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I was a college freshman the first time I was stopped by law enforcement just for being black. It was the start of my winter break and I was flying home to Michigan from Los Angeles on a red-eye flight, the cheapest way to travel without going greyhound. The airline’s hub was in Pittsburgh, so I was stuck with a long layover there before I could take a puddle jumper up to Lansing. I arrived in Pittsburgh just before dawn after a five-hour flight. My Lansing connection departed from the far end of a remote terminal, so I had to walk across almost the entire airport, which wasn’t so bad because the Pittsburgh airport is somewhat of a shopping mall. Although all the stores were closed given the hour, I was able to wind back and forth, window shopping here and there. When I reached my departure gate, it was still over two hours before my scheduled flight and the gate area was entirely deserted. I hadn’t been able to sleep on the prior flight so I picked a seat, put on my headphones, leaned back, and closed my eyes. Minutes later, I felt the sensation of someone sitting down next to me. I opened my eyes slightly, just far enough to see that although every other seat in the gate area was still empty, a squirrelly looking fellow in jeans and a ratty, blue, hooded sweatshirt had decided to take the seat next to mine. Suitably weirded out, I was just deciding to get up and slowly move away rather than to speak to him, when he nudged me and motioned that I should take my headphones off. As I did, he held out his hand to reveal a black wallet encasing a shiny, brass badge. This undercover officer explained that he had been following me since I disembarked from my Los Angeles flight and he thought I was “moving suspiciously” because I had stopped at bathrooms several times as I walked across the airport. He said he was part of a drug enforcement unit investigating drug trafficking on inbound flights from Los Angeles. As a nerdy, be-spectacled, biomedical engineering major from a tiny town in Michigan it didn’t register with me for some time what in the world made him think that I would be of any interest to his investigation. After asking some questions about who I was and where I was headed, he asked to take a look in my bag while pointing over to my left, which was odd because my backpack was to my right, on the floor just between us. I nevertheless turned in the direction he had pointed and when I glanced over my left shoulder I was surprised to see what likely was the biggest cop on the planet. He must have crept back there during my conversation with his plain-clothed colleague. Given the size of the officer and the strategic location of his hand on the butt of his pistol, I decided that the luggage search wasn’t really optional and agreed to it. After Officer Blue Sweatshirt was satisfied that I wasn’t smuggling anything in my carry-on, he wrote down some numbers from my airline ticket and went away with his enormous, uniformed buddy in tow, presumably to have someone rip into my checked luggage. Although I was irritated by this incident, I never dwelled much on it until I had my criminal procedure class with Professor Yale Kamizar at Michigan Law. There, I learned about probable cause, reasonable suspicion, and “pretext stops” where law enforcement pull over motorists, detain airport travelers, or otherwise restrain citizens ostensibly under suspicion that a crime has been, or is being, committed, such as a minor traffic violation, but in reality to accomplish an unrelated investigation, usually drug interdiction. Under the law, officers must have some “articulable suspicion” when they make these sorts of stops, but the matter is only litigated when the stop is fruitful, and in such instances just about any reason an officer can come up with will be found sufficient, after the fact. Even a brief review of the relevant caselaw reveals a somewhat humorous array of contradictory justifications for pretext stops: one can be found suspicious for driving with too many passengers or driving alone; driving in a car that’s too clean or too dirty; making “furtive” gestures when pulled over or remaining absolutely still; driving during the middle of the afternoon on a weekday or late at night; and virtually every major highway in America is a “known drug trafficking route” such that anyone driving it can be stopped at any time. Essentially, everything but race can be a factor in forming a reasonable suspicion. I remember being outraged that the law permitted such silly pretext. My firm belief at the time was that if ever again I was stopped by law enforcement based on my race, I would be quick to cry foul and challenge the officer’s conduct. Ironically, the next time race was a factor in my encounter with a police officer was just a few weeks ago when I was headed back to the Midwest to interview second-year law students at Michigan’s on-campus interview program. I flew into Chicago to visit my brother and then the two of us rented a car to make the drive from Chicago to Ann Arbor. Just as we entered Michigan we were pulled over, allegedly for speeding although every car in the vicinity was easily outpacing us at the time. Before pulling us over, the officer followed us for over a mile and, most strangely, pulled up to the passenger side of our car and gazed in my window for a moment before dropping back and turning on his lights. By the time the ordeal was over, the officer had checked both of our IDs, called my brother out of the car, and rifled through our trunk, all without issuing any citation before he let us go. One might think my new knowledge of the law would have made this incident somehow different from my earlier experience in the Pittsburgh airport. But the real world is much different than classroom theorizing and police officers are trained in the law as well. This officer wasn’t ignorant enough to commit any sort of blatant civil rights violation. For instance, he didn’t tell me to show him my driver’s license; he just asked if I had “any identification on me.” He didn’t order my brother out of the car either; he just asked if my brother would “mind stepping out.” Similarly, he didn’t order my brother to pop the trunk; he just asked if he would mind opening the trunk so the officer could “have a look.” To keep us suitably compliant, the officer did all of this prior to letting us know whether or not he had decided to issue a speeding ticket. Obviously, I could have challenged the officer’s actions at any point, but why would I do that and risk earning my brother a speeding ticket, and the increased insurance rates that go along with it, when there was every chance the officer would exercise his discretion to let us go with a warning? So a law degree hasn’t changed anything about me it seems, at least not in the eyes of law enforcement. I fit the racial profile just the same as when I was a college kid 14 years ago, although the gray hair may help me out a little. I may know my rights now, but knowing the law, practicing the law, and using the law are three very different things. Ellisen Turner is an associate at the Los Angeles office of Irell & Manella LLP where his practice includes intellectual property litigation and patent prosecution. You may reach him at [email protected].

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