Volume 154, No. 083 26, April, 2008 Traffic Code: The New Vagrancy Laws For the last 14 years, I have written a monthly column for the Chicago Daily Law Bulletin on criminal law issues. In the column, I try to focus on recent cases and new ideas. But on Law Day it is appropriate to step back and take a longer view of a problem. So today I want to go back to 1865 in order to place a modern injustice into its proper context. Six months after the Confederate surrender at Appomattox, a South Carolina plantation owner named Edmund Rhett was named to a state commission to draft new laws reflecting the end of slavery. In a letter written in October 1865, he laid out his goal: the Negro ''should be kept as near to the condition of slavery as possible, and as far from the condition of the white man as is practicable.'' To this end, he suggested that the legislature pass a stringent law against Negro vagrancy. Rhett noted that the ''object of this Law would be to give fixedness to [the black] population and to prevent their eternal wanderings and floating about the state from one point to another, lazy, lawless, thieving and vagrandizing.'' Stephen Budiansky, ''The Bloody Shirt: Terror After Appomattox'' (2008), 23-25. Vagrancy laws were nothing new. The breakup of feudal estates in 14th century England spawned several legal measures aimed at alleviating the resulting shortage of farm workers. The purpose of the vagrancy laws was to restrict the movement of workers away from the former estates. These laws later evolved into devices to control the English urban poor. And they eventually found their way to 18th-century America. In the post-civil War South, however, vagrancy laws took on a virulently racist tinge. And they remained on the books for more than a century until the U.S. Supreme Court confronted them headon in cases such as Papachristou v. City of Jacksonville, 405 U.S. 156 (1972). Here the Jacksonville, Fla., vagrancy ordinance made it a criminal offense for people to be, inter alia, ''rogues and vagabonds.'' (And based on the plaintiffs in the case, ''rogues and vagabonds'' may often have simply been black men found in the company of white women.) The Supreme Court struck it down as being void for vagueness under the due process clause. This was because the law not only failed to provide the public with fair notice of what conduct would violate the law, but it also provided the police with the power to make arbitrary arrests.
So on Law Day 2008 let's hear it for ending racially motivated vagrancy laws. But are things really better today - especially for minorities in motor vehicles? In 2008, it could be said that minorities have simply become vagrants in Volvos.To see why, let's do a mind experiment. Let's imagine an admittedly racist police officer in an all-white suburb. Call him Officer Smith. Let's assume that his policy is to ignore routine traffic offenses by anyone driving a car exhibiting the suburb's city sticker. Instead, he enforces traffic laws only against out-of-town vehicles with drivers who appear to be black or Latino. Understand, he pulls over only drivers who actually violate a traffic law. He never makes a stop that is not based on probable cause. In order to do this, he strictly enforces all traffic offenses committed by out-of-town drivers who appear to be members of racial minorities. And to discover such offenses, he will carefully follow all such drivers traveling throughout the suburb to see whether they violate any such law. Officer Smith avidly follows new Illinois cases for ideas for traffic stops. He was happy to see that the Illinois Supreme Court recently validated a traffic stop based on a car's front tires being in the crosswalk when the vehicle was stopped. People v. Bew, No. 104084, 2008 WL 733988 (Ill., March 20, 2008). He knows of two recent cases in which traveling 71 mph in a 65 mph zone supported a stop (People v. Caballes (Caballes II), 221 Ill.2d 282 (2006); People v. Roa, 879 N.E.2d 366 (Ill. App. Ct. 2007)) - but surely there is no reason why going even 1 mph over the limit would not also work. He loves the old burned-out-light-over-the-license-plate routine. People v. Bailey, 159 Ill.2d 498 (1994). He is also partial to stops based on having a tinted rear license plate cover. People v. Mendoza, 846 N.E.2d 169 (Ill. App. Ct. 2006). Another favorite is obstruction of the windshield based on an air freshener hanging from the rear view mirror. People v. Young, 843 N.E.2d 489 (Ill. App. Ct. 2006). And at the very least, he has rarely followed a car for very long without finding some kind of improper lane usage. People v. Schaefer, 796 N.E.2d 686 (Ill. App. Ct. 2003). And so on. Let me repeat - he never pulls over a minority driver unless the driver has actually committed a traffic violation. But, a smiling Officer Smith tells us, it is rare to see a driver execute a perfect stop where an intersection has a stop sign. And, he winks, ''Who needs a vagrancy law when you have an entire Traffic Code?'' Does Officer Smith's racially based law enforcement violate the Fourth Amendment? No, because the U.S. Supreme Court has told us that the test for a Fourth Amendment violation is purely objective; the subjective state of mind of the officer is completely irrelevant. Whren v. U.S., 517 U.S. 806 (1996). And even if Smith's racially biased enforcement violates the equal protection clause, exclusion of evidence in a criminal case does not appear to be a remedy. U.S. v. Nichols, 512 F.3d 789 (6th Cir. 2008). So what does Officer Smith get to do on his traffic stop? First, he can order the driver and any passengers out of the car. Pennsylvania v. Mimms, 434 U.S. 106 (1977) (driver); Maryland v. Wilson, 519 U.S. 408 (1997) (passengers). Second, he may legally arrest the driver, as long as the state law says it is an arrestable offense. There is absolutely no offense so minor that an arrest will not be found proper under the Fourth Amendment. Atwater v. City of Lago Vista, 532 U.S. 318 (2001). And it is even proper to give the officer discretionary, rather than mandatory, authority to arrest for even the most minor offense. Gustafson v. Florida, 414 U.S. 260 (1973).
Once the officer arrests an occupant, he may make a complete search of the person. U.S. v. Robinson, 414 U.S. 218 (1973). He may then make a complete search of the passenger compartment of the car, including all containers in the passenger compartment. Thornton v. U.S., 541 U.S. 615 (2004); New York v. Belton, 453 U.S. 454 (1981). Additionally, once the arrestee is booked and incarcerated at the police station, the police may conduct an inventory of his possessions. Illinois v. Lafayette, 462 U.S. 640 (1983). After his incarceration, the police may even take a warrantless ''second-look'' search of his person if they believe they may have missed something. U.S. v. Edwards, 415 U.S. 800 (1974). And, finally, the police are allowed to conduct a complete inventory of the impounded motor vehicle. Colorado v. Bertine, 479 U.S. 367 (1987). And what if all of this is triggered by a racist cop stopping a minority driver for violating a minor offense that gives the officer the discretion to arrest? What remedy does the minority driver have under the Fourth Amendment? None. It's hard to see how vagrants in 19th century South Carolina had it worse. But what if the offense is not grounds for arrest under Illinois law? What if Officer Smith merely intends to give the driver a citation and use that as a pretext to try to look for drugs and weapons - and what if the stop is based on racial profiling? Five years ago in People v. Gonzalez, the Illinois Supreme Court imposed a number of restrictions on police activity during citation stops. 204 Ill.2d 220 (2003). But now those restrictions are gone. Six weeks ago the Illinois Supreme Court explicitly overruled the heart of the Gonzalez case. People v. Harris (Harris II), No. 103796, 2008 WL 733756, (Ill. March 20, 2008) (slip. op. 18). The commendable goal of Gonzalez was to restrict the ability of police to transform routine traffic stops into suspicionless ''fishing expeditions'' for drugs and weapons. Gonzalez was concerned with the recurring problem of officers turning a stop for a minor traffic offense into a foot in the door in order to get ''consent'' for searches based neither on probable cause nor reasonable suspicion. And - although the court seems loath to say it in polite company - there may have been a concern that some of these ''faulty air freshener'' stops may have been based on nothing more than racial profiling. (In the history of the Illinois Supreme Court, the phrase ''racial profiling'' has been mentioned a grand total of one time. As either James Thurber or Casey Stengel once said, ''You could look it up.'') Gonzalez's solution was to treat a traffic stop as analogous to a Terry stop and to apply Terry's ''dual inquiry'' restrictions to it. Terry v. Ohio, 392 U.S. 1 (1968). The ''dual inquiry'' was: (1) whether the stop was justified at its inception and (2) whether the officer's actions during the stop were reasonably related in scope to the circumstances that initially justified the stop. This last prong - known as the ''scope'' inquiry - was further divided into two components: (1) whether the stop lasted an unreasonable length of time and (2) whether the police activity fundamentally altered the nature of the stop. As a federal judge once noted, the ''scope'' requirement of Terry's ''dual inquiry'' is a ''commonsense limitation on the power of law enforcement it prevents police from transforming a limited traffic stop into a general inquisition.'' U.S. v. Holt, 264 F.3d 1215, 1240 (10th Cir. 2001) (Murphy, J., concurring in part and dissenting in part). Using the Gonzalez framework, the Illinois Supreme Court twice found that the use of a drugsniffing dog during an ordinary traffic stop - where the police had absolutely no probable cause or reasonable suspicion that the vehicle contained drugs - fundamentally altered the nature of the
stop. This was true even though the Supreme Court made no finding that the length of time was unreasonable. People v. Caballes (Caballes I), 207 Ill.2d 504 (2003); People v. Cox, 202 Ill.2d 462 (2002) (police must have articulable suspicion before conducting a canine sniff at a traffic stop). It also found that running a background check on a passenger's ID fundamentally altered the nature of a traffic stop for an illegal left turn. People v. Harris (Harris I), 207 Ill.2d 515 (2003). Today, all that is left of this edifice are charred ruins. Caballes I was overruled by the U.S. Supreme Court (Illinois v. Caballes, 543 U.S. 405 (2005)) and then disowned by the Illinois Supreme Court. People v. Caballes (Caballes II), 221 Ill.2d 282 (2006). Harris I was overruled by the Illinois Supreme Court in People v. Harris (Harris II), No. 103796, 2008 WL 733756 (Ill. March 20, 2008). The ''articulable suspicion'' prong of Cox was overruled by Caballes II. And, as a coup de grace, the Illinois Supreme Court has expressly overruled the two-part ''scope'' prong of Gonzalez. The court recently declared that it is now irrelevant whether the police activity fundamentally changes the purpose of the traffic stop. Now the only requirement of the ''scope'' prong is duration. People v. Harris (Harris II), No. 103796, 2008 WL 733756 (Ill. March 20, 2008) (slip op. 18). In other words, during routine traffic stops, police are now free to bring in drug-sniffing dogs and/or ask for consent to search for drugs and weapons without any probable cause or reasonable suspicion concerning drugs and weapons - as long as none of this exceeds a reasonable time limit. In other words, police are now free to turn a limited traffic stop into a general inquisition. In other words, Gonzalez has been replaced by Torquemada. So where do we go from here? Clearly, no relief will be found in the Illinois courts. Relying on ''lockstep,'' the Illinois Supreme Court refuses to do any independent thinking on search-and-seizure issues and is content with following orders from the U.S. Supreme Court. See People v. Caballes (Caballes II), 221 Ill.2d 282 (2006). It refuses to even consider that Illinois may face problems in racial profiling that states such as Vermont or North Dakota do not. The genius of federalism is the recognition that states are not fungible. Yet, inexplicably, the court has dismantled the nuanced search-and-seizure jurisprudence that it had carefully crafted in response to real problems specific to Illinois law enforcement. (For a spirited attack on the ''lockstep'' concept in general, see Justice Alan J. Greiman's recent dissent in People v. Averett, Ill.App.Ct., 1st Dist., No. 1-05-3495 (March 31, 2008).) The only hope lies with the Illinois legislature. And fortunately the legislature will be aided by the fruits of Public Act 93-0209, which went into effect on Jan. 1, 2004. 625 ILCS 5/11-212. This act required each police officer to record the race of every person to whom he issued either a traffic citation or a warning. The officer is also required to identify the traffic violation that led to the stop and to indicate whether any kind of a search - consensual or otherwise - was conducted of either the car, the driver or the passengers. For those stops where neither a traffic citation nor a warning is issued, the officer must file a ''uniform stop card'' recording the same information. The law provides examples of areas in which statistically significant aberrations may be noted. They include: Indications that the percentage of minority drivers stopped in a given area is substantially higher than the minority's share of the local population. Evidence of a substantial number of stops not resulting in ticketing or arrest.
Evidence of a disparity between the proportions of citations issued to a minority and that minority's overall share of the population. A disparity between the track records of officers within a department regarding the number of minorities stopped. Indications of a disparity between the numbers of searches conducted on minorities and non-minorities. 625 ILCS 5/11-212(e). The annual reports are compiled by the Northwestern University Center for Public Safety. Although the collection of statistics was originally for a four-year period scheduled to end on Dec. 31, 2007, the time was extended by Public Act 94-0997. Additionally, the newly created Racial Profiling Prevention and Data Oversight Board has been asked to evaluate the necessity of mandatory data collection; its recommendation is due no later than Jan. 1, 2010. It will be up to the Illinois legislature to examine the empirical data in order to determine where the problems lie and what is to be done. The legislature must ensure that there is no place for any kind of vagrancy law - traffic or otherwise - in Illinois in the 21st century.