State v. Soto

• Citation: 734 A.2d 350,324 NJ Super. 66
• Parties: STATE of New Jersey v. Pedro SOTO, Delores Braswell, Larnie Boddy, Chauncey Davidson, Milton Lumpkin, Alfred S. Poole, Sam Gant, Donald Crews, Kim Harris, Ocie Norman, Antoine Peters, Floyd Porter, Theotis Williams a/k/a Walter Day, Paul Dacosta, Ronnie Lockhart, Terri Monroe and Kevin Jackson, Defendants.
• Decision Date: 04 March 1996
• Court: Superior Court of New Jersey

734 A.2d 350

324 NJ Super. 66

STATE of New Jersey v. Pedro SOTO, Delores Braswell, Larnie Boddy, Chauncey Davidson, Milton Lumpkin, Alfred S. Poole, Sam Gant, Donald Crews, Kim Harris, Ocie Norman, Antoine Peters, Floyd Porter, Theotis Williams a/k/a Walter Day, Paul Dacosta, Ronnie Lockhart, Terri Monroe and Kevin Jackson, Defendants.

Superior Court of New Jersey, Law Division, Gloucester County.

Decided March 4, 1996.

P. Jeffrey Wintner, Deputy Public Defender I, for defendants Pedro Soto, Delores Braswell, Larnie Boddy, Chauncey Davidson, Milton Lumpkin and Alfred S. Poole (Susan L. Reisner, Public Defender, attorney).

Wayne E. Natale, Deputy Public Defender II, for defendant Sam Gant (Susan L. Reisner, Public Defender, attorney).

Carrie D. Dingle, Assistant Deputy Public Defender I, for defendants Donald Crews, Kim Harris, Ocie Norman, Antoine Peters, Floyd Porter, and Theotis Williams a/k/a Walter Day (Susan L. Reisner, Public Defender, attorney).

William H. Buckman, Moorestown, for defendants Paul DaCosta, Ronnie Lockhart and Terri Monroe.

Justin Loughry, Cherry Hill, for defendant Kevin Jackson (Tomar, Simonoff, Adourian, O'Brien, Kaplan, Jacoby & Graziano, attorneys).

John M. Fahy, Senior Deputy Attorney General (Deborah T. Poritz, Attorney General of New Jersey, attorney) and Brent Hopkins, Assistant Gloucester County Prosecutor (Harris Y. Cotton, Gloucester County Prosecutor, attorney), for the State of New Jersey.

ROBERT E. FRANCIS, J.S.C.

These are consolidated motions to suppress under the equal protection and due process clauses of the Fourteenth Amendment.¹ Seventeen defendants of African ancestry claim that their arrests on the New Jersey Turnpike south of exit 3 between 1988 and 1991 result from discriminatory enforcement of the traffic laws by the New Jersey State Police.² After a lengthy hearing, I find defendants have established a prima facie case of selective enforcement which the State has failed to rebut requiring suppression of all contraband and evidence seized.

Defendants base their claim of institutional racism primarily on statistics. During discovery, each side created a database of all stops and arrests by State Police members patrolling the Turnpike between exits 1 and 7A out of the Moorestown Station for thirty-five randomly selected days between April 1988 and May 1991 from arrest reports, patrol charts, radio logs and traffic tickets. The databases are essentially the same. Both sides counted 3060 stops which the State found to include 1212 race identified stops (39.6%), the defense 1146 (37.4%).

To establish a standard against which to compare the stop data, the defense conducted a traffic survey and a violator survey. Dr. John Lamberth, Chairman of the Psychology Department at Temple University who I found is qualified as an expert in statistics and social psychology, designed both surveys.

The traffic survey was conducted over twenty-one randomly selected two and one-half hour sessions between June 11 and June 24, 1993 and between 8:00 a.m. and 8:00 p.m. at four sites, two northbound and two southbound, between exits 1 and 3 of the Turnpike. Teams supervised by Fred Last, Esq., of the Office of the Public Defender observed and recorded the number of vehicles that passed them except for large trucks, tractortrailers, buses and government vehicles, how many contained a "black" occupant and the state of origin of each vehicle. Of the 42,706 vehicles counted, 13.5% had a black occupant. Dr. Lamberth testified that this percentage is consistent with the 1990 Census figures for the eleven states from where almost 90% of the observed vehicles were registered. He said it is also consistent with a study done by the Triangle Group for the U.S. Department of Transportation with which he was familiar.

The violator survey was conducted over ten sessions in four days in July 1993 by Mr. Last traveling between exits 1 and 3 in his vehicle at sixty miles per hour on cruise control after the speedometer had been calibrated and observing and recording the number of vehicles that passed him, the number of vehicles he passed and how many had a black occupant. Mr. Last counted a total of 2096 vehicles other than large trucks, tractortrailers, buses and government vehicles of which 2062 or 98.1% passed him going in excess of sixty miles per hour including 306 with a black occupant equaling about 15% of those vehicles clearly speeding. Multiple violators, that is those violating the speed limit and committing some other moving violation like tailgating, also equaled about 15% black. Dr. Lamberth testified that the difference between the percentage of black violators and the percentage of black travelers from the surveys is statistically insignificant and that there is no evidence traffic patterns changed between the period April 1988 to May 1991 in the databases and June—July 1993 when the surveys were done.

Using 13.5% as the standard or benchmark against which to compare the stop data, Dr. Lamberth found that 127 or 46.2% of the race identified stops between exits 1 and 3 were of blacks constituting an absolute disparity of 32.7%, a comparative disparity of 242% (32.7% divided by 13.5%) and 16.35 standard deviations. By convention, something is considered statistically significant if it would occur by chance fewer than five times in a hundred (over two standard deviations). In case I were to determine that the appropriate stop data for comparison with the standard is the stop data for the entire portion of the Turnpike patrolled by the Moorestown Station in recognition of the fact that the same troopers patrol between exits 3 and 7A as patrol between exits 1 and 3, Dr. Lamberth found that 408 or 35.6% of the race identified stops between exits 1 and 7A were of blacks constituting an absolute disparity of 22.1%, a comparative disparity of 164% and 22.1 standard deviations.³ He opined it is highly unlikely such statistics could have occurred randomly or by chance.⁴

Defendants also presented the testimony of Dr. Joseph B. Kadane, an eminently qualified statistician. Among his many credentials, Dr. Kadane is a full professor of statistics and social sciences at Carnegie Mellon University, headed the Department of Statistics there between 1972 and 1981 and is a Fellow of the American Statistical Association, having served on its board of directors and a number of its committees and held various editorships on its Journal. Dr. Kadane testified that in his opinion both the traffic and violator surveys were well designed, carefully performed and statistically reliable for analysis. From the surveys and the defense database, he calculated that a black was 4.85 times as likely as a white to be stopped between exits 1 and 3. This calculation led him to "suspect" a racially non-neutral stopping policy. While he noted that the surveys were done in 1993 and compared to data from 1988 to 1991, he was nevertheless satisfied that the comparisons were useable and accurate within a few percent. He was not concerned that the violator survey failed to count cars going less than sixty miles per hour and travelling behind Mr. Last when he started a session. He was concerned, however, with the fact that only 37.4% of the stops in the defense database were race identified.⁵ In order to determine if the comparisons were sensitive to the missing racial data, he did calculations performed on the log odds of being stopped. Whether he assumed the probability of having one's race recorded if black and stopped is the same as if white and stopped or two or three times as likely, the log odds were still greater than.99 that blacks were stopped at higher rates than whites on the Turnpike between exits 1 and 3 during the period April 1988 to May 1991. He therefore concluded that the comparisons were not sensitive to the missing racial data.

Supposing that the disproportionate stopping of blacks was related to police discretion, the defense studied the traffic tickets issued by State Police members between exits 1 and 7A on the thirty-five randomly selected days broken down by State Police unit.⁶ There are 533 racially identified tickets in the databases issued by either the now disbanded Radar Unit, the Tactical Patrol Unit or general road troopers ("Patrol Unit"). The testimony indicates that the Radar Unit focused mainly on speeders using a radar van and chase cars and exercised limited discretion regarding which vehicles to stop. The Tac-Pac concentrates on traffic problems at specific locations and exercises somewhat more discretion as regards which vehicles to stop. Responsible to provide general law enforcement, the Patrol Unit exercises by far the most discretion among the three units. From Mr. Last's count, Dr. Lamberth computed that 18% of the tickets issued by the Radar Unit were to blacks, 23.8% of the tickets issued by the Tac-Pac were to blacks while 34.2% of the tickets issued by the Patrol Unit were to blacks. South of exit 3, Dr. Lamberth computed that 19.4% of the tickets issued by the Radar Unit were to blacks, 0.0% of the tickets issued by the Tac-Pac were to blacks while 43.8% of the tickets issued by the Patrol Unit were to blacks. In his opinion, the Radar Unit percentages are statistically consistent with the standard established by the violator survey, but the differences between the Radar Unit and the Patrol Unit between both exits 1 and 3 and 1 and 7A are statistically significant or well in excess of two standard deviations.

The State presented the testimony of Dr. Leonard Cupingood to challenge or refute the statistical evidence offered by the defense. I found Dr. Cupingood is qualified to give expert testimony in the field of statistics based on his Ph.D in statistics from Temple and his work experience with the Center for Forensic Economic Studies, a for profit corporation headquartered in Philadelphia. Dr. Cupingood collaborated with Dr. Bernard Siskin, his superior at the...