As argued in this amicus brief filed before the First Circuit on March 21, 2022, racial profiling by police—including at traffic stops—is all too common. The practice has led to an overwhelming lack of confidence in law enforcement and our criminal justice system, especially among Black Americans. It is also unconstitutional.
In this case, Trooper Darcy, the arresting officer in this case, has a well-documented record of racial profiling. Given this record and his assumptions about Black drivers, assumptions he has made clear in publicly available recordings, we argue that the trial court erred when it credited his testimony that Mr. Fagan changed lanes so abruptly as to create probable cause of criminal wrongdoing. As part of its Fourth Amendment analysis, the trial court should have considered the trooper’s experience targeting Black drivers on I-95 and his racist inferences.
The trial court did not consider Darcy’s racial prejudices when analyzing his credibility because the court mistakenly read Whren v. United States, 517 U.S. 806 (1996) as preventing any such consideration. Whren says no such thing and the court’s failure to consider Darcy’s experience targeting Black drivers when analyzing his credibility was an error of law. By vacating the trial court’s denial of Mr. Fagan’s motion to suppress, the First Circuit will uphold the Fourth Amendment and will also send the clear message that racist police tactics are not tolerated, an important step towards establishing confidence in America’s police.
On June 15, 2023, the First Circuit affirmed the trial court's decision. Judge Thompson dissented, stating the following:
"Drug cases often follow a familiar pattern. Police officers stop a car for a traffic offense, even a minor one — driving is so heavily regulated that officers have nearly endless chances to stop anyone they want: experience shows 'that no local police force can strictly enforce the traffic laws, or it would [pull over] half the driving population on any given morning.' [citations omitted]. Citing some exception to the rule against warrantless searches, officers then find drugs in the car or on the driver. Which in turn leads to federal drug charges. And if a judge does not suppress the drugs — because, say, the judge finds the specific facts known to the officers gave rise to an objectively reasonable suspicion of illegal activity — the driver-turned-defendant enters a conditional guilty plea that reserves the stop issue for appellate review. Our case — involving Darcy's tailing Fagan's car for miles (after it drove through the toll area without incident) solely because of Fagan's race (as no one really disputes) — presents a troubling twist on this general storyline."