Driving While Black and the Art of the Pretextual Stop

22 years ago I was doing comedy at Russo’s in Grand Blanc, Michigan. Grand Blanc, not coincidentally, is French for “great white.” I was riding from the hotel to the show with Rodney Johnson, a black comic from Dallas, and we were pulled over the police. They asked for his license and registration, informing him that he had a burned out license plate light. The cop goes back to his car and, a few minutes later, we were being handcuffed and put in the back of the police car. Why? Because the license plate, supposedly, had come back as stolen.

We’re in the back of the car for a good 30-45 minutes while they searched his van. When they found nothing illegal in the van (I actually did have pot with me, but it was at the hotel), they came back, uncuffed us and said that it had all been a mistake. When they called in the license plate, the officer explained, the dispatcher must have gotten a couple letters or numbers in the wrong order or something. The van wasn’t stolen after all. So sorry, you’re free to go.

This is what is called a pretextual stop. They don’t pull someone over for a burned out license plate light for any reason other than to find an excuse to do a search of the vehicle. Rodney was pulled over for driving while black in a city as white as the back of an envelope. If you think this sort of thing isn’t absolutely routine, you’re living in a fantasy world.

Pretextual stops are something police are trained to do. They word their questions quite deliberately — “do you mind if we search the vehicle?” — in order to make you voluntarily give up your rights. If you say yes, they get to search it whether they have any reason to suspect that you’ve done anything wrong or not. If you say no, that become the pretext — thus the name of the technique — for claiming they had “reasonable suspicion” to search the vehicle.

If you say no, they’ll tell you that they’re going to call for a K-9 unit, but that might take a while, maybe a couple hours. At that point, you are stuck. You can either allow them to do the search or sit there waiting. And if the dog “alerts” — which could be absolutely anything, with no information on what constitutes an alert — they now, according to the Supreme Court, have probable cause for a full vehicle search. They will often do this by having you come back to the police car and then the dog “alerts” while at the front of your vehicle, where you can’t see him.

I’ve cited study after study showing that alerts by drug-sniffing dogs are little more likely to be an accurate indicator of actual drugs in the vehicle than random chance, but the Supreme Court doesn’t care a bit. In both blind tests and in the field, the dogs are wrong the overwhelming majority of the time (always explained away with “well there must have been drugs in the vehicle at some point even though we can’t find them now”).

All of this is designed to get around that pesky constitution. It’s a pretext for pulling over anyone they want (and who do they want to pull over? Black and Latino people by an absolutely overwhelming margin even though white drivers are actually more likely to have contraband when their vehicles are searched) and search the vehicle without meeting the requirements of the 4th Amendment for doing a search. The Bill of Rights is no longer a useful safeguard against illegal searches and seizures, largely because the courts have utterly failed to enforce the 4th Amendment.

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  • doublereed

    I think you flipped the responses. Yes means screw off. No means go ahead. Isn’t it:

    “Do you mind if we search the vehicle?”

    “No.”

    “Great, we’ll do just that.”

    “Do you mind if we search the vehicle?”

    “Yes.”

    “Why not? You up to something? Let’s search.”

  • http://www.ranum.com Marcus Ranum

    The Bill of Rights is no longer a useful safeguard against illegal searches and seizures

    It only applied to rich, white, smugglers and insurgents like the founding fathers, anyway.

  • http://www.ranum.com Marcus Ranum

    a K-9 unit

    It’s mean to the dogs, making them hang around with cops. It makes them look bad. They should use cats instead.

  • David C Brayton

    I have been pulled over for a burned out license plate light.

  • http://en.uncyclopedia.co/wiki/User:Modusoperandi Modusoperandi

    Black and Latino people by an absolutely overwhelming margin even though white drivers are actually more likely to have contraband when their vehicles are searched…

    As a white person, I check to ensure that all bulbs in, on and around my car are functioning before, during and after each excursion. As such a conscientious person (a typical characteristic of white persons), I find the idea that someone would not check and double-check such things suspicious, and a perfectly reasonable reason to harrass, delay, annoy or jail people or groups who aren’t me or mine.

  • busterggi

    David – did the cops also cuff you, throw you in their car and search your vehicle?

    Thought not.

  • rhebel

    Does one have a right to videotape the dog and handler? I would think at the very least this would be a deterrent or at least helpful if they tried to trump anything up.

  • davidworthington

    Ed’s dead on with this. I don’t know if I’ve posted this here before, but while its a relatively long you-tube video, it is also pretty interesting and I occasionally use it in my argumentation class. It is about why you should never talk to the police:

    http://www.youtube.com/watch?v=6wXkI4t7nuc

  • tubi

    All you need to do is watch “COPS” for a while. People get pulled over all the time for a burned out license plate light, tint that’s too dark, tail light problems, etc. And it’s almost always a couple of black guys in their 20’s. They get cuffed for the officer’s protection, and then their car gets searched.

    I’ve long wanted to keep track of the details of incidents on that show, to see if black drivers are treated differently than whites. I’m certain they are, but it’s just a gut feeling, not empirical.

  • slatham

    Ed, would you mind listing again a few of what you think are the top studies regarding dog inaccuracy? A dog lay down beside me in the airport once; I had nothin’ but it turned out to be quite stressful anyway. A researcher who uses dogs to find wildlife samples later told me that I had to have something (closest I could think of was a fish anaesthetic that I’d probably transported in my bag a year earlier). My other guess was that the officer signaled to his dog to pick me. I hadn’t thought about the dog simply being wrong. Thanks!

  • ledasmom

    Back when the husband was in college (long while back) down in Florida, his mother and sister were driving with him either from Boston to school or back. Sister was driving. Cop puts on lights and siren behind them. Sister, a nervous driver, does not pull over for several miles, despite cop following them, lights, siren, etc. Sister finally pulls over, tries to put car in park, fails to do so, rolls back into cop car.

    And what happened? The cop told her she had a taillight out and could get a replacement about a mile back. No ticket. No warning, even, I believe. Nobody had to get out of the car.

    I probably don’t have to specify that husband’s family is pale enough that fish-bellies are tan by comparison.

  • 930i7

    Just curious would a white driver with a black passenger have the same issue?

  • http://www.thelosersleague.com theschwa

    @930i7 (#12):

    No. it would go like this: passenger is removed, cuffed in cruiser. Cop to driver: “Are you OK? Did he hurt you? Did he threaten you? You are safe now. He cannot get you now.”

  • comfychair

    All it takes for a K-9 to ‘alert’ is for the cop to say it did. Seen it happen first-hand, they really do it and it doesn’t bother them the least little bit.

  • http://freethoughtblogs.com/wwjtd JT Eberhard

    I had this done to me as a white guy in an all-white town in Arkansas in my youth. I can’t imagine what it’s like for minorities. :

  • http://www.youtube.com/watch?v=_R2XG9CnOj8 Olav

    Slatham #10:

    My other guess was that the officer signaled to his dog to pick me. I hadn’t thought about the dog simply being wrong.

    I have come to understand the problem as follows:

    The dogs in this line of work are more often right than wrong on the substance. They are not infallible, but nonetheless really very good at what they do. I mean, they know what they smell, and they can literally sniff out a molecule among millions. Of course it is possible that a dog misses a smell, or may think he smells something when the substance is not there. The impressions they receive in their noses must all be very fleeting anyway, so an honest mistake is always possible.

    However the main problem is that dogs are such social animals, working together with human teammates. And they are sensitive to the moods and desires of their humans. They are also smart, in the sense that they will know perfectly what is expected of them – even when they do not understand the reasons for it (like when they are on a drugs search). So they do not even necessarily have to be directed by a handler to give a signal, they may well decide for themselves that “perhaps now would be a good time to give my human something to do, he seems so eager to find something”. Of course they do not really reason like this, I am not anthropomorphising, but they are certainly able to emote like this and act on it.

    And then sit down next to your suitcase.

    It is a malicious lie (and it should be a crime if it is not already) when a dog handler instructs his dog to point you out. If the dog does it by himself, it is just the dog doing what he feels is expected. Or who knows what reasons a dog may have to act in any specific way. You get sent to jail because Fido felt like getting his head scratched.

  • comfychair

    I think you’re missing the main point, which is that the dog doesn’t have to be instructed to do anything, and doesn’t have to respond to an instruction to false alert. The dog doesn’t have to do anything; the dog cannot testify in court later. There’s nothing required other than the officer says the dog alerted, and that’s that, your car’s getting searched.

  • slatham

    #16 Olav — thanks (though I’d still like Ed to provide a shortlist of studies).

    I suppose I’ll report what happened next. I was told I’d go through customs “over there” (the agent pointed to an examination room). After a brief search, I was told that I could provide the drugs and pay a $500 fine or they would thoroughly search me and my things and I’d pay $5000. They left the room. Given the two choices I would have paid the $500. But then I remembered that I didn’t know where I had any drugs. I opened my bag and then, coming to my senses and noticing the one-way mirror, I took out my sandwich and ate it and smiled toward the mirror. I ended up getting through in time for my flight to Jamaica, so it wasn’t as bad as it could have been. But it’s probably worth noting that I’m white.

  • anbheal

    @16 Olav and @10 Slatham, I don’t have links handy, but after I was busted at the infamous Sierra Blanca “Border Stop” 80 miles from the nearest crossing, my lawyer provided me with a variety of studies showing that the dogs absolutely pick up on what their handlers want. Yes, they can sense infinitesimally small amounts of whatever (try entering Chile with a vacuum-sealed granola bar!), but they “signal” most often when they detect the handler expecting or desiring a signal. If he sees long-hair, college kids, a guitar in the back seat, a van, a POC, a dredlocks, hears rap or reggae or thrashmetal, thinks your sunglasses look too John Lennon-y or Roger McGuinn-y, etc., then the dog will signal. And yes, at my stop, I didn’t see the dog move a muscle. But I was driving with Mexican license plates in Texas, so, you know, bad me (and embarrassingly, the dog then sniffed out Colorado THC gout ointment — how lame a middle-aged drug bust is THAT???).

  • jedibear

    I can’t disagree overall, but I will take issue with one thing.

    Police cheerfully stop white people to helpfully notify them that their license-plate light is burned out. This has happened to me, and no attempt was made to search my vehicle.

    In fact, of all the times I’ve been stopped for a grand variety of minor infractions, nobody has ever asked to search my vehicle. Of course, there wasn’t anything for them to find either. Unintentional efficiency for the win! 😛

    I’m also quite certain that, while “driving while black” is a thing, some people overestimate how much white people get away with. I had a professor complain once that she was stopped for “driving while black” when in fact she was stopped for speeding through a well-known speed trap.

  • lorn

    One of the first lessons in Cop 101 is that if you want to pull someone over they can always, always, find a reason. There are always enough minor infractions (like nonfictional license plate lights, infractions that are frequently ignored), judgment calls (define a “full” stop), and subjectivity (define “suspicious”), to legally justify a stop if they desire it. Which isn’t to say they need to make it legal. If a cop says you ‘left the surface of the roadway’, drifted out of your lane, there is really no recourse.

    Of course there is no reason to make it easy. When was the last time you walked around your vehicle and checked the brake, driving and license plate lights? If you have tinted windows are you sure they are all light enough to pass the test? Do you ever drive after a drink, on antihistamines, while tired? When you replaced that headlight did you have the headlight aligned with a testing device or did you just wing it and guesstimate about where it should be?

    Lacking any other reason a cop can simply follow closely and wait for your nervousness to trigger a mistake.

    Abuse is always a possibility.

    I would suggest that the answer is to get police chiefs and mayors into office that will not tolerate bullying or ticket quotas. You can also make sure that the police department and township are not dependent upon fines from ticketing or seizures for funding.

  • Anneliese

    @ Slatham #10. Here is a study done at UC Davis on drug dog reliability.

  • throwaway, never proofreads, every post a gamble

    Jedibear @20

    I’m also quite certain that, while “driving while black” is a thing, some people overestimate how much white people get away with. I had a professor complain once that she was stopped for “driving while black” when in fact she was stopped for speeding through a well-known speed trap.

    Hey, well there you go! There’s your anecdote to prove the inverse is also true! It’s all parity now. Racism is over. We can all go home.

  • http://www.facebook.com/profile.php?id=1520169291 carolineborduin

    What is with western Michigan and their obsession with “Grand”? Grand Rapids, Grand Haven, Grand Junction, Grand Ledge and Grand Blanc… I’d love to blame the Calvinists for this.

  • smrnda

    When cops waste your time due to an ‘error’ like this, they should be fined and ordered to pay out $ for wasting your time. I don’t like the idea that there is a financial incentive for them to pull people over for no good reason with the quota system, but no penalty to them for screwing up.

    If a cop puts any person in cuffs, or in the car who has not been charged with a crime, it should come out of their paycheck as a gross violation of basic rights. When you screw up on the job, you should pay. The only thing I think can get through to the pea brained thugs in blue might be hitting them with fines. They’d at least understand that IF they decide to violate people’s rights, it’ll cost them.

  • Michael Heath

    carolineborduin writes:

    What is with western Michigan and their obsession with “Grand”? Grand Rapids, Grand Haven, Grand Junction, Grand Ledge and Grand Blanc… I’d love to blame the Calvinists for this.

    Grand Blanc is on the east side of Michigan. Grand Ledge is in the center of the state.