Lawsuit alleges NH state trooper profiled Latino driver in 2019 stop

A Texas man is suing New Hampshire State Police, alleging that a state trooper ethnically profiled and illegally detained him during a traffic stop in August 2019.

The lawsuit is the second in three years to accuse State Police’s Mobile Enforcement Team, a drug-interdiction squad with a history of using minor traffic violations as pretexts to stop and question drivers, of acting illegally during a vehicle stop. A previous lawsuit, involving a 2017 stop by a different trooper, Haden Wilber, led to a $212,500 settlement.

The latest lawsuit was brought by Mark Ramirez, a Houston resident who operates a moving company. He says he and his brother, who are Latino, were transporting furniture and other belongings from Texas to Maine when State Trooper Timothy Berky began following their tractor-trailer on Interstate 95 in New Hampshire.

After initiating a traffic stop — purportedly because the truck had drifted over the right-hand fog line — Berky questioned Ramirez about his trip and suggested he might be trafficking drugs, according to the lawsuit. Ramirez adamantly denied doing anything illegal.

Joined by other troopers, Berky continued to detain Ramirez while he searched the truck’s cab and trailer, without finding anything, the lawsuit says.

Berky then had Wilber run a drug-sniffing dog around the vehicle’s exterior, according to the lawsuit. While Wilber said the dog alerted to the presence of drugs, Ramirez denies that it did.

Troopers seized Ramirez’ truck that day, a Friday, and held it over the weekend before applying for a search warrant and completing their search, according to the lawsuit.

“During the search, numerous items of furniture were damaged by the [troopers],” the lawsuit states. “Several of those items were destroyed beyond repair. The [troopers] damaged the interior and exterior of the cab and the trailer and numerous items of personal property stored in the cab. The officers discarded the gas cap and drilled holes into the gas tank.”

No drugs were found, according to the lawsuit.

(State Police later fired Wilber in connection with the case that prompted the earlier lawsuit, after concluding he made false statements to internal investigators, illegally searched a woman’s phone and wrongfully charged her with smuggling drugs into jail.)

Ramirez says his customer refused to pay him because of the delay and the damage to her property. The lost contract, property damage and expenses for the several days he was stuck in New Hampshire cost him more than $30,000, according to the lawsuit.

The suit, filed this August in Merrimack County Superior Court, alleges destruction of property, abuse of process and violations of the Fourth Amendment and Equal Protection Clause, among other counts.

It alleges that Berky’s stated justification for the initial stop — the lane-line violation — was untrue and concocted, and claims Berky detained Ramirez “because he and his passenger appeared to be of Mexican heritage.”

The lawsuit also accuses Department of Safety Commissioner Robert Quinn and New Hampshire State Police of failing to properly train, supervise and oversee the Mobile Enforcement Team.

That failure “amounts to deliberate indifference to the rights of persons with whom the New Hampshire State Police come into contact,” including Ramirez, his attorney, Michael Iacopino, wrote in the lawsuit. “It is this failure that has created and encouraged racial and ethnic profiling and harassment.”

Spokespeople for the Department of Safety and New Hampshire Attorney General’s Office declined to comment because the litigation is pending. The state had not filed a response to the lawsuit as of Monday morning. Efforts to arrange an interview with Ramirez through his attorney were unsuccessful.

The Mobile Enforcement Team (MET) was formed in 2015, and state officials say it has stopped large quantities of drugs from coming into New Hampshire. But it has attracted criticism from defense lawyers and civil-rights advocates for using minor traffic violations as pretexts to check out unrelated suspicions about drivers, particularly on Interstate 95 in southeastern New Hampshire.

Police around the country have used such tactics for decades, and often describe them as a proactive way to look for drugs and guns, though empirical studies have questioned their effectiveness. Researchers say the vast majority of such stops do not turn up drugs or other evidence of criminal activity.

Legal scholars have long criticized pretextual stops as arbitrary and prone to racial bias. Because traffic violations are so common, they note, police can usually find a reason to stop just about any car and then probe for more information — whether or not they have a reasonable basis to believe the driver is committing a crime.

In police reports and court hearings, Mobile Enforcement Team troopers have described following and stopping cars after claiming to find them suspicious based on drivers’ and passengers’ body language, their use of rental cars, legal driving behavior like obeying the speed limit and, in one case, a car being unusually clean.

Superior Court Judge Andrew Schulman wrote in 2019 that the MET seemed to be carrying out an “extraordinary policy” of “what amounts to rolling spot checks based on hunches.”

The unit has also seen a number of drug cases dropped due to constitutional violations by troopers. Since 2016, judges have thrown out evidence from at least 10 Mobile Enforcement Team vehicle stops because of issues related to illegal searches and seizures.

Because New Hampshire State Police collects limited data, it’s hard to rigorously assess the agency’s vehicle stops for potential racial bias.

But court records suggest the defendants in those cases are often people of color. In a previous review of drug cases from 2018 to 2020, the Collaborative found at least 18 clear examples of pretextual stops by state troopers, mostly MET members, in Rockingham County. More than half involved an out-of-state vehicle with at least one Black or Latino occupant.

Department of Safety officials have said they don’t think there’s evidence of racial disparities in MET stops and pointed to the fair and impartial policing policy that State Police adopted in 2019. Quinn, the commissioner, said in 2020 that troopers “cannot dictate the color of those in drug trafficking organizations.”

But questions about racial profiling have arisen in previous cases involving pretextual stops by state troopers.

Last year, Judge Daniel St. Hilaire threw out the evidence from a January 2020 stop by Trooper Brian Gacek — who is not a member of the MET, but has used similar tactics on I-95 — after the two defendants claimed Gacek admitted to racially profiling them.

St. Hilaire wrote that while he wasn’t entirely convinced by the defendants’ version of events, he did not find Gacek’s testimony believable enough to prove he had legitimate reasons for the stop.

“In the Court’s experience, it is unusual and somewhat disconcerting, for a police officer to follow a vehicle for six miles simply because the driver held the steering wheel at ten and two and appeared ‘rigid,’ ” the judge wrote of Gacek’s explanation for why he singled out the car, which was registered in Maine and had a white driver and Black passenger.

In September 2020, Berky, the trooper who stopped Ramirez, pulled over a Latina woman and Black man traveling together in a car with Maine plates. Berky said he began monitoring the car because he thought it suspicious that the woman, who was driving, wore a hoodie with the hood up.

The passenger’s defense attorney called it “troubling” that Berky chose to follow the car “solely because the driver was wearing a hoodie — a piece of clothing that has potent associations with racial profiling.”

U.S. District Judge Steven McAuliffe upheld the stop for unrelated reasons in an order last April, but added a footnote criticizing one of Berky’s stated justifications for the stop — an air freshener dangling from the rearview mirror.

“[S]uch offered grounds, if anything, add weight to claims that what is actually happening is profiling of citizens based on mere hunches and biases related to drug interdiction efforts,” McAuliffe wrote.

Tyler Dumont, a spokesperson for the Department of Safety, did not answer when asked by the Collaborative whether state troopers continue to use pretextual stops.

Paul Cuno-Booth can be reached at paulcunobooth@collaborativenh.org. These articles are being shared by partners in The Granite State News Collaborative as part of our Race and Equity Initiative. For more information visit collaborativenh.org.

This article originally appeared on Portsmouth Herald: Lawsuit alleges NH state trooper profiled Latino driver in 2019 stop