Should State Courts Decide Traffic Stops Based Upon Their State Constitutions?

posted by Judge_Burke @ 19:36 PM
October 28, 2019

Although there are judges (and lawyers) who read this blog from North Carolina, there are not a lot, and the question is why should any of us be concerned about North Carolina law? The simple answer is the issues are quite similar throughout the nation. Anthony Ghiotto (Campbell University School of Law) has posted Traffic Stop Federalism: Protecting North Carolina Black Drivers from the United States Supreme Court (University of Baltimore Law Review, Vol. 48, No. 3, 2019) on SSRN. Here is the abstract:

Black drivers face a different constitutional reality than whites the moment they step behind the wheel in North Carolina. Although black drivers represent only about twenty-two percent of the North Carolina population, thirty-two percent of all traffic stops involve black drivers. This racial disparity may raise suspicion of either implicit or explicit racial profiling on the part of police departments, but the reality is that North Carolina law does not expressly prohibit racial profiling. Instead, so long as the police officers have an objective basis to stop a driver — and they may choose from any of the hundreds of misdemeanor traffic regulations — their implicit or explicit racism is largely irrelevant. Once stopped, the power dynamic only increases in favor of the police. Police officers may request a drug dog to “sniff” around a driver’s vehicle with no suspicion, knowing that should the dog alert to the presence of drugs, there would then be probable cause to search the entirety of the vehicle without a search warrant. If the drug dog does not arrive prior to completing the objective of the traffic stop, the police officers may continue to hold the driver if there is reasonable suspicion of wrongdoing. The police officers may develop this reasonable suspicion through seemingly innocent behavior on the part of the driver, including nervousness or disrespectfulness towards the police officers. The police officers may also expand the scope of the stop by asking for consent to search the vehicle. Minimal consideration is given to whether a black driver, shaped by prior personal and historical experiences with law enforcement, can refuse consent or to terminate the encounter with the police.

This article argues that the racial disparities for traffic stops and searches are the fault of two supreme courts: first, the United States Supreme Court for creating a traffic stop framework built on a number of supposed objective standards that give excess deference to police officers’ subjective beliefs and expectations while ignoring the realities and experiences of black drivers; second, the North Carolina Supreme Court for its blind acquiescence to the framework established by the U.S. Supreme Court. This Article proceeds to argue that North Carolina may protect its own drivers by exercising traffic stop federalism and interpreting its own constitution to consider the experience of its black drivers. Lastly, the Article concludes by arguing that North Carolina may serve as an example to other states who seek to protect their own black drivers from the U.S. Supreme Court.


Leave a Reply