Timothy P. O'Neill
Chicago Daily Law Bulletin
Copyright 2003 Law Bulletin Publishing Company
September 12, 2003
Traffic Stop Raises Troubling Question of Race
The Illinois Supreme Court recently decided an important case concerning the scope of police questioning during a traffic stop.
But the more interesting issue was why the traffic stop was made in the first place. And legislation recently signed into law by Gov. Rod R. Blagojevich will significantly affect whether traffic stops like this will continue to be made.
The case is People v. Bernard Bunch, No. 93472 (Aug. 21). The story begins when a Chicago police officer was on patrol around 1:10 a.m. at the intersection of 35th Street and Wentworth Avenue. He testified that he saw a car come to a stop without the brake lights activating. The officer, one Lukensmeyer, also saw that both men in the car were black.
After pulling over the car, the officer asked the driver for his license. When the driver could not provide one, the officer placed the driver under arrest, handcuffed him and walked him to the rear of the car.
The officer then asked the passenger, defendant Bernard Bunch, to exit the car and walk around to the rear. The officer was getting ready to arrange for the car to be towed.
At this point the officer asked Bunch, "What's your name? Where you coming from?"
The officer shone his flashlight into Bunch's face and noticed a small, clear plastic item containing a white substance located in his mouth. The officer then arrested Bunch and ordered him to spit out the item. The white substance was later determined to be heroin.
After being charged with possession of a controlled substance, Bunch filed a motion to quash his arrest and suppress evidence.
The trial court denied the motion and Bunch was convicted. However, the Appellate Court reversed. The Supreme Court likewise agreed the evidence should be suppressed.
First, the Supreme Court conceded that the officer had the right to make the stop of the car and order Bunch out of the passenger side. The issue, however, was the propriety of the police questioning.
Relying on its earlier opinion in People v. Gonzalez, 204 Ill.2d 220 (2003), the court noted that traffic stops are governed by the analysis of Terry v. Ohio, 392 U.S. 1 (1968). Terry involves a dual inquiry: whether the officer's action was justified at its inception and whether it was reasonably related in scope to the circumstances that justified the interference in the first place. Gonzalez, at 228, citing Terry, at 19-20.
From this, Gonzalez established that police questioning during a traffic stop is proper if it can be justified by any one of three reasons:
- If the question is related to the initial justification for the stop.
- If the officer nonetheless had a reasonable, articulable suspicion to justify the question.
- If, in light of all the circumstances and common sense, the question did not impermissibly prolong the detention or change the fundamental nature of the stop. Gonzalez, at 235.
Applying this framework, the court first found that the questions the officer asked Bunch were not related to the purpose of the stop -- operating a vehicle without brake lights.
Second, the questions were not supported by a reasonable, articulable suspicion of Bunch's being involved in criminal activity.
Third, because the officer had already successfully concluded the purpose of the stop by arresting the driver and arranging for the tow, the questioning improperly prolonged Bunch's detention beyond the purpose of the stop. Thus, the court quashed the arrest, suppressed the evidence, and reversed the conviction.
Yet, the case still troubles me. The opinion noted that the stop was based on the officer's claim that he did not see the brake lights activate. But Bunch denied this and testified that the officer told him that he had made the stop "because I saw two black men in the car." Bunch's story was bolstered by the officer's testimony that he tested the brakes yet found them to be working properly.
Bunch appeared to have a pretty good argument that the stop was unconstitutional. Even so, the Supreme Court noted that the defendant raised no issue concerning the legality of the original stop.
Why?
Then I looked at the Appellate Court opinion. Here Bunch did challenge the constitutionality of the stop, relying both on the officer's comment and the officer's admission that the brakes were later found to be operative.
The state refused to try to justify the reasonableness of the officer's mistake, but instead argued -- erroneously -- that Bunch lacked standing.
The Appellate Court made the following holding: "Here, the judge apparently believed the officer had observed a traffic violation, although his testimony about his reason for stopping the car is vague at best... Reluctantly, we accept the trial judge's conclusion." People v. Bunch, 764 N.E.2d 1189 (1st Dist. 2002).
The court was correct to give some deference to the trial judge's factual finding of who he believed was telling the truth. Nevertheless, a factual finding is "clearly erroneous" if a reviewing court is left with the "definite and firm conviction" that the finding is erroneous. AFM Messenger Service Inc. v. Department of Employment Security, 198 Ill.2d 380, 395 (2001). This is a difficult standard, but with a record devoid of any evidence on how the officer could have made the mistake, Bunch may actually have established that the trial court was indeed "clearly erroneous."
Regardless, this is the kind of questionable racial traffic stop that will soon receive long-overdue scrutiny in Illinois. This is because Blagojevich recently signed Public Act 93-0209 into law. 625 ILCS 5/11-212.
For four years starting on Jan. 1, 2004, a police officer will be required to record the race of every person to whom he issues either a traffic citation or a warning. He also must identify the traffic violation that led to the stop and must 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.
This information will be collected on a yearly basis and then analyzed by the Illinois Department of Transportation. 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 proportion 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 number of searches conducted on minorities and non-minorities. 625 ILCS 5/11-212(e).
Imagine how useful these data will be. We will now be able to determine exactly how many minority drivers are being stopped for "defective brake lights" that turn out to be completely operative. We will now be able to determine how often an Officer Lukensmeyer happens to be mistaken when comes to minority drivers. We will now be able to determine how widespread this problem may be in Illinois.
The Supreme Court was correct in limiting the police questioning of Bernard Bunch following a traffic stop. But in the future, thanks to Public Act 93-0209, perhaps Bernard Bunch and his friend will not be stopped at all.
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