Gut instinct.

That’s what Maine State Police Trooper John Darcy said he relied on to pick out cars among the hundreds passing through the York tolls on the Maine Turnpike. His job wasn’t just to spot traffic violations. It was to find illegal drugs.

“Let’s say you have 20 cars go by you, and you have that one person who – everyone else glanced over at you and gave you a smile because you’re in a fully marked cruiser – and this one person is just staring ahead, they look really nervous, that may be an indicator that catches your eye in the moment,” Darcy told investigators in April 2021. “But then a few weeks later, you may have a car that goes by after everybody glanced and gave you a smile, this person is just staring at you and they can’t seem to not look at you. That may catch your eye too.”

He described other cues as well. He tended to notice registrations linked to places, such as Bangor and Presque Isle, that he associates with drug problems. He noticed when cars in bad shape appeared to have traveled hundreds of miles. He noticed when registrations linked to rental cars because he said people often use them for criminal activity, when they want to hide their identities and avoid getting pulled over for a problem like a defective taillight.

Darcy was at the time and may still be a member of the Maine State Police’s Proactive Criminal Enforcement (PACE) Team. It’s hard to know for sure, because the agency won’t identify the 20 or so members of the team, which the state police chief describes on its website as “a front line presence focused on interdicting the flow of illicit drugs and other criminal activity on Maine’s roadways.”

The team – formed in 2011 – received little notice until 2020. That’s when Darcy was accused of racial profiling because of his comments to a trooper in training. A cruiser microphone captured him describing the Black man he was pulling over as “looking like a thug,” pointing out his “wifebeater” (slang for a white, sleeveless undershirt) and dreadlocks. The criminal charges against that driver were quickly thrown out. Darcy, who is white, repeatedly denied that he stopped drivers based on race, but the PACE Team suddenly was in the public eye.

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Defense attorneys have since questioned other stops made by the PACE Team and are using the federal courts to draw out details of how the team operates. Darcy himself provided a key window into that work when he spoke with internal investigators in April 2021, and the confidential transcript of that interview made its way into the public record as an exhibit in a federal court hearing. The methods he described were concerning to experts who study this kind of police work and the ways in which bias can come into play.

“We recognize there are some things that police see that the rest of us don’t because of their experience and training, so we have to give some credibility to gut instinct,” said Lorie Fridell, a University of Southern Florida professor who developed a widely used curriculum for implicit bias training in law enforcement. “The other thing we say is that your implicit biases could impact your gut instinct.”

The Maine State Police would not answer multiple written questions about the PACE Team and declined a request for an interview about it. Shannon Moss, a spokesperson for the agency, instead provided a lengthy statement from the state police chief, who praised the team’s work.

“Since its inception, members of the PACE Team have removed huge quantities of fentanyl/heroin, cocaine, crack, methamphetamine, pharmacy narcotics, other dangerous drugs, and firearms from our streets,” said Col. John Cote. “In collaboration with our state, local, county, and federal partners along with prosecutors in Maine and the U.S. Attorney’s Office, we have held those traffickers accountable for their conduct and dismantled many criminal enterprises. We believe the efforts of the Maine State Police’s PACE Team have saved countless lives from the perils associated with illicit drugs.”

Moss shared a half dozen examples of traffic stops that resulted in drug seizures and trafficking convictions, as well as charts that showed the state police had in recent years seized drugs worth millions. But the agency did not provide any context for those numbers. For example, Moss did not answer questions about how many traffic stops troopers make in a year, how often a stop turns into a search and how many searches actually yield drugs.

Traffic stops are the most common interaction between the police and the public. Research has shown police disproportionately pull over people of color, and deeper analysis of that data has found evidence of bias in those disparities.

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In one sweeping study published in 2020, researchers at Stanford analyzed records from more than 100 million traffic stops across the country. They found officers generally stopped Black drivers at higher rates than white drivers, and Black drivers were less likely to be stopped after sunset, when determining race is more difficult. They also found evidence that the bar for searching Black and Hispanic drivers was lower than that for searching white drivers.

Maine, however, does not have the data needed to perform that analysis or assess allegations of racial profiling. Police in Maine are not required to record race and other demographic data if a stop does not end with a ticket or some other enforcement. A new law will require officers to document the gender, age and perceived race of every driver they stop, but not until the summer of  2023.

The Policing Project at NYU School of Law, a nonprofit that works to improve public safety by partnering with communities and police on issues such as transparency and equity, estimates that at least 20 states already collect that data in some way.

“It’s willful ignorance if you’re not collecting the data,” said Farhang Heydari, the project’s executive director.

‘I COULDN’T EXPLAIN WHY’

The U.S. Supreme Court has given police broad discretion to pull over drivers. An officer can use a real traffic violation as a pretext to stop a vehicle in order to follow a hunch, like that the driver might be carrying drugs.

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Darcy told state police investigators that he knew his hunches alone weren’t enough to stop a car, but said they were enough to attract his attention.

“So sometimes when a person is near me, I can almost feel that they don’t like my presence there. I couldn’t explain why, but when I look over and maybe – if it’s daylight and I could see – it may be, okay, this person was just going 70, now they’re going 60, even though the speed limit is 70,” he said. “They won’t look away, you know, they have moved to the far right lane to get away from me. They don’t like my presence. And then if I see a violation on that car, sometimes I’ll stop that vehicle and investigate further. If there’s no violation, then I move on.”

Darcy has worked for the Maine State Police since he graduated from the Maine Criminal Justice Academy in 2014. He told the investigators that he had taken PACE classes in Massachusetts and Maine, as well as other courses on drug and gang investigations.

In his written statement, Cote said the troopers receive “in-depth training in the detection of criminal activities associated with drug trafficking.” New members spend a probationary year with a field training officer, and most have been to one or more nationally recognized trainings on this topic. The troopers are assigned to normal duties and have PACE as a specialty.

“PACE Team members use their training, education, and experience when initiating a traffic stop,” Cote’s statement said. “Every State Trooper, including members of the PACE Team, has had implicit bias training.”

The state police would not answer questions about PACE policies or about whether Darcy’s practices were representative of the team. The agency also did not provide more information about that implicit bias training when asked to do so. In response to a public records request, a staff attorney provided two PowerPoint presentations used as introductory training on drug interdiction.

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Some slides detail the legal precedent on traffic stops, canine sniffs and vehicle searches. A couple in each presentation include the agency’s policies against racial profiling, and one encourages troopers to keep their own records to protect themselves from such accusations.

One slide says: “Would you treat this person any different if they were white.” Another reads: “Can you justify what you are doing? If someone pulls all of your car stops, what is the ratio of people that are minorities? Don’t pick your stops based (on) what you think a drug dealer looks like. Make sure you can explain what you are doing to a prosecutor, judge or jury.”

But other slides were redacted, and a staff attorney cited exemptions under the public records law for material that would disclose confidential information or endanger the safety of law enforcement personnel. Headings on those pages include “Things to look for as you approach” and “Criminal Indicators.”

Less than two months after a federal prosecutor dismissed the charges against the man Darcy called “a thug,” the Maine State Police named him the 2019 Trooper of the Year. Last year, after Cote announced that an internal review of more than 1,000 traffic stops made by Darcy did not reveal a pattern of discrimination, he was promoted to corporal. The agency has refused to release any records included in its review.

During his internal interview, Darcy said he collected his own data about his traffic stops. He said he charged 31 people with drug offenses in 2020, and 28 were white. In 2019, 23 out of 33 people were white. And in 2018, 24 out of 28 people were white. So in each of those years, according to his telling, between 67 and 90 percent of the people he arrested or summonsed on drug charges were white.

What isn’t in the interview – at least in the parts that were not redacted – is how many stops Darcy conducted each year, how many traffic tickets he issued or how many times he called for a search. He does not offer any demographic breakdown of drivers on the turnpike. The record does not say how Darcy maintained his log of stops or whether the interviewers confirmed his statistics. And Maine State Police would not provide information about traffic stops, citations or arrests by other members of the PACE Team.

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‘A BLANK CHECK’

Experts expressed concern with the comments Darcy made both on the cruiser microphone and during his internal interview.

Heydari, from the Policing Project, said the criminal indicators Darcy cited could justify interest in just about any vehicle.

“You’re writing yourself a blank check,” he said.

Charles Epp, a University of Kansas professor who co-authored a book about traffic stops, said officers are more likely to rely on subjective criteria when they make investigatory stops, and those criteria can be influenced by stereotypes.

“Proactive stops are always and almost inherently vulnerable to racial biases,” Epp said. “That is because when officers are directed to make these stops, they make them not on the basis of an objective, observed violation that they would stop anybody for. … They are drawing inferences to lead them to believe that the person in front of them is acting suspiciously or is the sort of person who might be carrying drugs.”

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David Harris, a professor at the University of Pittsburgh School of Law whose main areas of study include police behavior and law enforcement and race, said Darcy’s words reminded him of early drug interdiction programs on interstates in Maryland and New Jersey in the 1990s. He said those officers also relied heavily on visual cues, often based on racial and ethnic stereotypes, and research and litigation proved they were discriminatory. In Maryland, a lawsuit even uncovered an internal document that explicitly created a profile of Black people as drug traffickers.

Harris said he was especially concerned that Darcy’s stereotypical description of “a thug” would be passed to a trooper in training.

“You put a person in a position of training who’s willing to say these things to a trainee,” Harris said. “You do nothing in terms of putting any kind of statistics or numbers out there that might tell the public another story, and instead you say, ‘We know what we’re doing. Trust us.’ You have not proved yourself worthy of the public’s trust.”

Epp and his colleagues surveyed more than 2,300 motorists in the Kansas City area about their experiences with traffic stops. One finding was that pretextual stops significantly eroded trust in the police. Black people in particular felt afraid of driving in some areas of the city where they felt they might be targeted by police. The researchers heard stories from people who felt violated on legal and personal levels because they were stopped, searched and released with little explanation.

“Black drivers felt themselves to be less free, to be more concerned about their safety in relation to the police than white drivers,” Epp said. “In the end, we concluded that those stops enforce the racial divide in American society.”

Traffic stops also are not an efficient way to address other crime, Heydari said. In Nashville, police had long used a traffic stops as a strategy in high-crime areas to deter violence, identify suspects and seize contraband. But a study by the Policing Project not only found unexplained racial disparities in those stops. It also showed that the high number of stops in those neighborhoods did not have any significant effect on crime rates, and only a small percentage of stops resulted in arrests or recovery of drugs or weapons. The Policing Project suggested that Nashville could reduce the number of stops without endangering public safety.

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“Random traffic enforcement is not going to meaningfully bring down drug crime in Maine,” Heydari said. “They might find some people. If you stop enough, you’re going to find some people that have done something illegal or have an open warrant. But that doesn’t necessarily mean that’s bringing down crime.”

In one hearing, Darcy testified that he stopped roughly 700 drivers each year. If around 30 a year were charged with drug offenses, that would be less than 5 percent.

RIPPLE EFFECT

Darcy’s “thug” comments quickly reverberated in other cases involving not just his stops but those of his colleagues. Defense attorneys have tried to suppress evidence from traffic stops, with a few denials and a couple successes. In those rulings, judges focused on whether they believed the stated traffic violations were legitimate, not whether they thought the PACE team engaged in racial profiling. But some also raised questions about the team’s methods.

Within weeks after the “thug” case was dismissed, defense attorney David Bobrow cited the trooper’s words in a motion to suppress evidence in a different case in which Darcy had stopped his client, a Black man, on I-95 in January 2019 for allegedly cutting off a tractor-trailer. The driver was subject to bail conditions that allowed for random search. A police dog did not find any drugs, but the man eventually admitted under questioning that he had heroin hidden on his body.

Evidence presented at the court hearing on Bobrow’s motion included text messages Darcy sent that night to the trooper who handled the dog.

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“I’m on the hunt tonight,” Darcy wrote. “Might need you and Gus, man.”

U.S. District Judge D. Brock Hornby ultimately denied the motion to suppress. He said because he believed Darcy’s assertion that he pulled the driver over for an unsafe lane change, he did not have to decide whether Darcy stopped the man “based upon racial criteria.” But he also made a point of noting that his decision assumed “Darcy did use racial criteria.”

Two defense attorneys soon raised Darcy’s comments in a motion to suppress evidence in another Darcy traffic stop that involved two Black people, including a man with dreadlocks. Darcy said he pulled over their minivan in June 2019 because they swerved “two, almost three times” into the breakdown lane. He said he then called a K-9 unit because the driver and the passenger gave inconsistent stories about their destination. A search uncovered heroin, and the passenger was charged with possession with intent to distribute.

But the defense attorneys questioned the real reasons for the initial stop and suggested the PACE Team looked for ways to cover their tracks.

“The PACE team as a whole is likely being trained to legitimize racial bias under the guide of proper phrasing and a keen eye for real, and imagined, minor traffic violations,” wrote Daphne Hallett Donahue and Grainne Dunne, assistant federal public defenders.

In a hearing about the traffic stop, U.S. District Judge Nancy Torresen was interested in the fact that Darcy extended the stop by asking the driver to step out of the van even after they talked about the supposed swerving. Assistant U.S. Attorney Michael Conley said the law allowed the trooper to make that request.

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“Isn’t it over at that point?” Torresen asked Conley. “He’s now confirmed that he’s not impaired, he’s not a distracted driver, he’s not going to mess with his GPS anymore. Wouldn’t the officer have said to any one of us, ‘Thank you, go on’?”

“But the law absolutely permits – well no, he could absolutely –” Conley started to say.

“You think the officer would have asked you to get out of the car?” Torresen interrupted.

“He could – I – I don’t know,” Conley answered. “But the law allows – the law allows him to run their names. The law allows him to ask questions. It’s absolutely permissible.”

Torresen granted the motion to suppress evidence from the traffic stop. And while neither the hearing nor the judge’s order explicitly addressed the allegations of racial profiling, the judge said the cruiser video refuted the reasons Darcy gave under oath for the traffic stop, and he was “generally not a very credible witness.” She also said the evidence showed Darcy ran a query of the license plate near the tolls and then followed the van for six minutes before he stopped it.

“The timing here begs the question, unanswered by Darcy, of why he called in the license plate and where he was when he called it in,” Torresen wrote.

After that ruling, Cote, the state police chief, issued a written statement that emphasized Torresen did not find that Darcy engaged in racial profiling, but he did not address her statements about the trooper’s credibility. He mentioned earlier rulings, including Hornby’s, in which evidence from PACE Team traffic stops was not suppressed.

“We respect that such judicial review is necessary to safeguard constitutional protections, clarify future enforcement practices, and discourage overzealous or illegal practices,” Cote said. “These court decisions are how we refine our practices to ensure we are doing things right.”

Without more detailed data, however, it is impossible to know whether the court’s decision did influence the PACE Team’s practices. Some defense attorneys have tried to get the court to order the state to release more information about the PACE Team and its track record. So far, they have not been successful.

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