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Electronic copy available at: http://ssrn.com/abstract=1868298
Discriminatory Treatment on
the
Roadways:
Pretextual Traffic Stops
of'Middle
Easterners
After
Peqple
v.
Robinson
By
Alida
R.
Ouellette
Less
than
a
month
after
the
September
11, 2001, terror-
ist attacks, the
New
York
Court
of
Appeals
heard
oral
argument
in
three criminal
caseS
with
no
apparent
rela-
tion
to
the attacks
or
their
afterma
th.I
The
Court's
deci-
sion
in
those
cases,'
however,
may
have
a
profound
impact
on
people
of
Middle
Eastern
descent
in
light
of
other
post-
September
11
changes.
The
decision
puts
the
Court's
imprimatur
on
pretextual
traf-
fic
stops,
"traffic infraction
stops
that
would
not
have
been
made
but
for
the
aim
of
the
police to accomplish
an
otherwise
unlawful
investigative
seizure
or
search.'"
Thus,
the decision limits the rights
of
members
of
popu-
lations
targeted
by
the police
by
making
them
subject to
seizure for
even
the
most
minor
traffic offenses.' Post-
September
11
regulatory
and
legislative
changes
target
people
of
Middle
Eastern
descent5 for investigation,
and
Justice
Department
policy
now
empowers
local
police to
act
as
agents
against
terrorism.6 As a result,
targeted
pretextual
traffic
stops
of
people
of
Middle
Eastern
decent
are
a
very
real
threat
on
New
York's
roadways.
This article first
examines
the
pretext
stop
decision,
People
v.
Robinson,
to
explain
how
the
New
York
Court
of
Appeals
came to limit protection
against
illegal
search
and
seizure.
The
article
then
explores
how
public
opinion
and
policy
toward
ethnic profiling
has
changed
since
September
11.
In
particular,
the
article
argues
that
many
public
officials
and
public
policies
now
accept
profiling of
Middle
Easterners
as
a
valid
law
enforce-
ment
tool. Next,
the
article
shows
how
federal
and
state
governments
have
dire~'lly
enlisted local
police
in
inves-
tigating
and
tracking
Middle
Easterners
in
the
United
States. Finally,
the
article concludes
that
the
effect
of
Robinson
and
other
post-September
11
changes
is a chill-
ing
one:
New
York police,
as
designated
agents against
terrorism,
armed
with
the
right to
stop
anyone
in
a
car
.
as
long
as a
minor
traffic offense
can
be
identified,
may
now
view
their mission
as
targeting
people
who
appear
to
be
Middle
Eastern,
Arab
or
Muslim
for
stops
on
the
roadways.
A. People
v.
Robinson
In
People
v.
Robinson,
a
4-3
decision
authored
by
Judge
George
Bundy
Smith, the
Court's
only
African-
American
judge,
the
New
York
Court
of
Appeals
held
that
the
state's
constitutional
protection
against
unrea-
sonable
searches
and
seizures,7 like
the
federal
Fourth
Amendment,S
does
not
prohibit
the
police from
stap-
ping
drivers
on
the
pretext
of
a traffic offense" Even
If
the
officer
pulls
a driver
over
because
of
her
race
or
on
less
than
reasonable suspicion
of
criminal activity,
the
stop
does
not
violate
the
prohibition
against
illegal
search
and
seizure
if
the officer
had
reasonable
suspi-
cion
the
driver
committed
some
traffic offense.1° The
traffic offense
may
be
so
minor
as
to
be
regularly
ignored,
like
having
an
air freshener
hanging
from a
rear
view
mirror
or
momentarily
traveling
a few inches
over
the
white
line,l1
"Neither
the
primary
motivation
of
the
officer
nor
a determination
of
what
a reasonable
traffic officer
would
have
done
under
the
circumstances
is
relevant"
to the constitutional
inquiry.!'
The
practical
result
of
the
ruling is
to
"legitimizeO
police
stops
of
motor
vehicles for
any
reason
....
'[A)ny
citizen [is) fair
game
for stop,· almost
any
time,
anywhere,
virtually
at
the
whim
of
the police."'13
The
Robinson
decision
dramatically
changed
search
and
seizure
law
in
New
York.
Courts
in
this
state
had
been
unanimous
in
condemning
pretextual
stops,14
at
least
until
the
Supreme
Court's
1996 decision
in
Whren
v.
United
States.
IS
In
Whren,
the
Court
held
that
the
Fourth
Amendment
does
not
protect
citizens against
pretextual
traffic stops, The
defendants
in
Whrerl
were
stopped
after police
observed
a
car
with
temporary
license
plates
remaining
at
an
intersection "for
what
seemed
like
an
unusually
long
time."16 'The officers sus-
pected
drug activity
and
made
a
U-turn
toward
the
car.
The
car
sped
off
without
signaling.
The
officers
pulled
the
vehicle
over
and
confiscated cocaine. The defen-
dants
contested
the
search
on
the
ground
that
the
offi-
cers
used
the
alleged traffic infraction
as
a
pretext
to
investigate
drug
activity, for
which
the
officers
did
not
have
reasonable suspicion.17
The
defendants
argued
that
the reasonableness
of
the
investigatory
stop
under
the
Fourth
Amendment
should
be
evalua
ted according
to
whether
the police officer
had
reasonable
suspicion
that
the
defendant
had
committed
the
crime
for
which
the
officer actually
hoped
to
obtain
evidence.
1S
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NYSBA
Government,
Law
and
Policy Journal I Summer 2002 I Vol.
41
No.1
41
Reprinted with permission from: Government Law and Policy Journal, Summer 2002, Vol. 4, No. 1,
published by the New York State Bar Association, One Elk St., Albany, NY 12207
Electronic copy available at: http://ssrn.com/abstract=1868298
The Supreme Court rejected the defendants' argu-
ment. The Court stated that its prior cases "foreclose
any
argument
that the constitutional reasonableness
of
traffic
stops
depends
on
the actual motivations of the
individual officers involved.
"19 "Subjective intentions,"
according to the Court, "play no role in ordinary; proba-
ble-cause Fourth Amendment analysis."'O The Court
held
that
where a police officer has probable cause to
detain a
person
for a traffic violation, the seizure does
not violate the Fourth Amendment even
if
the traffje
violation is used as a pretext to investigate some other
matter.21
Following l'Vhren, the lower
€Ourts
in
New
York
split as
to
whether the state constitutional prohibition
against unreasonable searches and seizures provided
any
greater protection.22 The Court of Appeals faced the
issue in October
2001.
The court heard three cases
together, Robinson,
Reynolds,
and
Glenn.
In
the lead case,
Pwple
v.
Robinson,
New
York City
police officers
on
night patrol in the Bronx were
assigned to follow taxicabs to prevent robberies.2l' The
officers observed a livery cab speed through a red light.
They
pulled
the cab over to give the driver a leaflet
on
safety. One officer noticed that the defendant, a passen-
ger
in
the cab,
was
wearing a bulletproof vest. The offi-
cer then sa,:, a pistol
on
the floor of the cab
when
he
ordered the defendant
to
get out.
On
trial for weapon and vest charges, the defendant
moved
to
suppress
both pieces of evidence
on
the
ground that the officers used a traffic infraction as a
pretext to search the occupant of the car.
At
the
hearing,
the officers admitted that they had no intention of giv-
ing the driver a summons for the traffic violation. Nev-
ertheless, the motion
Was
denied and the defendant
WaS
convicted.2' The Appellate Division, First Depart-
ment,
applied
Whren and
affirmed.25
In
People
1J.
Reynolds, the second case, a police officer
observed a
man
he
knew
to
be a prostitute
enter
the
defendant's truck.
26
Suspecting solicitation
of
prostitu-
tion, the officer followed the truck
and
ran
a computer
check
on
the license plate. Upon learning that the vehi-
cle's registration
had
expired two months earlier, the
officer
stopped
the vehicle. The defendant
was
arrested
and
subsequently charged with driving while intoxicat-
ed
and
operating
an
unregistered motor vehicle.
In
this
case, the charges were dismissed by the trial court
because the stop was a pretext
to
investigate prostitu-
tion;
an
appellate term of the Supreme'Court
affirmedP
In
People
1J.
Glenn, the third case, police observed a
Manhattan livery cab make a right
hand
tum
without
signaling.2B
When
an officer noticed one of three pas-
sengers in the back seat lean forward, the police
stopped the vehicle to investigate whether a robbery
was in progress. There was
no
robber)"
but
the police
found cocaine in the cab and on the defendant in per-
son. The·defendant's suppression motion was denied,
and the Appellate Division, First Department, adopted
Whren,
and
held that the officer's probable cause to
believe that the driver turned without signaling justi-
fied the
stop.29
The Court of Appeals
majority-Judges
Smith, Wes-
ley,
Rosenbiatt,
and
Graffeo-approved
Justice Scalia's
reasoning from Whren.
In
the opinion by Judge Smith,
the
majority ruled that probable cause to believe that a
traffic infraction has been committed justifies stopping
the automobile
under
Article I, section 12 of the New
York
State Constitution. Adopting the Supreme Court's
rationale, the majority explained that, "[iln making that
detennination of probable cause, neither the primary
motivation of the officer
nor
a determination
of
what
a
reasonable traffic officer
would
have done
under
the
circumstances is relevant."30
The majority said that Court of Appeals' precedent
had never requlred courts to inquire into the subjective
intent of police officers
when
considering the legality of
roadside stops. Moreover, the majority expressed
€On-
cern that a rule requiring courts to look into the subjec-
tive intent of police officers for pull1ng over a car would
be unworkable. The majority further asserted that dis-
senters' fear about the discriminatory treatment of
minorities by police was misplaced. Recognizing that
"discriminatory law enforcement has
no
place in
our
law," the majority insisted that the relief for any dis-
crirninstory treatment lies
io
a cause of action for viola-
tion
of
constitutional equal protection.
31
The dissent, authored by Judge Levine
and
joined
by Chief Judge Kaye and Judge Ciparick, would have
held that traffic stops are impermissible under the state
Constitution if a reasonable police officer with traffic
enforcement responsibilities would
not
have stopped
the vehicle for the traffic infraction.
32
The dissenters
argued the state's guarantee against illegal search
and
seizure prohibits arbitrary policeconduct.33 Pretextual
stops, although accompanied
by
probable cause
to
believe a traffic infraction has occurred, nonetheless do
permit arbitrary police conduct. Contrary
to
the majori-
ty's insistence, "the existence
of
probable cause that the
infraction was committed is manifestly insufficient to
protect against arbitrary police conduct."M As Judge
Levine elaborated:
First, motor vehicle travel
is
one of the
most ubiquitous activities in which
Americans engage outside the home.
Second,
it
is, by an overwhelming mar-
gin, the
most
pervasively regulated
activity engaged in by Americans.
Because virtually every aspect
of
the
operation
and
equlpping of motor vehi-
cles
i,
codified, the Whren petitioners'
assertion-that
"since'
* * the use
of
42 NYSBA Government Law
and
Policy Journal Summer 2002 I Vol. 4 I
No.1
automobiles is
so
heavily
and
minutely
regutated that total compliance
with
.
traffic
and
safety ruies is nearly impos-
sible, a police officer will almost invari-
ably
be
able to catch
any
given motorist
in
a technical
violation"-was
so
self-
evidently true
that
it
went
unchal-
lenged.
35
The
dissent
further argued
that
the statistics showing
that
pretextual stops
are
conducted against a dispropor-
tionately high
number
of
African-Americans confirm
the
danger
of
giving the police the "wide discretion to
engage
in
investigatory seizures, only superficially
checked
by
the probable cause requirement."36
The
the-
oretical existence
of
a constitutional
tort
claim is
no
corniort, said the dissent, because it is practically
impossible to establish a viable claim based
on
inten-
tional discriminatory treatment.37
"Under
Robinson,
an officer
can
stop
a motorist, solely because he appears
to
be
Middle
Eastern,
if
he has a
broken headlight
or
a pine air freshener
hanging
inc
the rearview mirror. "
B.
u.s.
Department
of
Justice Actions
and
Other
Factors
Much
evidence exists
that
the outcry against profil-
ing
by
race
or
ethnictty
prior
to September
11
has
been
replaced
by
an
official polic)' ovenvhelmingly support-
ed
by
the public,
that
makes profiling of people
with
ties to
the
Middle East
good
taw
enforcement practice.
Almost
inunediately after the terrorist attacks,
the
federal
government
scuttled its efforts to
make
ractal
profiling a federalcrime.
3Il
Before September 2001, Pres-
ident
Bush
and
Attorney General John Ashcroft
had
mQved to make racial profiling
by
law enforcement
agencies a federal crime.39 After
the
attacks, Ashcroft
knocked the
proposed
taw
off the table.
Next, the
government
singled
out
Middle Eastern-
ers
as
potential terrorists.
In
the
weeks
following the
attacks,
over
900 people, almost all of Middle Eastern
descent,
were
arrested
or
detained.
4o
Congress passed
legislation
that
allows the indefinite
detention
of
any-
one
deemed
a
"threat"
to national security.41 The
Department of Justice
then
sought
to interrogate over
5,000 men, the ovenvhelming majority from the Middle
EaSt.42
In the following months,
thousands
of Middle
Eastern resident aliens were questioned
and
several
Arab-Americans
spent
weeks
in
jail
without
having
been charged.43 The Department
of
Justice
then
announced
ruies giving
FBI
agents
working
on
detect-
ing terrorism leeway to attend mosques
without
first
having evidence
of
wrongdoing.
44
Ashcroft is
now
pushing
regulations that
would
require tens of thousands of Muslim
and
Middle East-
ern
visa holders
to
register
with
the federal government
and
submit
to fingerprinting.45 The regulations
would
require dissemination of
the
information to law enforce-
ment
agencies.
Apparently, the public largely approves of
the
crackdown.
46
In
fact, one nationwide public opinion
poll
showed
that
nearly seven
in
ten Americans believe
taw enforcement should be able to randomly stop
peo-
ple fitting the profile of a teirorist,
even
if
that profile is
defined as a
person
of
Arab
descent. 47 Another found
that
54 percent
of
Americans approve "of
using
racial
profiling to screen Arab-male airline passengers."48
Even formerly
adamant
opponents of racial profiling,
such as Senator
Dianne
Feinstein of California, have
stated publicly
that
the fear of racial profiling is imped-
ing good
law
enforcement.49
In
addition
to
adopting
a policy that favors target-
ing
Muslims or Middle Easterners, the federal govern-
ment
has enlisted local police
in
the cause.
so
Attorney
General Ashcroft first
asked
local police to help the Jus-
tice
Department
interview over 5,000 predominantly
Middle Eastern men.S!
In
March,
he
again prevailed·
upon
local police to engage
in
a second
round
of
inter-
views with non-immigrants from predominantly Mus-
lim countries.52 He
now
seeks regulations that
would
provide local police
with
information
about
tens of
thousands of Muslim
and
Middle Eastern visa holders
collected
through
a registration process.
53
State officials are taking the same course. A bill
pending
before
both
houses of the
New
York State Leg-
islature
would
require
that
colleges
and
universities col-
lect data
on
foreign
students
for dissemination to
state
and
local authorities.
The
information collected
would
include the whereabouts
and
activities of students visit-
ing
from
the
Middle East.54
These federal
and
state efforts to eolist
law
enforce-
ment
at
every level
in
the fight against terrorism
may
well convince
New
York's police that they are
responsi~
ble for tracking Middle Easterners. State
and
local
police patrol streets. They
may
follow motorists
with
Middle East connections.
Robinson
lets them
do
more.
Under
Robinson,
·an officer
can
stop a motorist, solely
because
he
appears
to
be
Middle Eastern,
if
he
has
a
broken
headlight
or
a
pine
air
freshener
hanging
in
the
rearview ruirror. The officer need
not
fear
that
the fruits
of that stop will be deemed objectionable
and
excluded
as improperly obtaioed. Additionally,
any
worries
about
an
equal protection
lawsuit
are negligible because
of the
"nearly
insurmountable"
burden
of proof
in
such
cases. Thus, the
Robinson
decision
puts
thousands of
innocent people of Middle Eastern descent at risk of
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NYSBA
Government,
Law
and
POlicy
Journal I Summer 2002 I Vol. 4 I
No.1
43
arbitrary55
po
lice
stops-stops
illstigated
by
nothing
more
than
ethnic profiling.
"mhe
confluence
of
the Court
of
Appeals' decision
in
Robinson,
the
increasing acceptance .
..
of
ethnic pro-
filing,
...
makes the threat
of
discrimi-
natory treatment .
..
on New York
roadways quite
real,
H
Being
stopped
by
the police
is
not
a benign experi-
ence,
even
for the mnocent. Police stops are traumatic
for the driver
and
passengers. A pattern of stops against
a particular community can breed discontent
and
dis-
trust of the police.56 Indeed, the literature detailing the
tragic experiences
of
African-Americans stopped for
"drivillg while black" is chilling.
The legacy of Robinson
may
be
that
it
subjects yet
another community to that dreadful experience.
C.
How
Real
Is
the
Problem?
Will
pr~textual
traffic
stopse
become a real problem
for people of Middle Eastern descent? Only time will
tell. Violent anti-Muslim illcidents
in
the United States
increased from 366 validated reports ill 2001 to 1.125
this year.57 Also, 60,000 American Muslims have report-
ed
a negative impact from
U.S.
government policies
since the terrorist attacks
of
September 11,2001.
58
The
thousands
of
reports
of
violence, threats,
and
discrimi-
nation against Arabs
and
Asians
in
the months follow-
ing September
11
have
involved airport discrimination,
private assaults,
and
employment
discrimination-not
highway stops.59
It
is theoretically possible
that
Middle
Easterners have
not
been and will
not
be subject to the
random stops on the highways.6o
On
the other hand,
the confluence of the Court of Appeals' decision in
Robinsol~,
the increasing acceptance
and
occurrence
of
ethnic profiling,
and
the enlistment of state
and
local
police officers
in
the battle of against terrorism, makes
the threat
of
discriminatory treatment against people
of
Middle Eastern descent on New York roadways quite
real.
Endnotes
1.
The Court heard
aTgument
in
People
'0.
Robinson,
Proplc11
Reynolds,
and
People
v.
Glenn
on
Oct
10
..
200l.
2.
People
u.
Robin,on, 97
N.y'2d
341 (2001).
3.
ld.
at
363 (Levine, J
..
dissenting).
4.
Id.
--_._-
5.
The term is used broadly here to include visitorsr resident
aliens;
and
U.S. citizens
originally
from
Arab
or
predOminantly
Muslim
countries,
6.
Examples
indude
Attorney General John Ashcroft's use of state
and
local
police
to
interview
thousands
of
Middle
Eastern
men,
and
a Justice
Department
ruling
allowing
local
police
to
enforce
federal irntnigration laws,
See
New Round
of
Inferviews
Planned
wilh
Forrig"'rs,
Wall
St
j.,
Ma,
21, 2002,
at
AI;
Erk
Schmitt, Rul-
iilg
Gear's
Way
to
Use
State
Police
in
Immigration
Duty, N.
Y.
'llmes~
Apr.
4,
2002,
NaHonal Desk.
7.
N.Y.
canst.
art. L § 12.
8.
See
Wheen
v.
United
Slates,
517
U.S.
8()6
(1996)
(holding
that
an
investigatory
stop
of
a
motorist
is
valid
regardless
of
the
offi-
cer's
actuaJ
motivation
so
long
as
an
officer
has
an
objectiVely
:reasonable belief
that
a traffic
violation
exists).
9.
Prople
".
Robinson,
97
N.Y.2d
341 (2001).
10.
The
majority
opinion
in
Robinson
acknowledged
that
racially
motivated
investigations
may
violate
the
equal
protection
rights
of
those
stopped
beeause
of
their
race.
Id.
at
352;
see
also
Brown
v.
Stale,
89
N.Y2d
172
(1996);
Br<rWn
v.
City of
Oneonla,
195
F-iJd
111,
118·19 (2d
Or.
1999)
(stating
that
an
equal
protection
v;iolation
may
be
premised
on
racial profiling..
which
exists
where
police
use intentional
and
express
classifications based
upon
race).
The
difficulty
with
bringing
a
successful
equal
protection
claim
against
the
police is
well
documented;
see
Abraham
Abramovsky
&
Jonathan
[.
Edelstein,
Pretext Stops
and
Racial
Profiling
after
VVh.ren
v.
United
States; The
New
York
and
NroQ
Jer-
se,}
Resp&Tlses
Compared,
63 Alb. L.
Rev.
725
(2000);
Prople
v.
Robinson,
97
N. Y.2d
at
367
(Levine,
J
..
dissenting)
("the
problems
of
proof
in
establishing
an
equal
protection
claim
may
be
all
but
insurmountable").
11.
Judge
Levine's
dissent
in
Robinson
cites
the
following examples:
United
Slales
v.
Smiih, /lll F.3d 215 (7th
Gr.
1996),
where
a sus-
pected
drug
courier
was
followed
for 0.7
miles
and
then
stopped
for
an
air
freshener
hanging
from
the
vehiders
rearview
mirror;
United
SIalcs
v.
Miller,
821
F.2d
546 (11th Cir.1987),
in
whicl) D
stop
was
made
for
crossing
over
the
white
painted
lane
marker
by
four
jndlCS during
an
interval
of
65
seconds;
United
Slates"
Hill, 195 F.3d 258
(6th
Gr.
1999), cetl.
denied,
5:28
US.
1176
(:W()O),
in
which.
sheriff's
deputy
decided
to
follow
aU·
Haul
truck
driven
compJetely
lawfully
"be<:'ause
it
was
a
U-
Haul,
and
because
it
had
been his
experience
that
U~Hauls
carry
narcotics," until, after
almost
a
mile,
a
speeding
violation
was
dete<:ted; lInited Siaies v
Roberson,
6 F.3d 1088, 1092 (5th Cir.
1993),
""'.
denied, 510
U.s.
1182,1204,
",I.
dcnieti,
511
US.
1010
(1994), in
which
a trooper,
pursuing
a speeder,
passed
the
defen-
dant's
van,
willch
displayed
out-of-state
liceflOC'
plates
and
was
occupied
by four black
men.
Abandoning
the
pursuit
of
the
other
car,
the
trooper
crested
a hilll
pulled
onto
the
shoulder
of
the
highway,
doused
his
lights
and
activated
his
radar
gtm
as
the
van
approached.
The
van
was
found
to
be
traveling
only
three
miles
per
hour
over
the
speed
limit. However,
in
changing
lanes
to
avoid
the
risk
of
contact
with
the
trooper~s
car,..
the
dri-
ver
failed to Signal,
although
the
van
was
"apparently
the
only
moving
vehicle
on
that
stretch
of
road."
[d.
at
1089.
The
trooper
made
the
stop
for
that
infraction.
See
also
People
'0.
Laws
y
213
A.D.2d
226 (1st
Dep'l
1995)
(the
defendant's
vehicle
was
observed
parked
in
front
of
a
suspected
"narcotics
location:'
and
was
subsequently
pulled
over
for a
broken
taillight);
People
" Yaung, 241
A.D.2d
690 (3rd
Dep't
1997) (a
driver
Was
stopped
by a
plainclothes
state
police
investigator
for failure
to
signal);
People
v.
!.ells, 180
AD.2d
931 (3rd
Dep't
1992)
(a
driver
was
stopped
by
a
plainclothes
state
police
investigator
for failure
to
come
to a
complete
stop
at
a
stop
sign).
Robinsot1!
97
N.Y,2d
at
364-365 (Levine,
J"
dissenting).
]2.
Robinson,
97
N.Y2d
at
347.
}3,
Abramovsky
& Edlestein,
supra
note
10,
at
733,
quoting
David
A
Harris,
"Driving
Wltile
Block"
and
All
Olltrr
Traffic
Offen=
The
44
NYSSA
Government,
Law
and
Policy Journal I Summer 2002 I Vol. 4 I No. 1
'-
Supreme
Court
and
PrctextuaJ
Traffic
Stops,
87
}.
Crim.
L &
Crimi-
nology
544;
545 (1997);
see
also
David
A.
Moran,
NJ!W
Voices
Oft
the
War
on
Drugs:
The
New
Fourth
Amendment
Vehicle
Doctrine:
Stop
and
Search
Any
C4r
at
A"Y
Time,
47 V"!. L
Rev.
815 (2002),
14.
See,
e.g.,
People
v.
Flanigan,
56 A.D.2d
658
(2d
Dep'!
1997);
People
v.
Ynca,
223
A.D.2d 975 (3rd Dep'1 1996);
People
v.James,
217
AD.2d
%9
(4th
Dcp'l
1995);
People
u.
VllSI/uez.l73
AD.2d
580
(2d
Ocp'.
1991);
People
v.
Watson,
157
AD.2d
476 (1st Ocp'I),
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
40.
appeal dismissed,
75
N.
Y,2d
971 (1990). .
517
US.
800 (19%).
Whren,
517
U.S.
at
808.
Id.
Id.
a181O.
Id.
at
813.
Id.
Id.
See
Abramovsky
& Edelstein,
supra
note
10
..
at
733-43
for
an
extended
discussion
of
the
pre-Robinson
response
to
Vlhren
by
the New
York
("(lutts.
Rebinson,
97 N.Y.2d
al
347.
Id.
271
AD.2d
17
(lsi
Dep'l
2000).
People
v.
Reynolds,
185
Misc.
2d
674 (App.
Term,
KY.
Co. 2002).
Robinson,
97
N.Y.2d a1347.
Id.
People
v.
Glenn,
279
AD.2d
422 (lSi
Dep'l
2001).
RobinsOtl
T 97
N,Y2d
at 349.
Id.
al352.
Id. a136O.
Id.
al36L
Id.
at
363.
Id.
Id.
at
364.
Id.
al367.
Derrick
DePledge,
Promise
to
End
Racinl
Profiling
on
Back
Burner
after
September
11,
Gannett
News
Service, Apr. 19,2002.
Id.
See
Leslie Castro1
et
at.
Pet1Jer5ifies
and
Prospects:
Whither
the
Immigration
Enforcement
and
Detention
in
the
Anti-Terrorism
After-
math?,
9 Geo.
,.
Poverty
& Pol'y 1, 10;
Nlghtline:
Profile
(ABC
television
broodcas!,
Oct. 1,2001),
available
at
2001
WL
217l3()U.
41.
See
Uniting
and
Strengthening
Amerka
by
ProViding
Appropri-
ate
Tools
Required
to
Intercept
and
Obstruct
Terrorism
Act
of
2001,
Pub.
L
No.
107-56, 115 Stat. 272 (2001).
42.
Kevin
Johnson~
Justice
Seeks
to
Question
5,000
Possible
Witnesses,
USA
Today, Nov. 14,2001,
at
A14.
43.
Id.
44.
See
FBI
Siwuldn'/
Be
Infiltrating
Nlmiques,
Churches,
Newsday,
June
2, 2002,
al
B2
45.
Eric Schmitt,
AEhcroft
Pr0p<JSC5
Fingerprinting
Visas'
Holders,
N.Y.
Tunes,
June
5, 2002
al
AI;
ErIc
Schmitt,
U.S.
Will
Seek
10
Finger-
print
Visas'
Holders~
N.Y.
llD1CS,
June
4,
2002.
46.
See
Nightline:
Profile
(ABC television broadcast, Oct. 1,2001),
available
at
2001 WL 21773011.
47.
See
Mark
Z. Barabak,
America
Attac"-d-Times
Pol1,
LA.
TImes,
Sept. 16,
200!
atA!.
48.
Bush
Approvnl
at 74%
in
Fox
New,
Poll,
The
While
House
Bul-
letin,
June
7,
2002, Poil Watch.
49.
Zachary
Coile,
Feinstcin
Says
Racial
Profiling
FMfS
Hinder
FBlf
Admit
thot
Nationalily
is
Key,
She
Says,
N.Y.
Tlmes,lune
3, 2002
at
All.
SO.
Eric Schmitt, Ruling
Oears
Way
to
Use
State
Police
in
Immigration
Duty, N.Y. TImes, Apr. 4, 2002,
at
AI.
51.
Danny
Hakim,
Enquiries
put
Middle
Eastern
Men
in
Spotlight,
N.Y.
Tunes, Nov. 16; 2001,
at
H1.
52
See
New
Rill"'.
of
Interoiew
Planned
with
Foreigners,Wall$treet
Journal,
Mar.
21,2002/
at
A1;
Eric
Schmitt, Ruling
Oears
Way
to
Use
State
Police
in
Immigration
Duty,
N.
y:
'Iimes~
Apr.
4,
2002,
National
Desk.
53. Eric Schmitt,
Ashcrof/
Proposes
Fingerprinting
Vi,a,'
Holders,
N.
Y.
Times,
June
5, 2002,
at
AI;
Eric
Schmitt, U.s. Will
Seek
to
Finger-
print
Visas'
Holders,
N.
y:
1imes~
June
4, 2002.
54.
New
York State AssemDly Bill
A.09m,
New
York
Senate
Bill
S.6043-Bi
see
AP,
U.S.
Moves
to
Fingerprint,
Photograph
VtsitOr5,
Thronto Star,
June
6,
2002,
al
A16
(detailing
New
York
proposal)'
55. To
be
sure, a stop
motivated
solely
by
race or
ethnidty
would
violate
the
Equal
Protection
Clause,
and
would
therefore
be
ilte.-
gal
as
well
as
arbitrary;
The
victim
of
such
an
illegal
stop
is
almost
always
without
legal
redress,
however.
Robinson?
at
367
(Levine, I., dissenting).
56. David
A.
Harris,
The
Stories,
The
Statistics,
tmd
the
Lou}:
Why
"Driving
While
Black
H Matters,
84
Minn.
L.
Rev:
265.
57.
The
Status
of
Muslim
Civil Rights
in
the
United
States, Report
of
the
Council
for
American-Islamic
Relations,
April
2002,
avail~
able
at
ntlp:llwww.cair-net.org/dvilrighlS2002/.
58.
Id.
59. Alex Chadwick? Muslims
in
America
Feel
Subjected
to
Double
Stan-
dard
of
Justice
Since
September
11
Ten-orist
Attacks,
NPR,
Morning
Editinn
(Apr.
S,
2002).
At
least
one
corrunentator
questions
whether
the
hundreds
of
reported
incidents
amount
to
an
.
upswing
in
discrimination
against
Muslims
at
all
Jim
Edwards,
Post
Sept.
11
BacJ;Jash
Proue'
Difficult
to
Quantify, N.Y.LJ.,
June
12,2002
60.
For
exampleT a local
department
in
Oregon
has:refused
to
coop-
erate
with
Ashcroft's
request
to
interview
Middle
Eastern
men,
Lynn Marshall, Naw
Portland
Comes
in
For
Questictting,
L_A...
Tunes, Nov. 30,
2001~
at
AI.
Alicia
R.
Ouellette
is
an
Assistant
Lawyering Pro-
fessor,
Albany
Law School,
NYSBA
Government;
Law
and
Policy Journal I Summer 2002 1 Vol.
41
No.1 45
