Racial profiling is generally defined as the practice by law enforcement personnel of targeting certain individuals because of their race, as opposed to their behavior or actions. These personal characteristics may include beyond race, ethnicity, religion, and/or national origin, and use of these factors by law enforcement personnel, to any degree is impermissible. This would include relying upon such characteristics to determine whom to pull over, query, detain, search, or otherwise render subject to their authority and control. By impermissible, the generally accepted meaning is that the above-described personal characteristics led to a presumption (erroneous or otherwise), that the individuals who were stopped or otherwise detained, were not legitimately linked to criminal conduct. And race does not have to be the sole factor, it is enough for it to be the decisive factor in a stop.
Given the foregoing, and upon review of Detective McFarland’s actions and the facts known to us in this matter, he is not guilty of racial profiling as to Defendants Jackson and Rodriguez. As the facts indicate, McFarland’s standard operating procedure as a patrol officer in Anytown, is to watch for shoplifters, pickpockets, and other things out of sort during his neighborhood patrols. In this instance, we are told that he observed both Defendants, and another third party, repeatedly walking back and forth, to and from a certain shop window. Here, there is no indication that MacFarland stopped either Defendant because of their race, nor is there any evidence that Defendants’ personal characteristics were ever even at issue during the continuous period of observation leading up to the stop. He may be guilty of other issues as to the stop, but racial profiling is not one of them.

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As to the issue of detaining a person for questioning, or requesting identification, Detective Mac Farland must meet certain elements in order to have done so legally. In order or to make the legal stop (or detention), he must have reasonable, articulable suspicion in order to stop and detain the defendants. They can only be lawfully stopped and detained given probable cause that they are or were involved in the commission of a crime. As to the questioning or request that they identify themselves, the Defendants have and maintain the Fifth Amendment right to remain silent and to avoid making incriminating statements. They can be detained for certain things, but they cannot be forced to speak, including to identify themselves.

The final issue is whether Detective MacFarland met the legal standards necessary to stop and detain Defendants, and to ask them for identification. The detective did so after observing Defendants walking back and forth in front of a store, speaking with one other and a third party in and around the same vicinity, and then going back by the same store an hour later.

As articulated above, a stop is only legally permissible given reasonable suspicion that the Defendants had been or were involved in the commission of a crime. There must have been a reasonable, articulable suspicion in order to stop them—that is probable cause that they were involved in the commission of a crime. Under any circumstances, the officer cannot force defendants in custody to speak, be it for purposes of identification or otherwise. The Fifth Amendment gives defendants the right to remain silent and to refrain from acts of self-incrimination.

Given the facts presented herein, Detective Mac Farland did not meet the standards for a legal stop. There is no indication that he had any probable cause to believe that they were involved in the commission of a crime, nor was there any stated evidence of a reasonable, articulable suspicion that would justify the same. He apparently watched the individuals make five to six trips back and forth in front of a particular store, but did nothing until they did so once again, an hour later. Clearly, there was no exigent situation at hand, based upon these facts. He is also in the wrong asking them to identify themselves, and then upon hearing mumbling, conducting a physical search. The Defendants have the constitutional right to remain silent, though the Supreme Court has articulated that detainees should make that statement to the detaining party in the event they elect not to speak further.

In any event, the weapons, whether legal or not, are the fruit of an illegal stop, search, and seizure, and cannot come into evidence in this matter. From a policy perspective, we are reminded of the need for a balance between preventing crime and violence, and one’s inherent right to personal privacy. And when the two are hanging in balance, the scales should properly tip in favor of personal freedom from police interference.