LATEST NEWS OUT OF WASINGTON STATE, PROVIDED BY "MR BREEZE"
MOTORCYCLE PROFILING AND THE ISSUE OF
ANTI-GANG ENFORCEMENT
During the public hearing on HB 2511 on February 2,
2010 a number of committee members expressed
concerns that the legislation may be perceived as
making it more difficult for law enforcement to do
their jobs in terms of Washington State’s focus on
criminal street gangs. This is an important question
demanding a clear and concise analysis and my hope
is that these concerns will be more than put to rest.
First, an understanding of pretextual traffic stops is
essential to clarifying the issue of profiling and gang
investigations as they relate to motorists. The
controlling Washington State Supreme Court
precedent, State v. Ladson, 138 Wn.2d 343 (July
1999) is on-point. The officers in Ladson were on
proactive gang patrol when they noticed a vehicle with
suspected gang members. The officers admitted to
following the vehicle until they committed a traffic
infraction as a pretext to investigate suspected
criminal gang activity. Ultimately the subjects were
arrested for weapon and drug violations. The Court
concluded that pretextual traffic stops were
unconstitutional because they amount to a warrantless
search and seizure and all evidence was suppressed.
The Court explained that traffic stops are one of the
very few constitutionally condoned warrantless
seizures. For this reason Washington State’s traffic
code has been de-criminalized in hopes of avoiding
warrantless search and seizures or criminal
investigations. The Ladson Court concluded:
“Article I, section 7 forbids use of pretext as
a justification for a warrantless search or
seizure because our constitution requires we
look beyond the formal justification for the
stop to the actual one. In the case of pretext,
the actual reason for the stop is inherently
unreasonable, otherwise the use of pretext
would be unnecessary.”
The Court further explained,
“However the problem with a pretextual
traffic stop is that it is a search or seizure
which cannot be constitutionally justified for
its true reason (i.e., speculative criminal
investigation), but only for some other
reason (i.e., to enforce traffic code) which is
at once lawfully sufficient but not the real
reason. Pretext is therefore a triumph of
form over substance; a triumph of
expediency at the expense of reason. But it
is against the standard of reasonableness
which our constitution measures exceptions
to the general rule, which forbids search or
seizure absent a warrant. Pretext is result
without reason.”
In simple terms, law enforcement is not
constitutionally permitted to use the fact that someone
is a suspected gang member as a reason to pull them
over using traffic code. Motorcycle profiling
legislation would merely codify the Washington State
Supreme Court’s condemnation of pretextual traffic
stops. Interestingly, Washington State is unique in
regards to pretextual traffic stops. In almost every
other state and at the federal level pretextual stops are
taught as an essential tool of law enforcement.
However, this is not true in Washington. Article I,
section 7 of the Washington State constitution
provides more protection than the limited privacy
protections of the Fourth Amendment.
Second, The ‘gang’ label is too broadly applied to
motorcycle clubs. Despite often being labeled gangs or
OMG’s by law enforcement and the media, no
motorcycle clubs have been defined as criminal gangs
under the criteria outlined in Washington State’s Anti-
Gang Abatement Act. The purpose for the existence
of motorcycle clubs is not criminal in nature. Crime is
not the purpose for organization. The vast majority of
motorcycle club members are productive citizens
embracing the freedom of self-expression in a free
society. The outlaw mythology being applied to
motorcyclists is based on outdated news and
entertainment media stereotypes and misguided law
enforcement generalizations.
Finally, HB 2511 would not compromise any legal
law enforcement tactic or investigation method. There
are current mechanisms to legally investigate,
prosecute and convict criminal gang activity. There is
a process for obtaining warrants and conducting legal
search and seizures. There are sentencing
enhancements for criminal gang activity. Certainly it
is not necessary to commit constitutional violations in
order to insure officer safety or combat gang crime.
In conclusion, HB 2511 in no way condones gang
activity and would in no way interfere with legal
enforcement of anti-gang measures. HB 2511 merely
recognizes the sanctity of Article I, Section 7 of the
Washington State Constitution and the rights to
privacy uniquely enjoyed by citizens of Washington
State.
