dissenting.
Because I strongly disagree with the majority’s conclusion that the district court correctly denied Harvey’s motion to suppress evidence, I respectfully dissent.
The Sixth Circuit recently discussed pre-textual stops and held the correct inquiry is “whether this particular officer in fact had probable cause to believe that a traffic offense had occurred, regardless of whether this was the only basis or merely one basis for the stop.” United States v. Ferguson, 8 F.3d 385 (6th Cir.1993). I dissented in Ferguson because I believe this test is ripe for *113abuse. Today, although I am bound by the law of this circuit, I write separately to emphasize how the instant case illustrates the abuses of which I warned in Ferguson and to insist that egregious circumstances, such as in this case, warrant an exception to the Ferguson test.
In the instant case, Officer Collardey admits repeatedly he stopped the vehicle because the occupants were African-Americans. On redirect he testified:
Q: Officer Collardey, you gave the Prosecutor two reasons for your effecting a traffic stop. One was the traffic infraction, speeding and equipment violation, and then you referred to something that I hadn’t heard yet today, that was, fitting the general description of some sort of a profile?
A: It did, yeah, it did fit.
Q: Was it a certain way that the damage had been on this car that made it look like it fit a profile for you?
A: No, I made that statement on the basis of my experience on that highway, and drug traffickers that I have arrested coming to the Flint area.
Officer Collardey continued:
Q: What else was it that made you think this fits some sort of a profile?
A: There were three young black male occupants in an old vehicle.
Q: Three young black male occupants in a car?
A: Yes, sir.
Q: And that was the basis or part of the basis for your stopping that car?
A: The age of the vehicle and the appearance of the occupants.
Under oath, Officer Collardey stated he stopped the vehicle because there were three African-American males in an old car. Recognizing Officer Collardey’s use of the minor traffic violations as pretext for stopping the vehicle, the district judge improperly rehabilitated Officer Collardey’s testimony:
Q (district judge): What was it about the appearance of the occupants that got your attention?
A: It wasn’t so much the appearance. Almost every time that we have arrested drug traffickers from Detroit, they’re usually young black males * driving old cars.
Q (district judge): Was that why you stopped the car, or did you stop the car for traffic violations?
A: I stopped them for traffic violations.
(emphasis added). Only after the court gave Officer Collardey an either/or question did he give the appropriate response.
My dissent in United States v. Ferguson emphasized that the test, as adopted by the majority, provides officers with unlimited discretion to determine whom they will stop for minor traffic violations. As a result, the court renders meaningless the Fourth Amendment’s prohibition of unwarranted searches and seizures.
The Fourth Amendment imposes “a standard of ‘reasonableness’ upon the exercise of discretion by government officials.” Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). Under the Ferguson test, the court’s failure to limit an officer’s discretion to stop motorists once a traffic offense establishes probable cause negates any reasonableness inquiry. In essence, the absence of limitations allows pretext to serve as probable cause thus undermining the guarantees of the Fourth Amendment.
The instant case clearly pinpoints the abuses to which the Ferguson test is subject. By myopically focusing on whether probable cause exists to believe a motorist committed a traffic offense, the majority waived any meaningful review of the seizure and its legality, and allowed pretext (the traffic violations) to serve as probable cause. Here, Harvey and his companions committed minor traffic violations. They drove three miles over the speed limit in a ear which was missing a bumper and a headlight. Indisputably, probable cause existed to believe a traffic offense occurred. The problem, however, is the officer said he stopped the vehicle because the occupants were African-Americans. Officer Collardey testified if the occupants had not been African-Americans, he *114would not have stopped the car. Officer Collardey’s improper motivation for the stop inserted an unconstitutional illegality into the stop. Applying the Ferguson test, because a minor traffic violation was present, the majority concludes Collardey’s primary race-based motivation, although illegal, is irrelevant.
Equal Protection principles absolutely and categorically prohibit state actors from using race to differentiate between motorists. Yet, the majority acquiesces to an officer’s substitution of race for probable cause and essentially licenses the state to discriminate. Moreover, the majority states race-based motivation is irrelevant under these or any circumstances. Not only is the officer’s race-based motivation relevant, it is patently unconstitutional.
The Fourteenth Amendment of the United States Constitution prohibits state actors from denying persons equal protection of the laws. U.S. Const. amend. XIV, sec. 1; see also Wygant v. Jackson Brd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986); Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978); City of Richmond v. Croson, 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989). In Samaad v. City of Dallas, the Fifth Circuit stated: “The heart of the equal protection clause is its prohibition of discriminatory treatment. If a governmental actor has imposed unequal burdens based upon race, it has violated the clause.” 940 F.2d 925 (5th Cir.1991). Traditionally, courts review state action singling a person out solely on the basis of race with the strictest scrutiny, and generally condemn the action. See, e.g. Croson, 488 U.S. at 493, 109 S.Ct. at 721-22. (Holding the City of Richmond’s voluntary affirmative action plan was not “narrowly tailored to remedy prior discrimination,” a compelling governmental interest).
In my twenty-six years as a federal judge, although I have suspected discrimination by police officers, I have never heard an officer admit he stopped an individual based on the color of his skin. This case presents blatantly egregious circumstances and warrants an exception to the Ferguson test. Such an exception does not grant special treatment to African-Americans, but merely ensures equal treatment as guaranteed by the Equal Protection Clause. The majority’s willful disregard of the flagrant discriminatory treatment in this case endorses a system where one set of traffic regulations exist for African-Americans, like myself, and a more lenient set exists for white Americans. For the same minor traffic infraction, a white motorist remains an unimpeded violator, whereas an African-American motorist automatically becomes a suspected felon and menace to society. Such disparate treatment alienates and ostracizes African-Americans, fortifying their badge of second-class citizenship.
As the old adage warns, the more things change, the more they remain the same. In Montgomery, Alabama, on January 26, 1956, police officers arrested and jailed Dr. Martin Luther King, Jr. for allegedly driving thirty miles per hour in a twenty-five mile per hour zone. See Randall Kennedy, Martin Luther King’s Constitution: A Legal History of the Montgomery Bus Boycott, 98 Yale L.J. 999, 1028 (1989). Today, everyone readily acknowledges the police officers stopped, arrested, jailed and harassed Dr. King because he was an African-American and because he actively and vigorously sought equal protection and equal treatment for African-Americans. Today, almost thirty years later, the majority’s actions in this case again allow police officers to stop individuals based on their race under the guise of an insignificant traffic violation. It is a sad commentary that this court not only approves disparate treatment based on race but legitimizes a “legal” basis for disparate treatment. Certainly this circuit cannot in good faith state that the decisions in Ferguson and in this case represent equal justice under law.
Unfortunately, the present case is not unique; rather, it eloquently illustrates the plight of many African-Americans. News reports detail unreasonable stops of African Americans by police motivated solely by irrational and illogical racial stereotypes. For example, a national newspaper reported “the same percentage of whites and blacks use drugs.” Sam Meddis, Suburbs ‘Have Gotten Off Easy, ’ Whites’ Drug Activity Often Better *115Hidden, USA Today, (July 26, 1993), at 6A. Arguably, for every 100 people arrested for drug use or trafficking, 50 should be black. Blacks, however, are four times as likely to be arrested for drugs in central cities, six times as likely in suburbs, and three times as likely in rural areas. Id. In Michigan, the ratios are much worse. For example:
Detroit 2:1
Warren 32:1
Royal Oak 27:1
Livonia 43:1
Dearborn Heights 40:1
Lincoln Park 46:1
Id. African-Americans are more likely to be arrested because drug courier profiles reflect the erroneous assumption that one’s race has a direct correlation to drug activity. See United States v. Taylor, 956 F.2d 572, 580 (6th Cir.1992) (en banc) (Keith dissenting) (citing Sheri Lynn Johnson, Race and the Decision to Detain a Suspect, 93 Yale L.J. 214, 234 (1983)); see also Morgan Cloud, Search and Seizure by the Numbers: The Drug Courier Profile and Judicial Review of Investigative Formulas, 65 B.U.L.Rev. 843 (1985) (discussing the historical use of drug profiles).
The deprivation of Defendant Harvey’s constitutional rights in this case demonstrates the victimization of African-Americans by a flawed and stereotypical system. His case presents clear and articulated racial discrimination. National statistics illustrate how the insulation of the use of illegitimate, illegal and illogical stereotypes disproportionately impacts African-Americans. Con-cededly, disproportionate impact alone does not constitute a violation of the Equal Protection Clause; intentional discrimination, however, does. Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2049, 48 L.Ed.2d 597 (1976). Here, Officer Collardey testified he stopped the vehicle because it contained three young African-Americans. The majority, however, blindly refuses to recognize this glaring constitutional violation and suppress the evidence that flowed from it.
This court’s application of the Ferguson test to this ease is repugnant to our Constitution and national conscience and does not reflect due regard for the integrity of our justice system. Courts exist to promote justice and judges have the duty to support and protect the Constitution as well as to observe its fundamental guarantees. Unfortunately, in this case, the Sixth Circuit abdicates that sacred duty.