Racial profiling is generally defined as the practice of law enforcement stopping an auto -- not based on an infraction of highway safety laws, because of the driver's ethnicity, or race. This paper will review and critique the instances in which racial profiling takes place, what the law requires in terms of justifications for a traffic stop, and the legislation that is in place regarding racial profiling on the highways.

The Literature on Racial Profiling

There may be a number of reasons why a particular driver was stopped -- the officer may suspect that the driver is involved in illicit drug trade, for example. Or perhaps the driver looks nervous, or in some cases the person driving the vehicle does not "fit the type of vehicle they occupy," according to author Steven J. Muffler (Muffler, 2006, p. 2). An example of a driver not fitting the type of car they are driving would be, Muffler writes, "…a young black male in an expensive car" (2). There are other justifications that police use to stop motorists -- especially if the driver is African-American, or Latino, or Muslim -- that will be addressed in this paper.

Studies that have tried to measure the extent of racial profiling in a particular region of the country have been "for the most part methodologically flawed," Muffler writes. The General Accounting Office (GAO) reports, "different groups may have been at different levels of risk for being stopped" not necessarily because of the color of their skin or their ethnicity. They may be stopped because "…some racial/ethnic groups may commit more traffic violations such as speeding, tailgating, or having faulty equipment than other groups" (Muffler, 3).

While that may sound like a bureaucratic rationalization to some critics of racial profiling, there is not doubt that some drivers are pulled over simply because of their race or ethnicity. In particular, since the terrorist attacks of 2001, Muslim Americans have been profiled by law enforcement on the highways and elsewhere. Muffler writes that most Americans in polls leading up to 2001 disapproved of racial profiling. However, after the 9/11 attacks, a majority of Americans favored "…requiring Arabs, including those who are U.S. citizens, to undergo special, more intensive security checks before boarding U.S. airplanes" (Muffler, 6). A poll cited by Muffler showed that a majority of Americans would require Muslims to carry a special identification card. Another poll (taken between October 21 and November 25, 2002 by Cornell University), found that 68% favored using racial profiling "as a tool to fight terrorism" (Muffler, 6).

Profiling Muslims has its drawbacks, though; Muffler explains that 63% of the three million Arab-Americans were born in the U.S., and moreover, the physical appearance of a Muslim adult can vary a great deal. They may have blue eyes, white skin, blond hair, or dark hair and dark skin with brown eyes. There are an estimated 6 million Muslims in the U.S., and the largest group among that group is African-American, Muffler continues (7).

Muffler (7) points to the specific arguments that civil rights advocates use to assert that racial profiling is unconstitutional. For one, the Fourth Amendment protects citizens against unreasonable searches and seizures; two, the Fifth Amendment protects citizens against discrimination by federal law enforcement officers based on "race, ethnicity, or national origin"; and the Fourteenth Amendment provides "equal protection of the laws" (Muffler, 7).

Meanwhile, there are extreme cases of racial profiling, like the case of Dr. Elmo Randolph in Newark, New Jersey. According to the book, The American System of Criminal Justice, Randolph, an African-American dentist, was stopped more than 50 times over a 15-year period. What was the reason for the multiple stops? Randolph was driving a gold BMW during those stops. Each time he was stopped on the New Jersey Turnpike, the officer would ask the identical question: "Do you have any drugs or weapons in your car?" (Cole, et al., 2006, p. 98). Each time Randolph would say no; but one time he refused to allow the highway police to search his car, and the officer took his license and "made him wait on the side of the highway for twenty minutes" (Cole, 98). Randolph is quoted saying, "Would they pull over a white middle-class person and ask the same question?" Subsequent to those numerous unjustified traffic stops, Randolph sold his gold BMW (Cole, 98).

Cole points out that police are apparently trained to develop "a sixth sense" -- a kind of instinctive skill that allows them to "sniff out situations or isolate individuals who seem potentially unsafe" (98). While leaders in the minority communities insist that racial profiling is based on an errant assumption that "African-Americans and Hispanics are linked to crime or that Arab-Americans might be linked to terrorism," law enforcement experts assert that effective police work depends on quick analysis "and that skin color is one factor among many… that officers must consider" (Cole, 98).

What specifically did highway law enforcement officers look for when they were trying to stop drug smuggling in Florida in 1980s? In this case, the "racial" aspect of profiling was not as important as the profiling of drug smugglers per se, but in the next pages what began as drug smuggler profiling evolved into more of a racial approach to profiling by traffic officers.

In Deborah Kops book, Racial Profiling, she references the heavy amount of drug trafficking that was coming through Miami (mostly cocaine), and how President Ronald Reagan set up a specific strategy to try and catch smugglers on Interstate 95. One of the members of the Florida Highway Patrol, Robert Vogel, was given "more credit than anyone else for developing the profile widely used" by other law enforcement agencies in other parts of the United States.

Vogel stopped cars on Interstate 95, the major north-south freeway from Miami up the East Coast of the U.S., all the way through Maine, which was used by drug smugglers and became known as the "drug corridor." Vogel noticed that many of the people he stopped and arrested had "some things in common. For example, they often drove large late model or rental cars" (Kops, 2006, p. 37). Often suspects seemed to drive "too cautiously," they often drove early in the morning, and they failed to "make eye contact with him when he approached them," Kops explains (37). Having had these experiences Vogel began looking for big rental cars with the characteristics mentioned previously. He was a big success: "In one year he arrested thirty people for smuggling drugs," Kops explains, and he became something of a celebrity after appearing on CBS's 60 minutes.

Not long after Vogel's successful strategies caught the attention of law enforcement around the country, the Drug Enforcement Agency (DEA) developed a training program that included profiling for "gangs of African-Americans and ethnic groups whose families came from the countries that were sources for illegal drugs," Kops continues (39). It was not at all a surprise that racial characteristics were "…among the traits listed in some profiles to describe suspicious-looking drivers," the author noted. Those traits included: "greasy hair"; "shorts worn in winter"; "Colombian males"; "Latino males"; and "Young to middle-aged African-American males" (Kops, 39).

Meanwhile, in 1992, Robert Wilkins was in his car returning to his home in Washington, D.C. from Chicago, where he had attended his grandfather's funeral. He is African-American, and family members (aunt, uncle, and a cousin) were also in the automobile. At that time in 1992, Maryland state troopers were on the lookout for African-Americans that used rental cars to transport cocaine and crack. A trooper pulled the car over; after all, there were four African-Americans in the car. The trooper asked to search Wilkins' car, and Wilkins explained to the officer that he, Wilkins, was an attorney, and he did not agree to a search of the car. Troopers and all alert, well-trained law enforcement officers, know that attorneys are familiar with court decisions, and there needed to be probable cause for the officer to search a vehicle.

The trooper didn't give up. He called for a drug-sniffing dog to be brought out to the Maryland highway where the car was pulled over. It was raining and the Wilkins' family had to stand our in the rain while the dog sniffed the car thoroughly. No drugs were found. Kops quoted Wilkins: "Part of me feels like there is nothing I could have done to prevent what happened," Wilkins said. "I was calm and respectful to the police." But Wilkins was upset and took action; based on the studies that went into getting his law degree from Harvard University, Wilkins understood his rights. He contacted the American Civil Liberties Union (ACLU) and the ACLU filed a lawsuit against the Maryland State Police on behalf of Wilkins, his family, and all the other drivers whom the state police had treated in similar ways.

The lawsuit specifically charged that the police had profiled African-Americans; ultimately, after research done by credible independent agency showed that…