Two weeks ago, Jay-Z went on Fresh Air with Terry Gross to talk about his new, much-hyped book about his life and music. During the interview, he went into greater detail about the police stop recalled in the second verse of “99 Problems”:
GROSS: So, you know, part of that story is that the canine – the cops’ canine corps was supposed be coming after you, but you got – they let you go just before the dogs came?
JAY-Z: Yeah. It was – I guess it was far away on another call, and the cop tried to hold us. He really had no probable cause, no reason to hold us, so he just said man, get out of here. And as we left, about 10 minutes up the ride, we see this car, sirens blaring, screeching down. And we look on the side and we see Canine Unit, and we just all – just a little sigh of relief, like huh, that was close.
GROSS: Because you were holding, so…
(Soundbite of laughter)
JAY-Z: Yeah, if the canine would’ve came – would’ve smelled it, and we would’ve been finished. It would’ve…
JAY-Z: No book.
Jay-Z dodged a major bullet there, as he was moving weight. But it’s even closer call when you consider that the cop in the story would have been within his authority to simply override Jay’s stonewalling. Contrary to what Jay said, probable cause is effectively besides the point in such stops, since all the discretion as to what constitutes such lies with the police. The cop could have assumed that Jay’s defensiveness was itself suspicious and constituted even more probable cause, before deciding to run his trunk and glove compartment. These generous interpretations of probable cause — hunches, really — have been the principal frontline weapon employed in the War on Drugs. “Fitting the profile” is effectively as expansive or narrow as the officer required it to be in that moment.
Now Jay, who was actually transporting contraband, would have been assed out. He could attempt to convince a judge or jury that the weight he was moving was discovered via an unlawful search, but that’s a tough sell. As Michelle Alexander lays out in The New Jim Crow, an argument made by the defense about the abrogation of someone’s Fourth Amendment rights butts up against an increasingly broad reading by the courts of what it means to consent to a police stop and search:
So-called consent searches have made it possible for the police to stop and search for drugs just about anybody walking down the street. All a police officer has to do in order to conduct a baseless drug investigation is ask to speak with someone and then get their “consent” to be searched. So long as orders are phrased as a question, compliance is interpreted as consent. …
A classic pretext stop is a traffic stop motivated not by any desire to enforce any traffic laws, but instead motivated by a desire to hunt for drugs in the absence of any illegal drug activity. … Pretext stops, like consent searches, have received the Supreme Court’s unequivocal blessing. … [In Whren, the Supreme Court ruled] that an officer’s motivations are irrelevant when evaluating the reasonableness of police activity of the Fourth Amendment., so long as some kind of traffic violation gives them an excuse.
These stops have an infinitesimal hit rate — a few thousand stops will result in only a handful of drug violations. And studies show that even though black and brown folks are stopped more often, stops of white motorists actually yield more hits.
There’s also no real legal recourse. As former Supreme Court Justice John Paul Stevens alluded to in his recent critical essay on Peculiar Institution, a new book about the death penalty, the Court has moved away from considerations of discriminatory effect and toward discriminatory intent. Had Jay been caught, he’d have to essentially argue that he could prove the cop was harboring racist thoughts at the time of the stop (and possibly that the prosecutors were doing so during his trial, if he had one). He couldn’t say that his stop was just a small piece of the larger tapestry of sanctioned profiling and the erosion of constitutional rights for people who “fit the profile” — even if the consequence of all this disproportionate police contact is necessarily a disproportionate amount of black defendants and black felons.