Introduction from the ACLU of Northern California

In 1999, the California Legislature's Task Force on Government Oversight issued a report about the impact of "Operation Pipeline," federal guidelines from the Drug Enforcement Administration to state and local law enforcement agencies, on racial profiling in California. Operation Pipeline, a by-product of the federal War on Drugs, has been used throughout the country to train thousands of state police officers, including the California Highway Patrol, to identify "potential drug runners." The author of the report, prize-winning reporter Gary Webb, attended the CHP training program and accompanied numerous CHP officers as they implemented the Operation Pipeline guidelines on California's highways. In the report that follows, Webb illustrates how the use of the federal guidelines by the CHP has meant the unjustified and discriminatory stops of drivers of color in California for no legitimate reason.


SPEAKER'S OFFICE OF MEMBER SERVICES

ANTONIO R. VILLARAGOSA, SPEAKER OF THE ASSEMBLY

September 29, 1999

Jon Waldie, Chief Administrative Officer Assembly Rules Committee
State Capitol, Room 3016
Sacramento, California 95814

Dear Mr. Waldie:

Attached is a copy of the draft report entitled "Operation Pipeline" prepared by the caucus Task Force on Government Oversight.

1 ) For background, the Joint Legislative Task Force on Government Oversight was established in January of 1997 by then-Speaker Cruz Bustamante as an adjunct to the Democratic caucus with the function of looking into the operations of state government. The Task Force was initially jointly funded by the Senate and Assembly. The reports prepared by the Task Force vary in content from briefs based entirely upon anecdotal information and logical assumption to more in-depth reviews based on real data.

Early in 1998, the director of the Task Force moved on to a new position, and the staff compliment has since declined as final reports were completed during mid- 1998. The Task Force has since been disbanded, and the remaining staff have been reassigned to other responsibilities.

The report, "Operation Pipeline," was started during 1998 and completed in 1999. New studies and audits undertaken today are generally conducted by the State Auditor, the Legislative Analyst's Office, or the appropriate Assembly policy committees.

2) The report is a caucus document which counsel advises may be technically exempt from the Legislative Open Records Act. However, it appears that there is an overriding public interest in releasing this document to avoid undue speculation that could compromise the CHP's drug interdiction efforts.

3) Because of the sensitivity of the topic of the report, it is important to clarify what the report does and does not do.

The report implies that its findings apply to all of the 8,200 CHP traffic enforcement officers and support staff statewide. In fact, Operation Pipeline involves only about 40 CHP officers.

As the report states, it is based primarily upon information derived from newspaper articles, a literature search, some CHP records and the personal experiences of the consultant who wrote the report. The methodology of the report is based on major assumptions supported by limited anecdotal information. It should not be construed as being completely factual. In this way, it is very different from a report by the State Auditor or the Legislative Analyst's Office.

In fact, while the report claims to show that racial profiling is used by the CHP in it's Operation Pipeline drug interdiction program, there is no data in the report to support this contention, nor is any currently available.

The report does state that the CHP has a policy in place prohibiting the use of race as a basis to stop vehicles for any purpose.

The CHP and a number of local law enforcement agencies are now collecting relevant data on the ethnicity of drivers stopped for traffic violations, which should shed some light on this troubling issue. The Governor has directed the CHP to collect the data and make it available over the next several years.

4) The staff and members of the Legislature have the highest regard for the men and women of the CHP and their work to make California highways safe.

Sincerely,

Lynn, Montgomery, Director

Speaker's Office of Member Services


EXECUTIVE SUMMARY

In spring of 1998, the Joint Legislative Staff Task Force on Government Oversight (Task Force) received information from a law enforcement source alleging that a little-known California Highway Patrol program known as Operation Pipeline was being used to detain and search Latino motorists to determine if they were transporting guns and drugs.

Under Operation Pipeline, CHP attempts to find illegal drugs through "intensified enforcement" of traffic laws. According to the CHP, "intensified enforcement" involves generating "a very high volume of legal traffic enforcement stops to screen for criminal activity, which may include drug trafficking.,' By blanketing motorists on certain routes with traffic tickets or warnings, Pipeline teams are able to pull over a great many cars to find drivers who fit established "profiles" of what drug couriers reportedly look like and act like. If the motorist "fits" the profile, then the officer's goal becomes to conduct a warrantless search of the car and its ocCHPants, in the hope of finding drugs, cash and/or guns.

The CHP, while denying it permitted racial or cultural profiling, agreed to allow a Task Force consultant to attend training sessions and review hundreds of internal activity reports and documents. After an extensive review of this program -- both here in California and in other states conducting similar drug interdiction operations - the evidence strongly suggests that' the program's effectiveness is not only being greatly overstated, but that the brunt of Operation Pipeline is, in fact, falling upon Latino motorists specifically and minority drivers in general. According to the CHP's own figures, between 80% to 90% of all motorists arrested by Pipeline units since 1991 have been members of minority groups. Only 10% have been white.

CHP records revealed that thousands of innocent motorists whose race/ethnicity is not yet known have been subjected to roadside interrogations and warrantless searches of their cars and their luggage. Sworn testimony from CHP officers indicates that two-thirds or more of those motorists were Latino, a percentage far out of proportion to the number of Latino drivers in this state.

This program has been conducted with the support of CIAP management. Individual officers involved in these operations and training programs have been carrying out what they perceived to be the policy of the CHP, the Department of Justice, and the Deukmejian and Wilson Administrations. Thus, we are not faced with a situation involving "rogue" officers or individual, isolated instances of wrongdoing. The officers involved in these operations have been repeatedly commended by their supervisors for the jobs they are doing.

While CHP has a strong official policy against racial profiling and unwarranted traffic stops, it appears that some of these activities were unofficially tolerated and, at lower supervisory levels, even encouraged. Upper-level CHP managers did not generally concern themselves with the means the troopers were using to achieve the program's goals, except when troopers failed to meet their monthly expected numbers of stops, searches and finds.

Key to the program is the use of "verbal warnings" to pull over suspicious-looking motorists in order to question and, if need be, search them. Verbal warnings are regarded by drug interdiction troopers as a tool of tire trade, and by their superiors as a measure of the trooper's productivity and aggressiveness in the search! for drugs. Since Pipeline officers are not expected to write many traffic tickets, and occasionally are discouraged from doing so, there can be no legitimate reason why they would stop and detain thousands of motorists simply to warn them against insignificant vehicle code infractions. There can be little doubt that verbal warnings have been used by CHP drug interdiction teams as pretexts to investigate motorists for drug crimes.

As a result, many motorists have been subjected to intense, invasive and extremely

protracted roadside interrogations. A Task Force consultant watched approximately 30 hours of videotaped stops done in the Needles, California, area in 1998. It was not uncommon to see travelers spending 30 minutes or more standing on the side of the road, fielding repeated questions about their family members, their occupations, their marital status, their immigration status, their criminal histories and their recreational use of drugs and alcohol. Motorists who were taking prescription drugs or herbal remedies were interrogated about why they needed them and whether they were carrying prescriptions. If an actual search of the car ensued, stops sometimes lasted more than an hour. Many of these motorists were given field sobriety tests or had their pulses taken to detect signs of nervousness, which was then cited as grounds for requesting a, 44 consent" search of the car. CHP figures show that in nine of ten cases, the searches turn up nothing incriminating.

Troopers are under considerable pressure by their supervisors to pull over as many

motorists as possible and to conduct as many warrantless searches as possible. They are commended when they find drugs or cash, and are chastised if too much time passes between finds. In at least one case, an unproductive trooper was advised in writing to "be more selective" in determining which motorists to stop for investigation.

The Task Force questions the efficiency of using highway interdiction as a method of detecting illegal drugs and contraband. Based upon the CHP's records and a viewing of the videotaped traffic stops, it is clear that thousands of man-hours have been spent on unwarranted and intimidating searches of innocent motorists, most of whom are minorities. In terms of its potential impact on the civil rights of drivers, this program has been virtually unmonitored for nearly a decade. While that may allow the CHP to accurately say it has no evidence of racial profiling or civil rights violations, CHP officials also recognize that this lack of information makes it virtually impossible for the agency to defend itself against such charges. There is evidence the state may be on the verge of an explosion of litigation regarding this issue.

After the Task Force brought these issues to the attention of CHP Commissioner D.O.

Helmick, policy changes were ordered - mainly in the area of internal oversight -- that might correct some of the situations that allowed these activities to occur. The Task Force, however, makes a number of additional recommendations regarding changes in law or policy that will permit a closer monitoring of this program, both by the CHP and the citizens of California.

Among them:

 

interdiction officers more closely.

citizens' groups to independently survey the activities of the drug interdiction units.

 

searches and roadside interrogations about their personal lives.

 

BACKGROUND

In the spring of 1998, the Joint Legislative Task Force on Government Oversight received information that California Highway Patrol officers assigned to special highway interdiction units were routinely pulling over non-white drivers for minor or non-existent traffic infractions and pressuring these drivers into allowing searches of their cars and luggage -- in the hopes of finding guns, drugs and cash.

It was alleged that these CHP units were using "profiles" to single out motorists they suspected might be involved in criminal activity, that most of these motorists were Latino, and that the vast majority of them were doing nothing illegal.

In an attempt to corroborate this information, the Task Force located numerous small newspaper articles that had appeared over the past few years, mostly in the Bee newspapers in Sacramento, Modesto and Fresno. These brief stories told of CHP units finding drugs in vehicles travelling on Interstate 5 during routine traffic stops." In nearly every case, the stories revealed, drivers were Latino.

Shortly afterwards, an Associated Press reporter, Steve Geissinger, wrote a story ("CHP teams on trail of 1-5 drug smugglers," Sacramento Bee, April. 13, 1998, pg. A4) which provided some corroboration of the allegations received by the Task Force -- particularly the allegation regarding the searches of many innocent motorists. Geissinger witnessed a stop made by a CT-IP drug interdiction team assigned to "Operation Pipeline," which was described as a program using special units which "move up and down the highway teeming with truckers and travelers, trying to spot and stop the smugglers."

The final paragraph quoted the CHP sergeant who supervised the search as saying: "Ifs sheer numbers. Our guys make a lot of stops. You kiss a lot of frogs before you find a prince." (Appendix A)

SCOPE OF INQUIRY

The Task Force attempted to determine who the CHP's Operation Pipeline units were stopping, their ethnic and/or racial makeup, the reasons they were being stopped, the reasons they were being searched, and what these searches revealed. We hoped to learn how many innocent motorists were impacted by this program. We tried to determine how and upon what basis CHP officers were selecting motorists for searches, and whether these criteria were influenced by racial considerations. We also looked at other states that have instituted this program to see what their experiences have been.

With the Highway Patrol's permission, last August a Task Force consultant attended a two-day Operation Pipeline training session in Susanville, California, during which approximately a dozen Northern California police officers were given intermediate-level training. (Appendix B) CHP officials also made themselves available for interviews. Following the training session, the consultant requested from CHP specific factual and statistical information concerning the field operations of the drug interdiction units. The Task Force also filed a Public Records Act request with the Governor's Office of Criminal Justice Planning for documents pertaining to its funding of the Pipeline program.

The OCJ-P conducted an extensive document search and provided considerable information. After initially refusing to cooperate, the CHP agreed to provide the Task Force with all of its field-level records and some management-level records regarding Operation Pipeline's canine units, its field-level activity reports for individual Pipeline officers, management reports to the federal Drug Enforcement Administration, and more than a hundred hours of videotape made by one Pipeline officer in the Needles, California, area. The CHP also agreed to run specific statistical analyses for the Task Force and answered additional questions in writing. In exchange for this access, the Task Force agreed not to identify individual Pipeline officers by name in this report, or reveal confidential law enforcement techniques.

The consultant also interviewed public and private attorneys, private investigators, DEA officials, current and former Pipeline officers, performed a legal and popular literature review, reviewed criminal and civil court cases and trial transcripts, and obtained considerable documentary information from both public and private sources. However, the most useful information in understanding how this program works came from the CHP's own files. Once CHP Commissioner D.0. Helmick made the decision to assist the Task Force's inquiry, the agency provided complete access to thousands of pages of internal records. CHP also provided the Task Force with temporary office space and audio-video equipment, and was generous with the time of its Special Representative to the Legislature, Assistant Chief Joseph A. Farrow, who provided useful insights into the CHP and this program. Commissioner Helmick's willingness to provide this information to the Task Force was of great assistance in assessing the scope of the problem and in the preparation of this report. Helmick's efforts to date towards making the policy changes necessary to prevent recurrences have been notable.

 

WHAT OPERATION PIPELINE IS

Operation Pipeline is a national effort sponsored by the U.S. Drug Enforcement Administration (DEA) to find and remove drugs and weapons from the nation's highways. DEA provides training and instructors for state and local police agencies, teaching them how to profile highway travelers to spot potential drug couriers. The California Highway Patrol first became involved, to a limited degree, in the Pipeline program in 1988-89. But in the wake of favorable court rulings, the CHP, the California Attorney General's Bureau of Narcotics Enforcement (BNE) and the Governor's Office of Criminal Justice Planning (OCJP) increased their involvement considerably. In 1992, the CHP acquired a large complement of drug- sniffing dogs. The following year, with the help of a $160,000 OCJP grant, it put 11 canine units on the road. Today, there are more than 40 and Pipeline teams are running formal operations on all of California’s major highways. CHP officers and BNE agents also conduct regular Pipeline training classes for local police agencies. California has become one of the states most actively involved in the Pipeline program, and is consistently in the Top 10 nationwide in terms of seizures of U.S. currency, methamphetamine, heroin, cocaine and marijuana. In a grant application submitted to the OCJP in 1992, Highway Patrol officials offered this description of Operation Pipeline:

"The Operation Pipeline Program consists of specialized training which focuses on indicators

of narcotics trafficking, enabling Officers to develop probable cause to further investigate and

search vehicles after a legitimate traffic stop. "

Similarly, an operational plan for a 1996 Pipeline sweep called "Operation Northcoast," which was conducted in the areas of Garberville, Humboldt and Ukiah, defined its "primary objective" as "highway drug interdiction and narcotic enforcement. Specifically, the Operation seeks to apprehend drug traffickers and confiscate illegal drugs."

The Task Force reviewed all monthly activity reports by canine officers between 1996 and late 1998. Those reports make clear that Pipeline units exist for one reason only - narcotics interdiction -- and that traffic safety, which is the primary function of the CFIP, is only a minor part of their jobs.

"As far as (issuing) citations are concerned, do not be concerned," one supervisor reassured a canine officer in November 1996. "I would like you to concentrate the major portion of your energies toward drug enforcement." The next month, the same supervisor told the same officer: "Continue to concentrate on drug enforcement duties and let the field officers handle the traffic problems."

HOW OPERATION PIPELINE WORKS

CHP attempts to find illegal drugs through "intensified enforcement" of traffic laws. According to CHP briefing materials supplied to the Task Force, "intensified enforcement" means generating "a very high volume of legal traffic enforcement stops to screen for criminal activity, which may include drug trafficking." By blanketing motorists on certain routes with traffic tickets or warnings, Pipeline teams are able to pull over a great many cars to find drivers who fit established "profiles" of what drug couriers are supposed to look and act like. Once a profile fits, then the officer's goal becomes to search the car and the occupants.

"One would logically expect that a profile-minded trooper would be strongly inclined to conduct searches, since a search is the means by which the trooper would ultimately accomplish his or her drug interdiction objective," the New Jersey Attorney General's State Police Review Team wrote in a recent study of racial profiling in that state.

Sometimes, squads of Pipeline teams are deployed for days or weeks along highways the police believe are being used by drug couriers. Among these are nearly all of the state's major traffic arteries-- 1-5 north of Chico, 1-8 in Imperial County, 1-10 in Southern California, 1-40 near Needles, 1-15 in San Bernardino County, US 101 in Santa Clara and Mendocino Counties, and CA 58 in Kern County, for example. More typically, though, Pipeline officers are assigned to local drug interdiction duties and they patrol their section of the highway on a regular basis.

At the outset, it should be emphasized that this program has been conducted with the support of CHP management. Individual officers involved in these operations and training programs have been carrying out what they perceived to be the policy of the CHP, the Department of Justice, and the Deukmejian and Wilson Administrations. Thus, we are not faced with a situation involving "rogue" officers or individual, isolated instances of wrongdoing. The officers involved in these operations have been told repeatedly by their supervisors that they were doing their jobs exactly right.

The following excerpts from CHP troopers' supervisory reports are illustrative of the kinds of activities Pipeline officers are encouraged to perform. They also show the pressure officers are under to generate a large number of traffic stops - called "enforcement contacts" -- in order to conduct drug profile screenings and, hopefully, searches. Troopers whose enforcement contact numbers fall below certain levels can expect to be questioned by their superiors.

Officer P:

"You need to make more stops and be on the road more. " (2-98)

"Remember, keep the numbers of stops up. " (6-98)

"You are bringing up the number of stops made per day, but you're not there yet. A full day on the road should yield 8-1 0 stops per day, if you do not get a load. Work on it. " (7-98)

"Keep patrol time and stops up. No (drug) loads this month. " (8-98)

"Contacts are up but there is still room for improvement Six grams of grass is not what is expected. Keep trying!" (9-98)

"Contacts are up. I would still like to see 10 stops a day. Searches are up also but without results. Keep trying. " (10-98) It should be noted that Officer P. stopped at least 81 cars and conducted 30 searches that month.

"You and your partner are going to need to step up your enforcement efforts." (1-98)

Officer H:

"Keep your enforcement contacts up and increase the odds of a find. " (9-96)

"Keep banging away and keep the total contacts up.... try to keep those contacts up to increase your seizure opportunities. " (10-96)

"Keep the stops up. " (9-97)

"Keep the pressure on and the big one will happen. " (6-97)

"Keep the pressure on and keep the contacts up. " (5-97)

"Generate as many stops as possible. " (7-98)

Officer J:

"Continue to make copious amounts of stops. " (8-96)

"Keep stopping lots of cars. " (9-98)

 

Officer K:

"Overall activity looks a little light. Just simply playing the odds it seems reasonable to assume that the more stops you make the higher the probability of encountering drugs. Would like to see more stops made. " (10-98)

Officer S:

"Remember to stop anything that comes your way. " (9-98)

Conversely, officers who make large numbers of stops and searches can expect praise from their superiors and they are held up to other officers as examples of what drug interdiction officers should be doing.

Officer B:

"You take seriously your primary function of stopping the transportation of drugs on our highways. You are aggressive and conduct quite a few searches. " (9-96)

"Your numbers indicated you were ,out there looking hard. " (9-97)

Officer P:

"It appears you are beating the bushes for drugs and money. " (6-97)

"Your (numbers) indicate you are certainly looking for dope. Out of your 122 enforcement contacts, you searched 34 vehicles. " (4-98)

"You .. searched 30 vehicles this month, equaling about 112 of those stopped. I know you are a hardworking diligent officer and it is only a matter of time until you hit the big one again. " (6-98)

Officer N:

"During the month you had 10,4 enforcement contacts ... this shows that you were stopping vehicles and looking for dope. " (I 1-96)

Officer W:

"Your overall enforcement activity is a strong indicator that you are out there stopping people that display drug indicators. " (2-97)

 

HOW "ENFORCEMENT CONTACTS" OCCUR

The key to Operation Pipeline is the use of a minor traffic infraction to la4neh a roadside narcotics investigation. Under current case law, the police cannot stop motorists simply because they look like they may be drug couriers, or seem suspicious. Such actions have been ruled unconstitutional. But since the U.S. Supreme Court decision in Whren v. US., 116 S. Ct. 1769 (1996), it is permissible for any police officer to stop suspicious- looking motorists for any reason, so long as a traffic offense occurs first.

As has been the practice in other states -- namely Oregon, Florida, Maryland and New Jersey -- Pipeline teams operate by pulling over suspects for trivial reasons. The most common reasons used by CHP officers, according to documents reviewed by the Task Force, are:

  1. Mechanical violations, such as excessively tinted windows, windshield cracks, items hanging from rear view mirrors, burned out tail lights and absent license plate lights. Cases are pending in which rosary beads hanging from a rear view mirror were cited as grounds for the stop. More than 1/3rd (38%) of the Pipeline arrests in the last 18 months resulted from these kinds of minor offenses. Out-of-state motorists whose home states allow dark tinting of the front side windows are particularly vulnerable to being pulled over by a Pipeline unit on the grounds that California law doesn't permit any tinting on those windows.
  2. Obscured license plates, out-of-date registrations, and missing front plates account for nearly one-in-ten stops. Vehicles with trailer hitch balls on their bumpers are stopped for having "obscured" plates. Out-of-state motorists are routinely stopped for not having front plates, irrespective of whether their home state even issues one. Currently, 21 states do not.
  3. Unsafe lane changes, weaving, lane straddling and following too closely. These are popular reasons for making Pipeline stops because these infractions are judgment calls by the officer. Motorists pulled over for following too closely, for example, are told that state law requires them to maintain a three-second distance between the car in front of them. Cases were found where motorists were pulled over for driving below the speed limit, and warned against obstructing traffic. The Interstate involved was in the middle of the desert.
  4. Driver or passenger failure to wear a seat belt. When the Legislature passed the mandatory seatbelt laws, one of the compromises reached was that this would not be an infraction that, by itself, police could use to pull over a motorist. A more serious violation needed to occur first. That prohibition was lifted recently and seat belt violations are routinely used by Pipeline units to justify their stops and searches.
  5. "Immigration status checks," a practice that appears confined to an adjunct CHP program called the Imperial Valley Project. Judging from reports, this involves stops where an officer's curiosity about a motorists' immigration status is a reason for pulling the car over. The CHP described the Imperial Valley Project as "an ongoing narcotics interdiction program funded by the California Border Alliance Group, which in turn is funded by the High Intensity Drug Trafficking. Area federal program." It is administered by the San Diego Police Department and the CHP provides the officers and vehicles. The CHPP "assign(s) CHP personnel from El Centro and neighboring Areas to patrol specific corridors with the intent of interdicting narcotic traffickers. Deployment of personnel is based on drug trafficking intelligence. Personnel assigned to this project are required to have received Operation Pipeline training and/or be a member of a Canine Narcotic Enforcement Team." (CNET).

The Task Force did not learn of the existence of this special program until just prior to this report's release. Further investigation of the Imperial Valley Project and its use of "immigration status checks" may be warranted.

The official policy of the CHP is that no traffic stop can be made without proper legal justification and students in Operation Pipeline training courses are repeatedly reminded that they must first observe a violation of the motor vehicle code before they can initiate a stop. It is also the CHP's policy that racial considerations are to play no part in a trooper's decision to stop a motorist.

"Uniformed employees shall not look for characteristics associated with drug trafficking until the officer has a valid reason to contact the occupants within the vehicle," CHP officials wrote in their OCJP grant proposal

But a review of CHP records indicates that thousands of drivers have been pulled over merely to be given a "verbal warning" by Pipeline officers, indicating that the alleged traffic infraction wasn't serious enough to justify even a written warning, much less a traffic ticket. CHP supervisors often commend their officers for the high number of "verbals" they pass out each month, viewing them as evidence of aggressive drug-seeking activity.

"Your verbals indicate that you are putting forth an excellent effort to hunt down the individuals who are moving drugs on the freeways. Remember, you are only as good as your last find and that better not have been too long ago. "

"Your verbal warnings and total contacts are high. Indicates you're making the contacts to increase the odds of drug interdiction. "

"Keep the stops up -- lots of verbals, etc. "

"Your number of verbals indicated you were out there looking hard "

"Looks like you did a lot of looking -- 85 verbals.

"Your 40 verbal warnings indicates you were busy in your efforts with interdiction. "

"You issued 53 verbal warnings, which is another good indicator that you were looking for drugs."I

According to a 1997 CHP report regarding a Pipeline sweep called Operation Northcoast '96, conducted from October 4 to December 13, 1996 in Humboldt, Mendocino and Lake Counties, CHP officers issued 1,764 verbal warnings, 245 citations and made 150 drug arrests. These figures strongly suggest that the overwhelming majority of motorists who were detained during Operation Northcoast '96 were innocent travelers who had not even committed a serious motor vehicle violation.

The difference between the number of tickets a Pipeline officer writes and the number of "verbals" he gives out is often significant. The Task Force examined the monthly reports (CNPIOON) of several officers who patrolled an area in Southern California from 1996-98. We found:

Officer M.

1996 -- 51 tickets, 824 verbals. 1997 -- 24 tickets, 823 verbals.

1998 -- 11 tickets, 776 verbals. (Does not include Nov-Dec. 98)

Officer C.

1996-97 -- 82 tickets, 1,692 verbals.

1998 -- 6 tickets, 1,239 verbals. (Does not include Dec. 98)

Not every Pipeline officer displayed such one-sided enforcement patterns, but it is fair to say that in the majority of cases, the numbers of verbal warnings far exceeded the numbers of written warnings or citations. In fact, as we will see below, there is some evidence to suggest that the reason Pipeline troopers are told to write citations at all is to lull defense attorneys and judges into believing that they are ordinary traffic officers, not narcotics investigators who are looking for people who fit drug courier profiles.

This reliance on verbal warnings as a way of pulling over motorists for a drug investigation has occasionally caused concern to some CHP supervisors. Their concerns, however, were not that the practice was occurring, but that it was occurring so blatantly. Officers were told, in writing and by their supervisors, to start writing more traffic tickets (215's) and written warnings (281's) to counter suspicions that drivers were being stopped for no legitimate reason. Examples:

"Good effort with enforcement stop totals of 93. Remember to write a few 281' just in case you ever get challenged in court regarding pretext stops. "

"Would like to see a little more effort in the way of documented enforcement contacts. I understand the purpose and goals of the CNET program and don't want to distract you from your efforts. What I am suggesting is that when you have a violator stopped, turn some of those verbals into enforcement documents. "

"I really need to see some more paper production from you. Start a new book of 281 's and try to finish it off this month. The 281 is a great tool and they all go toward the total enforcement count. Strive to use every conceivable violation observed to make stops. Whenever you get the opportunity, have the violator leave with some paper. "

"Remember on all your contacts that you should be issuing some type of enforcement document occasionally, so as to establish enforcement patterns. The 281 would work just fine for minor mechanical violations. "

"I also encourage you to keep issuing cites. Two for the first half won't go far to establishing your credibility in court when you have to testify on PC (probable cause) searches. KEEP AT THOSE SEARCHES! "

"Write some 281's and 215's to cover your PC stops. '

"Write cites or 281'sfor the PC violations for which you make your stops. "

"Good job with all the verbals, searches and enforcement contacts. How's about throwing in a few more 215's -- you know, just for the fun of it? "

The CHP keeps few records of these stops for verbal warnings. At most, the officer jots down the license plate number of the stopped car on the back of a CHP Form 415, his daily activity log. No information about the race of the driver is kept and the reasons for the stop are kept only sporadically. At the Task Force's request, the CHP conducted a license plate search in an attempt to determine the race of those stopped for verbal warnings in all seven CHP Divisions. The CHP provided the Task Force with a chart showing the percentage of verbal warnings given by canine officers to drivers with Hispanic surnames in each division between December 1996 and January 1997. The percentages ranged from nearly 39% in the Central and Border Divisions, to 10% in the Northern Division. Currently, Hispanics make up about 27% of the state's population. The CHP stressed that the percentages are derived from incomplete data.

It is clear that verbal warnings are regarded by drug interdiction troopers as a tool of the trade, and by their superiors as a measure of the trooper's aggressiveness in searching for drugs. Since Pipeline officers are not expected or even encouraged to promote traffic safety, there can be no legitimate reason why they would be pulling over thousands of motorists to warn them about insignificant vehicle code infractions. Obviously, verbal warnings are being used by CHP drug interdiction teams as a pretext to investigate motorists for drug crimes.

THE USE OF PROFILES

Once a stop has been made, motorists are compared against a well-established set of "indicators" to see if they fit the profile of a drug c6urier. The use of profiles, while controversial, has been upheld by the courts, but not for the purpose of detaining motorists in order to conduct drug searches. That is why CHP trainers stress to Pipeline students that they cannot use the profile as the sole basis for pulling over a suspicious person. They must find some traffic violation first, however minor.

CHP training officers advise students that the indicators are not widely known outside law enforcement circles so they should seek judicial protection against being forced to disclose them in open court, in order to keep defense attomeys and defendants from learning them. The CHP's unofficial Pipeline training manual, Drugs on Wheels, offers the same advice.

But the CHP's belief in the confidentiality of its drug profile is unwarranted. The Task Force easily obtained a complete list of all the indicators used by the CHP from a variety of public sources -- including the Lexis-Nexus database, which most defense lawyers have access to. The indicators are virtually identical in every state involved in the Pipeline program (they are public record there also) and they have remained largely unchanged since they were first compiled in the early 1980s.

In California, the profile became a matter of public record within months of the CHP instituting the Pipeline program. The following testimony was delivered by one of the CHP's most decorated Pipeline officers and trainers in a 1989 trial in Siskiyou County. (See Appendix C for transcript.)

Q. Okay, officer, you stated that for ten or eleven months, you had the drug courier profile committed to memory, correct?

A. Yes.

 

Q. Could I test your memory? Could I approach the witness and ask you what the profile is, without looking at the list?

A. Sure ... it is characteristic that the vehicle doesn't belong to them. Quite often, well, almost every time, they are extremely nervous. Also find that the passengers, if there are some in the vehicle, are extremely nervous and want to keep and eye on, and if possible, hear what's transpiring. Generally they don't have much luggage with 'em. If any. They usually use fast foods. They don't stop and go into restaurants and have full dinners. Usually stop at Quick Marts and things like this where they can gas and get fast food items. They generally don't stop to sleep. And quite often they carry pillows and blankets. They also, at times, you'll find that they have lots of different various types of communications equipment, such as CB radios, police scanners, radar detectors, this type of thing. Also, cellular phones are very popular as are phone pagers. You also occasionally find odor- masking materials, such as powdered soap, scattered around inside the car. Coffee grounds is another one. You can also find-- they will go into the service stations and they buy these little plastic odor -- not masking, but perfume type scents.

Q. Uh huh.

A. And you find that quite often a lot of those are scattered around the vehicle. Usually they have got road maps with 'em, up in -- very readily available that they are using ...

Other indicators the officer cited in his testimony included "excessive jewelry" and "certain types of

clothing."

Q. And what types of clothing is that?

A. Some of the gang members wear certain types of clothing that are readily identifiable.

 

Q. You mean Blood and Crip type clothing?

A. Right.

These "indicators" are tallied up by the Pipeline officer. If there are few or none, either a traffic citation or a warning is given an .d the motorist is sent on his or her way. If the officer finds some of the physical and behavioral "indicators" of drug trafficking mentioned above, he is trained to continue the traffic stop and "ask questions designed to reveal the indicia of drug trafficking," Drugs on Wheels advises. "The officer should use this free time to develop his reasonable suspicion that the defendant is a drug courier."

THE INTERROGATION

This is the second phase of a Pipeline stop: the interrogation of the motorist and the passengers, if any. The officer is trained to subtly ask questions about their registration papers, their destination, their itinerary, the purpose of their visit, the names and addresses of whomever they are going to see, etc. Officers are trained to make this conversation appear a natural and routine part of the collection of information incident to a citation or warning. They are advised to interrogate the passengers separately, so their stories can be compared. The officer will apply more "indicators" at this point, including how long it took them to answer the questions, how they acted, how consistent their stories were and what kind of eye contact they made.

"The second thing in nervousness is avoiding eye contact, like when you have a little kid or child lying, thinking up stories. Adults do the same thing," a CHP officer testified in federal court in 1998. "They look away from you. They will kick the ground. They will just act like a bigger child when they are lying to you. It’s pretty easy to recognize."

A Task Force consultant watched approximately 30 hours of videotaped stops done in the Needles, California, area in 1998 and was therefore able to observe the interrogations of many motorists. The questioning that was done was intense, very invasive and extremely protracted. It was not uncommon to see travelers spending 30 minutes or more standing on the side of the road, fielding repeated questions about their family members, their occupations, their marital status, their immigration status, their criminal histories and their recreational use of drugs and alcohol. Motorists who were taking prescription drugs or herbal remedies were interrogated about why they needed them and whether they were carrying their prescription with them. If an actual search of the car was involved, stops often lasted more than an hour.

During the training session the consultant attended, officers were advised to take the motorist s pulse during the interrogation, to see if the motorist's heart is beating rapidly. During the videotaped Pipeline stops, the officer was repeatedly seen taking motorists' pulses, pronouncing them "way up there," and then demanding to know why the motorist was so nervous. Pulse-taking was also used in conjunction with questions regarding the motorist's possible use of intoxicating drugs, particularly methamphetamines, and a high pulse rate was cited on several occasions as the officer's reasons for requiring a field sobriety test.

 

THE SEARCH

If the officer is unsatisfied with the answers or the motorist's demeanor or his pulse rate, the stop enters its third phase. The motorist's license and registration will be returned. Legally, at this point, the traffic stop is over and the motorist is free to walk away from the officer, though few motorists realize they have that right. As a result, anything that is said from that point forward is presumed by the courts to be the result of a voluntary "consensual" conversation between the police officer and the motorist. As such, the officer can legally ask any question for any, or no, reason.

Pipeline officers are trained to strike up a conversation with the motorist, with the objective being to eventually get their permission to search the car. Unless the officer sees drugs or guns or cash with his own eyes, he has little probable cause to conduct a warrantless search, so most motorists are asked to "consent" to a search of the car. CHP instructs its officers to obtain written consent whenever possible and consent forms are available in English and Spanish.

Typically, the motorist will be told that the CHP is trying to keep the highways free of guns and drugs and is looking to enlist the public's support for these efforts. The motorist will then be asked if there are any guns or drugs in the car and, if the answer is negative, the officer will ask permission to search the car and its contents.

CHP officials say that the vast majority of motorists agree to be searched, and they sign written consent forms allowing it. Judging solely from the videotaped stops, that is true. Very few motorists were seen refusing to let the police search them. But it must be remembered that when the drivers finally consented, most of them had undergone intense questioning for at least 10 minutes, seen their family members interrogated, and had their criminal history and driving records checked. On top of that, some had been given pulse tests, eye exams and sobriety tests. Usually the officer expressed suspicion of the motorist's explanations.

If the motorist refuses to consent, the officer has the option of calling for a K-9 unit to do a sniff test around the exterior of the vehicle. If the dog alerts on something, then the officer can conduct a warrantless search, using the drug dog's reaction as his probable cause.

The CHP has never formally collected data on how many consent searches its drug interdiction teams have done. The only field level-reporting is done on the back of the CHP Form 415, the officers daily

activity log. Whenever an officer pulls over a car, he writes down the license plate number of the car being stopped, sometimes notes the infraction involved, and how long the stop took. The Task Force reviewed several hundred Form 41 S's for drug interdiction officers from 1996 to 1998.

Some Pipeline officers kept no records of their searches whatever. Many would write the letters "CS" next to the license plate number to denote that a consent search or vehicle search was conducted. If nothing illegal is found, the CHP says, no further records exist, including the name and race of the driver and the reason for the search. CHP says it has not collected or analyzed the consent forms motorists sign, which usually remain in the officer's possession for two years.

It is possible, however, to roughly determine the frequency with which these "consent" searches occur, at least insofar as CHP canine units are concerned. Nearly all canine officers report their monthly activities to their supervisors on CHP's Form IOON. That report usually contains a raw number of searches conducted by that officer during the previous month. Again, no racial data is reported, since the information in the IOON form is compiled from the officer's daily activity logs, the Form 41 Ss.

Unfortunately, those reports are filed only by canine officers. Officers without dogs are not required to file them. Without those numbers it is impossible to get a completely accurate idea of how many roadside searches are taking place. Still, according to the IOON forms, it is clear that Pipeline officers conduct many hundreds of "consent" searches every month. Some canine units have conducted as many as nine searches a day, and officers are encouraged by their supervisors to search as many cars as possible, for any reason.

"Keep in mind, use consent searches even when you don't think drugs/money may or may not be involved. Who knows? You might get something unexpected," an officer in the Golden Gate Division was advised by his supervisor in September 1996.

Once a search begins, the interdiction officer faces additional pressures to find something, which is why Pipeline stops can take so long. Troopers are trained to look into natural cavities of the vehicle's body, and those are usually accessible only by removing interior panels, seats, gas tanks, spare tires, luggage, dashboards, heater ducts and air bags. In addition, many searches involve walking a drug-sniffing dog inside and outside of the car several times.

"A trooper who is bent on finding drugs will be more likely to rely on the consent-to-search doctrine," the New Jersey Attorney General's State Police Review Team concluded in its April 1999 report.

"Furthermore it is reasonable to expect than any such officer would engage in comparatively protracted patrol stops, since his or her objective would not be simply to issue a summons or a warning but rather to undertake a full blown criminal investigation."

A string of unsuccessful searches is regarded with skepticism and concern by CHP supervisors. Trooper S.'s experience is demonstrative of this.

THE CASE OF TROOPER S.

Trooper S. was assigned to the Central Division of the CHP in 1996, which covers an area stretching from Bakersfield to Modesto. In late 1996, his IOON forms show, he began receiving pressure from his supervisor to step up his searches in the hopes that he would soon find some drugs. He was instructed to concentrate all his efforts on drug interdiction and not to concern himself with traffic issues.

"I know you're discouraged by not making any drug busts. Remain patient and continue to work at it. Something will turn up," the trooper’s supervisor wrote. That month, the trooper conducted 27 searches and stopped 15 motorists to give them "verbal warnings."

The next month, December 1996, he found nothing. "It's only a matter of time before 'You start hitting," his supervisor wrote.

By February 1997 the supervisor was beginning to show signs of frustration. The trooper's monthly activity report showed he had stopped 115 vehicles and searched 43 of them, to no avail. "And the search continues. Someday we have to hit," the sergeant wrote. "Changing hours and working different shifts will be tried to see if we can come up with some drugs."

Throughout the spring and summer of 1997, the trooper's unlucky streak continued, despite his increased efforts to search more cars. Between February and August 1997, he searched 169 cars, while making only four arrests, mostly for minor personal use quantities of drugs.

"It has been several months since you and (your dog) found any drugs. I know that finding drugs is not an exact science but you do need to find drugs on a regular basis," Trooper S.'s supervisor wrote in August 1997. "If what you are doing now doesn't work, we need to find something that will work. The drugs are on the highways. We just need to find tactics that will make this operation successful." That month, Trooper S. reported stopping 130 cars for verbal warnings and searching 36 of them. Before the year was out, the trooper would search another 45 cars but make only one arrest.

By April 1998 the supervisor was becoming impatient. Despite searching 23 cars that month, Trooper S. had made no arrests. Once again, he was advised to be more creative in his approach to drug interdiction.

"Sometimes we have to step back and evaluate our tactics. I know you are on the highway every day. Maybe we need to look for other/additional indicators of drug trafficking to increase your effectiveness in doing your assigned duties," the sergeant wrote.

Trooper S. pulled over 123 cars for verbal warnings the next month and searched 30 of them. Once again, he found nothing.

"You are in quite a drought," the supervisor wrote in May 1998. "This is the second month without a seizure. When times like this occur you need to step back and reevaluate your procedures. Your present tactics are not effective. Let's try something different. I know you are on your beat working. I also know that sometimes we push too hard to try to make something happen. This month, try to relax and let's try something different."

Trooper S. redoubled his efforts, pulling over 163 cars for verbal warnings that month and searching 31 of them. He made no arrests.

"I don't expect an arrest a week but one arrest/seizure a month is a reasonable expectation," his supervisor complained. "Maybe riding with a partner and changing hours will aid you in accomplishing what I know you can do."

The trooper’s luck improved in July 1998, and he made two arrests on eight searches, but by August -- despite pulling over 109 cars and doing 30 searches -- he was back to zero. "In the past five months you have seized five pounds of marijuana," his supervisor reminded the trooper. "As you know, this is not acceptable. I also know that you are putting a lot of pressure on yourself. We have to do something to get you up to speed. Relax, quit pushing, be more selective in your stops. (emphasis added). After making a stop, let's speed the search up ... whatever you have been doing is not working. Let's turn this program around get back to business."

The next month, Trooper S. pulled over 128 cars, did six searches, and made no arrests. It was the

final straw.

"Beginning next month you are being assigned to assist the Pipeline interdiction units in Los Banos and Kern County," Trooper S.'s supervisor informed him on his monthly activity report. "Maybe with more exposure we can get you back on track ... perhaps you are spending too much time training your canine."

THE TALE OF THE TAPES

Trooper S.'s experience, while somewhat unique, is nonetheless useful in understanding not only the day-to-day expectations Pipeline officers must meet, but in recognizing how difficult and inefficient this method of drug interdiction can be. But the trooper's case is by no means the only way to judge the efficiency of the program.

Using federal grant money, CHP installed a dash-mounted video camera inside the patrol car of one of its most highly regarded Pipeline troopers in June 1998, and began regularly taping all of his traffic stops in the Needles area along 1-40. When the Task Force consultant discovered this in late 1998, the CHP produced 51 videocassettes and CHP officials said they did not believe anyone within the agency had yet reviewed them. The consultant selected 15 tapes to view from the box of 51. The selection process was not entirely random as the CHP numbered the tapes in chronological order, so in order to get a fair sampling, the tapes were separated into three time periods - early, middle and late -- and five tapes were randomly selected from each group of tapes.

Not once during the entire 30 hours of videotape did the consultant see the officer make a drug related arrest, despite doing many searches. The only arrest captured on the tapes was that of an African- American man from Brooklyn, N.Y., who refused to sign his ticket for having tinted windows, claiming that he was always being pulled for insignificant traffic violations and wasn't going to put up with it any longer. He was arrested and his car was impounded and searched.

Only two seizures were observed. In one case, a loaded .25 caliber pistol was seized from under the seat of a car driven by a young African-American couple. The couple, man and wife, said they had purchased it legally for their protection while on the road. The pistol was confiscated and the driver was ticketed for having a loaded gun in the car. The second seizure involved a partly smoked marijuana cigarette taken from the shirt pocket of a white motorist. The motorist was released with a warning that "you shouldn't have this." The remainder of the videotapes showed the officer stopping and searching dozens of motorists and finding nothing illegal.

HOW OFTEN ARE DRUGS FOUND?

Again, because the CHP keeps no record of the number of consent searches its troopers do, and because reporting requirements are not uniform, it is difficult to absolutely assess the frequency of fruitless searches. But it is possible to draw some conclusions from the canine officers' monthly activity reports, which show that they can go weeks between "finds." Their supervisors are frequently reminding them not to get discouraged by their lack of success.

Trooper P.

"Remain patient I'm sure as often as you search and the volume of vehicles you stop the load is going to turn up. " (12-96)

"I know you are a hardworking and diligent officer and it is only a matter of time until you hit the big one again. You did locate some personal use marijuana " (6-98)

"As usual, you did another great job this month. Despite your 43 searches, no drugs were found. "

Trooper S.

"Keep up your level of enthusiasm. I know that it seems seizures can be few and far between " (I - 97). The trooper's reports for the first nine months of 1998 show he issued 1,264 verbal warnings, conducted 163 searches and had 18 finds, about 1% of all the stops he made.

Trooper C.

"When you are out there you are making many stops and searches. Sooner or later you will hit. " (10-98)

Trooper W.

"You had high volume stops but no hits. Keep at it. It'll happen. " (5-97)

Another way to judge the effectiveness of the Pipeline program is through the use of the monthly Departmental Canine Program Reports filed by K-9 officers with the CHP's Investigative Services Section. Each month, the officer lists the number of searches his canine conducted, how often it made finds, and what was detected.

When the Task Force asked the CHP for records of its consent searches, these reports were not included. A Task Force consultant discovered them late in the inquiry and then only because some had been inadvertently included among some of the other documents the CHP did make available. As a result, the Task Force has not had a chance to fully analyze and tabulate the search results.

However, the reports that were found showed that a great many of the canine searches officers were conducting were unproductive. For example, in April 1998, one officer reported doing 57 searches and making only 4 "finds," a success rate of only 7%. His "find" percentages for other months ranged between 7% and 17%. Even when the searches were successful, most of the time they turned up only small amounts of drugs.

Statistical analyses done in other states show it is common for between 70% and 95% of all Pipeline stops to produce no arrests or contraband seizures. After examining the consent searches done by New Jersey State Police troopers, the New Jersey Attorney General's Office wrote that "most of the consent searches that we considered did not result in a positive finding, meaning that they failed to reveal evidence of a crime ... major seizures of significant drug shipments are correspondingly rare." Only 19% of the searches in New Jersey produced an arrest or a seizure.

Data obtained by the Task Force regarding several Pipeline sweeps in 1993 suggests that those low percentages are reflective of the CHP's experience as well. As part of the OCJP grant agreement providing partial funding for Operation Pipeline, the CHP was required to file quarterly progress reports, which the Task Force obtained through the California Public Records Act. From Aug. 20-27, 1993, under the code name Operation Central Sweep, eight Pipeline officers conducted traffic stops on CA 99 and CA 41'near Fresno. From Aug. 30 to Sept. 24, 1993, eight Pipeline officers and two K-9 teams worked CA 99 and 1-5 through the San Joaquin Valley. Collectively, they issued 532 tickets and searched 482 vehicles. They made 44 drug arrests - which means that at least nine out of every ten searches they conducted produced nothing. It also suggests that if the officers are applying the drug courier profile correctly, its worth as a predictor of criminal activity is highly questionable.

According to the same report, a similar CFIP operation conducted in the so-called Emerald Triangle area of northern California -- the marijuana-growing regions of Humboldt and Mendocino Counties-- was even less successful. There, Pipeline officers spent a week in late September 1993 on Operation Harvest Sweep issuing 206 citations and conducting 216 searches. Officers seized less than two kilos of marijuana, approximately two kilos of methamphetamine, several sheets of LSD, and a small amount of heroin.

An earlier progress report for the period of April to September 1993 showed similar results. The report stated that nine Pipeline towns had been funded by the grant and two of them had found no narcotics. The teams issued 83 citations, conducted 95 searches, and arrested five people on drug charges. Again, it means nine out of every ten searches were fruitless. Slightly over one kilo of cocaine, a small quantity of marijuana and a miniscule amount of methamphetamine were found.

The CHP says that these teams, on occasion, discover large quantities of drugs and cash, which is certainly true. Six-figure and seven-figure cash seizures have occurred and there have been cases were hundreds of kilograms of cocaine and marijuana have been found secreted inside cars and motor homes. But since we do not know how many innocent motorists were searched and questioned to achieve these occasional finds, it is misleading to draw a conclusion about the program's effectiveness solely from what is found. The experience in other states, and the available evidence in California, shows Pipeline units find contraband in a very small percentage of the stops they make. The vast majority of their detainees, therefore, are innocent citizens.

In April, the New Jersey Attorney General recommended that the State Police conduct "an evaluation of the effectiveness of the use of consent searches ... to determine whether these searches represent an appropriate and efficient deployment of State Police Resources." The Task Force makes the same recommendation to the CHP.

WHO IS BEING STOPPED AND SEARCHED?

From the earliest days of the Pipeline program in California, there have been troubling indications that many of the drivers being subjected to this "intensive enforcement" of highway traffic laws are Latino. During the 1989 Siskiyou County criminal trial cited earlier, a CHP trooper gave the following testimony:

Q. When you were taught at the DEA these factors, did they explain to you what the scientific basis was or the statistical basis of the factors of the drug courier profile?

A. If I am understanding you right, they gave us no actual, you know, numbers. They just said that with this encounter, these are very, very prevalent characteristics that you encounter. They didn't say like, 99 percent of the time or something like this. They have just said, you know, that it is very common. It is very likely that this is what you are going to see.

Q. Well, with your arrests yourself, how come Hispanic isn't on this list (of indicators?)

  1. What does Hispanic have to do with it?

Q. Isn't it true, in your arrests, far and away the majority of them included Hispanics or Mexicans?

A. The majority, yes.

Q. As a matter of fact, well over 50 percent, isn't that correct?

A. That’s correct.

 

Q. How come that is not written down here?

A. That has nothing to do with characteristics.

Q. Perhaps I don't understand. I don't want to belabor it. I thought the characteristic was if something comes up the majority of the time and you find this common thread in all of these cases, then it becomes a characteristic. That's how you added road maps, rights?

A. No. Right. I have arrested quite a few Caucasians for the same thing.

 

Q. Isn't it true that the majority of your arrests over the past two years

A. Yes. The majority. Probably sixty-five percent.

CHP does not keep racial data on those drivers who are stopped for verbal warnings, but at the Task Force's request, it began collecting that data for all verbals issued by its canine units during January and February 1999. Of 2,870 verbals issued, 36.8% of the drivers had Hispanic surnames. That compares to 28.1% of the 3,357 verbal warnings issued for the two-month period of December 1996 and January 1997, which the Task Force selected as a comparison period. CHP officials attributed the increase in warnings to Latinos to its statisticians' ability to more accurately determine the motorists' race, and not because more Latinos are being stopped.

The New Jersey Attorney General's recent review showed that, at least in New Jersey, "minority motorists were much more likely to be searched than non-minority motorists ... race and ethnicity may have influenced the exercise of discretion by some officers during the course of some traffic stops."

It is significant to note that many of the CHP's drug interdiction officers received their training from the New Jersey State Police, which was recently found by that state's Attorney General to have engaged in discriminatory tactics against minority motorists.

Unlike those drivers who are searched and released, CHP does maintain fairly complete records of the race of motorists who are arrested after a successful search. Those details are routinely reported to the Drug Enforcement Administration's El Paso Intelligence Center (EPIC) and other law enforcement databases on special computer forms known as Mask Menu Item #50. (See Appendix D for reporting requirements and reporting forms.)

The Task Force obtained copies of all MNE #50 reports the CHP had filed with DEA in 1996 and 1997 and analyzed them to determine the racial makeup of drivers arrested under Operation Pipeline. In 1996, of 476 arrests, 320 (67%) were of Latinos. Whites made up 22% of arrestees and African-Americans were arrested in 10% of the cases.

Those figures were largely the same for 1997. Of 546 traffic stops that resulted in arrests, 409 (74.9%) of the drivers were Latino or African-American. All other racial groups, including white, accounted for the remaining 137 arrests.

The Task Force interviewed a former highway drug interdiction officer in Florida who told of routinely stopping African-American drivers for lane violations such as weaving or following too closely. The Task Force examined the racial makeup of arrested drivers who in 1997 had been initially stopped for weaving, following too closely or.making an unsafe lane change. Out of 156 such drivers, 121 of them (77.5%) were Latino, 24 of them (15.3%) were white, 10 were African American (6.4%), and one was unknown. These percentages mean one of two things: either minorities have special difficulties driving safely at interstate speeds, or they are being singled out for stops on these grounds.

Defense lawyers in US. v. Barajas, (CR-S-93-495, U.S. District Court, Eastern District of California,) analyzed the racial makeup of motorists ticketed by a specific CFIP Pipeline officer, one of the few times such an analysis has been performed. CHP agreed to provide a list of drivers ticketed by the Pipeline officer, along with a list of drivers ticketed by other CHP officers who patrolled the same area, but who were not involved in Operation Pipeline. The Pipeline officer ticketed Latinos 46.2% of the time, while the traffic officers stopped them 12.9% of the time. This is consistent with the results of a study done by the Federal Public Defender's office in New Jersey, which revealed that the more discretion an officer was given in his job, the more likely it was that he/she would ticket minority drivers. New Jersey state police units assigned to catch speeders, for example, ticketed African-American motorists only 18% of the time, while troopers who were assigned to general law enforcement duties ticketed them 43.8% of the time.

The following testimony, which emerged during a 1989 federal case (U.S. vs. Jose Luis Solis, CR-S- 88-346, Eastern District of California) suggests that the percentage of Latinos searched by CHP is even higher than their arrest rates. Again, the witness was one of the CHP's Pipeline instructors.

Q. So you -don't know how many cars that you have stopped and done this search routine, didn't have contraband? You don't know how many that number is?

A. No.

 

Q. How many -- do you have any idea how many were of Mexican descent and how many were of some other race?

A. I would imagine that probably 60 percent, maybe 65 percent, are Hispanic.

 

Q. Does that match how many Hispanics are on the highway? Sixty-five percent of the drivers are Hispanic?

A. No. It seems to match the number of people that I stopped that the car doesn't belong to them and ... the other characteristics (which are) very high in Hispanic groups.

Q. You are saying it is more true with Hispanics?

A. No. What I am saying is that it has been my experience that I have run into more Hispanics in the last year that fit the profile, and that I probably asked them for searches, probably the majority of, 60 and 65 percent of the time, that I asked for consent to search.

During Operation Pipeline training classes, students were told repeatedly by instructors that racial profiling was illegal and was against CHP policy, and they were discouraged from pulling over motorists because of their race. However, unless one is willing to accept the idea that Latinos are worse drivers overall than other ethnic groups and more heavily involved with narcotics transportation, such disparate racial percentages cannot be legitimately explained if the traffic laws are indeed being applied in a race-neutral fashion. And in the opinion of at least one California judge, they are not.

In February 1998, a drug case in Needles was thrown out by the court on the grounds that the stop was racially motivated. "I do not believe that Officer G. stopped this van because it had a cracked windshield, because it was following too closely, or because he saw a foot sticking out a window," Superior Court Judge Joseph R. Brisco said in a ruling from the bench. "I think his motivation was he saw a green van with three African-American males in it and I think that's why he stopped it ... I don't think Officer G. was completely candid with this court and that's the basis of my ruling."

In an earlier drug case, the same Pipeline officer admitted under oath that he had "probably arrested or searched more minorities than Caucasians."

Since the dismissal of the February 1998 case, the local district attorney has moved to disqualify Judge Brisco from hearing any more drug cases involving that officer, on the grounds that the judge is prejudiced against him. Approximately 62 cases involving Pipeline stops have been transferred from Brisco's court to a court in Barstow since then.

WHISPER STOPS

Another aspect of Operation Pipeline that raises troubling legal and ethical questions is the use of so-called "whisper stops" or "wall cases." These are cases in which the CHP receives a tip from another law enforcement agency that a suspected drug courier is on the road, and a CHP officer is assigned to follow the suspect and look for a traffic violation in order to pull him over and search the vehicle.

Key to this stop, according to both the CHP's official manual and the training given to officers, is that the suspect is not to know that the traffic stop is anything other than routine. This is presented in the manual and in training class as a way in which to protect confidential informants. CHP officers are instructed not to divulge this information in their reports. According to the CHP manual:

"Whisper enforcement stops shall be conducted as though involved Officers had not received information regarding drug trafficking. Officers are not to disclose the information provided by the allied agency requesting the whisper stop to vehicle occupants ... if probable cause is developed and an arrest is made, in-custody reports shall not contain information regarding the whisper stop details provided by allied agencies. This information is confidential and should not be disclosed in the report. Officers should begin their report at the point of establishing independent probable cause."

While it may be true that release of such information would tip off a suspect that he was under

investigation by another agency, another reason police officials might want this information concealed is because it would raise questions about whether the traffic stop was indeed "routine," and whether the officer assigned to follow the defendant pulled the vehicle over as a pretext to search for drugs. Such information would likely encourage defense counsel to probe the mechanics of the stop itself, in order to see if a traffic violation really occurred or if one was invented in order to conduct an illegal search.

An additional problem is that CHP officers who are under instructions to keep this information confidential may feel compelled to commit perjury in order to do so. In a recently publicized case in federal court in Sacramento, the Federal Defenders Office suggested that both a CHP officer and an Assistant U.S. Attorney committed perjury in order to conceal the existence of a "whisper stop" from defense counsel. In that case, a CHP Pipeline officer testified that the "only reason" he stopped a particular suspect was because he saw rosary beads hanging from the suspect's rearview mirror, which the officer claimed were obstructing the driver's vision. The Federal Defender's office discovered that the CHP officer had been an active participant in an attempted "sting" of the same motorist three weeks earlier, something neither the prosecutor nor the officer disclosed during an evidentiary hearing. Earlier grand jury testimony did, in fact, state that the CHP had received a tip to be on the lookout for the suspect. The case, which involved a major drug seizure and the possibility of a life sentence for the defendant, was dismissed by the federal prosecutor's office and a state prosecutor also declined to press charges. The incident is under investigation by the Justice Department's Office of Professional Responsibility.

WHO OVERSEES THIS PROGRAM?

CHP officials believe that any problems that may have arisen over the years with the Pipeline program can be traced to a lack of central supervision. When the program was getting underway in the mid- 1980s, they said, it was directly administered and overseen from CHP headquarters by the Investigative Services Section (ISS), which is part of the policy branch of the CHP. ISS, which an internal CHP newsletter likened to the Central Intelligence Agency, concentrates on auto theft and narcotics crimes. ISS still retains some policy-setting control over the Pipeline program and receives intelligence information gathered during arrests. It also monitors the performance of the CHP's canine units. But it appears to have done little to monitor the program for potential abuses.

As one trooper was informed in August 1997: "Remember, ISS is focused on dope out of vehicles, continue to lean in that direction."

After the Pipeline program expanded, CHP made a policy decision in 1990-91 to shift immediate oversight responsibility from ISS to the Divisional level, where the Pipeline teams are monitored by local CHP officers, and where primary oversight remains.

As the records the Task Force has reviewed make clear, supervision has been poor. The main line of supervision has been the trooper's immediate superior, usually a sergeant, and has been geared largely towards making sure the officer was pulling over and searching as many motorists as possible. Though the officers' monthly activity reports are routinely sent up the chain of command -- ending up with the Area commander -- in many cases, the commanders did not initial the reports or give any other indication that they had read them. In other cases, the commander simply added his compliments to the sergeant's and encouraged the officer to make more stops. The activity reports did not appear to receive much more than a cursory glance once they left the troopers supervisor. It also appears that different CHP divisions, have required different kinds of reports and collected different kinds of information from its Pipeline officers over the years.

Basically, it appears that as long as the drug interdiction officers continued to find drugs or cash, the CHP did not concern itself much with the means its troopers used to achieve that end. Though there was some indication before the Task Force began its inquiry that some managers within CHP were interested in monitoring the program - witness the decision to install video cameras in one trooper's car - the fact that no one had yet reviewed the videotapes suggests this not been a priority.

POLICY CONCERNS

In terms of its potential impact on minorities or on the civil rights of drivers, this program has been virtually unmonitored for nearly a decade. While that may permit the CHP to accurately say it has no evidence of racial profiling or civil rights violations, CHP officials also recognize that this lack of information makes it virtually impossible for the agency to defend itself against such charges if they are

untrue.

Operation Pipeline is a program with a very real potential for significant abuse. In state after state, the use of profiling to conduct highway drug interdiction has caused divisive public controversies, not to mention class action suits by minority groups, at least one of which resulted in a six-figure settlement. The Eagle County (Colo.) sheriff paid $800,000 to settle a class action suit after a federal judge ruled that the county's Pipeline team was making "racist assumptions" about Interstate drivers who were being pulled over and searched for drugs. Maryland State Police have already lost or settled two civil rights suits stemming from this program. New Jersey judges have dismissed upwards of 600 cases in recent years because of concerns over racial stereotyping and the New Jersey Attorney General's office just concluded - very publicly - that the New Jersey State Police were engaged in racial discrimination.

Because of the CHP's stepped-up use of this program, defense attorneys in California are gradually becoming aware of it and are beginning to challenge the stops in court. The Task Force is aware of at least one civil suit that is pending as the result of a Pipeline stop in the Needles area in 1996, during which two truckers hauling a load of horses were handcuffed in a CHP station for up to II hours while a Pipeline officer conducted a warrantless search of their tractor-trailer. The search revealed no contraband. Additionally, the truckers were charged $660 by the mother-in-law of the CHP trooper who made the stop for "horse storage" while their tractor-trailer was being searched. An arbitrator awarded the truckers $15,385, which the CHP rejected, and the case is proceeding to trial.

The American Civil Liberties Union recently announced a campaign to encourage motorists to report instances in which they were stopped and questioned after a minor traffic violation. During the course of its investigation, the Task Force discovered that the Federal Defender's Office in Sacramento was putting together its own task force to take on so-called "Pipeline cases" made along 1-5, and is gathering evidence suggestive of racial profiling, as is the Federal Defender's Office in San Jose. Thus, it is likely that we are on the verge of an explosion of litigation regarding these practices. To believe the CHP and the state can avoid liability if civil rights violations are found to be occurring is unwarranted.

There is another, even more troubling, development in this program and that is the fact that local police agencies are now instituting it and are setting up drug interdiction units on the Interstate highways, sometimes in competition with the CHP. The Pipeline training session attended by the Task Force consultant was comprised mostly of local law enforcement officers from Northern California. Thus, it is not unreasonable to assume that the problems CHP is experiencing with this program will now be filtering down to the local level, and probably with even less supervision than the CHP provided its troopers.

Another potential problem area is the extraordinary increase in the amount of cash being seized from motorists, which has soared in the past few years, coincident with the CHP's increased activities. In 1995, cash seizures amounted to $2.1 million. In the first six months of 1998 alone, the figure stood at $13.1 million. Forfeiture laws allow the police to keep most of this money, often without requiring the filing of criminal charges, and CHP documents show that CHP officials have anticipated offsetting the costs of some Pipeline operations with money forfeited from motorists. Because of documented problems in other states, namely Florida, where drug interdiction teams were found to be taking cash from minorities who were not charged with any crime, these highway cash seizures should be closely monitored.

Whether or not the State of California should continue participating in Operation Pipeline is obviously a policy question that ultimately is up to the CHP and the Legislature. While the program sometimes results in large drug or cash seizures, it also consumes hundreds of man-hours in fruitless and intimidating searches of motorists who, for the most part, are Latino and are guilty of nothing more than a minor traffic infraction, if that. The program also falls heavily upon tourists and vacationers. CHP routinely exploits differences in state motor vehicle laws regarding window tinting and license plates to stop out-of- state vehicles and interrogate the passengers.

The bigger question, obviously, is whether traffic safety officers should be involved in narcotics investigations at all. If Pipeline training was being used simply to make traffic officers more aware and alert to -signs of criminal activity they may encounter during their routine duties - which was the intent of the training in its early days - it is doubtful CHP would be facing these kinds of problems. But that is not what many law enforcement agencies are doing with this program. Here, officers are being trained and assigned specifically to do drug interdiction duties. Therefore, they no longer are traffic officers. They are narcotics investigators and, as such, their motivations and attitudes become different than those of a traffic officer. Pipeline troopers get special cars, work in special units, get heightened and mostly favorable attention from the media, and earn praise and acclaim for finding drugs and cash. Their supervisors pressure them to pull over as many vehicles as they can and conduct as many warantless searches as possible, in order to increase the "odds" of making a drug arrest. Their job performance evaluations depend upon their success in beating these rather formidable odds. When all of these pressures and motivations are combined, it creates a situation that invites abuses.

Unlike ordinary patrolmen who are looking for unsafe drivers and vehicles, Pipeline officers are expected to find contraband. It is only natural that they would concentrate their efforts on people who, to them, seem likely to be transporting it. Thus, these troopers do not randomly select motorists from the hundreds of vehicles on the road committing traffic offenses. They focus their efforts upon those who appear to be the most promising drug suspects, based on their training and experience. As Trooper S.'s supervisor advised him when he was having difficulty locating drugs, they must "be more selective" in their stops. In and of itself, this raises the specter of unfair and unequal treatment, racial profiling and cultural stereotyping.

CHP REFORM ACTIVITIES TO DATE

Over the course of the past year, the Task Force has worked closely with the CHP both to document past problems and find solutions and reforms that will keep them from recurring. It is important to note here that no evidence was found suggesting that racial profiling or selective enforcement was encouraged, supported or even permitted by the CHP as a matter of policy. In fact, CHP has always maintained a strong official policy against such activities. Possibly, it was the belief that its official policies were clear and unequivocal in this regard that may have led CHP officials to initially deny to the Task Force that there were any such problems involving its drug interdiction units.

However, as the Task Force's inquiry progressed, it gradually became clear to the CHP that, at the very least, it had been remiss in failing to closely monitor this trouble-prone program. CHP officials were surprised to learn, for instance, that they could not determine how many searches its Pipeline officers had conducted, or who had been searched. They were also surprised to discover that there was no way to tell from an officer's daily activity report the race or even the name of a motorist who had been detained, unless a ticket or warning was written.

On Dec. 3, 1998, CHP Commissioner Helmick issued a bulletin to all CHP commanders announcing a number of policy changes. Among the changes announced:

-Banning the technique of parking CHP cars in the median strip of a highway and facing the oncoming traffic in an effort to observe the driver of the vehicle.

-Requiring approval of all drug interdiction lesson plans and training materials before they can be used in the classroom.

-Replacing the special cars that many drug interdiction officers now have with standard black and white sedans.

-Requiring all drug interdiction officers to file monthly activity reports that detail the number of searches they conduct and improving the reporting forms to collect additional information regarding ethnicity and-vehicle searches.

The CHP, on Dec. 23, 1998, also announced a revision of its policies regarding "whisper stops." While the previous policy had encouraged officers to keep all evidence of another agency's involvement confidential, the new policy requires them to disclose that information to the prosecutor at the time of the filing of charges and requires CHP to keep a copy of that disclosure information.

More recently, Commissioner Helmick issued another policy memorandum to all CHP commanders reiterating the CEP's official position that it is unlawful to profile motorists based on their ethnicity or appearance in order to make an enforcement stop. Helmick also announced that the CHP's policies and procedures on highway drug interdiction have been updated. These changes include:

-Prohibiting canine officers from being "deployed for the sole purpose of drug enforcement." Helmick announced that canine officers will have the same duties and responsibilities as other road patrol officers.

-Requiring all commanders and supervisors to become more personally involved in monitoring drug interdiction efforts.

 

-Holding all commanders individually accountable for the drug interdiction programs under their control.

 

-Ordering managers to take a more active role in ensuring first-line supervisors are holding officers accountable for their daily enforcement activities, requiring them to review all officers' documentation and to be present, whenever possible, during the investigative process.

"Techniques and tactics used by our officers must not be perceived as discriminatory, racially biased, or deceptive," Helmick wrote. "Our success cannot be at the expense of a citizen's constitutional right or in disregard of current law and departmental policy."

RECOMMENDATIONS

While the CHP's efforts to date have been laudable, the monitoring program it is setting up is largely internal, and does not readily lend itself to outside scrutiny. One of the most damaging aspects of this program is the loss of confidence it engenders in the minority community regarding the state's ability to protect their interests against unfair law enforcement. It is critical to the image of the CHP and the State of California that minority drivers do not feel singled out for special scrutiny, or powerless to investigate and correct inequities.

Should the CHP and the Legislature decide to continue conducting highway drug interdiction programs, there are several administrative and legislative remedies that can be taken - in addition to the CHP's recent policy changes -- that will help to ensure that incidents of selective enforcement or racial stereotyping are kept to a minimum. The Task Force recommends:

1. Videotape or digital cameras should be installed in all cars assigned to canine officers and those used by troopers whose primary activities involve drug interdiction. The Task Force believes that the presence of these cameras -- combined with the trooper's knowledge that the tapes will be periodically reviewed or audited -- will help curb potential abuses. The trooper should also be required to inform the motorist that the stop is being videotaped and audiotaped and that the CHP will retain a copy of the tape for a fixed period of time should the motorist desire a copy of it. For the purposes of the Public Records Act, the tapes should be freely available to the motorist or his designated representative.

Currently, Pipeline officers are being advised to wire their patrol cars with hidden audiotaping systems and to place motorists in the back seat, unattended, in the hopes that they will talk to each other and inadvertently incriminate themselves or provide additional evidence of trafficking. Thus, some drug interdiction units are already taping their stops, on their own initiative. This practice should become uniform.

The officer's supervisor, or a designated employee, should be required to view a random selection of the videotapes at regular intervals. How often these tapes should be viewed and how long the CHP should retain them is a decision best left to the CHP.

The CHP should ensure that cameras are installed in a manner that will prevent tampering by the officer. The camera should turn on automatically when a traffic stop commences and troopers should be prohibited from turning off either the video or audio portion until the motorist is either arrested or drives away. On the videotapes viewed by the Task Force, the CHP officer frequently turned off the sound while he was informing the driver of the reasons for the stop. In other cases, he would raise the hood of his cruiser in order to block the camera's view.

Because of the number of cars and the cost of equipment involved, the Legislature will likely need to augment the CHP's budget to accomplish this.

2. The CHP needs to vastly improve its data collection and analysis to monitor drug interdiction units for racial profiling and unequal enforcement, in order to catch problems in the early stages of development. The current data collection system is not focused on protecting the rights of motorists but is solely concerned with monitoring officer production. The CHP should design and implement an automated reporting process which tracks, by officer, the following information at a minimum:

  1. The race of all drivers stopped.
  2. The race of all drivers searched.
  3. The Vehicle Code section violated.
  4. The outcome of the stop.

E. The number of consent searches conducted.

  1. The number of probable cause searches conducted.
  2. The length of time each search took.

H. The number of unsuccessful searches.

I. The number of successful searches and the quantities of contraband seized.

Ideally, the CHP management information systems can analyze this data in a relational fashion to spot potentially troublesome trends (i.e. an officer who frequently stops African-Americans for weaving and subjects them to extensive searches) and make it more difficult for officers who are using inappropriate methods to continue doing so undetected. These reports should be deemed discoverable in any civil or criminal case involving the officer.

3. Each Area CHP office should be required by policy to publish a quarterly report in which the above items of information are disclosed, absent any specific officer identification. The report should be a

matter of public record and should be prepared in a fashion so that the results can be easily interpreted by any citizen. These Area reports should be available on the Internet in a central location so that interested citizens' groups and civil rights organizations can collect and compile the information and, in this way, serve as independent monitors on this program. The CHP should, on an annual basis, collect and compile all the Area reports, analyze the information and report it to the Legislature, the Attorney General's Office, and the general public.

4. Drug interdiction officers should be prohibited by policy from stopping vehicles for minor mechanical violations such as window tinting, missing lights, and the lack of a front plate. Since traffic safety is clearly not the purpose of a Pipeline unit, it makes little sense that Pipeline officers would concern themselves with such minor infractions -- unless they are using them as a pretext to search for drugs, and the State should not endorse the pretextual use of the Vehicle Code to search citizens for contraband. Similarly, either the Legislature should exempt window tinting violations and missing front license plates from the list of vehicle code offenses that can initiate a traffic stop, or the CHP should, by policy, prohibit officers from stopping out-of-state motorists for these offenses. This will help solve the problem of out-of-state vehicles being singled out for investigation simply because the owners come from a state that permits tinting, or doesn't issue a front plate.

5. Drug interdiction officers should be prohibited by policy from stopping motorists to give them verbal warnings. If a traffic offense is serious enough to warrant a motorists detention, it should be serious enough to warrant a traffic ticket. Also, in this way, racial data about all motorists being stopped by Pipeline units can be gathered. Additionally, tickets issued by a drug interdiction officer should contain an identifier denoting that fact.

6. Before any CHP officer can obtain consent to a search, the motorist should be advised both verbally and as part of the written consent fon-n that there is no requirement, legal or otherwise, that, he or sh-e allow the officer to search the car, and that the motorist has an absolute right to refuse to permit a search, and the consequences, if any, of their decision. At the conclusion of the traffic stop, the motorist also should be told, plainly and unequivocally, that he or she is free to leave, that nothing requires them to answer any further questions, and that if the motorist chooses to do so, it is being done w.ith the understanding that the conversation is entirely voluntary.

7. The CHP should undertake a study examining the effectiveness of "consent" searches in locating contraband to determine if such activities represent the wisest and best use of an officer's time.

8. The Legislature should enact a law requiring police officers who issue traffic. tickets to note on the ticket the race of the offender, and should require police agencies to annually publish this information in a form easily accessible to the public. Such legislation is currently pending (S.B. 78-Murray) in California and in a number of other states as well.

 

State of California-Business, Transportation and Housing Agency

DEPARTMENT OF CALIFORNIA HIGHWAY PATROL

P. 0. Box 942898

Sacramento, CA 94298-0001 (916) 657-7152

(916) 657-7324 (FAX)

(800) 735-2929

File No.: I.A4287.990587.4

Joint Legislative Staff Task Force on Government Oversight

1020 "N" Street, Suite 420

Sacramento, CA 95814

Dear Task Force Members:

GRAY DAVIS, Governor

 

Thank you for the opportunity to review the Task Force's recently concluded study on the California Highway Patrol's (CHP) Operation Pipeline Program. As you know, the Department is constantly striving to improve its enforcement and services to the public, and in fact, the CHP was already in the process of implementing some of the subsequent suggestions by the Task Force. The study alleges there are some areas of the Department's Operation Pipeline Program that can be improved upon, specifically relating to data collection and program monitoring. Let me assure you that these allegations are taken very seriously and, in fact, we have proactively implemented policies and procedures to correct concerns noted in the study as they were brought to our attention.

However, it is also significant to note that the Task Force's close examination of all aspects of the Department's program found no evidence of illegal procedures by the officers assigned to the program or that race/ethnicity was used as the basis for conducting stops/searches of motorists. In fact, page 34 of the Task Force's report specifically states, "It is important to note here that no evidence was found suggesting that racial profiling or selective enforcement was encouraged, supported or even permitted by the CHP as a matter of policy. " While our practices were lawful, we understand the need to balance the use of law enforcement tools with the possible negative perception that may be created among some members of the public.

Prior to addressing the Task Force's recommendations, I would like to clarify several of the issues raised by the Task Force that are not entirely accurate or may have been taken out of context.

Operation Pipeline. The Department feels that narcotics interdiction plays a significant role in greatly

reducing drug use and the attendant incidences of driving under the influence (DUI) of a

controlled substance. DUI is also a significant factor in traffic collisions. Each year, our officers remove a considerable amount of drugs from the state's highways. For example, during calendar years 1997 and 1998, a total of 3,558 pounds of cocaine, 218 pounds of heroin, 58,975 pounds of marijuana, and 3,980 pounds of methamphetamine, with a street value of just over 549 million dollars, were seized by CHP officers during Operation Pipeline contacts. Drug arrests/seizures lead to a reduction in drug availability, which may reduce the number of users that are involved in DUI-related collisions. CHP management realizes that monitoring and control of this program could be improved upon. Based on the Task Force's findings, the CHP will implement stricter policies statewide. The Department has a system in place for copying, viewing, and release of videotapes, and an appropriate fee for copying a video tape pursuant to a civil subpoena or discovery order is charged. It should be noted that depending on the public demand for copies of videotapes, additional staffing and/or funding may be required.

Based on the Task Force's recommendations, policy is being developed governing the use of video systems in patrol cars we currently operate and for those cameras procured in the future. This policy will cover all aspects of recording CHP activities, including retention and random audit of the contents. It is our intent to install the video cameras in such a manner that they will automatically begin recording when the officer makes an enforcement stop and remain operational throughout the entire enforcement contact. Officers will also be required to use departmentally issued "erase-protected" videotapes.

The CHP needs to vastly improve its data collection and analysis to monitor drug interdiction units for racial profiling and unequal enforcement.

The California Highway Patrol is conceptually in support of this recommendation. We have already put several systems in place to better track the activities of not only our narcotics enforcement units, but the day to day activities of all of our road patrol officers.

Each CHP Area office should be required by policy to publish a quarterly report in which data collected from traffic enforcement contacts is disclosed, the reports should be available on the Internet, and the CHP should prepare an annual report to the Legislature, the Attorney General's Office, and the general public containing an analysis of the information collected.

As directed by the Governor, the CHP will be compiling an annual report and we will make it available to the Legislature and public. We are preparing to submit such a report on a yearly basis for the next three years.

Drug interdiction officers should be prohibited by policy from stopping vehicles for minor mechanical violations and either the Legislature or CHP policy should prohibit officers from stopping out-of-state motorists for window tinting and missing front license plate violations.

As previously indicated, steps are being taken via policy and procedural changes to ensure that the focus of all officers and supervisors assigned to Operation Pipeline duties is redirected toward accomplishing the primary mission of the CHP, which is traffic safety. This means that narcotic interdiction will be incidental to routine traffic law enforcement. With this refocus, prohibiting drug interdiction officers, by policy, from stopping vehicles for minor mechanical violations is not a feasible option and is contrary to the Legislature's action in making these types of mechanical deficiencies a violation of the law. It is the duty of all CHP officers, as set forth in CHP policy and by law, to enforce the statutes contained in the Vehicle Code (VC), and any VC violation committed in the presence of or observed by an officer should result in an enforcement stop.

Exempting window tinting and missing front license plate violations from the list of VC offenses that can initiate a traffic stop is also not feasible. Although it may seem that window tinting violations are minor mechanical violations, in fact tinted windows present serious officer safety and traffic safety issues. An officer approaching a vehicle with tinted windows cannot observe the actions of the driver, cannot determine if there are passengers and how many, and whether the driver and/or passengers are hiding contraband or carrying weapons. From a traffic safety standpoint, tinted windows obscure the driver's vision and may contribute to traffic collisions. With regard to missing front license plate violations, the Task Force report states that 21 states do not require a front license plate on vehicles. However, 29 states do require front license plates and it is not reasonable to require officers to memorize the license plate laws of all 50 states. It should be noted that many felons have been captured or linked to the commission of a crime by an officer who stopped a vehicle for a mechanical violation, expired registration, or missing license plate. One example is the arrest of Timothy McVeigh, who bombed the federal building in Oklahoma City. He was stopped by a police officer because of a missing license plate.

Finally, I firmly believe that once the Task Force's recommendations and other policy/procedural changes I am implementing are put into effect, the concerns discussed above will no longer be an issue.

Drug interdiction officers should be prohibited by policy from stopping motorists to give them verbal warnings and tickets issued by a drug interdiction officer should contain an identifier denoting that fact.

With the refocus of the officers assigned to Operation Pipeline toward road patrol duties, it is not feasible to prohibit officers from stopping motorists and giving them verbal warnings.

The issuance of verbal warnings is just one of the tools that is used extensively by all officers, in addition to the issuance of citations and written mechanical violation warnings. For example, CHP officers recorded 892,629 verbal warnings in calendar year 1997 and 842,008 verbal warnings during calendar year 1998.

California Highway Patrol officers are highly trained law enforcement professionals and experts in the field of traffic law enforcement. As such, they are given discretion to carry out their duties under a variety of circumstances, including the issuance of a verbal warning in lieu of a citation. A verbal warning is, at times, the most appropriate enforcement action that will provide the desired result, which is to modify driver behavior or correct a deficiency. This is the case in many mechanical violation stops. It would probably not set well with the motoring public to know that every enforcement contact will result in a written citation, and that there is no chance they will be released with "just a warning. "

Officers assigned to drug interdiction duties enter a special project code on their CHP 415s. Thus, the number of citations or verbal warnings issued by all or individual officers assigned to the program can be electronically captured via the CHP 415.

Before any CHP officer can obtain consent to a search, the Motorist should be advised both verbally and as part of the written consent form of his legal rights.

Current policy is being revised to require officers to provide motorists with a consent form, CHP 202D, Consent/Cause Search (English and Spanish), prior to obtaining consent to search. The form contains the following admonition, "I understand that I have the right to refuse to consent to the search described above and to refuse to sign this form. I further state that no promises, threats, force, or physical or mental coercion of any kind whatsoever have been used to get me to consent to the search described above or to sign this form.

The CHP should undertake a study examining the effectiveness of "consent" searches in locating contraband to determine if such activities represent the wisest and best use of an officer's time.

The Department will collect data on all searches conducted by our officers as a management control tool and will examine the effectiveness of "consent" searches. A study of our findings will be prepared and a report provided to the Legislature, if desired.

The Legislature should enact a law requiting police officers who issue traffic tickets to note on the ticket the race of the offender and should require police agencies to annually publish this information in a form easily accessible to the public.

The California Highway Patrol does not agree that there is any evidence to suggest that the practice of racial profiling is taking place statewide. Thus, we do not believe there is a need for any legislation that would mandate state scrutiny over this issue. However, we have worked very closely with the Administration during the past several months and at the Governor's request, have implemented a system where we will be able to collect data on all enforcement stops initiated by the California Highway Patrol. This new data collection system will more than adequately address the Task Force's concerns. In addition, we will collect the data from any law enforcement jurisdiction who voluntarily gathers this information and make it part of our annual report.

Although this response does not address all of the individual issues alleged in the Task Force study, I am initiating an investigation that will closely examine all allegations of improper actions.

Again, I appreciate being given the opportunity to review and respond to the findings contained in the Task Force's study prior to its release. I would be pleased to discuss the results of the study with

the Legislature, and answer any questions.

 

,r

D. 0. HELMICK Comrnissioner

 

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Business, Transportation and Housing Agency