While a federal appellate court was attempting to stymie California’s gubernatorial recall election last week, a Massachusetts judge was advancing the cause of judicial activism in his own way. Worcester superior-court judge John McCann threw out evidence that state troopers had gathered against Andres Lora–two pounds of cocaine in his car trunk (street value $20,000)–along with Lora’s confession that he had purchased it in the Bronx to sell it in Worcester. The reason? The judge found that Brendan Shugrue, the trooper who stopped the car Lora was riding in, had displayed a racially discriminatory pattern in his previous traffic stops. That is, Shugrue had searched the cars of 5.1 percent of the white motorists he had ticketed for moving violations during the previous six months in Auburn (where the stop occurred) and Worcester (the adjacent city), but 33.2 percent of the ticketed cars driven by “minorities.” In other words, the trooper was guilty of “racial profiling.”
As legal observers interviewed by the Boston Globe noted, it is extremely rare for a judge to exclude evidence in a criminal case solely because of a statistical pattern suggesting racial bias. Not surprisingly, the legal director for the Massachusetts ACLU hailed Judge McCann’s “willingness to enforce the Constitutional guarantee of equal protection.” And Lora’s defense attorney, while acknowledging that the decision might be hard for some people to stomach, remarked that “the Equal Protection Clause [of the U.S. Constitution] does not focus on what was found, or how much was found, but on the process in which it was found.”
Actually, contrary to these spokesmen, the Equal Protection Clause of the 14th Amendment says nothing whatsoever about racial profiling, or even about other aspects of the collection of evidence against alleged felons. It simply decrees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Needless to say, the sphere of the “protection” offered by that clause is supposed to apply only to legal activities, not illegal ones. In this case, the troopers who arrested Lora were acting to protect Worcester citizens from the scourge of illegal drugs. Nonetheless, in Judge McCann’s view, the mere fact that a Latino driver was more likely to have his car searched following a traffic violation than a “white” one meant that all Latinos in the Worcester area were being deprived of their proper protection–and the proper remedy was to let an arrested drug dealer go free.
To put Judge McCann’s decision in perspective, it should be mentioned that the drug trade in Worcester and its environs is dominated by Latino immigrants. (Lora is from the Dominican Republic.) And what precipitated the search was that Trooper Shugrue, after observing Lora opening the car door as if he were about to leave while Shugrue was ticketing the driver, shined a flashlight into the car and observed a plastic bag on the floor containing what looked like cocaine. Thus Shugrue’s call for a backup trooper to join him in searching the car would hardly appear to be unreasonable or motivated by bias.
Judge McCann’s ruling means that Massachusetts police officers should simply ignore their instincts (based on knowledge of the demographics of the local drug trade, as well as observation of the behavior of those they have stopped) in choosing whose cars to search. Applied at the national level, it would mean that any Muslim Arab immigrant found trying to board an airplane with an explosive device would be entitled to have the evidence excluded from courtroom proceedings if he could show that airport security officers tended to search the bags of Muslim Arabs more than other passengers!
The exclusionary rule has been described as a judicial device that spares the guilty while endangering the innocent. (Had Lora not been carrying cocaine, the worst he would have suffered was the temporary inconvenience of a car search.) Far from meriting applause, Judge McCann deserves a refresher course on the Constitution that might enlighten him on the sorts of rights it was enacted to secure. (Those rights of course include the rights of the vast, law-abiding majority of Worcester Latinos, who are more likely than others to have their neighborhoods rendered unstable and their families’ lives ruined by the scourge of illegal drugs and attendant gang violence.)
–David Lewis Schaefer is a professor of political science at Holy Cross College.