Wednesday, October 11, 2017

Racial profiling leads to suppression

Lamar, Missouri, a small town in Southwest Missouri (pop. 4,532, per the 2010 census), is known as the birthplace of President Harry S. Truman. Scholars credit Truman with being the first president after Lincoln to address racial inequality in America. He desegregated the military after a civil rights commission he established published a report titled "To Secure These Rights" ("We need to guarantee the same rights to every person regardless of who he is, where he lives, or what his racial, religious or national origins are.").

Related imageOn or around March 20, 2016, there was a robbery in Lamar. A local sheriff's deputy knew that the police department was "looking for a black or Hispanic male in his early twenties" in connection with the crime. Weeks later, on April 9, 2016, the deputy saw a man walking down the street and suspected that he might be the robber, "because there are not a lot of younger black or Hispanic males in Lamar."*

The deputy stopped the man, discovered that he had two active warrants out of Oklahoma, arrested him, and searched his belongings, finding drug paraphernalia and a gun. The man was charged in federal court with transporting a firearm, and moved to suppress the evidence. Earlier this summer, a magistrate held a hearing and recommended suppression. Last week, the district court adopted the magistrate's recommendation. The case is United States v. Hernandez, No. 16-05031-01-CR-SW-MDH,2017 WL 4391713 (W.D. Mo. July 25, 2017), adopted in full at 2017 WL 4401635 (W.D. Mo. Oct. 2, 2017), and it's a good one to keep in your suppression toolkit.

After emphasizing that "[r]ace alone is not sufficient to create reasonable suspicion," the court held that the discovery of the warrants did not purge the stop of its illegality even under the attenuation doctrine as applied in Strieff. The third prong of the attenuation doctrine asks about the flagrancy of law enforcement's misconduct. The officers in Strieff were merely negligent. But here the deputy's conduct "in stopping and seizing Defendant, with nothing more suspicious than the color of Defendant's skin, amounts to racial profiling."

And so go forth, and be not afraid to call racial profiling what it is.

*According to the 2010 census, 86 Hispanics or Latinos and 31 African Americans live in Lamar.

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