CrimLaw

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As long as they can come up with a bogus reason, they can still profile you.

An officer stops a lady because rosary beads were hanging from the rear view mirror. Now - before you start thinking the stop was based upon the fact that all Catholics are nefarious, evil, and must be stopped as they drive down the street because they are obviously up to no good - let me explain. The rosary was blocking her view of the road. I mean, the beads on a rosary are just so huge that they just might keep you from seeing that fly on your windshield or maybe even that kid crossing the street a mile or so down the road. And then there's the Crucifix which at anything from 3/8" to an entire inch keeps you from being able to see that car in front of you every time.

The Defense, for some unfathomable reason, claimed that this was a pretext stop and that profiling was taking place.

The AUSA's explanation? "[C]ourts generally look at the actual reason for a stop, not at what might have initially made the officer suspicious."

Believing a level of decorum is due my fellow practitioners I will describe that with the kindest word I can find: disingenuous. Courts have loudly proclaimed that they don't care what the real reason for the stop is as long as there is some sort of incredibly flimsy legal excuse. "[Case law] foreclose[s] any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved." Whren. "Whether a Fourth Amendment violation has occurred 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time' and not on the officer's actual state of mind at the time the challenged action was taken." Maryland v. Macon.

The general excuse given by the courts for this is that they cannot look into the mind of the officer and determine his subjective intent. O.K., if the judges are going to abdicate this responsibility, then they should hand that role to the group of fact finders uniquely qualified to determine who to believe: a jury. Let's see if the prosecutor can sell a group of citizens on the fact that a rosary on your rear view mirror is an actual reason to pull a car over. Or if the prosecution can convince a jury that someone who is in the presence of an officer - in uniform, with a gun, nightstick, and handcuffs - actually has the right (and knowledge of that right) to tell an officer to shove off and leave or drive away. It's an incomplete idea but it strikes me as more protective of our liberties than the system as it stands currently where judges refuse to protect them.

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