News > May 19, 2008

Supreme Court OKs Racial Profiling

By Stephen J. Fortunato Jr.

Either racial profiling is odious and unconstitutional, with personal and social consequences for communities of color — or it’s not.

On April 23, the U.S. Supreme Court, without any dissent, decided that it was not. The ruling obliquely, but forcefully, slammed the courthouse door on any attempts to challenge this widespread law enforcement practice.

In the case of Virginia v. Moore, the high court saw no violation of David Lee Moore’s Fourth Amendment protection against unreasonable searches and seizures, even though his arrest was the result of a series of Keystone Cop-like miscues and an outright violation of Virginia law.

Here’s how it played out: On Feb. 20, 2003, police officers received a radio call that a man known as “Chubs” was operating an automobile on a suspended license. Apparently, one of the officers knew that David Lee Moore went by the nickname of “Chubs.” The officers pulled over Moore’s vehicle and determined that his license had indeed been suspended. Under Virginia law, driving with a suspended license is not an arrestable offense, and the officers were obliged to issue him a citation for a future court appearance rather than take him into custody. Disregarding this clear legal mandate, however, the officers arrested Moore.

They took him to his hotel room where they searched him and found crack cocaine and $516 in cash.

According to Justice Antonin Scalia’s opinion, no search of Moore was conducted when he was initially stopped because each officer mistakenly believed that the other had already searched the suspect. As Scalia noted — presumably with a straight face — Moore “consented” to a search of his person and his room.

What is not mentioned in the Supreme Court opinion — but what can be ascertained in lower court decisions, including that of the Virginia Supreme Court when it reversed Moore’s conviction — was that the “Chubs” mentioned in the original radio transmission was not Moore but rather a man named Christopher Delbridge.

Also, one of the police officers explained at the suppression hearing that they had ignored Virginia law relative to the issuance of citations in such circumstances because it was “just our prerogative; we chose to effect an arrest.”

But the most important fact in this case — which was ignored by the Virginia courts, the Supreme Court and the few media accounts of this litigation — is that David Lee Moore is African-American. (Portsmouth, Va., is a city of slightly more than 100,000 people, more than 50 percent of whom are black.)

Scalia and his equally myopic and complacent colleagues refuse to address the problem of racial profiling — or “driving while black” — that has been widely discussed in law and political science journals, as well as reported anecdotally by black males, both ordinary citizens and those who enjoy professional or political prominence.

The Moore decision mirrors that of another unanimous Scalia opinion from more than a decade ago, Whren v. United States (1996). In that case, every member of the high court sitting at that time agreed that there was no impropriety, constitutional or otherwise, when plainclothes officers in an unmarked car in Washington, D.C., stopped two young black men for minor traffic violations in order to search for drugs. The officers were members of an undercover narcotics unit and were expressly prohibited by District of Columbia regulations from making traffic stops unless the driver was somehow threatening public safety. The court went on to uphold the validity of pretext stops.

Around the country, scholars, lawyers, community activists and even many progressive law enforcement officers are trying to eliminate the scourge of racial profiling. But read together, the Moore and Whren rulings demonstrate the Supreme Court’s impatience with municipal and state efforts designed to circumscribe arbitrary police behavior often motivated by racial stereotyping.

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• Reader Comments

  “Under Virginia law, driving with a suspended license is not an arrestable offense, and the officers were obliged to issue him a citation for a future court appearance rather than take him into custody. Disregarding this clear legal mandate, however, the officers arrested Moore.”
  ------------------
  It seems pretty apparent that the officers violated the Fourth Amendment in this action. The skin color of the alleged violator my have been how they singled him out, but the violation is still illegal search and seizure.

  It is idiotic not to describe a person being sought without including skin coloring. Would it be smart to search for a missing child an simply leave out one of the most distinctive characteristics?

  Such political correct baloney is the stuff comedians love.

  Posted by whattheheck on May 20, 2008 at 7:10 AM

  The Court has pretty much made the fourth amendment a toothless thing, since almost nothing is defined as a ‘search’ any more to their minds - and if you don’t have a ‘search’ then you don’t have to get to the other, more difficult questions of reasonableness, etc. The modern Court has gutted this core protection and made it essentially useless.

  Posted by Moose on May 20, 2008 at 2:02 PM

  Moose,

  Agreed.

  As I recall it was about 20 years ago the S. Court decided the end justified the means when searching for drugs.  They OKed the use of road blocks as long as everyone was stopped. (To mess with individual rights is wrong, but doing away with everyone’s is right?)

  I, for one, believe this deserves to challenged. There have been stops here to check for seatbelts, city stickers, etc.  If stopped I will protest very loudly.

  Just yesterday I learned that if a citizen wants to buy a car and pays cash he must disclose his income at the dealership. My first thought was disbelief, but then it was discussed on local radio and verified that this is part of Homeland Security’s protection.

  What is the potential danger of a person buying a car and paying cash rather than taking out a loan? I have no idea, but again, I would not cooperate.

  Too much of life is being shared with the government already and they have a habit of screwing up whatever they touch.

  Posted by whattheheck on May 21, 2008 at 6:20 AM

  “But the most important fact in this case—which was ignored by the Virginia courts, the Supreme Court and the few media accounts of this litigation—is that David Lee Moore is African-American.”

  Why is this the most important fact in this case?

  “Scalia and his equally myopic and complacent colleagues refuse to address the problem of racial profiling — or “driving while black” — that has been widely discussed in law and political science journals, as well as reported anecdotally by black males, both ordinary citizens and those who enjoy professional or political prominence.”

  “As Scalia noted — presumably with a straight face — Moore “consented” to a search of his person and his room.”

  This author is too quick to cry “racism” without putting forth any reasons or proof. Fotunato has quotes around the word “consented”, but doesn’t explain why whatever Moore said or did shouldn’t have been considered giving consent. He also doesn’t give any specifc reasons why he thinks that the stop was racially motivated; for all I know, both of the policemen may have been black. One of the officers already knew that “Chubs” was one of Moore’s nicknames, which suggests that this wasn’t his first time in trouble.

  Posted by SteelDragonfly on May 21, 2008 at 10:12 AM

  I know this is suppose to be a racal profiling thing, but this guy’s race is not the “most important fact.”

  This is a 4th Amendment constitutional issue. There is nothing in the constitution reagarding a persons race and illlegal search. Regardless of race they needed to have reasonable cause. If he consented that blows his case as it would with anyone.

  Racial profiling is in the eye of the beholder in this case.

  As for racial profiling the 1964 Civil Rights Act should be enough to cover it in this or any other case. The problem here is that since 1964 race (and gender) has been used as a means to justify quotas for schools, jobs, and anywhere else it gives an advantage. You can’t have it both ways.

  Posted by whattheheck on May 23, 2008 at 1:10 PM

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