As the new General Assembly of Maryland begins its work in earnest after the inauguration of a new governor and the election of their own leaders, the issues which merit the members’ attention and which will attract their focus will emerge more clearly. Amongst these issues will no doubt be the question of what can be done to enhance the tools available to law enforcement to identify and combat the “cycle of drugs and violence” as well as the very real threat that “cells” of terrorists exist in our communities, particularly in our urban centers, and that they are preparing to commit violent acts against our state’s citizens. This question will also arise as the General Assembly focuses on “gangs”, their related violent crime and drugs. More on that will be forthcoming in a future column.
This column will discuss two sometimes controversial law enforcement techniques which are now embedded in law enforcement’s “War on Drugs” and the “War against Terrorism”. Those practices are (1) “Pretextual” traffic stops and (2) the use of “drug courier profiles” based on racial and/or ethnic stereotypes.
As recently as this month the County Executive and the Chief of Police of my own Prince Georges County held a press conference to herald the “dramatic reduction in crime” in Prince Georges County. In doing so, the Chief of Police explicitly credited this result to “increased traffic stops in “high crime areas” and implicitly to the profiling that precedes it. This celebration of the effectiveness of these law enforcement tactics echoes similar statements heard in Baltimore and around the state, indeed around the country.
As a full time judge until recently and now as a recalled judge still presiding over some criminal trials, is has not been in my job description to decide whether I personally approve of either or both of these practices or for that matter any law enforcement strategy which incorporates their use. It is my job when either or both of these tactics have been employed by any law enforcement offices in a case over which I am presiding and has resulted in an arrest and/or a search and seizure of evidence whether the evidence can be constitutionally used against the defendant to prove he has committed the crimes with which he is charged.
The answer is not the same for both of these techniques. With respect to the law enforcement practice of engaging in “pretextual” traffic stops, no less an authority, than the highest court in the land, the United States Supreme Court, said in a case known as Whren v. United States, that a law enforcement officer, who observes a traffic violation may stop the violator, even though the officer does so more out of curiosity as to whether (or in the hope that) the stop will lead to the discovery of other incriminating evidence than because he has violated a traffic law. Indeed as Maryland’s Court of Special Appeals has pointed out more than once, if a criminal is dumb enough to do something such as speeding, which gives a law enforcement officer the opportunity to stop him, search for and discover evidence of more serious crimes which he couldn’t otherwise do, the constitution is not at all offended. Nor I might point out in this case is this judge. As Judge Charles Moylan, Jr. has said in many opinions, “The Constitution does not require continuing legal education seminars for the criminal class in “How More Effectively to Cover One’s Tracks”. Far from wishing to eliminate them, society needs and depends upon blunders by criminals. The Court is not at all upset when a guilty man stubs his toe.
The answer with respect to the use of a so-called “drug courier profile”, particularly one with a racial or ethnic stereotypes component is quite different. The constitution is clearly offended by this practice. It is interesting to note that Maryland’s two appellate courts differed on this issue. In a case called Derricott v. State of Maryland, the Maryland Court of Special Appeals, this state’s second highest court, ruled that the incorporation of the particular “drug courier profile” into the “articulable suspicion” utilized to justify the stop and then the search and seizure of defendant Derricott was constitutionally permissible. The Court of Appeals, the highest court in this state, quickly came behind that court to declare that it is not.
It is interesting to note the difference rationales and emphasis of those two courts in reaching diametrically contrasting opinions.
In reaching its decision approving the use of “drug courier profiles”, Judge Charles Moylan of the Court of Special Appeals emphasized that the issue of whether a search is “reasonable is determined by balancing the “intrusion on the individual’s Fourth Amendment interests” against the “promotion of legitimate governmental interests”. “By the very nature of the balancing process, it follows that the individual’s Fourth Amendment interest does not enjoy a fixed position, as if in a vacuum chamber, but rises or falls in relationship to the Countervailing interest being weighed against it. When a scourge such as narcotics consumes plague-like proportions, therefore, the governmental interest in combating it is correspondingly weighty. The very phenomenon of balancing necessarily implies that the gravity of the governmental interest one side of the scale will inevitably influence what happens on the other side of the scale”.
Judge John McAuliffe later writing for the Court of Appeals, reversing the intermediate appellate court in the same case, emphasized the constitutional right and indeed the degree of subject profiling based on the indicia and/or collective opinions of law enforcement officials, when the origins of those opinions remain unknown and their empirical validity is untested. Judge McAuliffe and the highest court in this state then pointedly refused to approve the exposure of this state’s citizens to searches and seizures or even the risk of searches and seizures of their persons and property based on the subjective suspicions grounded in the biases and prejudices of law enforcement officers collectively or individually. For that reason, Judge McAullife writing for the Court of Appeals held with regard to the use of these profiles that “this is not a case where facts observed by the police officer take on a special meaning when view through the experienced eye of that official. In those instances, the officer, by reason of training and experience, may be able to explain the special significance of the observed facts. When that type of testimony is offered, the officer may be cross-examined concerning the factual basis upon which he or she bases the conclusion, and the opinion will be given no more weight than the foundation upon which it rests.
Here, however, the officer did not attempt to offer his own experience or training as support for the conclusion that the characteristics of the local profile were related to the activities of a drug courier. A “profile” suggests that others, based upon their experience or collected empirical data, have made others, based upon their experience or collected empirical data, have made those conclusions. Where the characteristics of the profile suggest the conclusion for which the profile is offered as a matter of common knowledge and experience, the Court is able to test the validity of the inference. Where, as here, the aggregate of fact does not as a matter of common knowledge permit a reasonable suspicion that criminal activity is afoot, but requires explanation by reason of experience or empirical data that the witness advancing the conclusion does not have, something more will be required. Otherwise, the courts would be required to place blind faith in conclusion of absent law enforcement officials whose hypotheses or statistical foundations cannot be tested for accuracy.
Without more, we are not persuaded that the facts of this case give rise to a reasonable, articulable suspicion that Derricott was trafficking in drugs and was armed and dangerous. Those of his attributes which match the drug courier profile are sufficiently common that allowing a search and seizure, however brief, on this basis alone would subject too many innocent travelers to the invasion of privacy that such police action necessarily entails”.
Head on down the road with that in mind, folks.