Race Profiling Suit Challenges CHP’s Tactics

A federal class action lawsuit that charges that the California Highway Patrol uses racially biased patrolling standards is challenging fundamental drug war tactics in California.

The lawsuit alleges that vehicles driven by black or Latino motorists are up to three times as likely as those driven by whites to be searched by state drug interdiction officers. The suit also charges that these officers routinely use intimidation, ruses and drivers’ ignorance of their civil rights to obtain consent to search.

The suit takes aim at officers who are trying to crack down on drugs in Central California, particularly the burgeoning methamphetamine trade. It asks that they cease the use of consent searches and “pretext stops,” in which officers use minor traffic infractions to conduct more extensive searches.

A confluence of factors has driven the use of these patrol tactics: federal law enforcement training programs introduced in the 1980s; the splintering of Colombian drug cartels, which led to the rise of Mexican meth traffickers; and a series of Supreme Court decisions affirming the tactics.

CHP Commissioner D.O. “Spike” Helmick has repeatedly denied that his department engages in racial profiling. But last month, he ordered a six-month moratorium on consent searches. Some law enforcement officials say that move has hindered drug enforcement.

The lawsuit, filed in 1998 on behalf of three plaintiffs by the American Civil Liberties Union, was certified as a class action suit earlier this month by U.S. District Judge Jeremy Fogel in San Jose. Trial is not expected until next year.

The suit relies in part on traffic-stop data the CHP began collecting in 1999 after the department realized that the data it had previously collected “could not disprove claims of racial profiling,” according to a CHP report issued last year. Gov. Gray Davis has vetoed bills that would have mandated collection of racial data on all traffic stops.

According to ACLU calculations of CHP data obtained through the legal process known as discovery, Latinos driving along coastal and Central California highways are twice as likely to be stopped as whites and more than three times as likely to have their vehicles searched by specially trained drug interdiction officers. In the Coastal Division, blacks were twice as likely as whites to be searched by drug interdiction officers.

Helmick refused to discuss the statistics, saying the ACLU’s findings were based on incomplete information under court seal.

Jon Streeter, an attorney representing the plaintiffs, blamed the imbalance on “an official policy, a collection of techniques that are carried out on the highways and disproportionately affects minorities. These practices are being taught to officers statewide.”

CHP training manuals, copiously annotated with recent Supreme Court rulings, outline several techniques to stop motorists and then search their vehicles without probable cause.

“There are many ways to legally stretch your contact time with the suspect,” reads one document. It details how officers can extend a detention by examining a motorist’s driver’s license, rechecking driver information through different databases unnecessarily, and inspecting the federal certification sticker and any auto parts etched with the vehicle identification number.

The documents also explain how officers can request consent searches even after the motorist is released from a traffic stop: “Wish the motorist a safe trip, [tell him] ‘Don’t forget to buckle up!!’ Give instructions about how to safely reenter the freeway and just as they turn to retreat to their vehicle, pop your questions . . . work your magic. [The] degree of criminal activity required to justify a consensual encounter is zero.”

Since the 1970s, the Supreme Court has affirmed the use of such tactics. Most recently, two 1996 rulings, one affirming the use of pretext traffic stops and the other allowing police to ask for consent even after motorists are released from detention, further expanded police powers.

Perhaps the most sweeping decision came in March, when the high court ruled 5 to 4 that it was constitutional for officers to arrest traffic violators, rather than simply citing them. Opponents said that practice abandons the standard of probable cause.

Civil rights advocates trace the CHP’s increased reliance on consent searches and pretext stops to the Drug Enforcement Administration’s Operation Pipeline, a federal drug interdiction program that spread throughout the country during the mid-1980s.

That program was scrutinized during a recent lawsuit against the New Jersey State Police, which resulted in a $13-million settlement. In that case, training documents used by New Jersey authorities from the mid-1980s to the mid-1990s, and entered into evidence, listed “Hispanic men” and “black men” as two of several “identifiers for a possible drug courier.”

Racial profiling has existed, in one form or another, at least since the early 20th century. But only recently have courts and legislatures addressed the issue.

Perhaps the most public airing of the problem came last year during a presidential primary debate at the Apollo Theater in Harlem, when Vice President Al Gore accused his opponent, former Sen. Bill Bradley of New Jersey, of being soft on the issue. Racial profiling lawsuits have been filed in several states, including Maryland, Florida, New York and Washington, and legislation aimed at enhancing traffic stop data has been proposed in more than a dozen other states.

No law enforcement official interviewed for this article admitted using racial profiles, but some said it is hard to overlook the rising presence of drug traffickers in the Central Valley who are Mexican citizens.

The vacuum left by the fall of several large Colombian cartels, authorities say, opened the way for Mexican money launderers and drug distributors to take over drug production. To minimize competition and risk, many Mexican organizations are increasingly investing in methamphetamine, a domestic drug that requires far less time, manpower and space to produce, these experts say.

“Up to 70% of meth is produced in the Central Valley. The remainder is produced in California in general,” said William Ruzzamenti, a DEA agent and the director of the Central Valley High Intensity Drug Trafficking Area program. “We are the Colombia of the meth biz.”

The Central Valley, long a hide-out for marijuana growers and cocaine smugglers, is now dotted with meth “super labs” outfitted with specially made 22-liter flasks capable of cooking industrial-sized quantities of the powdery stimulant, drug enforcement officials say.

Robert Pennal, special supervisor of the California Bureau of Narcotics Enforcement and commander of Fresno’s Methamphetamine Task Force, says he has found production sites in barns and abandoned farmhouses, in old silos and beneath orange groves.

In addition to physical cover, agents say, the valley provides meth dealers with demographic cover in farming communities.

DEA official Ruzzamenti said: “The couriers live in these agricultural communities. A lot of them are Michoacan families. We have a tremendous population of people from [the Mexican state of] Michoacan in California. Usually they try to get couriers who don’t have problems, and they’re more likely to speak English, so if immigration or someone stops them, they won’t be suspect.”

To avoid detection, they drive old cars, Ruzzamenti said, to “blend in with the rest of the traffic.”

And that, said David Harris, a law professor and author at the University of Toledo, is racial profiling.

“Let’s assume it is true--and in certain situations, [the fact] that many of these folks are from Mexico is going to be helpful information. What doesn’t make sense is that therefore anyone who looks like they might be a Mexican national gets treated as a suspected meth trafficker,” Harris said.

“If you rely on physical characteristics, a beater car and ‘the guy’s Mexican,’ you’re going to sweep in many more people that have nothing to do with drug trafficking,” he said.

ACLU lawyers said they are seeking damages for their three named plaintiffs but are more interested in forcing the state to collect more data on race and ethnicity and abandon consent searches and pretext stops.

CHP Commissioner Helmick said he is keeping an open mind and is awaiting further statistics that will show whether current CHP tactics “are worth all this trouble.”

“When I was a young officer . . . we had to build probable cause, and you had to be able to articulate to a judge why you conducted a search,” he said. “But right, wrong or indifferent, the courts have ruled that the whole idea of consent searches are legal. If the courts or Congress don’t want this to be used, they should outlaw it.”