Data, court records and experts indicate police pretextual stops disproportionately affect Black and minority drivers

By Paul Cuno-Booth, Granite State News Collaborative

Watch GSNC freelance reporter Paul Cuno-Booth and Legal Director of the American Civil Liberties Union of New Hampshire Gilles Bissonnette discuss these issues on NH PBS’s The State We’re In.

N.H. State Trooper Haden Wilber was stationed on Interstate 95 in Hampton one afternoon in February 2019 when he began following a car he found suspicious, a Toyota Camry with tinted windows and Connecticut plates.

“The vehicle had drawn my attention to it due to how clean it was, given the age of the vehicle and current weather conditions in New England,” Wilber wrote in a police report.

The driver was a Black man in his 20s. Wilber pulled the car over 7 or 8 miles later, ostensibly for following another vehicle too closely.

“Having decided the car driven by a lone Black male was too clean for the New England weather conditions and, therefore, may be involved in illegal trafficking, Trooper Wilber began ‘monitoring’ the car, looking for a reason to stop it,” Robin Melone, an attorney for the driver, Stephan Dance, later wrote in a court motion.

Wilber — who would later be fired for misconduct in a different case — belonged to N.H. State Police’s Mobile Enforcement Team, a drug-interdiction unit that has used minor traffic violations as pretexts to check out unrelated suspicions about drivers.

Research has found the practice leads to significant racial disparities, with police disproportionately stopping and searching Black and Latino drivers.

A search of the Camry found cocaine and fentanyl, but that’s not the norm in such stops. Researchers say the vast majority of so-called pretextual stops find no evidence of a crime.

Racial-justice advocates in New Hampshire have criticized the use of pretextual stops by State Police for years, expressing concern about civil liberties and the potential for racial bias.

State Police don’t collect comprehensive data on stops and searches, but the limited data suggests the Mobile Enforcement Team has disproportionately stopped Black and Latino drivers for certain minor infractions used as pretexts. In addition, questions about racial bias have been raised in individual court cases.

“New Hampshire is really lacking in terms of what data we collect when it comes to stops, detainments and arrests,” said Ronelle Tshiela, a co-founder of Black Lives Matter Manchester and student at the University of New Hampshire Franklin Pierce School of Law in Concord. “However, the data that we do have shows that there is some sort of bias that exists in New Hampshire policing.”

That’s underscored by the lived reality of many Black Americans, she said.

“I ask people all the time how they react when they are stopped by the police,” she said. “It’s interesting to see how different those stories are, just based on the color of people’s skin. And it’s a really traumatizing experience.”

In a statement, the N.H. Department of Safety, which includes State Police, said it has “implemented and embraced a variety of policies and initiatives” to address bias in recent years.

“In 2019, the Division of State Police issued its Fair and Impartial Policing policy, which aims to prevent and prohibit the practice of biased policing and other discriminatory practices in any law enforcement-related activity involving a member of the Division,” Tyler Dumont, a department spokesperson, said in the statement. “Additionally, all new recruit troopers now attend a multi-day implicit bias and procedural justice training at the police academy.”

He added that the Department of Safety “takes any and all motorist complaints seriously and encourages anyone who feels they were improperly stopped by a New Hampshire State Police trooper to file a formal complaint.”

An attorney for Wilber did not respond to a request for comment.

SUBHED: Who looks suspicious?

Police in the U.S. have used pretextual stops since at least the 1980s, when the DEA began training state and local officers to spot cars that fit supposed “drug courier” profiles. At times, officers were taught to look for explicitly racialized characteristics, like someone with dreadlocks or two Latino men in a car.

The practice can lead to racial disparities even when officers aren’t deliberately targeting drivers on the basis of race, researchers say. Because such stops are highly discretionary, implicit bias plays a bigger role.

“The evidence is just crystal clear that when officers are directed to choose drivers to stop on the basis of ‘suspicion’ — rather than observed behavior like 10 miles over — they’re more likely to stop Black drivers,” said Charles Epp, a professor at the University of Kansas who has studied the use of pretextual stops. “And so they’re far more likely to be subjecting innocent Black drivers than innocent white drivers to this really intrusive type of stop.”

Traffic stops are the most common form of police-civilian interaction, occurring millions of timers per year, and those disparities can ripple out, affecting who gets fined, arrested or even killed. A New York Times report last year found police had killed more than 400 unarmed motorists over a five year period — a disproportionate number of them were Black.

Even when they don’t lead to such outcomes, pretextual stops can be stressful and humiliating, and send a message about who the police view with suspicion.

Joseph Lascaze, an organizer with the ACLU of New Hampshire, recalled driving through Hooksett in a white Mercedes-Benz one day when he made eye contact with a local police officer, who followed him for a while before pulling him over. The officer told Lascaze he had swerved within his lane — to avoid a pothole, Lascaze said.

“I was asked where I was coming from, where I was going,” Lascaze said. “He asked me if I had been on that road the day before. I was like, ‘No, I didn’t. Must have been a different Black person in a white Benz.’ … I had to sit there on the side of the road and satisfy everything that he needed and wanted to know.”

After, he recalled feeling “like I should sell my car, because that was the second time that that happened to me. It also happened to me in Rochester.”

SUBHED ‘A troubling backdrop’

The Mobile Enforcement Team was formed in 2015, with a primary mission of interrupting the flow of drugs into the state. Officials say it often partners with other law enforcement agencies to make stops based on intelligence from ongoing investigations.

In court records and testimony, troopers have also described stationing themselves along key routes like I-93 and I-95 in southern New Hampshire, watching passing traffic for cars they find suspicious, based on a few quick observations of the occupants and generalized characteristics like using a rental car or coming from a supposed “drug source” state like Massachusetts or Connecticut.

Wilber said at an administrative hearing last month that the MET was encouraged to make those kinds of stops.

In reviewing court records, the Collaborative identified at least 18 examples of pretextual stops by state troopers in Rockingham County between 2018 and 2020, most but not all by members of the MET. In 11, at least one person in the car was Black or Latino.

Questions about potential bias have surfaced in some of those cases.

In September 2020, Trooper Timothy Berky of the Mobile Enforcement Team began following a sedan with Maine plates on I-95. He later testified that he did so after finding it “a little suspicious” that the driver — a Latina woman traveling with a Black man — had the hood of her sweatshirt pulled tight around her face.

“The decision by police to follow a car abiding by the rules of the road with no apparent safety defects solely because the driver was wearing a hoodie — a piece of clothing that has potent associations with racial profiling — presents a troubling backdrop to this stop,” wrote Eric Wolpin, an attorney for the passenger, Darvent Cummings, in a court motion.

Berky caught up to the car so he could run its plates, then pulled it over for a registration issue.

In an order last month, U.S. District Judge Steven J. McAuliffe upheld the stop, which found a half-kilo of fentanyl.

But in a footnote, he described a second reason Berky cited for the stop — an air freshener hanging from the mirror — as “likely pretextual, at best.”

“Indeed such offered grounds, if anything, add weight to claims that what is actually happening is profiling of citizens based on mere hunches and biases related to drug interdiction efforts,” the judge added.

Lascaze said it’s concerning that a state trooper singled out a car for the reason Berky gave.

“I wear hoodies all the time,” he said. “ … I don’t want to believe that this is the culture that we have in New Hampshire, where individuals who are wearing hoodies with the hood up are considered suspicious. That to me is problematic.”

In another case, attorneys took the rare step of directly challenging a January 2020 stop on racial-profiling grounds.

On the day of the stop, Trooper Brian Gacek — who is not part of the Mobile Enforcement Team, but patrols I-95 as a member of Troop A — began following a car with Maine plates that passed through the Hampton toll plaza. The driver was white, the front-seat passenger Black.

Gacek monitored the car for about six miles without noticing a traffic violation, then pulled it over when the speed limit dropped to 55. According to Gacek, the passenger threw drugs out the window as the car came to a stop.

The driver, Jeff Pomerleau, and passenger, Randolph Wilson, later testified that Gacek told them he had stopped them because he found it suspicious that a white man and a Black man were traveling together in a car with Maine plates.

Gacek denied making any such statement. He testified that he hadn’t seen Wilson at first, and followed the car because Pomerleau tensed up and put his hands at 10 and 2 on the wheel when he noticed Gacek’s parked cruiser.

Superior Court Judge Daniel St. Hilaire said he didn’t necessarily believe the defendants. But he threw out the evidence from the stop because he didn’t find Gacek’s testimony credible enough to prove he had lawful, nondiscriminatory reasons for pulling them over.

The reason he gave for following the car “undermined Trooper Gacek’s credibility,” St. Hilaire wrote in a September 2021 order.

“In the Court’s experience, it is unusual and somewhat disconcerting, for a police officer to follow a vehicle for six miles simply because the driver held the steering wheel at ten and two and appeared ‘rigid,’ ” St. Hilaire wrote.

The Department of Safety declined to comment on either case. Gacek did not respond to a request for comment, and Berky could not be reached.

Robert Watkins, a defense attorney in Portsmouth and former prosecutor who represented Pomerleau, appreciates that State Police are being proactive about seizing drugs. But he worries that training troopers to act on generalized suspicions about passing vehicles makes them vulnerable to implicit bias — whether they’re aware of it or not.

“If somebody looks like they might have a drug problem, or there’s an African American, they’ll look with greater interest at that car when they run it,” he said.

SUBHED: Spotty data

Racial justice advocates and defense attorneys in New Hampshire have called attention to pretextual stops in recent years, particularly the Mobile Enforcement Team’s use of the practice.

In 2020, the issue came up before the Commission on Law Enforcement Accountability, Community and Transparency (LEACT), which Gov. Chris Sununu formed after the murder of George Floyd to consider changes to policing.

Lascaze, who sat on the commission, and a researcher, Sam Katz, presented an analysis of MET traffic-stop data from 2019 and the first five months of 2020, showing that Latino and Black drivers were overrepresented relative to their share of the population.

Black and Latino individuals each accounted for a little more than 5 percent of stops for which race was listed, according to the Collaborative’s review of the data, while making up 1.8 percent and 4 percent of New Hampshire’s population, respectively.

Experts caution that simple comparisons of traffic stops to residential population numbers are imperfect for various reasons. That challenge is likely greater on interstate highways, where many of the MET’s stops occur, because they see more through-traffic from other cities and states.

The MET data also showed Black and Latino motorists were particularly likely to be stopped for two types of relatively minor, and often subjective, infractions that court records indicate are regularly used as pretexts. Together, they accounted for 12 percent of all tickets and warnings — but 21.5 percent of those for following too closely and 16.6 percent of turn signal and lane-related violations.

Stephanie Seguino, a professor of economics at the University of Vermont who has analyzed racial disparities in that state, said it’s ideal to look at several different measurements when assessing traffic stops for racial bias.

“It’s looking at all of the indicators and seeing if there's a pattern,” she said.

Much of that data is not available in New Hampshire. State Police do not keep comprehensive data on roadside searches — a key metric, as it allows analysts to see whether officers are searching Black and Latino drivers more often than their white counterparts.

During the LEACT proceedings, Department of Safety Commissioner Robert Quinn responded to concerns about bias by saying that all troopers are required to follow State Police’s Fair and Impartial Policing policy.

“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,” he said.

He added that troopers “cannot dictate the color of those in drug trafficking organizations.”

The LEACT commission recommended that police in New Hampshire collect demographic data on everyone they stop, but legislators stripped a provision that would have required agencies to do so from a police-reform bill last year, replacing it with a study committee.

That committee issued a two-page report in November recommending further study.

Tshiela, who served on the LEACT commission in 2020, expressed frustration about the lack of progress on data collection in a recent interview.

Discussions of bias in policing too often focus on individual officers’ motives, she said, rather than systemic practices that lead to biased outcomes. But without better data, it can be hard to get policymakers to acknowledge there’s an issue.

“I know it’s true. The people who look like me know it’s true. But the people who don’t have that sort of first-hand experience have to be convinced,” she said. “It’s unfortunate that they have to be convinced. But they do.”

Part three of this series will look at alternatives to pretextual stops.

If you have a story about a vehicle stop you’d like to share, you can reach reporter Paul Cuno-Booth at paulcunobooth@collaborativenh.org or 802-234-8443.

This article is being shared by The Granite State News Collaborative, as part of its race and equity initiative. It was edited by The Concord Monitor, a partner in the collaborative. For more information visit collaborativenh.org.