Are Portland's gang enforcement police officers legitimately targeting gang members, or sweeping up young black men for “doing fifty-five in a fifty-four,” as Jay Z and criminal defender Chris O’Connor assert? Much has been reported in the Mercury about how the police bureau's gang enforcement efforts might bring about racial profiling. But I decided to head down to the courthouse yesterday to see how the various issues played out on street level.
O’Connor’s claim of racial profiling came Thursday, September 10, during a motion-to-suppress-evidence hearing involving his client, Robert James. James, an African American, 26 years old, was stopped in June for allegedly rolling through a stop sign on his bike in North Portland around at 17th and Killingsworth. Arresting Officer Cody Berne—who is a member of the police bureau's Hotspot Enforcement Action Team (HEAT), which focuses on gang activity—testified Thursday that he turned on the overhead lights and chirped his siren at James, who stopped and waited on his bike. Berne approached James and asked him if he was carrying any weapons.
Here’s where it gets a little fuzzy. According to Officer Berne, James said he didn’t have any weapons, and offered the officer the right to search him. James testified that Officer Berne asked to frisk him. Either way, James testified that he really didn’t feel like he had a choice in the matter.
“You can’t just tell an officer ‘no, you can’t search me,’” he said.
Officer Berne said he patted James down, and that he felt a “bindle” of drugs in his pocket, but that he didn’t make an issue over the alleged bindle at first, instead asking James for his ID and taking it back to his patrol car to check if James had an arrest record. James did, for armed robbery. Officer Berne said he then returned to James and asked him about the drugs in his pocket, at which point James ran. When Berne finally caught up with him, the drugs were gone, Berne said. James was arrested for escape and traffic violation.
O’Connor argued yesterday that stopping James was a "pretense stop," one that was racially motivated. He also said James was never officially detained, and that he was under no obligation to stay in the area of the officer or consent to any search.
For his part yesterday, Officer Berne was poised and calm, if seemingly a bit rehearsed, espousing that his goal was “to make sure no 14-year-old kid is walking around with a gun,” and other harmonious goals. But under pressure from O’Connor, Berne acknowledged that race is “a factor I’d consider” in deciding who to pull over.
Multnomah County Circuit Court Judge Jerry B. Hodson readily admitted to being rusty on search-and-seizure protocol, but assured both legal teams that he’d read up on the cases and statutes they cited. Hodson said he would make a decision about the motion to suppress on Monday morning, September 14.
The Mercury also has a call in to Sergeant Don Livingston, who oversees Berne. We'll keep tracking this story, and give you updates as we get them.