Defendant’s equal protection claim that his stop was racially motivated fails on the merits because there was a factual basis for the stop and the claim of racial bias has no evidentiary support. His effort to put the officer’s social media posts into evidence has a relevance problem. United States v. Buford, 2020 U.S. Dist. LEXIS 165598 (E.D. Mo. Aug. 18, 2020):
While Bennett’s social media postings might support a finding that he harbored some racial bias, when those postings are considered together with the other evidence presented, the evidence in this case falls far short of evidence that Bennett initiated this particular traffic stop because of Buford’s race.
For instance, Bennett testified that because of the position of the driver’s seat as Burford’s truck drove by, he was unaware of the race or gender of the driver before he pulled over the pickup truck. Although Bennett conceded that he had seen enough of the driver to observe the driver’s hairstyle, the evidence of record is muddled, at best, and does not affirmatively establish that Bennett knew Buford’s race before the stop.
The United States also presented data from the MSHP regarding Bennett’s traffic stops during the year preceding the stop and during the week of the traffic stop. This evidence was also equivocal. The data reflects that during the week Bennett stopped Buford, approximately 55% of the traffic stops by Bennett were of black motorists and 37.03% were of white motorists. See Govt. Ex. 2. However, data for the year preceding the traffic stop shows that, over the course of a year, 32.4% of all traffic stops by Bennett were of black motorists and 62.5% of stops by Bennett were of white motorists. See Govt. Ex. 3. Although defense counsel asked Bennett some questions about this data, there was no expert testimony or other information provided to the Court to explain or otherwise contextualize the information.
Finally, at the hearing, Bennett testified he initiated the traffic stop after observing Buford’s truck slow down as it approached his patrol car, then drift across the center line into the left lane without signaling and then swerve back into the right lane. As Buford has noted, Bennett’s observations of the alleged traffic violation were not captured by the video recording. However, Bennett’s discussion with Buford shortly after Buford was pulled over was recorded. The video recording of Bennett’s post-stop interactions with Buford supports, and is consistent, with Bennett’s hearing testimony. On the recording, almost immediately after Buford and Bennett entered the patrol car, Bennett explained to Buford why he stopped him. Bennett also described what he observed and explained that although Buford was not speeding, he had violated Missouri law. Buford did not immediately deny that he had crossed the center line without signaling. Instead, he conceded he may have been distracted indicating he was definitely “fiddling” with the radio. Bennett’s description of the alleged violation was credible and supported by the video recording presented. As such, I credit and accept Bennett’s testimony that he observed Buford cross into the left lane without signaling; and, for the reasons more fully set out below, I find that based on this observation, Bennett had probable cause to believe Buford committed a traffic violation.
In sum, Buford has not properly asserted a violation under the Equal Protection Clause based on discriminatory racial profiling. Even if Buford did properly raise such a claim, for all of the foregoing reasons, such a claim is not supported by the evidence of record.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)