State commission says more training, body-cameras and data collection could help address disparities.

By Dave Solomon, Granite State News Collaborative

State Trooper Michael Arteaga was parked in an unmarked cruiser on the north side of the Hampton tolls on a clear spring evening in 2018, when he noticed two men driving north in a late model Cadillac sedan with Connecticut plates.

Arteaga would later testify that he decided to follow the vehicle, with Jose Melendez driving and Brian Perez as the passenger, because, according to court records, “Perez, the passenger, was reclined far back in his seat … the driver had his hands at ‘ten and two’ on the wheel … and neither the driver nor the passenger looked in his direction as they were driving.”

The trooper eventually turned on his blue lights and had the Cadillac pull over, ostensibly for going 67 mph in a 50-mph zone and for making a lane change without timely use of signals. What followed was an interrogation and a search that turned up contraband.

That contraband, 400 grams of fentanyl, was deemed inadmissible as evidence after a hearing before Rockingham County Superior Court Judge Andrew Schulman. His ruling in late 2019 has become a go-to document for defense lawyers and civil rights advocates in their battle against so-called “pretextual stops.”

That’s when an officer pulls over a motorist for a minor traffic or equipment violation and proceeds to investigate more serious crimes, usually drug related. Many in law enforcement insist the stops are useful for investigating a variety of crimes, especially drug trafficking, while civil rights and racial justice advocates say the stops disproportionately target people of color.

The issue of pretextual stops was front and center in the deliberations of a commission appointed by Gov. Chris Sununu over the summer, tasked with improving law enforcement accountability and transparency after the murder of George Floyd at the hands of a Minneapolis police officer.

Prohibited by policy

Some members of the Commission on Law Enforcement Accountability, Community and Transparency wanted a recommendation against the practice. Law enforcement representatives said that was not necessary, since the state’s “Fair and Impartial Policing” rules released in February 2019 address the issue.

“Stops or detentions based solely on race, ethnic background, age, gender, or sexual orientation, religion, economic status, cultural group or any other prejudicial basis by any member of the Division of State Police are prohibited,” the policy states.

While that looks good on paper, attorney Donna Brown, who testified before the commission on behalf of the state’s Association of Criminal Defense Lawyers, said that’s not how it works in real life.

“Not only do I personally believe that the state police are making pretextual detentions, a Superior Court Judge in Rockingham County found the exact same thing,” she said, alluding to Schulman’s ruling.

In the end, the only consensus the commission could reach on the matter was to address it through data collection, training and widespread use of body cameras.

Legislation has been introduced in the state Senate, SB 96, to address many of the commission recommendations, including those aimed at pretextual stops. If the bill becomes law, race and ethnicity will be added as optional information fields to be included on a state-issued ID or driver’s license.

The state chapters of the ACLU, NAACP and Black Lives matter all testified in support of the changes to state ID at the first public hearing on SB 96 at the State House on Tuesday (Feb. 2).

Driven by data

Separate legislation is also in the works to require that all law enforcement agencies “gather, analyze and make available to the public, at least annually, data on demographics for arrests, citations and motor vehicle and subject stops regardless of disposition.” The hope is that such data, now unavailable, will shed light on the extent and nature of pretextual stops.

A new rule being drafted in response to commission recommendations would increase the mandatory annual in-service training for law enforcement officers over the next three years from the current eight hours to 24 hours. Six of those extra 16 hours would be dedicated to training on implicit bias and cultural responsiveness; ethics; and de-escalation.

The introduction of body-worn police cameras for state police and local departments that don’t have them is also included in the commission’s recommendations, and SB 96 establishes a body-worn and dashboard camera fund. The size of that fund is yet to be determined.

Brown says she’s long been a big supporter of body cameras, especially for the state police, but is skeptical that the data gathering and training will have the effect of eliminating or reducing pretextual stops.

“I am pessimistic on the data-keeping,” she said. “It’s going to take so long before it ever bears fruit. I know that they tried this in Massachusetts years ago, and it looked bad for them, so they got a bill to stop doing it because they didn’t like the results.”

What she would like to see is real change. 

“I agree with the ACLU position, which is to stop stopping people for their license plate light being out and having them sitting on the side of the highway to ask 100 questions about where they are going and where they are coming from,” Brown said. 

Independent research

While there may be no official sources for data on pretextual stops, there was an attempt by commission member Joseph Lascaze, representing the ACLU, to gather some statistics with the help of a researcher, Sam Katz.

Katz gave the commission a document titled “Brief report on the racialized nature of traffic tickets within New Hampshire from Jan. 1, 2019 to May 31, 2020.”

He reviewed 2,852 traffic citations in the DMV database for the time period and found the data field for race (to be filled in at the discretion of the officer) was left blank or listed as “unknown” in nearly one-third of the cases.

That left him with 1,948 traffic tickets in which racial data was recorded. Within that group, 123 tickets (6.4 percent) were issued to Black people and 104 (5.4 percent) were given to Hispanic people. 

“This is despite the fact that Black and Hispanic people respectively comprise only 1.8 percent and 4 percent of New Hampshire’s population,” according to Katz. “Taken together, people of color in New Hampshire comprised 11.8 percent of the traffic tickets, while comprising only 5.8 percent of the population.”

He also noticed a trend in the type of citations issued. 

“People of color are stopped for certain offenses at a higher rate than their white counterparts,” he wrote. “For example, while ‘following too closely’ was listed as the reason for 4.3 percent of all stops involving white motorists, it accounted for 8.8 percent of traffic stops against people of color.”

Public defender Stephanie Hausman is a big supporter of the effort to enhance data-gathering on the issue of who gets stopped and searched by police and why. She was recently able to obtain the written reports by one police officer in connection with motor vehicle stops over a seven-month period that resulted in arrests on marijuana-related charges.

The judge’s order turned up paperwork on 20 motor vehicle stops involving this officer. The stops brought him into contact with 34 individuals, of whom four were frisked. One of those four people was a white man who told the officer he was armed. The other three were the only Black or Hispanic people the officer encountered in 20 stops.

“For those who have not been frisked, it is invasive and humiliating,” said Hausman. “I’m sure this officer would say that he is not racist. But from this small data set, it is clear that he views brown people as being more of a threat. That view, even if held unconsciously, has real-world consequences for the people of color he interacts with.”

Mobile Enforcement Team

The focus when it comes to pretextual stops is primarily on the state police, largely because of the existence of the Mobile Enforcement Team, which comes under direct fire in Shulman’s ruling.

As attorney Brown told the commission, “Colonel (Nathan) Noyes said that the state police were not committing pretextual stops. But there's a Superior Court Judge who has found otherwise.”

“The court has learned from prior cases, when MET troopers are not responding to [orders to be on the lookout for a person or vehicle], they are specifically tasked by the Department of Safety to make pretextual detentions, sometimes for very minor perceived driving infractions,” Schulman wrote in the Perez ruling. 

Schulman said state police had turned traffic stops “into a sword to allow them to get as close to spot checks as possible.”

Department of Safety Commissioner Robert Quinn says racial profiling in motor vehicle stops is contrary to the policy and training of the department.

“I want to tell you, that we do not train for pretextual stops,” he said to Brown. “And I agree with you. That is not something that we want to see happening here. We have been having conversations with the colonel and the MET Team …. They have played a role in trying to intercede drugs before they hit the communities. But I agree with you. They have to follow the law.”

Culture vs. training

Martha Wyatt is the owner of Community Strategies Unlimited, a public safety training and consulting firm in New Hampshire. She has worked for the federal Department of Justice and local police departments. In her view, the culture within each department is as important as the training, when it comes to things like racial profiling and pretextual stops.

“Commissioner Quinn and Colonel Noyes have said that New Hampshire Police Officers are not trained to conduct pretextual motor vehicle stops. Earlier testimony appears to show that pretextual stops and racial profiling are happening anyway,” she said.

“Even though they don't receive formal training in those tactics, officers may learn inappropriate procedures from a small number of their colleagues who have become cynical and jaded, promoting a negative attitude towards certain segments of the public they serve. This represents one of the ongoing challenges faced by those who will determine the future of law enforcement training in New Hampshire and is another reason for standardizing statewide training protocols.”

David Solomon can be reached at davidsnh72@gmail.com. These articles are being shared by partners in The Granite State News Collaborative. For more information visit collaborativenh.org.