Court Calls Out BS ‘Driving While Black’ Traffic Stops While Tossing Felony Possession Conviction

While it's not ultimately a factor in the court's decision, it's nice to see a court call out biased policing while discussing the merits of the case. This decision [PDF], handed down by an Illinois state appellate court, makes it pretty clear the court believes this stop would never had happened if the driver happened to be white. (via FourthAmendment.com)

It's futile to believe biased policing isn't the norm in the United States. There's simply too much data to dispute. In this decision, even more data is presented that makes it clear driving while black" (DWB) is considered reasonable suspicion for a traffic stop and, often, a vehicle search by far too many US law enforcement officers.

This one starts with a pretext: a minor traffic violation three officers hoped to convert into a search of the vehicle the black man was driving.

Deshaun Carpenter was driving an older model" Dodge Nitro with one broken taillight and a small object suspended from the rearview mirror when three officers curbed the car, ordered Carpenter out, and asked whether narcotics" or weapons" were in the vehicle.

As courts have often noted in cases like these, any pretext will do as long as the pretext holds up. In this case, it didn't. As soon as the officers were questioned in court during the trial, the pretext fell apart.

An officer admitted on cross-examination that a single broken taillight was not a lawful basis for a stop.

There goes that pretext. The officers had a backup plan, though. It was the small object suspended from the rearview mirror." And that form of obstructed driving might have held up under cross-examination... if the officers had bothered to mention this alleged moving violation once during 20 minute traffic stop and vehicle search.

And in the body-camera footage, officers never mention the obstruction hanging from the rearview mirror.

Both pretexts were invalidated by an officer's admission and the officers' complete disinterest in this supposed issue during the traffic stop.

After taking Carpenter out of the car, officers peppered him with questions about drugs and weapons. Carpenter insisted he had borrowed the car from a friend of his girlfriend. Unhappy with the lack of immediate findings, officers spent the next thirteen minutes searching the car. A gun was found embedded between the metal frame and the cushioning of the drivers seat, which led to felony possession charges for Carpenter, as he was forbidden to possess a handgun due to a previous felony conviction.

Here's where officers found the weapon they insisted Carpenter must have known about:

Carpenter first moved to have the evidence suppressed as the fruits of an unconstitutional search. That seemed to be the smart way to go but, for some reason, his lawyer decided it wasn't and withdrew the motion. A bench trial ended with a conviction, leaving Carpenter with the sole option of arguing the state did not provide enough evidence to support his unlawful possession charge.

One of the two officers involved in the stop and search (Lt. Piechocki) claimed reasonable suspicion to further the search was due to the fact that Carpenter kept looking" at the cops (Officer Pizzo and Officer Brienzo) as they searched the car. He also claimed the fact that Carpenter kept looking through the back window" suggested Carpenter knew there was something illegal in the car.

The court says these assertions are, at best, laughable. First, Lt. Piechocki had ordered Carpenter to turn around and face the back of the car, making it inevitable that he would [look] through the back window." Second, the court notes it's perfectly natural for drivers to watch officers search their cars. That's just a thing people do.

In reaching this conclusion, we reject the State's contention that ample grounds" permitted
the trier of fact to infer that Carpenter knew about the embedded handgun. The State speaks of Carpenter's nervous conduct in three times looking through the rear window as the officers searched the front seat[ ] and the fact that the seat [Carpenter] was sitting on contained an abnormal rip and a hard object which was later revealed to be a firearm." But we review all the evidence, not some. Common sense informs us that anyone stopped by three officers might appear nervous to an officer. Moreover, who would not look through the rear window to see what the officers were doing?

Indeed, the officers had ordered Carpenter to stand facing the rear window while they searched the car and him. Contrary to the dissent's incorrect claim, we do not assert the officers ordered Carpenter to look through the window-the officers ordered Carpenter to face the rear window. Thus, Carpenter's looking complied with the officer's orders. To equate cooperation with consciousness of guilt assumes wrongdoing regardless of what happened. Moreover, compliance meant nothing to Piechocki, who had fixed in his mind the conclusion the dissent reaches: Carpenter must know a handgun is in the car, which is a preconceived notion and not a reason, a pernicious presumption and not a rational inference.

The fact that a gun was (very eventually) discovered under the driver's seat does not mean Carpenter knew it was there or that it was his. Nothing in the case tied him to possession of the vehicle, one he steadily maintained he had borrowed. Even the cops who spent thirteen minutes in the front of the car failed to detect it while sitting in the driver's seat.

And that's where the court drops a pretty fucking great cite, mocking the officers for their testimony that Carpenter must have been able to detect the hidden object even when it took them nearly 15 minutes to discover the gun themselves.

Finally, although the State describes a driver's seat with a slight rip as abnormal," nothing in the record supports that assessment. On the contrary, Piechocki agreed that the car appeared to be an older model," and Pizzo and Brienzo sat on the rip and never noticed it. As for Carpenter sitting on a hard object," two trained officers did too and never reported feeling a hard object."
Nor does the record support that, unlike Pizzo and Brienzo, Carpenter would more likely feel the presence of a hard object. Cf. Hans Christian Andersen, The Princess on the Pea, in Fairy Tales and Stories 24, 24-25 (Signe Toksvig ed., 1921) [...] That evidence relates to an inference about Carpenter's knowledge. But, as two trained officers did not feel the presence of the handgun under the seat, nothing in the record supports a reasonable inference that Carpenter would have sensed it.

I love it! One can only imagine the reactions of the officers when this decision hit their desks.

Having dispensed with this so-called evidence of a crime, the court says the conviction cannot stand. Nothing connects Carpenter to the gun it took officers 13 minutes to discover in a car Carpenter had borrowed from a friend of a friend.

But before it arrives at this conclusion, it does the equally important work of pointing out this stop likely never would have happened if the driver had been white. And the court has receipts. (All emphasis mine.)

What is known as driving while Black" (DWB) is a pernicious reality that corrodes trust in law enforcement and the legal system. DWB involves police using stereotypical thinking and hunches" and dubious investigative techniques" in traffic stops. Commonwealth v. Feyenord, 833 N.E.2d 590, 604 (Mass. 2005) (Greany, J., concurring). Numerous studies have extensively documented the unsettling reality of DWB. See Emma Pierson et al., A Large-Scale Analysis of Racial Disparities in Police Stops Across the United States, 4 Nature Hum. Behav. 736 (2020),
https://5harad.com/papers/100M-stops.pdf [https://perma.cc/2Y9S-VLFA] (analyzing nearly 100 million stops across nation between 2011 and 2018 and finding Black drivers were less likely to be stopped after sunset when veil of darkness" masked race); Ill. Dep't of Transp., Illinois Traffic and Pedestrian Stop Study 2022 Annual Report: Pedestrian Stop Analysis 18-19 (2023), https://idot.illinois.gov/content/dam/soi/en/web/idot/documents/transportation-system/reports/safety/traffic-stop-studies/final-part-i-executive-summary-pedestrian-6-30-23.pdf [https://perma.cc/ZUE8-2TFR] (racial profiling possible factor in traffic stops); see also Pascal Sabino, Cops Rarely Pull Over Drivers In Their Own Neighborhoods, Data Shows. Motorists In Black Neighborhoods Aren't So Lucky, Block Club Chi. (Oct. 27, 2021), https://blockclubchicago.org [https://perma.cc/PHC2-JEMD] (mapping all 327,224 traffic stops by Chicago police in 2020 and finding tremendous bulk of drivers" stopped in neighborhoods on the South and West sides and few drivers" stopped in mostly white neighborhoods on North Side).

[...]

Addressing the specter of DWB is crucial to the dismantling of this systemic injustice. Several essential indicators of DWB are laid bare by the evidence, including (i) minor infractions as a pretext for investigating unrelated suspicions; (ii) stereotypes or assumptions about race based on police conduct or statements during the stop; (iii) prolonged detention inconsistent with the nature of the stop; (iv) a search without proper justification, usually based on stereotypes rather than reasonable suspicion, (v) unequal enforcement, such as pulling over a person of color, for a violation seldom of consequence in a white neighborhood; (vi) targeting neighborhoods or areas predominately populated by people of color; and (vii) use of disrespectful behavior, aggression, or excessive force by police. Individually or together, the elements do not indicate or imply racial bias, and most police officers strive to act properly and respectfully. Nevertheless, the more indicators, the more likely the stop was for DWB.

Judges ensure that the law is fairly and consistently applied to all. The dissent's critique that this issue [(DWB)] was never raised by Carpenter" repudiates the long-standing appellate
court commitment to upholding the rule of law by exercising its authority. Relatedly, despite our discussing DWB generally and not on the merits, the dissent curiously treats our observations as an adjudication. [...] In our view, abstaining from saying anything about DWB, which our dissenting colleague urges us to do, condones the officer's actions here and continues to normalize a practice that exposure, not silence, will eliminate.

The dissent is disingenuous. As noted here, the dissent treats the majority's raising of biased policing as a basis for its finding the state did not have enough evidence to prosecute the unlawful possession charge. But the majority simply points out this stop would likely never have happened if the driver were white, given that neither pretext for the stop justified the stop.

Second, the dissent surely knows raising claims about racial bias are far more likely to occur during civil litigation. During criminal trials, it's extremely rare for a defendant to raise the issue of biased policing because it's usually not germane to discussions about probable cause (for suppression requests) or other challenges of evidence. This is simply a judge pretending they don't know how the system works so they can side with officers who used two deficient pretexts to engage in the warrantless search of a car - a fishing expedition that managed to result in a catch" after 13 minutes of rooting around in the vehicle.

It's a minor decision that sets no precedent. But it's an important one that shows this appellate court is unwilling to give cops a pass just because they can find a pretext for a stop. Pretexts have to hold up under scrutiny and these didn't. And the officers' own recordings undermined their desperate attempts to turn normal driver behavior into something suspicious enough to justify everything they did after pulling over someone for failing to be white while operating a vehicle.