United States v. Hare (308 F. Supp. 2d 955, 2004)

MEMORANDUM AND ORDER

KOPF, District Judge.

The defendants, having been found in a vehicle with 100 kilos or more of marijuana, attack the character of the state trooper, Robert Pelster, who stopped their vehicle and found the drugs. Magistrate Judge Piester and I had previously ruled, after a full evidentiary hearing, that the stop and subsequent search and arrest (some of which was preserved on video tape) fully complied with the Fourth Amendment. The defendants, through their most able and inventive counsel, have now filed additional motions attempting to get the case thrown out or the evidence suppressed on other grounds.

Summarized and condensed, the defendants now claim that Pelster, a white man, unlawfully stopped them because they are black, and because they were driving a car with California license plates. Thus, they claim that their right to equal protection of the laws, under the Fourteenth Amendment, and their right to travel, under the First Amendment, were violated. As a consequence, the defendants have moved to dismiss the case or suppress the evidence.

Judge Piester granted the defendants wide-ranging discovery of records maintained by the Nebraska State Patrol. I later found that much of the discovery had been obtained improperly through ex parte applications for subpoenas duces tecum. United States v. Fox, 275 F.Supp.2d 1006 (D.Neb.2003) (Federal Rule of Criminal Procedure 17(c) does not ordinarily permit the use of ex parte applications by the government or the defense for subpoenas seeking pretrial production of documents unless the sole purpose of seeking the documents is for use at trial; in other words, ex parte applications should not ordinarily be used when the purpose of the document production is to engage in pretrial litigation) (collecting cases). Nevertheless, by then “the cat was out of the bag,” and, as Judge Piester’s evidentiary hearing was drawing near, I permitted additional discovery to proceed, albeit subject to a protective order. United States v. Fox, 276 F.Supp.2d 996 (D.Neb.2003) (after hearing both parties, granting the defendants additional discovery based upon a document that had been improperly obtained by a prior ex parte application for a subpoena duces tecum). As a result, the defendants were provided with most of the documents they sought.

After a long evidentiary hearing, generating more than 1000 pages of transcript, and in an exceedingly thoughtful 69-page report and recommendation, Judge Piester advises me to deny the defendants’ motions. The defendants have filed objections to that report and recommendation. Although essentially protective, the government has also filed an objection.

After careful consideration, and de novo review, I agree with, and will adopt, Judge Piester’s ultimate findings of fact, conclusions of law, and recommendations, and I will deny the defendants’ objections. I also decide that the defendants failed to make a timely preliminary showing that their claims had merit. Hence, while my additional decision does not change the result, but rather buttresses Judge Pies-ter’s ruling, I will grant a portion of the government’s objection. Judge Piester need not have proceeded to hold an extensive evidentiary hearing or grant the defendants “discovery.” Instead, he should have recommended dismissal of the motions.

I will therefore deny the defendants’ motions. Because an enormous amount of time and effort has already been invested in this relatively simple case, and Judge Piester has done a superb job of resolving the motions, my remarks will be brief.

I. The Government’s Objection

The government mainly argues that while Judge Piester was ultimately correct in his ruling, he should never have allowed the defendants to engage in the broad discovery they were granted. Rather, the government argues that once the motions were filed, and before any discovery at all was allowed, Judge Piester should have decided whether the defendants had made the showing required by United States v. Armstrong, 517 U.S. 456, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996) (in a case of alleged selective prosecution, in order to prevail on the merits the defendant must demonstrate that the action had a discriminatory effect and was motivated by a discriminatory purpose; in order to establish an entitlement to discovery in such a case, the defendant must first produce credible evidence that similarly situated defendants of other races could have been prosecuted but were not; evidence that every one of the 24 crack cocaine possession or conspiracy cases prosecuted in one court involved black defendants was not sufficient to warrant discovery). The government goes on to argue that had Judge Piester made this analysis, he would have found that the defendants had failed to make the required preliminary showing, and, accordingly, that the extensive discovery and the equally extended evidentiary hearing that followed were both unnecessary and improper. According to the government, Judge Piester should have simply recommended denial of the motions without further action. I agree with the government.

Despite the fact that Armstrong involves a selective prosecution case, the Eighth Circuit has applied Armstrong in selective enforcement cases like this one. See United States v. Bell, 86 F.3d 820, 822-23 (8th Cir.1996) (applying Armstrong in a criminal case where a black defendant claimed selective enforcement of Iowa’s bicycle headlamp law; finding that even though all the arrests in this area were of black people, the defendant failed to show both that the enforcement had a discriminatory effect and that the enforcement was motivated by a discriminatory purpose). See also Johnson v. Crooks, 326 F.3d 995, 1000 (8th Cir.2003) (in a civil case where a black driver alleged that she was stopped by a white deputy sheriff for reasons of race instead of crossing the center line of the highway as claimed by the deputy, the court applied Armstrong and reversed the district court’s failure to grant summary judgment for the defendant; Chief Judge Loken wrote: “When the claim is selective enforcement of the traffic laws or a racially-motivated arrest, the plaintiff must normally prove that similarly situated individuals were not stopped or arrested in order to show the requisite discriminatory effect and purpose.”) Other courts have applied Armstrong to selective enforcement situations and have held that no discovery should be permitted unless the defendant can make a threshold showing that both the “effect” and “intent” prongs of Armstrong might reasonably be said to exist. See, e.g., United States v. Barlow, 310 F.3d 1007, 1012 (7th Cir.2002) (in a criminal case involving a black defendant who was arrested in a train station and charged with a federal drug crime, the Seventh Circuit held it was proper to deny discovery where, despite a weak statistical study showing that only blacks were intercepted at the train station, the defendant was unable to make a threshold showing, based upon reliable information, to meet both prongs of Armstrong; the court said: “Without evidence of both discriminatory effect and discriminatory intent on the agents’ part, [the defendant] could not make the threshold showing required in Armstrong; the district court therefore did not abuse its discretion in denying [the defendant’s] motion for discovery.”), cert. denied, 538 U.S. 1066, 123 S.Ct. 2236, 155 L.Ed.2d 1123 (2003); United States v. Alcaraz-Arellano, 302 F.Supp.2d 1217 (D.Kan.2004) (in a drug case involving a Hispanic defendant who was seeking discovery relating to his claim that he was stopped in his auto as a result of racial profiling the court held, pursuant to Armstrong, that the defendant had the preliminary burden to present evidence tending to show both disparate effect and discriminatory intent in order to obtain discovery; despite the fact that the record showed the deputy stopped more Hispanics than other officers in the sheriffs department, this evidence was insufficient to entitle the defendant to discovery). In short, Armstrong should have been initially applied by Judge Piester before he authorized the wide-ranging discovery permitted in this case.

By the time the defendants filed their selective enforcement motions, Judge Piester had heard the evidence on the motions to suppress regarding alleged Fourth Amendment violations. Nothing in that evidence or in the new motions or in the briefs in support of the new motions showed anything remotely probative of the assertion that Trooper Pelster’s actions had both a discriminatory effect and were motivated by a discriminatory purpose.

Indeed, the only evidence the defendants relied upon related to the fact that in this case Pelster called for a drug dog, and the fact that in the majority of the 12 or 13 other cases where Pelster called for that same dog (“Duke”), the traffic offenders were members of a minority group. Such evidence is plainly insufficient. Although other explanations could be provided, four reasons illustrate this insufficiency.

First, given the strong evidence that had already been presented to Judge Pies-ter at the time the defendants filed their new motions, which evidence clearly established that Pelster’s actions in stopping, searching, and arresting these defendants were objectively justified under the Fourth Amendment, the defendants’ extremely weak and indirect statistical evidence of discriminatory enforcement should have been rejected both as to the “effect” and “intent” prongs of Armstrong. Second, for purposes of selective enforcement in the context of stops, searches, and arrests, the pertinent inquiry is not into Pelster’s use of a dog. Rather, the most particularly relevant question, dog or not (and “Duke” or not), is whether white people whom Pelster observed violating traffic or drug laws were not stopped, searched, or arrested. Johnson, 326 F.3d at 1000. The use or non-use of a drug dog proves nothing pertinent to the question of whether white members of the proper universe (whites and blacks eligible for stopping, searching, and arresting along the stretch of 1-80 patrolled by the trooper) were ignored by Pelster. Third, assuming use of a drug dog might somehow be marginally relevant in the abstract to the alleged illegality of a stop, search, or arrest, the number of black traffic offenders who were subjected to Pelster’s use of a dog is so small as to be meaningless. Fourth, since the “dog-use” statistic fails to compare Pelster’s use of a dog with other similarly situated troopers’ use of dogs, even if the numbers were larger, the statistic would still be irrelevant.

In summary, before any discovery or lengthy evidentiary hearings, Judge Piester should have applied Armstrong and recommended denial of the motions. Under Armstrong, the defendants could not make the required preliminary showing in order to entitle them to discovery. Therefore, they obviously could not demonstrate that Pelster’s actions had a discriminatory effect and were motivated by a discriminatory purpose, as also required by Armstrong. Consequently, in addition to the reasons articulated by Judge Piester in his report and recommendation, the motions to suppress or dismiss will be denied because the defendants failed to comply with the dictates of Armstrong when they filed their motions.

II. The Defendants’ Objections

Greatly condensed, Judge Piester ruled that the defendants failed to prove that the stop, the search, the use of the dog, or the arrests were motivated by race or had a discriminatory effect. (Filing 241, at 63.) The judge also decided that the defendants’ rented vehicle was not stopped because it had California license plates, and he ruled that Trooper Pelster’s practices did not burden the defendants’ travel rights or the right of California motorists to travel in Nebraska. (Filing 241, at 67.)

The defendants object to Judge Piester’s careful opinion for a wide variety of reasons. After de novo review, I have considered, and I have rejected, all of those arguments. However, a few of them merit slight additional responses, and I make those next.

A.

The defendants argue that Judge Pies-ter made various errors in assessing the credibility of the witnesses. With nearly 25 years on the job as a magistrate judge, Judge Piester’s credibility assessments are founded upon a vast store of experience. That said, nothing in the record comes close to establishing that Judge Piester’s credibility determinations were erroneous.

B.

The defendants argue that Pelster testified that he would sometimes “de-police” and that proved he was race conscious. Pelster had been trained not to engage in racial profiling, as that practice is illegal. He had also been trained that race is never an indicator of criminal activity. In fact, the Nebraska Legislature had passed a law in 2001 requiring the Nebraska State Patrol to collect racial and ethnic data for those persons stopped by the Patrol in the hopes of determining whether racial profiling existed in Nebraska, and in the hopes of deterring the use of such a practice if it did exist. Thus, Pelster, like all the other troopers, knew that race and ethnic data were being collected to monitor his compliance with the ban on racial profiling. Indeed, Pelster testified that he was so concerned with the issue of racial discrimination that he would sometimes intentionally refrain from stopping minority motorists who had committed traffic violations in an attempt to avoid being perceived as a racist. Pelster called this practice, which was not approved by the State Patrol, as “de-policing.”

While this testimony may prove that Pelster was unsophisticated, and quite frightened about being called a racist, it certainly does not have any tendency to prove that he stopped, searched, or arrested the defendants, or anyone else, because of them race or ethnicity. If it proves anything, it proves the opposite of the inference suggested by the defendants. This is particularly true where, as here, the evidence showed that the officer acted professionally when dealing with members of the minority public. (E.g., filing 241, at 35-36) (detailing the complaints of a black man who had been stopped by Pelster about 7 months before the defendants; while the witness did not believe he had violated the traffic laws, “[h]e described Trooper Pelster’s demeanor as polite and unoffensive during the entirety of the traffic stop.”)

c.

The defendants complain that Judge Piester was not persuaded by their statistics. For example, they point out that in Troop C (the Grand Island area) 70 percent of the time Pelster stopped whites and 30 percent of the time he stopped minority group members. In contrast, the overall rate for Troop C indicated that 91 percent of the time whites were stopped. The defendants then add that in Troop A (the Omaha area), and for all troopers, 88 percent of the stops were of white drivers and 12 percent were of minority drivers. Judge Piester was not moved by these and other numbers, and neither am I.

Pelster spent nearly 100 percent of his time on Interstate 80 in an area well-known for its high drug transportation volume, and he was personally focused on drug interdiction. Indeed, his supervisors characterized his work in this region as “exceptional” with respect to drug enforcement. (Filing 241, at 18.) In fact, Pelster made ten cases in six months resulting in the seizure of significant quantities of drugs. Therefore, without a comparison of troopers whose work, focus, area, and time of patrol were similar to Pelster’s, the defendants much more general statistics for troop (geographic) areas, rather than similarly situated troopers, prove almost nothing. See, e.g., Alcaraz-Arellano, 302 F.Supp.2d at 1231-32 (in a case involving a criminal prosecution for drugs arising out of a vehicle stop on 1-70, the court was not persuaded by the fact that 57% of the time when the deputy sheriff arrested someone for drug charges, stemming from vehicle stops on 1-70, those persons were Hispanics, while other deputies had lesser percentages; the court reasoned that the statistic was not meaningful because the subject deputy patrolled 1-70 almost exclusively and the others did not).

D.

The defendants argue that a showing of selective enforcement under Armstrong may be impossible and, therefore, Armstrong should not be applied. Rhetorically, they ask: How can we prove a negative, that is, how can we prove that Pelster did not stop, search, or arrest whites? Their concern has been raised by Judge Piester (filing 241, at 59 n. 40) and other thoughtful people. However, I reject defendants’ “impossibility” argument.

First, while the required showing is quite difficult, the complaint of “impossibility” is an overstatement. Initially, it is not my job to detail how these claims could be proven. But, as a general matter, and as an example for cases involving interstate highways and one officer, the defendants might be able to prove their discrimination defense with a mix of (1) focused statistics, comparing similarly situated law enforcement officers (having the same general duties, patrolling the same highway during the same time, and focusing on the same type of law enforcement activity) with the subject officer, showing a statistically significant and unexplained disproportion of stops, searches, or arrests of whites and blacks as between the subject officer and the other similarly situated officers; and (2) evidence that the subject law enforcement officer said or did overtly racist things in other cases or in other circumstances. Here, the defendants’ statistics were fundamentally meaningless because their numerical analysis did not concentrate on similarly situated troopers as compared to Pelster, and the defendants had no evidence that Pelster spoke or acted like a racist.

Second, although the defendants may not like Armstrong for a variety of arguably good policy reasons, our Court of Appeals has indicated that Armstrong should be applied in criminal cases where a selective enforcement claim is made. Bell, 86 F.3d at 822-23. Accordingly, as a judge of an inferior court, I must apply Armstrong even if I were to agree with the defendants’ policy argument.

Third, I do not agree with the defendants’ policy argument. That is, I believe that Armstrong, and the Eighth Circuit’s application of it, provides the proper framework. There are very good reasons why selective enforcement claims based upon race (or travel) ought to be extremely hard to advance and prove. As this case illustrates, in the real world, an over sensitivity to being labeled a racist can and does deter a police officer from aggressively doing his or her duty. A judge ought not to magnify this problem by allowing these types of easily made claims to be readily advanced or lightly proven, and that is particularly true when it comes to drug transportation cases.

E.

The defendants argue that Pelster’s Troop C supervisors sometimes criticized his emphasis on patrolling 1-80 as opposed to patrolling rural areas and county roads. The defendants also spend time arguing about other matters in Pelster’s personnel file. The inference to be drawn, so the defendants suggest, is a police officer who was out of control.

However, the fact is that Pelster always received satisfactory or above ratings, and, in the case of drug interdiction, an “exceptional” commendation. In March of 2002, for example, Pelster’s six month review stated that: “Overall, Trooper Pelster does good work and no serious problems are noted.” Exhibit 301.

Pelster’s personnel file and ratings fall entirely short of proving that he was a “rogue” police officer. In fact, the opposite appears.

F.

The defendants complain about Judge Piester’s refusal to admit all of Exhibit 229 into evidence. Sometime after the stop in question, Pelster was transferred from the Troop C area in central Nebraska to the Troop A area in eastern Nebraska. Exhibit 229 is a supervisory observation form authored by a Highway Patrol supervisor regarding Pelster’s drug interdiction activity in Troop A. Troop A contains the largest metropolitan region in Nebraska, the City of Omaha and its suburbs. Omaha is about 140 miles from the Grand Island area where Pelster had previously patrolled and where the stop in question took place. As required by the form, Pelster acknowledged receipt of the form authored by his supervisor. This form was prepared seven months or so after the stop that is the subject of this case.

Judge Piester received into evidence a portion of the exhibit to the extent that the exhibit represented Pelster’s own statements about his interdiction practices. The exhibit received in evidence, Exhibit 229-0, quotes Pelster as follows: “Trooper Pelster stated he believed the statistics showed he stopped around 60% white, 16-18% black and the remainder was other minorities.... Trooper Pelster stated he believed the disparity was caused by the vehicles he was focusing on while conducting interdiction.”

As to the remainder of the exhibit, Judge Piester sustained a variety of objections to it, including that the exhibit was not relevant. Among other things, Judge Piester reasoned that since the document, dated July 31, 2003, appeared to reflect a discussion of Pelster’s activities in a different region during a different time by different supervisors, the exhibit as a whole was not relevant.

I find no error in Judge Piester’s carefully balanced evidentiary ruling. On the contrary, I agree that Judge Piester received into evidence the relevant portion of the exhibit, and left out the irrelevant portion. Furthermore, and in any event, had I considered the entirety of the exhibit, my ruling would have been the same.

G.

The defendants claim that Judge Piester erred in sustaining objections to Exhibit 232 and refusing to allow the defendants to subpoena the head of the Nebraska State Patrol (Colonel Nesbitt) and other high ranking officials to question them about an e-mail that Nesbitt sent to seven individuals on October 22, 1999. The heading of the e-mail states that it deals with “Interdiction/I-80 vs State Highway Coverage Concerns” and the body of the e-mail relates to the supervision of two troopers other than Pelster. In a two-sentence portion of this much longer e-mail, Nesbitt wrote that “we should not question the ethical/moral [basis for] stopping of motorists, ... we should address the violation.” Exhibit 232.

Among other grounds, and during the evidentiary hearing, Judge Piester ruled that the e-mail was irrelevant. Earlier, on a motion to quash, Judge Piester made a similar decision (sealed filing 164) and on appeal I affirmed that decision without prejudice. (Filing 185.)

There was no harmful error in denying the admission of the e-mail. The same is true for Judge Piester’s determination that it was unnecessary and improper to subpoena the high ranking officials of the State Patrol to question them about the exhibit.

First, it is an unreasonable stretch to suggest, as the defendants do, that the email can somehow fairly be read as Colonel Nesbitt’s approval of racial profiling or other unconstitutional behavior on the part of troopers. Second, the e-mail has nothing to do with Pelster and there is no showing that Pelster ever saw it. Therefore, there is no reason to think that it influenced his behavior. Third, the e-mail was sent three years before the incident in question arose, the e-mail was sent before Pelster was hired as a trooper, and the email was sent prior to the Nebraska Legislature’s 2001 enactment of the statutes directing the State Patrol to collect racial and ethnic data on traffic stops so that racial profiling could be stopped if that wrongful practice in fact existed. Thus, the e-mail is both untimely generally, and specifically unrepresentative of the legal milieu in which Pelster (and the rest of the Patrol) functioned when the defendants were stopped. Fourth, had I considered the e-mail, my ruling to adopt the report and recommendation would be the same. Simply put, even if the e-mail had been received in evidence, the spin the defendants put on it is far too jaundiced to be reasonably adopted as an indication that Nesbitt (or the Patrol) favored racial profiling, and the e-mail is also far too removed from Pelster to tell us anything important about him or the facts that give rise to this case.

III. Conclusion

There are two reasons why the motions should be denied. Although they are related, they each independently serve as a basis for denying the motions.

First, the defendants were not entitled to discovery or an extensive evidentiary hearing. They failed to met their threshold burden under Armstrong. Therefore, the defendants’ motions should have been denied soon after they were filed.

Second, and although the defendants were incorrectly afforded wide-ranging discovery and an extensive evidentiary hearing, their evidence was insufficient under Armstrong or otherwise to prove that any of Trooper Pelster’s actions violated the defendants’ equal protection or travel rights. Neither the defendants’ statistics nor their other evidence establish that Pel-ster’s actions.had a discriminatory effect or that Pelster acted with a discriminatory purpose. Additionally, there is nothing about what Pelster did that burdened the right to travel.

Accordingly,

IT IS ORDERED that:

1. Subject to this memorandum and order, the report and recommendation (filing 241) is adopted.

2. The government’s objection (filing 249) to Judge Piester’s failure to require the defendants to comply with Armstrong prior to granting them a lengthy evidentiary hearing and discovery and his failure to recommend denial of the defense motions as a result is sustained. The government’s objection (filing 249) is otherwise denied. ’

3. The defendants’ objections (filings 244, 246, and 248) are denied.

4. The government’s motion for, enlargement of time (filing 252) is denied.

5. The defendants’ motions to dismiss or suppress (filings 49, 51, 53, 108, 111, and 123) are denied.

6. This matter is referred to Judge Piester for a trial setting.

REPORT, RECOMMENDATION AND ORDER

PIESTER, United States Magistrate Judge.

The defendants have filed motions to suppress evidence obtained during a December 4, 2002 traffic stop or alternatively, to dismiss the indictment. Defendants’ pending motions claim the traffic stop, request for consent to search, and subsequent canine sniff of them vehicle arose from racial profiling in violation of the Equal Protection Clause of the Fourteenth Amendment. Filing 49 (Hare motion to suppress); filing 51 (Fox motion to suppress); filing 53 (Edwards motion to suppress). Defendants were also granted leave to supplement their motions to claim the traffic stop violated their First Amendment right to travel. Filings 122 and 125. Specifically, defendants claim their right to travel was violated when their vehicle was stopped because it was a rental vehicle with California plates. Defendants claim that any evidence obtained during the traffic stop arose from violations of their constitutional right to equal protection and to travel, and therefore this case should be dismissed or the evidence suppressed.

Accordingly, the issues raised by the pending motions are: (1) Whether Trooper Robert Pelster violated defendants’ rights under the Equal Protection Clause and/or their First Amendment right to travel by stopping defendants’ vehicle on December 4, 2002; and (2) Whether Trooper Pelster’s request for consent to search the vehicle and for canine assistance at the scene of the traffic stop arose from racial profiling in violation of the Equal Protection Clause.

Defendants’ motions focus on the conduct of Trooper Pelster in initiating the traffic stop of their vehicle. They argue the vehicle was stopped because Trooper Pelster saw that its occupants were black. They also argue they were stopped for having California license plates. Defendant Edwards also argues that Trooper Pelster’s requests to search and for canine assistance were racially motivated.

Insofar as concerns Trooper Pelster’s motivation for the stop, this dispute boils down to an inquiry into his subjective thinking during a period of approximately 15-30 seconds. Ironically, despite over five days and 1200 pages of testimony, there is precious little direct evidence on the issue, even from the trooper himself. Rather, the evidence is largely circumstantial, anecdotal, and statistical, aimed at creating an inference that Trooper Pelster stopped this car because of the race of the occupants and/or the fact that it bore out-of-state license plates.

THE EVIDENCE

In support of their motions, the defendants have presented evidence concerning Trooper Pelster’s training and the methods he typically employs in conducting traffic stops; performance evaluations he received from supervisors and his compliance with their instructions; the racial breakdown of his traffic stops compared to those of other Nebraska State Patrol (“NSP”) troops and troopers, and to local, state and national demographics; the racial breakdown of consent search requests; the racial breakdown of requests for canine assistance; anecdotal evidence of minority motorists he stopped; and the circumstances that led to the December 4, 2002 traffic stop, request for consent to search, and request for canine assistance at the scene.

In addition, the court took judicial notice of evidence presented by the government and defendants on the Fourth Amendment motions to suppress (T2, 36-37, and filings 56A & 56B). The events that occurred after the defendants’ car was stopped are discussed in detail in the report and recommendation filed on the Fourth Amendment motions, Filing 73, and will not be repeated here unless necessary for clarity. The additional testimony offered for the pending motions did not controvert my previous findings or undermine my previous determination that Trooper Pelster’s version of the events occurring after this vehicle was stopped is generally credible.

For the reasons discussed hereafter, I conclude defendants’ motions to suppress and for dismissal should be denied.

The December 4, 2002 Traffic Stop

In late afternoon December 4, 2002, Trooper Pelster and Trooper Almquist were parked in the Interstate 80 median near Grand Island, Nebraska conversing when defendants’ eastbound vehicle passed. Defendant Hare was driving that vehicle, a 2002 Dodge Caravan minivan rented by defendant Fox and bearing California license plates. Tl, 59-60. Defendant Fox was seated in the right front seat, and defendant Edwards was a passenger in the vehicle’s second seat. Tl, 53.

Trooper Pelster did not specifically notice defendants’ vehicle as it passed his parked cruiser. Shortly thereafter, he and Trooper Almquist ended their conversation and separated. Trooper Pelster entered the interstate and began to travel in the eastbound lane. T2, 899-90, 998. Although he must have caught up with and ultimately passed the defendants’ vehicle while driving eastbound, Trooper Pelster did not notice it until he was preparing to enter the left passing lane of the interstate to cross the median, turn around, and proceed back west. Trooper Pelster was traveling at a speed of approximately seventy miles per hour. The speed limit at this location of the interstate was seventy-five miles per hour, and the traffic at the time was moderate to heavy. Tl, 95, 126, 145. To determine if it was safe to enter the passing lane, Trooper Pelster looked in his rear-view mirror for approaching eastbound traffic. Tl, 45, 94-95. In the rear-view mirror he saw defendants’ vehicle move into the left lane directly in front of and what he thought was unreasonably close to a Suburban that was already driving in that lane. It appeared to him that only two car lengths separated the front of the Suburban from the rear of defendants’ vehicle during this lane change (Tl, 47-48, 97-98, 109-110, 1404:2), and also that the Suburban was required to reduce its speed to permit defendants’ vehicle into the left lane and avoid a collision. Tl, 4647. As the defendants’ vehicle approached Trooper Pelster’s cruiser, or as it was passing him, Trooper Pelster decided to stop the defendants’ vehicle and manually started his patrol car videotape equipment.

Before Trooper Pelster activated his lights to stop this vehicle, he saw what he considered possible indicia of criminal activity. Tl, 74^76. He noticed that the vehicle had a California license plate, it appeared to be a rental vehicle, and it had a United States flag waving from its antenna (considered a potential “disclaimer” when attached to a rental vehicle). T2, 594-96, 667-68, 872-74, 924, 992-93, 1057-58. The evidence also shows that Trooper Pelster saw at least one of the occupants of the minivan as it passed him; he testified he saw that the driver was black and was wearing a white ball cap. T2, 990.

The defendants’ vehicle passed Trooper Pelster’s cruiser and returned to the right lane in front of it at a distance the trooper also believed was too close for safety (approximately two car lengths). Tl, 47-48, 142 Tl, 110-111, 165. A few seconds later, at approximately 4:47 p.m., Trooper Pel-ster activated his overhead emergency lights and stopped defendants for improper passing, careless driving, and following too close. Tl, 48,166.

Intending to issue a warning to the driver, Trooper Pelster approached the defendants’ vehicle on the passenger side and told the defendants the vehicle was stopped for improperly changing lanes and cutting off both the Suburban and the trooper. Trooper Pelster explained that Hare must allow more room for other moving traffic when performing lane changes, and stated, “Two car lengths is not enough.” The front seat passenger, Fox, responded, “I told him that.” Tl, 59, exhibit 4A (videotape of traffic stop). Trooper Pelster collected identification from each of the defendants and asked Hare to be seated in the patrol car. Ensuing events are described in Filing 73.

Defendants’ evidence consisted largely of an examination of Trooper Pelster’s training and past actions, and it is described below.

Trooper Pelster’s Training and Past Performance

Trooper Pelster was initially certified by the Nebraska Law Enforcement Training Center and began his law enforcement career as an officer for the Saunders County Sheriffs Department. Tl, 40-41; T2, 883-84. In June, 2000, while employed by the sheriffs department, Trooper Pelster completed the Desert Snow criminal interdiction training. T2, 935, 983. Desert Snow is a training program offered internationally which teaches highway interdiction techniques and methods for searching vehicles to locate and seize illegal drugs. T2, 531.

Trooper Pelster was hired by NSP in 2000, began his NSP academy training in July 2000, completed it in January 2001, and was re-certified as a law enforcement officer by NSP. In January 2001, as part of the mandatory training for graduation from the NSP Academy, Trooper Pelster completed a three-day criminal interdiction course. T2, 533, 685, 867-68, 935. The instructor for this course was Trooper Gregory Goltz, a highly trained NSP officer who has taught criminal interdiction courses since at least 1997. T2, 533, 613— 14, exhibits 230 & 230A.

Following completion of his NSP academy training, Trooper Pelster began his six-month probationary period as an NSP trooper in Troop C. Tl, 40-41; T2, 886, 907. Troop C encompasses seventeen counties in central Nebraska, with its headquarters located in Grand Island, Nebraska. T2, 435, 794, exhibit 201. Trooper Pelster’s field training officers during the probationary period were NSP Troopers Jeff Roby and Andy Allen. T2, 756, 759-60, 888-89. Trooper Pelster also spent one day of his probationary training accompanying and observing Trooper Duis, an NSP canine handler for Troop C. T2, 886-87.

Trooper Pelster’s first Troop C supervisor was NSP Sergeant Vernon Barton. T2, 886. Sergeant Barton supervised Trooper Pelster during his probationary period and until September 16, 2001 when Sergeant Barton was called to active duty with the Nebraska Air National Guard. T2, 752-53. When Sergeant Barton returned from active duty in March 2003, he resumed supervising Trooper Pelster and continued to do so until Trooper Pelster transferred to Troop A three months later. T2, 450-51, 497, 773-74, 810. In Sergeant Barton’s absence, Trooper Pelster’s supervisor was Sergeant William Keeling. T2, 436-438, 773-74.

In June of 2001, while Trooper Pelster was still in his probationary period and working with his field training officer, Sergeant Barton advised Trooper Pelster to submit his reports of summons, violations, and warnings in a more orderly fashion. The issue of racial profiling in traffic stops had not been raised and was not discussed. T2, 756, 757-60, 769-70, 792-93.

To assure that Trooper Pelster was being properly trained, on June 16, 2001 Sergeant Barton counseled both Trooper Pelster and his field training officer, Trooper Allen, concerning their lack of sufficient activity (too few tickets per shift), failing to complete field interview cards documenting their contacts with an individual, and providing verbal rather than written warnings during some stops. T2, 763-67, 796-99, 888-94. The policy requiring written field interview cards was relatively new (T2, 798-800), and Sergeant Barton believed that failing to document all stops was unprofessional. T2, 799, 806. Sergeant Barton was concerned that, irrespective of the trooper’s proper motive or whether written warnings .were required under NSP policy, verbal warnings could create an appearance of unprofessional conduct by NSP. T2, 768-69, 777, 807-08. He advised Troopers Allen and Pelster “not to put them seifs [sic] or the agency in a position to be considered profiling.” T2, exhibit 229C. Two days later Trooper Pelster received a completed Supervisory Observation Form which stated:

While conducting road operations recently a situation or traffic stop(s) occurred where the driver of the vehicle was not given required documentation. No summons, warning, or violation card was issued or completed.

The situation has been outlined and discussed at the shift level and by the administration. There are no verbal warnings with very few exceptions.

Hopefully at this point you are aware of the atmosphere we must operate in.

No matter what your best intentions are it is possible to be perceived by others in a negative manner. Do not place yourself in a situation where undue criticism, civil action or embarrassment could take place.

Your dedication and professionalism are too valuable to your coworkers and the agency to risk otherwise.

T2, Exhibit 300. See also, T2, 896, 912. Sergeant Barton considered racial profiling illegal and a violation of civil rights, and he required documentation of all stops to avoid future misunderstandings or the appearance of racial profiling. T2, 777-778, 780, 802-03.

Upon completing his probationary period in August 2001, Trooper Pelster was assigned to Troop C’s traffic division and worked primarily the evening shift which began at 5:00 pan. and ended at or sometime after 3:00 a.m. T2, 1061-63, exhibits 233 A-C. Road patrol officers in Troop C are assigned to patrol a particular geographical area within the Troop C boundaries, but are not assigned to patrol particular roads or sections of roads. T2, 486. Within his assigned area, Trooper Pelster preferred patrolling Interstate 80 near Grand Island and targeted his efforts to that location. T2, 775, 843. Since most of his success in criminal interdiction occurred in the eastbound lane of Interstate 80, most of Trooper Pelster’s traffic stops in Troop C involved eastbound Interstate 80 traffic. T2, 793, 999. Over the last three years eastbound Interstate 80 has been used to transport very large amounts of illegal drugs. T2, 662-63.

In the NSP drug interdiction training, Trooper Pelster was trained to recognize “indicators” during a traffic stop to determine if criminal activity is occurring.

Trooper Pelster was taught that race is never an indicator because people of all types and races transport illegal drugs. T2, 541-42, 544-45, 569-70, 576-77, 592, 870, 1048. The use of race as an indicator violates the policies and regulations of NSP, (T2, 613), and limiting criminal interdiction on the basis of race would hinder an officer’s efforts to stop illegal drug crimes. T2, 697-98, 1048-50, exhibit 230 at p. 5.

Sergeants Barton and Keeling, as well as other officers, were questioned about a memo authored by NSP’s highest commanding officer, Colonel Tom Nesbitt. The memo stated that supervisory personnel were not to question the troopers in the field concerning whether their traffic stops were “moral” or “ethical”; however, there was no evidence offered to support a claim that either NSP or Colonel Nesbitt permitted or condoned the use of illegal conduct, including racial profiling, in performing traffic stops. In any event, neither Sergeant Barton nor Sergeant Keeling had received this memo or knew about its contents prior to preparing for the hearings on these motions. It therefore had no impact on their supervision of Trooper Pelster or the conduct they permitted within Troop C. To their knowledge, it was not a “directive” or “policy” of the state patrol. T2, 503, 788-90.

Although training troopers that race is never an indicator of criminal activity, NSP does not instruct troopers, one way or the other, concerning a vehicle’s license plates or whether a vehicle is rented when determining which vehicles to stop. T2, 649-50, 651, 704. Even so, Trooper Pelster was trained that stopping a vehicle for having out-of-state plates alone is illegal, (T2, 586-87, 663, 881-82, 1041), and he stops only those out-of-state vehicles that commit traffic violations. T2, 1041-43, 1074. However, Trooper Pelster was also trained that in the Midwest, vehicles on Interstate 80 with license plates from a states with distribution or transportation “hub cities” for illegal drug trafficking, such as California, have a higher probability to be involved in illegal drug activity. T2, 570-571, 573, 615-616, 664-64, exhibit 230 at p. 4-5.

In response to this training, Trooper Pelster “keys” or focuses his interest on vehicles with out-of-state license plates, especially the types of vehicles commonly used to transport narcotics such as U-Hauls, recreational vehicles, Ryder trucks, and minivans. T2, 602-604, 626, 686-687, 924, 927-29, 927, 934-35, 950, 991, 1022, 1040-43, 1077. Consistent with his training, when Trooper Pelster initiates a traffic stop for a violation, he does not ignore the indicators present and will not permit the vehicle to leave until he is completely comfortable that illegal conduct is not occurring. T2, 546-51, 556-58, 879-881, 882, 1050-52. Trooper Pelster was also trained not to detain a vehicle absent reasonable suspicion of criminal activity. T2, 632-33.

Trooper Pelster’s drug interdiction training through NSP and Desert Snow provided him with specific information concerning the statements, conduct, and physical evidence that may, when considered in toto, indicate criminal activity. Specifically as it relates to defendants’ motions, Trooper Pelster was taught to notice vehicles displaying “disclaimers,” the heavy smell of deodorizers or perfumes in the vehicle, positive responses to EPIC checks, discrepancies in the stories between vehicle occupants, rental vehicles being driven by someone other than the renter when the renter is not present, and vehicle occupants that do not.know each other or have no relationship to each other. T2, exhibit 230 at p. 10-12.

Trooper Pelster testified to his practices leading up to this stop on December 4, 2002 which have, for the most part, continued since that time. While working as a patrol officer, Trooper Pelster, like all other NSP troopers, writes violations, warnings, and summons (also known as citations) for traffic infractions. As defined by NSP, violations are usually issued for vehicle defects. For traffic stops related to driver conduct,, such as speeding, a warning is given if no fine or court appearance is required, and a summons or citation (commonly referred to as a “ticket”) is issued if a payment of a fine and/or court appearance is required. T2, 283-84.

NSP troopers have some discretion in deciding which vehicles to stop. Trooper Pelster considers the severity of the violation as well as his interest in stopping the vehicle in making that decision. In exercising discretion, Trooper Pelster is more interested in stopping vehicles displaying indicators or out-of-state plates. T2, 638-40, 997-98. He has also been trained that once he sees a traffic violation and decides to stop a specific vehicle, he should complete that traffic stop arid not pursue other vehicles he later notices are also committing violations. T2, 660-61, 691.

In deciding which vehicles to stop, Trooper Pelster also engages in “de-polic-ing,” a term not used by NSP, which describes a decision-making process NSP does not teach. De-policing, by Trooper Pelster’s definition, is limiting contacts with a group of people or violators. T2, 813-14, 1001, 1038-39. As applied to the race of vehicle occupants, Trooper Pelster explained that it means choosing not to stop a minority driver who committed a traffic violation. The term does not include choosing to stop a driver, including a white person, based on race or the vehicle’s licence plates. T2, 1002-03, 1038-39, 1076, 1118-19. Trooper Pelster explained that perhaps as frequently as once a month, he may encounter a situation which causes him to believe he has stopped too many minority drivers. He may then choose not to stop minority traffic violators in an attempt to avoid being perceived as a racist. T2, 813-16, 821-23, 839-40, 852-55, 933-34, 950-51, 1120-21. His decision to de-police in a certain situation is not based on his written or mental tally of the percentage of minority traffic stops, but on individual situations. T2, 971-72. If, for example, he had recently stopped several minorities in a major drug seizure, he may choose to avoid stopping minorities during his next shift. T2, 852, 971-72. He did not inform his supervisors that he was de-policing based on race. T2, 824.

Trooper Pelster explained that racial de-policing could occur only during the day when he was able to see a vehicle’s driver before deciding to initiate a traffic stop. T2, 848. The evidence was insufficient to allow one to look at the sum total of traffic stops on a specific day, week, or month and determine that Trooper Pelster was de-policing. T2, 1042 (See T2, exhibit 233 — number and racial breakdown of traffic stops by shift). He testified that on some days he spends his time patrolling the roads and writes several tickets, but on other days his time is consumed with accident or criminal investigations or testifying in court. T2, 1083-84. This variety of responsibilities and activity makes a day-to-day, week-to-week, or even month-to-month comparison of statistics uncertain in assessing whether Trooper Pelster chose not to stop minorities on a particular day or for a specific period of time.

Once a traffic stop is initiated, NSP troopers have discretion in deciding when to issue a warning instead of a citation. Trooper Pelster issues warnings for seventy-five percent of his traffic stops. T2, 867, 987-88. Based on his training, he decides whether he will write a warning or a citation before he exits his patrol car and approaches the stopped vehicle. The decision of whether to issue a warning is based on the severity of the infraction and the relative danger caused by the infraction as influenced by the volume of traffic and the road conditions. He stated it is not based on the race of the driver' or the license plate of the vehicle. T2, 985-86, 1078-79.

Trooper Pelster also testified that he received training concerning the record checks he may request and the questions he may ask vehicle occupants during the course of a traffic stop. T2, 559-60, exhibit 230 at p. 9-10. He stated his questioning of vehicle occupants is conducted the same irrespective of race. T2, 1052-53. If, during the course of the traffic stop, he learns of specific facts which make him suspect that criminal activity is occurring, he always requests consent to search the vehicle, but he does not ask to search the vehicle unless, given the totality of the circumstances and indicators present, he suspects criminal activity is occurring. TI, 84; T2, 590-91, 1008-09, 1055, 1060, 1080. Consistent with his training, if reasonable suspicion exists and consent is denied, Trooper Pelster always calls for canine assistance. Tl, 83-84; T2, 588-89, 678-681, 1010-12, 1055, 1080-81, exhibit 4. He testified that neither his request for consent to search the vehicle, nor his decision to obtain canine assistance, is based on race. T2, 1052-55, 1081-82, 1124, exhibit 4.

While performing his road patrol duties, in addition to warning, violation, and citation books, Trooper Pelster also carries a small notepad and keeps a red book in his patrol car. He keeps the notepad in his front shirt pocket in case he needs to take notes while performing his job. Once these notebooks are full and no longer useful, he throws them away. Trooper Pelster uses the red book to document the hours he works and to record his work activities, including traffic stops, by code. Trooper Pelster stated he does not use either the small notepad or the red book to tally the racial breakdown in his traffic stops. T2, 822-29, 836-37,1046.

At the Troop C headquarters Trooper Pelster enters information, including information documented in his red book, into the NSP computer to report his facility code (where he worked on a given day), function code (the duty he performed), his mileage, gallons of gasoline used, and number of hours he worked. This time sheet computer entry does not include codes for cited traffic violations, date of birth, or the racial breakdown of the drivers in traffic stops. When the trooper hits the “enter” button, the information is forwarded by the computer to the Troop C supervisor. T2, 838-39, 864,1044-1045.

Supervisor Evaluations and Compliance

Trooper Pelster testified that he initiates traffic stops for traffic violations and not solely for the purpose of criminal interdiction. T2, 1049, 1051. However, in Trooper Pelster’s March 2002 supervisory review, Sergeant Keeling described Trooper Pelster’s “main area of strength” as criminal/drug interdiction with “several excellent cases during the past six months.” T2, exhibit 301. Sergeant Keeling noted that Trooper Pelster was continuing to improve, but that his “written activity and job focus tend to be extremely one dimensional. The vast majority of his written activity being the written warning and this limited to a very small portion of his work area. A little more balance might be warranted.” T2, exhibit 301. See also, T2, 1024-25. Under Sergeant Keeling’s philosophy of how the job was to be performed, which may vary from that of other supervising sergeants, Trooper Pelster was expected to patrol more of his assigned Troop C area and write more citations rather than warnings. T2, 471-73, 487, 511-12, exhibit 229D. He wanted Trooper Pelster to expand the geographical area of his road patrol because he did not believe Troop C had sufficient manpower to permit a trooper to work solely on Interstate 80. T2, 444-45, 500-01, 512-13.

Despite Sergeant Keeling’s instruction and preference that Trooper Pelster broaden the geographic area he patrolled, Trooper Pelster continued to target his efforts in Troop C to the area of Interstate 80 near Grand Island. He believed he was most talented and could best benefit the State of Nebraska by continuing to focus on Interstate 80. T2, 775, 842, 1029-33, 1035-36. His performance review thereafter characterized Trooper Pelster’s drug interdiction work on Interstate 80 as “exceptional,” with ten cases in six months resulting in the seizure of significant amounts of illegal drugs. Trooper Pelster was commended for always completing and appropriately disseminating paperwork related to his criminal interdiction cases, and for his excellent job with court testimony and cooperation with prosecutors. T2, 508-510, exhibit 229E.

Trooper Pelster’s supervisors reviewed his violations, warnings, and citations for errors and, as with all officers, required Trooper Pelster to correct any minor errors. T2, 469. They also reviewed the records to determine Trooper Pelster’s level and location of activity, and whether there was an appropriate balance of citations and warnings issued. T2, 469-73, 505-07. In Sergeant Keeling’s March 2003 annual supervisory review of Trooper Pelster, which includes the time frame of the December 4, 2002 traffic stop at issue, Sergeant Keeling noted that 98.5% of Trooper Pelster’s written activity continued to be generated .from the relatively small geographic area of Interstate 80 between mile marker 312 and 332, (T2, 496, exhibit 229E). Sergeant Keeling again stated that he wanted Trooper Pelster to do a “little better job of covering his entire assigned area.” T2, exhibit 229E. Despite this reservation, Sergeant Keeling considered Trooper Pelster’s work performance in Troop C satisfactory or above in every evaluated area. T2, 513.

Neither Sergeant Barton nor Sergeant Keeling evaluated Trooper Pelster’s warnings, violations, and summons to determine the racial breakdown of Trooper Pelster’s stops. T2, 440-41, 520, 805. They had received no specific allegations or complaints against Trooper Pelster concerning racial profiling or disparate or harassing treatment toward minorities. T2, 776, 795-96, 799-801, 808-09.

Statistical Evidence

On May 31, 2001 Nebraska enacted legislation (LB593) which imposed a duty on NSP to record, retain, and report specific information regarding all traffic stops for the purpose of determining whether Nebraska law enforcement officers were engaging in racial profiling or racially disparate treatment of motorists. The requirements of LB593, codified as Neb.Rev.Stat. § 20-501 through 20-505, became effective January 1, 2002. To comply with the statutes, NSP now maintains a database of information compiled from the warnings, violations, and summons issued by patrol officers. T2, 223, 294, 302-304, exhibit 2. The NSP database can generate lists such as Exhibits 204 and 205 of all traffic stops (not including carrier enforcement stops) entered into the database from January 2002 through May 2003 for every NSP troop. T2, 320-321, exhibits 200A, 204 & 205.

In addition, to prepare for the legal reporting requirements of Neb.Rev.Stat. § 20-501 through 20-505, a pilot program was started in Troop C beginning in July-2001. However, because the records for the period of July 1, 2001 through December 31, 2001 were gathered while forms were still being developed and training adjustments were being made to assure reporting consistency, the records for the last six months of 2001 may represent only a partial collection of the information retrieved by troopers during traffic stops. T2, 312-13.

For the purpose of complying with Nebraska law and maintaining the NSP database, when completing warnings, violations, and citations, troopers must indicate the race of the driver, the reason for the stop, whether a custodial arrest was made, and whether a search was conducted. T2, 232-33, 236, 306-11, 860-61, exhibits 6 & 202. Troopers provide their supervisors with an “officer sheet” or “gray sheet” paper-clipped to copies of the warnings, violation cards, and summons they have written for a given day. After completing their review of this information, the supervising sergeants forward the troopers’ traffic stop records to troop area secretaries who enter the data into the NSP database. T2, 223-24, 605-06, 1044-45. Troopers, including Trooper Pelster, do not have access to the database where citations, violations, and warnings are entered. T2, 864-65,1045-46.

For race and ethnicity entries on the citations, violations, and warnings, NSP uses the national crime information computer race categories. T2, 357. In addition, to address the ethnicity concerns of Neb.Rev.Stat. § 20-501, a “Hispanic” category was added. T2, exhibit 210 at p. 2. While there are many other potential categories regarding ethnicity, NSP’s current database does not address those. T2, exhibit 210 at p. 2. The troopers were instructed to write “A” for Asian; “B” for black; “H” for Hispanic; “W” for Caucasian; “N” for Native American; and “U” for unknown. NSP officers identify persons who appear to be of Middle Eastern descent as white. The use of “unknown” is discouraged. T2, 249-50, 305-06, 357, 999-1000,1079.

The race of the driver is determined by the officer who initiated the stop based on that officer’s visual perception. The stopped motorist is not questioned concerning his or her actual race or ethnicity. T2, 240, 304-06, 370-72, 1079. The troopers are trained that a person’s appearance governs, regardless of the ethnicity of his or her surname. For example, a person who appears white should be identified as white even if he or she has a Hispanic surname, T2, 367, and a dark-skinned or black Cuban would be classified as black. T2, 861.

Numerical violation codes are used and entered into the data base to describe the trooper’s reason for initiating a traffic stop. T2, 238, exhibit 203. Information concerning whether consent to search the vehicle was requested, whether a search was conducted, and whether a canine was summoned to the scene is reported in areas designated on the tickets as Block 1, Block 2, and Block 3. T2, 313-316, exhibits 6 & 202. Although license plate numbers are also written on the violation or warning tickets, the state of the license plate is not a required entry field in the NSP data collection system. T2, 273, exhibits 234, 234A, & 234B. Therefore, for traffic stops when warnings were issued, which accounts for approximately seventy-five percent of Trooper Pelster’s traffic stops, or when only vehicle defect tickets were issued, vehicle information regarding whether the vehicle had Nebraska or out-of-state licence plates is not available through the database. T2, 272-73, 867, 987, exhibits 234, 234A, & 234B.

The defendants claim the statistical evidence garnered from the NSP database and its underlying records related specifically to Trooper Pelster’s traffic stops evidence Trooper Pelster’s practice of selectively enforcing traffic laws against minority drivers. Defendants claim the records related to Trooper Pelster’s traffic stops indicate: (1) Compared to other NSP troopers’ records or the demographics of the traveling public, he stops a disproportionately high number of minorities and vehicles with out-of-state plates; (2) He under-reports or inaccurately reports his traffic stops of minorities so his racial bias can go unnoticed; (3) After a traffic stop is made, he requests consent to search and for canine assistance substantially more frequently from minority motorists than from white motorists; and (4) He stops minorities for violations he does not enforce to the same degree against white people.

1. Traffic stops of minorities and those with out-of-state plates.

Based on the NSP database entries for Trooper Pelster’s activity for July 2001 through May 2003, the racial breakdown of Trooper Pelster’s traffic stops was seventy percent white and thirty percent minority. T2, 269-271, exhibit 211C (summarizes exhibit 206). The overall statistics for Troop C indicate that ninety-one percent of the vehicles stopped had white drivers. The statewide troop-by-troop statistics reflect that Troop A (the Omaha area) had the highe