Where the defense believes that a police stop was based on race, it can offer statistical and other evidence to create a rebuttable presumption that race was a motivating factor.

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

Racial profiling is an issue which a criminal defense attorney may need to address if he is representing a member of a minority such as African American, Hispanic, Asian, or a Native American person. Generally, an individual’s appearance doesn’t provide law enforcement or police with reasonable suspicion of criminality as is required by the Fourth Amendment to the United States Constitution and The Pennsylvania Constitution. 


Reasonable Suspicion

Remember, as I’ve written literally thousands of times in my blogs, newsletters and E-Books, reasonable suspicion is lower form of probable cause and requires less articulable facts to justify police (government) intrusion on an individual’s right to privacy.  Reasonable suspicion doesn’t  allow the police officer to perform a warrantless search of you or your property but does allow further investigation in the form of pat down search (frisk for officer safety) or of items (frisk based on the belief that the item contains contraband (illegal drugs, narcotics, firearms, handguns).  Police need probable cause to search and or to arrest a suspect


Racial Profiling is generally Illegal!

In most situations where a stop is based specifically on a suspect’s description which relies heavily on a person’s race or ethnicity, the court won’t find proper justification for the stop. The United States Supreme Court has ruled that descriptions based on race or gender alone will rarely provide police with reasonable suspicion. This means that all evidence obtained following a police stop and subsequent search and seizure of a person’s property is illegal. If the stop and search are illegal then all evidence obtained is inadmissible (Suppressed).


But there are exceptions to racial profiling

There are exceptions, however, to this general rule. For example, federal courts have found that stops of suspected gang members are justified. In this situation, the federal court (8th Circuit) found that there was a history of street gangs moving narcotics through the airport and this case (US v. Weaver) occurred long before the 9/11 attacks. The US Supreme court has held that border searches based on an individual’s Hispanic appearance alone does not provide reasonable suspicion of criminality (US v. Vrignoni-Ponce). Further, federal courts have ruled that a person’s appearance cannot be considered as a relevant factor where suspicion is required to make a police stop.


What your criminal defense attorney can do about racial profiling in your case

In situations where the defense believes that a police stop was based on a person’s race, the defense can offer statistical and other evidence to create a rebuttable assumption that race is a motivating factor. Once that presumption is established, the government (Commonwealth) must articulate a race neutral reason for the police action or identify a compelling governmental interest for this stop. If the government (Prosecution) meets this burden, the defendant maintains the ultimate burden of proving discrimination (See Batson v. Kentucky -US Supreme Court Case).


If you believe that you are the victim of racial profiling or even suspect it, you must bring it to your defense attorney’s attention for him to raise the issue through a pre-trial motion to suppress evidence. As I have stated in the past, a Motion to Suppress Evidence due to an illegal search and seizure is often the defense’s most powerful tools to overcome charges involving illegal drugs, narcotics, guns, and firearms.


For more information on illegal search and seizure, I encourage you to keep reading my blog and visit my free download section to obtain free copies of my books.

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