Evidence of Musical Preference Used in Trial to Presume Gang Membership

What if you were found guilty of a crime simply on your taste in music? Washington Supreme Court just overturned the convictions of 3 men on the basis that their 5^th Amendment rights were violated when tainted evidence was used to convict them in trial. However, the real hooker is that the State used evidence of the defendants’ musical preference to bolster their theory that the men were gang members.

The 3 men were pulled over on account of being suspects in a drive-by shooting. When the men were pulled over, police found 2 red bandanas, cans of beer, and marijuana paraphernalia, but no guns or shell casings as they had expected to find. Officers thought the men had thrown a weapon out of the car prior to being pulled over, but no firearm was ever found and the men were arrested and charged with 3 counts of first degree assault while armed with a firearm with an intent to benefit a criminal street gang. The 3 men were charged together–the prosecution’s theory was that the shooting was in retaliation of rival gang members.

The victim of the drive-by shooting was a member of a local gang, while the defendants were affiliated with a rival gang who generally wore red; hence the officer’s emphasis on the red bandanas found. The State’s theory was that the shooting for which the defendants were on trial was a result of gang rivalry and, as a result of that theory, the State used affirmative statements of gang involvement made by the 3 defendants during the jail booking process.

Further, the State found a song by Los Tigres Del Norte stored on one of the defendant’s phones and used that evidence at trial. What was the State’s theory on this that tied them to the shooting? That that musical preference alone was evidence of gang involvement. Now, it was ultimately the use of those statements made during the jail booking process that got the men’s case overturned on account of violating their 5^th Amendment rights, but the Court’s opinion pointed out that it was unsettled by the fact that the State used the defendant’s musical preference against them.

Are Persons Associated With Gang Members Guilty By Association?

Definitely. Whether warranted or not, a stereotype exists. Is it unconstitutional? Is it the same as racial profiling? Maybe not, but it raises some questions about programs such as ones in California where guilt is prevalent simply by association with gang members.

California’s Street Terrorism Enforcement and Protection (STEP) Act makes it a crime simply to participate in a street gang and assist in any felony criminal conduct. Once associated with a gang, your name goes in a database used by state and local law enforcement officers and that information can be used to add a sentence enhancement on top of any sentence handed down for an underlying felony. The state will consider any criminal act as an act committed for and on behalf of the gang regardless of whether it was gang related or not. The minimum enhancement is 6 months, but some crimes can carry as much as a 15-year enhancement.

Some law enforcement officials typically defend these type of databases on account of “good detective work,” arguing that these type of databases are keeping tabs on gang members, not law abiding citizens, but since it’s up to officers to determine whether someone is in a gang based on a handful of criteria, it’s possible there are persons on the list that aren’t actually part of a gang and never have been.

Presumptions of Guilt Based on Cultural Preferences

Criteria used for these type of databases aren’t based on hard-lined rules–it varies from jurisdiction to jurisdiction. Although officers in California must go through training at a school for gang officers, the criteria and tools used to make these decisions aren’t precise and mistakes are made.

Officers will take note of how a person is dressed, any identifying marks and/or tattoos, where you live, who you hang out with, or who your family is and can decide based on one encounter whether or not to include a person into a gang database. Sound familiar? This time, musical preference was used for a presumption of guilt at trial. Although Washington doesn’t have the same STEP Act as California, it’s another example of how easily information about a person’s cultural associations, like music, can be twisted.

It’s a fact that gang members commit crimes and it’s not databases like ones under STEP that are unconstitutional in and of themselves, but there seems to be more of a constitutional issue with the methods in which the data is collected. Isn’t profiling someone as a gang member and based on their cultural preferences, like music choice, the same as racial profiling, which we know is unconstitutional?