NJ: Dispatcher’s mistake in BOLO on race of bank robber was attributable to officers and this “implicit bias” can make def’s case of pretext

NJ recognizes pretext, and the dispatcher’s wrong assumption that a bank robber was Black when race was never mentioned is attributable to the officer on the street making the stop. This mistake with “implicit bias” can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars (2002). Inevitable discovery is rejected in this case because it permits racial discrimination. State v. Scott, 2023 N.J. Super. LEXIS 7 (Jan. 31, 2023). Summary from the court:

Defendant contends he was subjected to discriminatory policing when he was stopped and frisked based on the be-on-the-lookout (BOLO) description of the person who committed an armed robbery in the vicinity minutes earlier. The BOLO alert described the robber as a Black male wearing a dark raincoat. However, the victim did not provide the race of the perpetrator when she reported the crime. The State acknowledges it does not know why the police dispatcher assumed the robber was Black.

The court addresses three issues of first impression. As a threshold matter, the court holds that decisions made and actions taken by a dispatcher can be attributed to police for purposes of determining whether a defendant has been subjected to unlawful discrimination in violation of Article I, Paragraphs 1 and 5 of the New Jersey Constitution.

Second, the court holds that “implicit bias” can be a basis for establishing a prima facie case of police discrimination under the burden-shifting paradigm adopted in State v. Segars, 172 N.J. 481 (2002). Reasoning that the problem of implicit bias in the context of policing is both real and intolerable, the court holds evidence that supports an inference of implicit bias shifts a burden of production to the State to provide a race-neutral explanation. The State’s inability to offer a race-neutral explanation for the dispatcher’s assumption that the robbery was committed by a Black man constitutes a failure to rebut the presumption of unlawful discrimination under Segars.

Third, the court addresses whether and in what circumstances the independent source and inevitable discovery exceptions to the exclusionary rule apply to the suppression remedy for a violation of Article I, Paragraphs 1 and 5. After balancing the cost of suppression against the need to deter discriminatory policing and uphold public confidence in the judiciary’s commitment to safeguard equal protection rights, the court concludes the independent source doctrine does not apply in these circumstances. That exception allows a reviewing court to redact unlawfully obtained information to determine whether the remaining information is sufficient to justify a search. The court concludes that any such redaction remedy would undermine the deterrence of discriminatory policing and send a message to the public that reviewing courts are permitted to essentially disregard an equal protection violation so long as police also relied on information that was lawfully disseminated. The court reasons that if simple redaction were permitted in these circumstances, the independent source exception might swallow the exclusionary rule.

With respect to the inevitable discovery doctrine, the court holds it may apply in racial discrimination cases only if the State establishes by clear and convincing evidence that the discriminatory conduct was not flagrant. Because the State concedes it does not know why the dispatcher assumed the robber was Black, it cannot meet that burden. The court, therefore, reverses the denial of defendant’s motion to suppress.

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