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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.