Twelve years ago I represented an African-American man who was accused of possessing more than an ounce of marijuana.
The man was pulled over because police said the tint on his car windows appeared too dark. When the man rolled down his window, the police officer said he could smell marijuana smoke. He ordered the man out of the car.
The vehicle was searched. Police found a small, double-wrapped bag in the car trunk with several ounces of marijuana. The man was arrested.
A couple months later, he and I were preparing for a hearing to suppress evidence, based on the 4th-amendment right to be free from unreasonable search and seizure.
In my admittedly limited experience with these hearings, there was only so much you could do. Even with good facts, the presumption was always in favor of the arresting officer, who could give any of a handful of hard-to-disprove statements as rationale for stopping the car.
He failed to signal for a turn.
His window tint looked too dark.
He drifted in the lane, I stopped him for DUI investigation.
The car (or driver) matched one we were looking for.
Once a car is stopped, it’s similarly easy to justify searching the person and/or the car.
I smelled an odor associated with marijuana/alcohol.
His eyes were bloodshot.
He reached for something I couldn’t see.
And so on.
For those who don’t live in L.A., I’ll state the obvious. The sun is strong here. Window tint is useful. I added tint to my own car when the kids were young, to make their ride more comfortable on the way to hockey games and practices.
However, there are rules about how dark you can tint the windows, and which windows may be darkened. In my client’s case, he was fortunate that he’d actually had the tint removed from his car recently, partly to get out of a traffic ticket, but also to take away this rationale for future traffic stops.
For the court hearing, we were able to show his recent traffic ticket for excessive tint, his subsequent proof of correction, and a store receipt for tint removal. We were also able to cast doubt whether a small amount of marijuana in a double-bag in the trunk would have produced a detectable odor (or detectable by humans anyway), let alone the smell of smoked marijuana, which the officer alleged.
The thing I remember most from the case, however, was a stray comment prior to the hearing.
I had asked my client to bring a photo of his car. It was a shiny red Honda or Kia, something like that. I asked if he thought the red color caused him to get stopped more often than other colors would have.
He shrugged, he hadn’t thought about it.
I asked how often he was stopped by police.
Not a lot, he said.
“How much is ‘not a lot?'” I asked.
“I don’t know … couple times a month maybe?”
“Jesus. Seriously?” I said.
He laughed, probably at my naiveté.
On that particular day, we got lucky. The motion to suppress was granted. The case was dropped. But what I took away from that morning was that for this man, being stopped by police more than 20 times a year was “not a lot.”
I’ve been driving 20 years in Los Angeles. I’ve been stopped two or three times, never for tint.
I guess everyone has their favorite amendment of the U.S. Constitution. Some love the 2nd, others are all about the 1st. The 4th was always my favorite. But its protections mean less and less nowadays, especially due to the long-running “war” on drugs. The fact is, it’s incredibly easy for police to stop and search you, and for a court to deem the search reasonable.
As a white man in my 50s, I don’t get searched, ever. But if I were a black man in the Inglewood area of Los Angeles, being stopped and searched would be a regular part of my experience. That takes a toll, a heavy one. It causes harm even when — or perhaps especially when — the stop does not lead to an arrest or use of force.
Getting stopped and searched regularly is a very different experience of America than the one I’ve had. By all accounts, the experience is exhausting, inconvenient, degrading, and stressful. It can also be fatal.