Alleging Racial Profiling to Collaterally Attack a Criminal Prosecution

By Dan Cadman on January 1, 2018

The attorney for an alien accused of illegally reentering the United States after removal (a federal felony) has filed in federal court alleging that the Maine State Police traffic stop that resulted in the alien's arrest was the basis of racial profiling.

The filing's intent is presumably to suppress the evidence and thus quash the criminal prosecution for reentry. This is just about the only way that the alien's defender might be able to overcome the criminal prosecution, because the felony statute generally precludes collaterally attacking the prosecution by going after the underlying removal as having been unlawful:

(d) Limitation on collateral attack on underlying deportation order. In a criminal proceeding under this section, an alien may not challenge the validity of the deportation order described in subsection (a)(1) or subsection (b) unless the alien demonstrates that—

(1) the alien exhausted any administrative remedies that may have been available to seek relief against the order;

(2) the deportation proceedings at which the order was issued improperly deprived the alien of the opportunity for judicial review; and

(3) the entry of the order was fundamentally unfair.

One wonders, though, whether even an order of suppression having to do with the validity of the traffic stop would actually do the alien any good, since the primary evidence against him is himself. Unless he can show that he was somehow Shanghai'd into the United States against his will, then what excuse does he have for having reentered the United States illegally?

In the instant case, the alien's attorney has introduced as proof of the "racial taint" portions of the recordings made by the trooper's dashboard camera. As the Portland Press Herald article makes clear, the trooper's language is somewhat salty.

"This is the (expletive) ICE motha load right here," Burke tells Cooley when he arrives as backup. "Fourteen of 'em. Not one of them speaks English. Drivers – No driver's licenses. ICE is gonna be coming out here with their (expletive) SWAT team on this one. I just need you to watch them. They're all (expletive) sketchy as hell.

But is that language truly evidence of taint? It's an open secret that high-pressure professions, including law enforcement, often lead to use of gallows humor and profanities as an outlet. What it does show is that this trooper is clearly aware, after the stop, of the significance of what he had: a smuggling load of aliens that Immigration and Customs Enforcement (ICE) agents would clearly be taking a keen interest in. That's because alien smuggling is also a felony offense, and the penalties for individuals who smuggle aliens who are criminals or prior deportees are exceptionally severe. What's more, the language of the federal alien smuggling statute is quite clear in giving state and local police specific authority to act:

(c) Authority to arrest. No officer or person shall have authority to make any arrests for a violation of any provision of this except officers and employees of the Service designated by the Attorney General, either individually or as a member of a class, and all other officers whose duty it is to enforce criminal laws. [Emphasis added.]

What is not clear from the article, which spends too much time emphasizing the "racial profiling" aspect of the case without delving into the other matters I am bringing up here, is whether or not the alien whose attorney has filed for suppression is not only a reentrant after deportation, but also possibly the driver who was illegally transporting the other 13 illegal aliens.

If so, then the attorney not only hopes to quash the illegal reentry charge, but also the alien smuggling charge, which is almost certainly a 13-count indictment: one for each of the other aliens. So the stakes are high.

This case in some ways mirrors a similar case begun as the result of a traffic stop by Rhode Island state troopers. In that case, ultimately the federal First Circuit Court of Appeals ruled in favor of the legitimacy of the stop. My colleague Jessica Vaughan, writing on the Rhode Island case, noted that the Providence Journal editorialized that the circuit court decision was "a victory for common sense and the rule of law." Let's hope that the presiding judge at the district court level uses the same common sense.

Let's also hope that the Department of Justice lawyers representing the government in its prosecution(s) aggressively reject the assertions of bias simply on the basis of extemporaneous salty remarks by a relieved trooper when his back-up arrives. It's worth remembering that police traffic stops are among the most dangerous law enforcement activities, and that this trooper was facing odds of 14 other individuals to one.

By comparison, consider the murder of a Texas police constable, Darryll Lunsford, who was confronted by odds of only three to one when he pulled over a vehicle occupied by aliens transporting a load of marijuana. His dashboard video camera was also recording the incident.

It's easy for civilians and after-the-fact observers to forget that, as a law enforcement officer, you just don't know who or what you are going to confront when you pull a vehicle over on the open road. So maybe a little salty language can be forgiven once the trooper knows he's going to live through the encounter. It doesn't always suggest bias, but sometimes just the relief that you will survive to go home to your family that night.