Thursday, December 3, 2009

Racial Profiling? You decide

This is the police dashcam video of me getting pulled over by the Alpine/Highland Police a few months ago. The officer's name is Hoppie. Don't expect any Rodney King action to go down, but I believe there is a strong case for a violation of my civil rights. Especially pay attention to when he is back in his car checking my driver's license.

Background: My two friends (white guys) and I were driving to go to a restaurant for a midnight snack. I was perfectly driving the speed limit. It was at night and my back window was tinted, so I didn't realize that there was a cop following me for over a minute. We are all pretty clean-cut looking guys and I didn't have a single thing to drink or puff on that night. I was not tired or on any medication. I was perfectly sober. Any normal civilian would have seen that. The town we were driving through is Highland. It is a predominantly white area with a median household income of over $100,000.

While watching the video, I want you to keep in mind all the things that cops look out for when suspecting a potential DUI/DWI. They include but are not limited to the following: driving pattern (a cop will usually look for 2-3 missteps in driving before suspecting a DUI, or maybe one really bad traffic offense), how quickly and smoothly car pulls over, odor of alcohol or weed, fumbling of wallet, bloodshot eyes, watery eyes, dilated pupils, slurred speech, fumbling of wallet or car registration, attitude, nervousness, how he answers the cop's questions, etc. There usually has to be a combination of two or three of the above in order to have reasonable suspicion. Only when there is reasonable suspicion can a police officer have the right to proceed with further investigation like conducting field sobriety tests (walk the line, one-legged stand, etc.).

Also, keep in mind the following: I start to get pretty nervous with this cop breathing down my neck, I comply with everything because I don't want him to give me a ticket, and I also comply with everything because I know I am perfectly clean.

Enjoy the show!


  1. He said he didn't smell anything and that he couldn't see your pupils! Are you kidding!? What was his justification for expanding the scope of the stop? Argghh.

    And he did HGN with his car's lights on.

    Then he searches under your seat? What a joke.

  2. Yes, Jang is back!

    Wow. You handled that extremely well in spite of being nervous. It looks to me like race was a factor in this stop. I think any reasonable observer would be confident that you weren't impaired well before he had you leave the car and do all of the tests. It was almost like he had to do all of the tests because he doesn't get enough chances to practice all of his DUI protocol in Highland.

    A few other comments.
    1. You were not "weavin' all over" like he said. Weak probable cause for the stop.
    2. All those other cops were searching the car throughout the tests. Not much going on in Highland that night.
    3. Have you filed any complaints or legal action? I'm guessing something went down or we would have seen this sooner.

  3. The swerve looked worse on video, but everything always looks worse on a police cam. I feel dirty after watching that.

    My favorite was: "Plastic Coated... Oh playing cards."

    Too bad you couldn't get the dialogue of me and Nate destroying the other officer in a battle of wits.

  4. Wow. Just finished the video, Jang. A few thoughts:

    1. You were swerving like a madman, dude. If there had been a pedestrian in the bike lane, they'd be toast.

    2. Hoppie was definitely out of line. The guy seemed to be making up tests as he went along.

    3. Did you have a lawn chair in the car with you, or has Hoppie just never seen the interior of a car before?

    4. Next time we get together for a Park City party, we can all go over the alphabet, so you won't have another embarassing "didn't stop on 'x' moment".

  5. my favorite. "what was the last grade you graduated from?" i thought he was asking you for your gpa. lol

  6. Jang! Glad you posted this. I really am not too suprised with the Asian comment, although completely out of line, consider the stock.

  7. Rob: I know this will be disappointing to all the readers, but I am not the crusader of minority rights as everyone thinks I am... so no, I have not done anything about this yet. I was pretty fired up when it happenned but my laziness pretty much destroyed this whole thing. Well, and the other reason I didn't do anything was because Highland City also pays me to do some of their their criminal public defense! So there is a little bit of a conflict of interest. But what I will do in the next few days is go straight to the head of the department and make a complaint. Will that do anything? Probably not, but I figure it's the least I could do without getting too involved. I just don't have the energy to make a big stink about it. All I know is that I want some red flags to be on this officer's record.

    Grant, there was a dead body in the backseat. But c'mon, what's the big deal?!

  8. I see why he pulled you over, and why an officer would err on the side of administering a sobriety test. But four of them!?! And the questions about drugs, guns, and what's that under your seat?! WTH?!!

  9. Good call. I think registering a complaint is the right level of response. Hopefully it will educate without being a big drain on you.

  10. Dude, what a freaking douchebag. I can't believe this guy. Props to you for not even going to court over this. One would think that after the first test he would be satisfied. Or even the second test. Moron.

  11. (This was originally posted as a response to a facebook note, but I'm moving it over here per Jang's request.)

    Sorry guys, I'm going to have to play devils, I mean cops advocate on this one. Except maybe the part where he said he couldn't see your pupils because you were Asian, I didn't see anything I thought was racist, out of line, or unreasonable.

    I've been pulled over twice for suspicion of drunk driving. In both my instances I had been allegedly "weaving" but hadn't crossed any lines. "Illegal lane usage" is one of those catch all things they use to pull people over that seems like BS, but still stands up under probable cause scrutiny. I'd say Jang was treated just as politely if not more so than I was. In one instance of being pulled over I was asked to exit the vehicle, performed a few sobriety tests like Jang did, and then he asked for permission to search the vehicle. Having taken evidence class, I said, "Actually, my law professor told me to always say, 'I do not consent to any searches.' I'm just curious, but what happens if I say that?" To which the officer replied, "Well, that's fine, then we call for a K-9 unit and wait around for an hour or more so they can show up and sniff around." Again from evidence we know that for some reason being detained for hours and having animals sniff around your possessions doesn't constitute a search constitutionally. I didn't have an extra hour and knew my car had nothing illicit in it, so I laughed and told him to go ahead and search it. So I got to sit on the hood of his squad car while the officer crawled all around the inside of my vehicle, looked in my backpack and bathroom bag, all quite thoroughly. I ended up being detained for over 45 minutes on my stop. Jang was detained less than 15.

    I wouldn't file a complaint about it. Checking the cab and passenger section of a vehicle visually is standard procedure because officers never know when someone is going to pull out a gun and shoot them, so they like to play it safe. There's no way to know if the officer knew the driver was Asian before pulling him over. If questioned on the matter the officer will only point out that Jang (understandably in a nervous situation) barely failed the 12344321 test, failed the stop on the X alphabet test, and then wobbled on the walk the line test. If questioned on the Asian comment, the officer will just say, that by "Asian" he meant that Asian people often have darkly colored iris's and he couldn't see the pupil because of that.... See More

    If we want to grumble about cops being overly intrusive, that's fine, but accusations of racism seem a bit extreme and unfounded.

  12. Well, I think your argument has some very serious weaknesses, Chris. First of all, Jang has spoken with two prosecutors and three other attorneys on this subject. If you're telling the whole story here, those searches and sobriety tests also violated your rights. While race may not have been a factor in your DUI tests, you cannot make a broad generalization and say that race wasn't a factor in Jang's case. We only heard a small bit of what that cop said in the car, and in that short time he made one derogatory remark. Saying "He's has darkly-colored irises, so I'm having trouble seeing his pupils," is one thing- but his tone and word choice clearly conveyed a disdain or frustration with Jang or with the testing process.

    And I would re-read that nameless Evidence case you mentioned. We know that going on a bus full of people and letting dogs sniff the outside of all bags and people was not an illegal search. But singling out one person and searching inside their car, without probable cause, most definitely is.

    Another fallacy- I did not say the cop was racist. But I do think race played a factor in the cop's decision to detain him and perform the tests.

  13. Oh it probably does have a few weaknesses. Most of my arguments do. :) Now that I reflect a bit I probably overestimated the time of my traffic stop and misquoted the police officer. I still think my stop took longer than 15 minutes, but I can't really be sure as I wasn't timing him. I checked and I definitely mixed up some cases. It was Crim Pro actually and a variety of different cases uphold the police detaining people in traffic stops for different lengths of time. (Example: US V Mayo 394 f.3d 1271 where circumstances justified a 45 minute traffic stop.) Anyway the rule on time limits for traffic stops: “an investigative stop is not subject to any rigid time limitation, but at some point an extended stop that has not developed probable cause for an arrest can no longer be justified as reasonable... In most cases 20 to 25 minutes is probably the outside time limit, beyond which a stop becomes a seizure tantamount to arrest, requiring a justification of probable cause.” That’s quoted from Criminal Procedure for the Criminal Justice Professional by Ferdico, Fradella, and Totten p.391-392. As a result I believe most police forces have a policy of trying to limit their traffic stops to under 15 minutes. The officer in Jang’s case came in well under even that limit.

    So now that we’ve established that the length of this particular stop was appropriate, let’s address whether the officer had any right to stop Jang at all. Jang drifting well into the bike line is definitely on camera. In a publication issued by the National Highway Traffic Safety Administration (DOT HS-805-711) that according to wikipedia is widely used in training officers to detect drunk drivers, it states that weaving equals a 60% chance that the driver is over the legal limit. Drifting is a 50% chance. Tires on center is a 45% chance. This is probably why I get pulled over for suspicion of drunk driving so much. :) An officer does not need probable cause to pull someone over. All they need is reasonable suspicion. Reasonable suspicion is less than probable cause but more than a hunch. Now it didn’t seem to me that Jang’s driving was dangerous but it fit the description and provided the officer with more than a hunch and thus the justification for the traffic stop. Now maybe this happened because the officer really was racially profiling, saw an Asian driving a car, and thus decided to follow until he could find any small excuse to pull him over. But we have no evidence of that, and surely the officer’s story will be that he saw Jang’s car exhibit some sort of erratic behavior before and thus turned on his camera. I don’t know how dark it was really, but it looked like it might be too dark to spot the race of someone in a car when their lights are on. At any rate, it’s more than enough for me to give the officer the benefit of the doubt on the stop, and in my opinion nowhere near enough to prove racial discrimination in the stop.

  14. Now the actual events of the stop. It seems natural to me that if you are pulled over for suspicion of drunk driving that you will probably be subject to a field sobriety test. It’s a little insulting, but certainly not a violation of anyone’s rights. All the tests he administered were textbook. Field sobriety tests are notoriously inaccurate. Lots of people can’t always do them sober, even away from the stress of a traffic stop but still they are often upheld as enough to justify probable cause for arrest. Four tests were administered to Jang. He does not perform the first three perfectly. In my opinion the violations were small and understandable and the cop apparently agreed because he correctly concluded that Jang was unimpaired. So in my opinion the tests were fine. How about the “search?” In the video’s comments, Jang notes how the cops are shining their lights into the cars windows and looking around carefully. This is standard procedure. Toward the end of the video while the door is open the officer notices something under Jang’s seat. He asks Jang what’s under there. Jang say’s “Nothing,” and understandably so because who can keep track of what rattles around the bottom of your car? But there was something and the police officer worried that it might be a weapon, checks visually by shining his flashlight. He did not enter the vehicle. It was just a pack of cards and so naturally Jang is free to go. According to wikipedia’s report of FBI statistics, more officers are killed or injured annually during the course of traffic stops than at any other time excluding vehicle accidents and effecting arrests. These cops have no way of knowing whether they are dealing with a nice lawyer like Jang or a cold blooded cop killer, so they play it safe. I think that is perfectly reasonable. ... See More

    The comment about Jang’s race and pupils were definitely said with some sort of bad feelings and they could easily be construed as hinting at racism, but I think a fallacy lies in concluding that the disdain and frustration couldn’t have been attributable to something else entirely. Maybe he’s been having an awful day. Don’t get me wrong, the officer comes off as a pretty big jerk at times, but that’s no crime. Still even if the officer is privately a raging racist, I don’t see any proof of him treating Jang inappropriately, discriminatorily, or violating Jang’s civil rights in any way. Where’s do you see the violation?

    True you didn’t say, “The cop was racist.” But the note is entitled: “Racial Profiling in Utah- Don't Drive Asian??” and you also wrote “from the officer's point of view, he had one thing wrong with him--see if you can tell what that is.” If you weren’t implying that racism and racial profiling was the issue here I’m sorry I inferred it, but I think it was an easy mistake to make. I think it’s important to be careful about accusations of racism as they can be pretty devastating to people’s careers and relationships. I hope you don’t mind me commenting so much, but I can’t resist a good friendly racially charged debate, and love defending police conduct in civil rights matters. :) Let me know if you two are coming to the next Geek night. I’d love to meet Jang. :)

  15. themanbat:

    I often go by the philosophy that if you’re not racist, don’t say or do things that seems racist. Because being called a racist has got be one of the worst insults in our day and age, we will go to great lengths to avoid being called the mother of all epithets. Since white people have been called “racist” for so many years now, they are rightfully wary about indiscriminately throwing that word around. Likewise, since minorities have had a long history of being the recipient of racism, they have understandably been trigger-happy with the word. I would say that I err on the side of caution when it comes to this word; I tend to side with white people. I would rather think you are acting stupid because you are just stupid and not because you are racist. And oftentimes, even if you do something that appears racist, I usually like to call the act as “apparently racist”, but I will refrain from calling the person racist. I just think it’s a safe policy to live by.

    So with that said, before I received the police video, I did not assume that Officer Hoppie treated me like that because of anything racial. It was only after I heard what he said in the car about my eyes did I think that there were racial undertones. Now, could I definitively conclude that he is a racist? No. But could I say his actions appear racist? Certainly. We make inferences from actions all the time. For example, if you see a person walk into a store with a mask then come running out in a hurry, you could infer from those actions that an attempted robbery has taken place. Did you see the robbery happen? No, but the masked man’s actions lead you believe that it did. In my case, I’m inferring from his actions that he at least partially acted due to my race. I am making such an inference for a number of reasons. One, the tone of his voice (he was pretty upset, you must admit) and the content of his words (he said “freakin’”). Two, he readily admitted on tape that he did not smell anything on me (which means no odor of alcohol or marijuana-these constitute 90% of DUI’s) and that he didn’t see any indications of impairment on my face; due to race or not, he did not see bloodshot, watery eyes, or dilated pupils. He only based his reasonable suspicion on a driving pattern and uh, that he couldn’t see my eyes. Sorry, buddy, but that is not enough for getting me out of the car to do field sobriety tests. Yes, you could initially pull me over to investigate because of the weaving, but once you see that there is no smell of a controlled substance, no facial indications of impairment, and nothing in my demeanor that seems suspicious, then you call it quits. As for that initial 1234-4321 finger test, that was a made-up test not recognized by the National Highway Traffic Safety Administration, which is the administration that sets out the Standard National Field Sobriety Tests that are used by all police.

    As for your run-in with the police, it is quite possible that I was mistreated AND you were mistreated; it may surprise you but minorities don’t have a monopoly on police mistreatment. In fact, I think you sell yourself short when it comes to how much you were mistreated. Because if your facts are how you say they were, your rights against unreasonable search and seizure and unlawful detention were certainly violated. The search on your car was not pursuant to a lawful arrest nor was there any other exception they could have used to get that search in (exigent circumstances, felony committed in the presence, etc.).

    Oh, and Jackie is right. I did speak to two prosecutors, several attorneys, oh, and a police officer, and they agreed with me.

  16. I know that 12344321 test isn’t one of the three standardized NHTSA tests (those being the one leg stand, walk and turn, and horizontal gaze nystagmus test), but it was one of the two a VA officer administered to me. As I understand it there are a lot of non-standardized tests that are administered all the time but at any rate the officer in this case didn’t make it up all by himself.

    I see how the cop may have made a procedural misstep by administering the tests without more signs of drunkenness other than the drifting into the bike lane. He certainly didn’t mention any. Though I have to point out that unless I missed something all he said was that he couldn’t see your pupils. I didn’t catch him saying anything about bloodshot, watery eyes, facial expressions, voice, or other over all “signs of drunkenness” that cops look for. Isn’t that kind of stuff is frustratingly subjective? In my case after the officer completed his search, I asked if there was any reason he suspected drugs, and he said I looked tired and my eyes were blood shot. But when I got home I looked in the mirror and my eyes looked fine to me. As for getting you out of the car, I thought cops could ask you to get out of or stay in the car as they saw fit? I’ve seen a lot of cases where they ask people to get out of their cars and go over to the shoulder for the writing of the ticket. I think it’s usually for safety as sometimes other drivers smash into cars on the shoulder, but at any rate I thought it was the officers prerogative. If Officer Hipple would admit to not seeing enough additional signs to proceed to asking for the sobriety tests, that seems it would probably get someone out of a DUI conviction, but as you of course didn’t get arrested for DUI or even a citation for anything I don’t understand how it’s relevant.

    Fun fact I just discovered. It turns out you can legally decline to perform a field sobriety test. You just say I don’t want to do the test, and then the officer has to decide whether or not he’s going to arrest you based solely on your driving and the signs he saw when he first talked to you. Something for everyone to bear in mind next time they’re pulled over.

    It doesn’t surprise me at all that minorities don’t have a monopoly on police mistreatment. That’s actually part of my point. :) Maybe Officer Hipple erred in procedure when he went for the field sobriety tests, or maybe he thinks he saw other signs that he didn’t comment on, or did comment on in the inaudible parts of the tape. Unless he knew he shouldn’t do the tests but pressed for them anyway out of a deliberate desire to insult or embarrass you solely because of your race, I don’t understand how proceeding with the test was abuse. I didn’t feel I was mistreated in my searched vehicle case. While I supposed the cop may have been a little tricky about it (they actually have to get the police dog there within a normal traffic stop time limit, and I doubt they had one around the corner) I did after all consent to the search. Now I wish I had made him call for the sniff squad. I kinda wanted to see the dog. :)

    Anyway, I guess I just don’t see proof positive that the traffic stop was racially motivated and how the traffic stop actually unreasonably harmed you. Other than being insulted of course. I usually feel at least miffed and talked down to after my run-ins with the police. Maybe his tone was because of racism, but then again maybe it wasn’t. Maybe he is a huge racist but keeps that out of every aspect of his work but his tone, and the stop was entirely legally justifiable. Only God knows for certain. You’d of course be totally within you rights if you pressed forward with a complaint. Maybe you’d uncover a long line of much more abusive behavior. I’d definitely be interested to read your report on how it turned out. :)

  17. Maybe he shouldn't have been driving like an Asian...the lines on the road... they exist for a reason.

    Yes, I'm Asian :P .

    Yes the cop made a racist remark, but I don't think it's anything to be making a fuss over; however, I would be making a fuss over unreasonable search and seizure if he was going through your belongings without your permission and without a warrant.

    More than the "race card", people need to be pulling out their pocket constitutions. A lot of Americans seem to forget about that most important piece of paper. That which is a firewall between us and the powers that be.

  18. Every squad has an officer Farve on their team and I think you were unlucky enough into run into one that night =/.

  19. Great excercise in procedure to all...
    Missed point...perceived fear by a person of color while interacting w/ law enforcement...
    My guess is this is not the first time Jang was pulled over. Point, everytime I'm pulled over it rememinds me of a time before. There are many made up suspicions that put me in that position but what matters is how "safe" I feel driving down the road in my own neighborhood. Racial profiling and racism exist, turning a discussion about racism into a debate over procedure normalizes racist dialogue by questioning racism existence. Racism does not have to be this officer spouting off epitephs. Racism can simply be the use of power over someone because of race. The education comments were the most pointed to interesting attack on your intelligence, that's where I would start a complaint...racial profiling in Utah is not a new topic for me. There are countless stories of law enforcement in Utah County crossing racial lines...My crazy self walked right into the Provo Police Deparment and interviewed an officer about it...what did he say...that they can't tell what race a person is when they make a stop...i agreed w/ him during the interview but later decided...we identify ourselves most of the time w/ flags, paint, decals, or the rims we choose. While procedure is important and should be fair...the struggle is an empirical people of color receive due process...history has proven No...the is a heightened level of scrutiny when it comes to race and racial profiling so we have to be able to question...Officer Hoppie was on his best behavior this night but who will say in the future...will he get braver and bolder? Are there enough people of color in Highland for Officer Hoppie to be a threat? I'll look forward to hearing more on this as always, Jang you don't disappoint!