Discriminatory Treatment on the Roadways: Pretextual Traffic Stops of Middle Easterners after People v. Robinson

Abstract

Less than a month after the September 11, 2001, terrorist attacks, the New York Court of Appeals heard oral argument in three criminal cases with no apparent relation to the attacks or their aftermath. The Court's decision in those cases, however, may have a profound impact on people of Middle Eastern descent in light of other post September 11 changes. The decision puts the Court's imprimatur on pretextual traffic stops, "traffic infraction stops that would not have been made but for the aim of the police to accomplish an otherwise unlawful investigative seizure or search.”

This article first examines the pretext stop decision, People v. Robinson, to explain how the New York Court of Appeals came to limit protection against illegal search and seizure. The article then explores how public opinion and policy toward ethnic profiling has changed since September 11. In particular, the article argues that many public officials and public policies now accept profiling of Middle Easterners as a valid law enforcement tool. Next, the article shows how federal and state governments have directly enlisted local police in investigating and tracking Middle Easterners in the United States. Finally, the article concludes that the effect of Robinson and other post-September 11 changes is a chilling one: New York police, as designated agents against terrorism, armed with the right to stop anyone in a car as long as a minor traffic offense can be identified, may now view their mission as targeting people who appear to be Middle Eastern, Arab or Muslim for stops on the roadways.