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Should Evidence be Suppressed in Court for a Proven Racially-Movitated Stop by Police?

That Potato Hot Enough?

It happens a lot; I probably read a transcript recently where it occurred. Situations where young Black males in fancy cars are stopped for an obscure violation of the traffic code, usually in search of drugs. While race does not usually place an overt role here, it is a part of it. It ought to stop.

The Supreme Court of the United States held in a case many years ago that racially-motivated stops by officers are appropriate for a civil rights action but do not give grounds for the standard remedy: Suppression of evidence in court – the drugs or other illegally seized evidence – can’t be introduced in court. While I respect the argument former Chief Justice Burger made (I once believed in it – until I started practicing law!) that suppression of evidence as a remedy for illegal searches and seizures ought to be replaced by a civil action – a lawsuit, if you would, I think that is largely an empty remedy.

We have a nifty statute that potentially governs this. Virginia Code Section 19.2-59 and 60:

No officer of the law or any other person shall search any place, thing or person, except by virtue of and under a warrant issued by a proper officer. Any officer or other person searching any place, thing or person otherwise than by virtue of and under a search warrant, shall be guilty of malfeasance in office. Any officer or person violating the provisions of this section shall be liable to any person aggrieved thereby in both compensatory and punitive damages. Any officer found guilty of a second offense under this section shall, upon conviction thereof, immediately forfeit his office, and such finding shall be deemed to create a vacancy in such office to be filled according to law.

Provided, however, that any officer empowered to enforce the game laws or marine fisheries laws as set forth in Title 28.2 may without a search warrant enter for the purpose of enforcing such laws, any freight yard or room, passenger depot, baggage room or warehouse, storage room or warehouse, train, baggage car, passenger car, express car, Pullman car or freight car of any common carrier, or any boat, automobile or other vehicle; but nothing in this proviso contained shall be construed to permit a search of any occupied berth or compartment on any passenger car or boat or any baggage, bag, trunk, box or other closed container without a search warrant.

Section 60 provides the remedy – the evidence shall not be used in court:

A person aggrieved by an allegedly unlawful search or seizure may move the court to return any seized property and to suppress it for use as evidence. The court shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted by a court of record, any seized property shall be restored as soon as practicable unless otherwise subject to lawful detention, and such property shall not be admissible in evidence at any hearing or trial. If the motion is granted by a court not of record, such property shall not be admissible in evidence at any hearing or trial before that court, but the ruling shall have no effect on any hearing or trial in a court of record.

Due to some unfortunate decisions by our state appellate courts, illegal searches in violation of statutory provisions do not draw suppression as a remedy unless there is also a constitutional violation. (Maybe the General Assembly will correct this as well!)

What I propose is a statute that states that if race is a factor, wholly or materially, in a stop of a vehicle (or other search/seizure) the evidence is to be suppressed.

My proposal has to also allow evidence – let’s limit it to during the same stop – of pretext – that the officer ignored other violations of the traffic code by other drivers to stop THIS defendant. (It technically does not matter if the officer was Black.)

Here’s how the scenario is to work: The officer stops a young Black male in a high crime/drug area in wee hours of the AM driving a fancy sports car. His stated reason is illegal lane change or right turn or a taillight is out.

The defense wants to show that officer did not stop say a more ordinary car driven by a old white guy doing something similar.

Under the old system it is very difficult to win this case because the car did in fact have a taillight out. It’s a legal stop – a law was broken. But if the officer admits he or she did overlook a similar violation from another white driver, this is what we lawyers would call a prima facie racial stop. The officer and the prosecution would be able to explain why and maybe that persuades the judge.

The US Supreme Court decision does not prevent this new statute because a state government can give a criminal suspect or defendant MORE rights than the SCOTUS allows but cannot give them LESS.

Yes I am well aware this will bring up the odious issue of race into a court case. I agree. I don’t like it. But there already is race in a criminal trial in the context of jury selection in the case of the automatic removal of jurors for any reason (called a preemptory strike). In 1986, the Supreme Court of the US held that striking the jurors off the venire for racial reasons violates the US Constitution and allows a procedure to determine if the real reason is racial even if there is a race-neutral stated reason cited in court.

About Elwood Sanders

Elwood "Sandy" Sanders is a Hanover attorney who is an Appellate Procedure Consultant for Lantagne Legal Printing and has written ten scholarly legal articles. Sandy was also Virginia's first Appellate Defender and also helped bring curling in VA! (None of these titles imply any endorsement of Sanders’ views)

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Tom White Says:

Nothing is more conservative than a republican wanting to get their majority back. And nothing is more liberal than a republican WITH a majority.

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