City Desk

Driving While Phoning? Or Driving While Black?

The D.C. Court of Appeals on Thursday upheld the conviction of an African-American man arrested on drug charges after cops pulled him over for allegedly driving while chatting on his cell phone.

His lawyer had argued the traffic stop was predicated on a more trivial offense: driving while black.

According to court documents, in February 2007, four cops were hunting for drug activity in the area of the 1200 block of Raum Street NE. Cruising around in two patrol cars, at about 11:45 p.m., the officers passed Kendrick H. Gaines driving in the opposite direction. Cops say they saw a light near his face and figured it for a cell.

Court papers indicate Gaines immediately pulled over when the police turned around to follow and hit the lights. But when cops approached his vehicle, Gaines flung open his car door and sprinted. A chase ensued. Gaines then allegedly pitched a plastic bag full of cocaine and marijuana into an alley. Cops caught up with him and recovered the ditched contraband. Gaines was later convicted of two counts of possession with intent to distribute a controlled substance.

The cops had purportedly seen someone violating the law and made a stop. That stop ostensibly made a drug dealer panic, and led to his arrest. It might all seem a legitimate bust except for one thing: The cell phone Gaines had allegedly been gabbing on was never found.

"The officers subsequently appellant a traffic ticket for violating the hands-free law," according to court papers, "although they did not recover a cellular telephone from appellant's person or seize or take photos of cellular telephone [the police officer] testified he observed inside appellant's car following the arrest."

On appeal, lawyer Donald Dworsky attacked Gaines' conviction on multiple points, including the fact that, during trial, the defense handn't been given the chance to address the fact that D.C. cops use selective enforcement of the city's hands-free law against black males.
During trial, court papers show, one of the officers testified that he observes "between one and fifteen drivers violating the hands-free during a typical eight-hour shift. He stated, however, that he does not conduct a traffic-stop every time he witnesses a hands-free violation."
The officer gave various reasons for this type of selective enforcement–he may have more important things to deal with, for instance–but the trial court would not allow Gaines' defense lawyer to cross-examine the cops further about their motivations.
In yesterday's decision, Dworksy learned from a panel of three judges that his argument was going nowhere: "We find no reversible error and accordingly affirm appellant's convictions," ruled the court. 

Dworsky tells City Desk he is convinced the cops pulled Gaines over under false pretenses. The attorney says there are a number of excuses cops use to make "pretextual stops."  "The classic is I smelled marijuana," says Dworsky.  The cell phone excuse is the latest. He says the problem with pretextual stops is that a "fascist" or "racist" police officer could use them for ill.

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  • Rick Mangus

    "Driving While Black", these crooked lawyers will try any kind of BULLSHIT defense. First if you are a drug dealer and in a high drug area, why would you give the police ANY excuse to pull you over and considering that MPD has 87% black officers, this dumb ass Gaines must have shit for brains. It's like Shakepeare said, "Kill All The Lawyers"!

  • Mrs. D

    I'd like to see some stats on that "biased enforcement of the hands-free law." I went through a moment last year where I had lost my home cell phone charger, and only had my car charger to get by on for about a week. Added to the fact that I had a really, really crappy phone, I spent a lot of time making calls from my parked car. Lilly white as I am, twice during that one week span, cops pulled in behind/near my parked, turned off car and waited for over 5 minutes, presumably to see if I was going to drive off while still on the phone.

    You know who I see using their phones behind the wheel most often? Cops.

  • Keith B

    Rick, if you ever go/have been to court, did you defend yourself? Did you admit guilt to everything you were accused of? I think even if I was guilty, I'd want a lawyer who would get me off by hook or by crook.

  • Lee

    Mrs. D check the law, DC law exempt cops for the requirement.

  • Rick Mangus

    'Keith B', I am a law abiding tax paying citizen of DC and I have never been in the criminal court system ever!