Original Article Court told traffic stops based on race not unconstitutional Michael Kiefer The Arizona Republic Feb. 16, 2005 12:00 AM An Arizona assistant attorney general suggested to the state Supreme Court on Tuesday that law enforcement officers could pull over motorists because of their race without violating their constitutional rights. The argument stunned the justices and led to a late afternoon statement from the Arizona Attorney General's Office denouncing racial profiling. At issue is whether evidence could and should be thrown out of court if it arises out of a traffic stop based on racial profiling. A Yavapai County Superior Court judge has ruled that it cannot be thrown out. But during oral arguments before the Arizona Supreme Court, the attorney representing the state said that targeting minorities for traffic stops can't be considered racial profiling unless the motorists are also ticketed. "What is the traffic infraction involved in being Black?" Justice Rebecca White Berch barked at Assistant Attorney General Cari McConeghy-Harris. "The stop itself does not implicate any law," McConeghy-Harris responded, adding that as long as the officer did not write a ticket, constitutional rights would not be infringed. "I can't believe the state of Arizona thinks it's OK to make stops on the basis of race," Justice Andrew D. Hurwitz said. Hours later, in response to media inquiries, the Attorney General's Office clarified its position. "The Attorney General's Office has worked extensively to prevent racial profiling and is committed to ensuring that law enforcement agencies in Arizona do not engage in this practice," it said. "The state's legal argument in (the case) does not in any way condone racial profiling. The state's position in that case is that an allegation of racial profiling does not justify dismissing a criminal prosecution or excluding evidence in a criminal case as long as law enforcement officers had a sufficient legal basis for the stop." The case dates to 2001, when several Black and Hispanic motorists on Interstates 40 and 17 were stopped for supposed traffic violations and found to be carrying illegal drugs. Flagstaff attorney Lee Brooke Phillips got several of their cases thrown out of Coconino County Superior Court by alleging racial profiling on the part of state Department of Public Safety officers. DPS was not able to produce records regarding the traffic stops and the cases were dismissed. The state is appealing. Phillips made the same argument with three cases in Yavapai County Superior Court. He asked the state to pay for an expert who would compile statistics to show a disproportionate number of stops of minority motorists. The judge denied the request, so Phillips took it to the higher court. Phillips also filed a class-action civil lawsuit against DPS, accusing the agency of racial profiling. Although DPS admitted no wrongdoing, it entered into a settlement last month, promising to gather data and take measures to avoid racial profiling. The Supreme Court took the Yavapai County case to ponder whether racial profiling could be a defense against criminal charges, in the same way illegally obtained evidence is inadmissible in a trial. "If you pull someone over unconstitutionally because they're Black and you discover evidence of a crime . . . I would think that's inadmissible because it's the result of an unconstitutional search," said Paul Bender, a law professor at Arizona State University. The Rev. Oscar S. Tillman, president of the Maricopa County National Association for the Advancement of Colored People, agreed. "I'm totally against racial profiling, and any harshness that comes down on it, I'm for it," he said. "If you stop 20 people and two of them got drugs on them, you consider that a success. But what about the 18 people that you have harassed?" After the hearing, McConeghy-Harris said she didn't think the justices understood her point. She explained that she was not defending racial profiling but meant to say that traffic stops were minimally invasive and that racial profiling concerns should be addressed in civil lawsuits and not used as a defense in a criminal case. The Supreme Court took the case under advisement, meaning the justices will discuss it and decide at a future date.