How Profiling Works

With predictive profiling, criminal profiling gets more controversial. Instead of seeking a particular suspect based on evidence at a specific crime, predictive profiling attempts to guess which people are likely to commit a crime that hasn't happened yet.

This isn't a revolutionary idea by itself. Police officers don't just react to crimes: They patrol, observe and try to spot suspicious behavior that could mean a crime is going to take place. Few people would question an officers' right to investigate a suspicious situation or question a suspicious person. Even when police departments use their criminal profiles as a justification for searches and arrests without warrants, those practices have been upheld by the Supreme Court.

Here's an example. State troopers are patrolling a stretch of highway known to be frequented by drug traffickers. The officers know from previous experience that drug traffickers often use rented cars (usually large sedans or SUVs), travel in the very early morning, and put the spare tire in the backseat to leave more room in the trunk for drugs.

At 4:00 a.m., an officer notices a car that fits this profile. The driver is not breaking any major traffic rules, but the trooper pulls the car over anyway, hoping to spot some evidence that could lead to a search of the car. This is considered profiling. The practice of noting criminal tendencies and creating a written profile is sometimes attributed to Florida Highway Patrolman Bob Vogel, although it was probably carried out by others at the same time or prior to Vogel's use of "cumulative similarities."

This kind of profiling can occur when the high-level officials create a policy and program that instructs officers to investigate people who fit a predetermined profile. It can also be part of an unofficial policy, an aspect of the police department's culture passed down from veteran cops to newcomers on the force. Sometimes it simply results from an officer's experience. After years on the job, he has learned what signs might indicate criminal activity.

To determine if such a profile justifies a warrantless arrest or search, the officer must be able to describe the specific factors that led him to believe the suspect was a criminal. A hunch or a feeling won't stand up in court. The following statement probably would:

The suspect appeared nervous and made several contradictory statements. In the back seat, I could see a shoebox full of 35mm film canisters, which drug couriers frequently use to store drugs. The car smelled like air freshener spray, which is often used to cover up the smell of illegal drugs. I spotted the suspect driving slowly up and down a block I know to be frequented by drug dealers.

That kind of profile is not only legal, it's considered good police work.

Some profiling practices come under legal fire because they might violate the U.S. Constitution. Two amendments specifically relate to profiling activity. The Fourth Amendment reads, in whole:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Probable cause means that police can't search a home, car or person without some kind of justification -- usually, a reasonable belief that they will find evidence of a crime there, or stop a crime in progress.

Under most circumstances, a police officer can't determine this on his own. He needs a search warrant from a judge, or consent from the person being searched. The main question surrounding profiling is this: If a person fits a criminal profile, in the absence of any other evidence of a crime, does that by itself constitute probable cause? In the case of United States v. Sokolow, the U.S. Supreme Court did decide that a "totality" of evidence leading officers to conclude that the suspect is probably engaged criminal activity is enough to justify an arrest and a search.

The Fourteenth Amendment reads, in part:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

If police officers use criminal profiles that include race as factor, they violate both the Fourth and the Fourteenth Amendment.

During a traffic stop, an officer can take several different actions that require different kinds of probable cause for them to be legal. Here we'll examine each step and break down the elements of probable cause.

Racial profiling is a form of predictive profiling in which one of the factors (or the only factor) officers consider is the skin color or race of the suspect. Keep in mind that we are not talking about "rogue cops" with racist attitudes. Of course, racism exists in law enforcement just as with any large group of people. The real controversy erupts when police departments have policy-level profiling systems that include race as a factor, or a department-wide culture that teaches and reinforces the practice. Some people claim that racial profiling is blatant, institutionalized racism that leads to unfair harassment of minorities, while others claim that racial profiling either doesn't exist (i.e., police officers harass criminals, and if they happen to be minorities, that isn't the officers' fault) or that it is a necessary tool that simply reflects reality.

Separating fact from opinion can be difficult, because the same facts are used by both sides of the debate to support their own point of view. Opponents of racial profiling cite the disparity between the percentage of black inmates in the U.S. prison population and the percentage of the overall black population as a sign that blacks are unfairly targeted by police. U.S. census data for 2000 indicates that blacks make up 12.3 percent of the U.S. population, while Department of Justice statistics indicate that roughly 40 percent of all prison inmates are black [ref]. A similar disparity can be found among Hispanics. But some suggest that these statistics merely indicate that blacks and Hispanics are more likely to commit crimes.

Statistical analysis is even more difficult. According to those who say racial profiling doesn't happen, there are too many variables that would need to be taken into account to accurately compare general populations to prison populations. Even if traffic stops, roadside searches or arrests are broken down by race, these stats might be skewed because police make more traffic stops at times of day when more minorities are driving, or minorities might have a greater tendency to violate traffic laws. Higher accident and accident fatality rates are often cited as evidence of this. Advocates also point out that if racism were at the heart of minority stop and arrest rates, minority police officers would have different statistics than white officers. In fact, black cops on average pull over the same number of black drivers as white cops do [ref].

The most high profile case of systematic racial profiling was uncovered in New Jersey in 1999. An analysis of New Jersey State Trooper practices was conducted by the state attorney general, revealing that blacks and Hispanics were pulled over and searched many more times than non-minority drivers. In fact, 80 percent of all traffic stops conducted by New Jersey State Troopers during a 10-year period were stops of minority drivers. The report also found that a "macho," elitist culture existed within the state trooper ranks [ref]. Although department policy officially forbade racial profiling, reports from many troopers indicated that it was common for veteran troopers to "coach" others on its practice. Authorities assigned federal monitors to the troopers. In 2006, a report suggested that New Jersey had eliminated racial profiling actions completely, but whether or not they would still need federal monitors remained in question.

The New Jersey scandal brought profiling practices across the country into the spotlight. While Drug Enforcement Agency (DEA) training materials pointed out that racial profiling was unethical and against agency rules, DEA intelligence passed to agents and police departments frequently contained information on the national origin of potential suspects, as well as racial information [ref]. The New Jersey District Attorney's office issued a statement, declaring that law enforcement officers should not use race as a factor in any way during any step of the process of stopping and investigating a potential suspect. Essentially, cops should be blind to race, ethnicity and skin color (except when they are trying to match a person to a description of a specific suspect).

Departmental policies are supposed to aid law enforcement by examining trends in criminal activity. However, they have had the unintended consequence of creating a hostile situation for members of minorities who were innocent. Such policies would be considered civil rights violations, and many police departments have adopted policies specifically outlawing the practice. Twenty-two states have laws that ban racial profiling of motorists.

After the September 11, 2001 attack on the United States (and subsequent terrorist attacks in the United States and elsewhere), the country is particularly sensitive to airport security screenings. Critics say that a disproportionate number of "Arab-looking" people have been detained, searched or questioned at airport security checkpoints. Some people claim this only makes sense, based on the ethnic backgrounds of the 9/11 attackers. However, such practices would violate civil rights law, and at least one expert has pointed out that focusing only on Middle-Eastern people would do more harm than good. Raphael Ron, former security head at Israel's Ben Gurion Airport, has stated, "The worst attack on Ben Gurion was carried out by Japanese in 1972. If we focus on ethnic groups, we will miss what the enemy already understands: using a non-Arab person to carry out an attack might succeed" [ref].

In the months immediately following 9/11, the American-Arab Anti-Discrimination Committee brought to court several cases involving people of Arabic descent who were removed from flights despite having passed other security checkpoints. Courts determined that the pilot's discretion to remove objectionable passengers cannot be exercised simply because of a passenger's ethnic origin or race. Still, the threat of terrorism made many Americans accept this tactic. Transportation Safety Authority rules have since been changed to clarify that racial profiling at airport security checkpoints is not legal, and newer security systems are designed to be race-neutral, focusing instead on behavior patterns.

For lots more information on profiling and related subjects, check out the links on the next page.