d 150, 177 N.Y.S.3d 174, 178–79 (2022) For a further analysis of the Jones case, see Hon. Barry Kamins’s columns in December in Law.com at https://www.law.com/newyorklawjournal/2022/12/05/exclusionary-rule-applied-for-the-first-time-to-racial-profiling/ and Law.com in April at https://www.law.com/newyorklawjournal/2023/04/04/race-and-the-fourth-amendment-defendants-raise-issue-in-suppression-motions/ This week, the Massachusetts Supreme Judicial Court, the highest in the state, decided Commonwealth vs. Michael Robinson-Van Rader. While this Mr. Robinson (Van Rader) also lost his case, the court concluded both that selective enforcement based on race may be a basis for suppression of evidence, and that to ensure that the Equal Protection clause is truly given the consideration it must receive, a more relaxed standard must be applied in cases where racial discrimination in the stop is properly raised. This decision is full of gems, from the recognition of the difficulty in proving a negative when trying to establish a record on demographic statistics, to the recognition of the subjectivity of the stops. The Court stated (in its 41 page decision): The remedy for a selective enforcement violation is suppression of the evidence that was obtained in violation of the defendant's constitutional right to equal protection… In Long, 485 Mass. at 723-725, we revised the standard by which a defendant can establish a claim of selective enforcement, in the context of the traffic laws. In deciding that such a change was necessary, we explained, "it is clear that Lora has placed too great an evidentiary burden on defendants. The right of drivers to be free from racial profiling will remain illusory unless and until it is supported by a workable remedy." Id. at 721…The issue having been squarely raised here, we conclude that the equal protection standard established in Long for traffic stops applies equally to pedestrian stops and threshold inquiries, as well as other selective enforcement claims challenging police investigatory practices. In Long, 485 Mass. at 722, we determined that the first two parts of the three-part Franklin standard are not necessary in the context of motor vehicle stops. We explained that, "because of the ubiquity of traffic violations, only a tiny percentage of these violations ultimately result in motor vehicle stops, warnings, or citations. Thus, it is virtually always the case that a broader class of persons violated the law than those against whom the law was enforced. Similarly, in stopping one vehicle but not another, an officer necessarily has made a deliberate choice." (Quotation and citation omitted.) Id. Accordingly, the appropriate inquiry is restricted to whether the traffic stop was motivated by the driver's race or membership in another protected class. Id. at 723. …"Asking a defendant claiming selective enforcement to prove who could have been targeted by an informant, but was not, or who the [investigating agency] could have investigated, but did not, is asking [the defendant] to prove a negative; there is simply no statistical record for a defendant to point to." United States v. Sellers, 906 F.3d 848, 853 (9th Cir. 2018). The inaccessibility or unavailability of relevant data in such situations stands in contrast to cases of selective prosecution, which occur "when, from among the pool of people referred by police, a prosecutor pursues similar cases differently based on race" or another protected class…We note that the decision to conduct a pedestrian stop, or to investigate a suspect, is a "deliberate choice," thus satisfying the requirement under the second part of the three part Franklin test, see Franklin, 376 Mass. at 894, that a defendant show that the failure to prosecute was deliberate. 33 Presumption of Regularity in Judicial Review of the Executive Branch, 131 Harv. L. Rev. 2431, 2432 (2018). So what is a defense lawyer to do? Start obtaining and examining the records and statistics relating to stops conducted by particular offices or the department, as the defense attorneys did in the Robinson-Van Rader case above. Compare them to population statistics. Break down the language and claims of officers when you hear of a defendant “blading their body” or engaging in “furtive gestures.” Attach the Empire Justice Center report to your motion and raise those Equal Protection claims under the United States and New York State constitutions, citing People v. Jones. And don’t run away from a court’s claim you are “playing the race card.” This is not a game, and systemic racism is not a card.