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.
Stephen J. Fortunato Jr. is a former associate justice on the Rhode Island Superior Court.
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