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Sean Hecker, Race and Pretextual Traffic Stops: An
Expanded Role for Civilian Review Board, 28 Colum. Human Rights L. Rev.
551 (1997).
Student Review:
In this article, Hecker first establishes that minorities,
especially African-Americans, are often subjected to a majority of
traffic stops and searches by the police. Hecker believes that the real
and perceived inequality in traffic stops destroys the credibility of
the criminal justice system and poses one of the most significant
problems to the effectiveness of law enforcement. Selective enforcement
of traffic laws occurs most often by drug task forces who use pretextual
traffic stops (based on a small traffic infraction) to conduct a plain
view search of the vehicle for drugs. A study done in Volusia County,
Florida of 1084 police stops showed that 70% of the vehicles had
African-American or Hispanic drivers. Other studies done in Maryland
and New Jersey also demonstrated that minorities were disproportionately
stopped for traffic violations by the police. The question remains,
What can be done to prevent pretextual traffic stops that target
minority drivers?
In Whren v. United States, the Supreme Court refused to
find that pretextual traffic stops that used race as a factor were in
violation of the Fourth Amendment's requirements. The Whren decision
established that pretexual traffic stops were reasonable under the
Fourth Amendment if the police officer had probable cause to believe a
traffic violation was taking place. Anytime an officer could have
stopped a motorist, the Fourth Amendment was satisfied. This could
have test allows officers to stop motorists for any number of minor
traffic violations and increases police discretion. Hecker finds the
Whren decision highly unsatisfactory in that it does not address the
problem of police using race in pretextual traffic stops nor does it
provide any relief for individuals to seek redress under the Fourth
Amendment.
The author considers other avenues than the Fourth Amendment that
can be used to limit pretextual traffic stops. First, state courts can
rely on their own state constitutions and grant citizens greater
protection from traffic stops. However, Hecker finds that most states
have recognized the validity of pretextual stops rather than limiting
their use. Secondly, individuals may be able to challenge
discrimination in pretextual stops under the Equal Protection Clause.
However, most often the use of race in making traffic stops are often
subtle, and discriminatory intent is difficult to establish.
Furthermore, statistical information regarding police stops are
unavailable. Thus, neither state constitutions nor the Equal Protection
Clause provide much assistance to end pretextual traffic stops.
Hecker's solution is to rely on the use of police civilian review
boards to regulate and discourage the use of discrimination in pretextual stops. Civilian review boards can limit police discretion by
examining and recommending changes to police policies and practices.
Civilian review boards provide an avenue for citizen complaints and can
recognize public concern over abuse of police discretion. The boards
are also able to compile information about pretextual stops, urge the
police to maintain records and statistics on traffic stops, and push
that written rules are implemented. Thus, while the Supreme Court and
other avenues are unlikely to stop race discrimination in pretextual
traffic stops, the use of civilian review boards have the potential to
combat the inequality of pretextual traffic stops.
Article Summary by: Corrie Noir
Wake Forest University School of Law 1999
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