Arbitrary law enforcement is unreasonable: Whren's failure to hold police accountable for traffic enforcement policies.

• Author: Witmer-Rich, Jonathan
• Position: Whren at Twenty: Systemic Racial Bias and the Criminal Justice System

CONTENTS INTRODUCTION I. WRITTEN RULES VERSUS ENFORCEMENT PRACTICE: CREATING THE CONDITIONS FOR ARBITRARINESS II. ARBITRARY LAW ENFORCEMENT IS UNREASONABLE III. POLICE ACCOUNTABILITY FOR ENFORCEMENT POLICY IV. PRETEXTUAL STOPS AS ENTRAPMENT V. THE FALSE DANGER OF FOURTH AMENDMENT "VARIABILITY" VI. PREVENTING ARBITRARINESS IS NOT ENOUGH TO PREVENT DISCRIMINATION CONCLUSION INTRODUCTION

Whren v. United States (1) is surely a leading contender for the most controversial and heavily criticized Supreme Court case that was decided in a short, unanimous opinion. (2) The slip opinion is only thirteen pages long, and provoked no dissents or even concurring opinions. Critical reaction has been overwhelmingly negative. (3) Criticism notwithstanding, the Court has not retreated from Whren, but continues to repeat its core holding. (4)

Some justices who joined the unanimous opinion have since expressed reservations about the breadth of powers available to police in traffic stops. Justice Kennedy, writing just a year after Whren, dissented from the Court's holding in Maryland v. Wilson (5) that passengers during a lawful traffic stop could be ordered to exit the car with no individualized suspicion. He stated, "[w]hen Whren is coupled with today's holding, the Court puts tens of millions of passengers at risk of arbitrary control by the police. If the command to exit were to become commonplace, the Constitution would be diminished in a most public way." (6)

Justice Ginsburg, joined by Justices Stevens, O'Connor, and Breyer, likewise raised questions in a concurring opinion in Arkansas v. Sullivan. (7) These justices joined the majority "[g]iven the Court's current case law"--namely Whren* Yet Justice Ginsburg added that "if experience demonstrates 'anything like an epidemic of unnecessary minor-offense arrests,' I hope the Court will reconsider its recent precedent" (9)--an apparent reference to both Atwater v. City of Lago Vista (10) and Whren. Justice Ginsburg likewise quoted earlier decisions suggesting that precedent should be overruled "when necessary 'to bring its opinions into agreement with experience and with facts newly ascertained.'" (11)

In recent years "facts newly ascertained" have indeed come to light--such as clear statistical evidence that the New York City Police Department's stop-and-frisk program was being conducted in a patently unconstitutional manner, even under such generous standards as Whren and Terry v. Ohio. (12) New York police conducted a huge number of stops--over 685,000 stops in 2011, up from around 97,000 in 2002. (13) Suspects were frisked for weapons in about half of these stops, but a weapon was actually found in only 1.5% of the frisks. (14) Prosecutors obtained convictions for only around three percent of stops. (15) Those persons stopped were disproportionately African American or Hispanic--fifty-two percent and thirty-one percent, respectively. (16) And while minorities were the overwhelming targets of stops and frisks, the "hit rate" for searches of minorities was lower than that for whites. (17)

These results were both predictable and actually predicted. (18) As Tracey Maclin has explained, this discovery is nothing new: "In America, police targeting of black people for excessive and disproportionate search and seizure is a practice older than the Republic itself." (19)

Given the immediate and sustained scholarly criticism of Whren, and the significant and ever-growing body of evidence of the real harms inflicted through arbitrary and discriminatory policing, why did all nine justices of the Supreme Court join in a brief opinion squarely rejecting the argument that racially discriminatory law enforcement was unreasonable under the Fourth Amendment?

The answer lies at least in part in the baseline from which the Court chose to evaluate police conduct in pretextual stops. From one perspective, the question in Whren is whether police can pull over a motorist when the police "have probable cause to believe [the motorist] has committed a civil traffic violation." (20) From this perspective, it seems hard to see how the answer could be "no"--after all, "[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." (21) The text of the Fourth Amendment limits government discretion by, among other things, requiring individualized suspicion--probable cause that is particular to the place, person, or item sought. (22) Once there is probable cause, the Fourth Amendment's concern seems to be satisfied.

The Court found itself at loss to imagine a world in which police would be constitutionally prohibited from making a traffic stop in the face of clear evidence that a traffic violation had in fact occurred: "we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement." (23) In the end, the Court could not imagine things from a different perspective: "we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure. " (24)

But there is another baseline against which one might evaluate the reasonableness of police conduct--the baseline created by police policy and practice. When the police consistently choose to enforce the law--here, the traffic code--by using standards different from those written into the code, then the appropriate baseline for assessing the reasonableness of police conduct is by evaluating that conduct against the police department's own chosen enforcement practices and policies. As stated well before Whren by Wayne LaFave: "[i]t is the fact of the departure from the accepted way of handling such cases which makes the officer's conduct arbitrary, and it is the arbitrariness which in this context constitutes the Fourth Amendment violation." (25)

The Court's decision to evaluate police conduct against the written traffic code, as opposed to evaluating police conduct against police practice and procedure, is what led the justices to unanimously conclude that police conduct must be reasonable when there is probable cause of a traffic infraction. This framing of the issue is one of the fundamental mistakes of Whren. (26) It represents a failure by the Court to hold police to the standards that police create themselves, resulting in a clear practice of arbitrary--and thus unreasonable--policing.

Part I frames the problem in Whren with a story. Part II sets forth the fundamental Fourth Amendment principle underlying this article--the prohibition against arbitrary search and seizure. Part III explains how arbitrariness applies to Whren, and to police enforcement policies. Part IV describes pretextual traffic stops as a form of entrapment. Part V addresses the Whren Court's concern that the Fourth Amendment should not vary from place to place. Part VI notes that arbitrariness is distinct from discrimination, and acknowledges that ending arbitrariness would not necessarily end discriminatory law enforcement.

1. WRITTEN RULES VERSUS ENFORCEMENT PRACTICE: CREATING THE CONDITIONS FOR ARBITRARINESS

   Every fall, when I teach Whren v. United States, (27) most of my students seem to share the basic framing adopted by the justices: if the police have probable cause that a motorist has violated the traffic code, the resulting traffic stop must therefore be constitutionally reasonable. To hold otherwise would be perverse--somehow forbidding the police from conducting a traffic stop when it is plain a violation has been committed.

   After hearing this near-consensus, I have begun sharing with my students the following story:

   This fall, as every fall, I distribute and then read aloud my Criminal Procedure syllabus: class begins promptly at 2:00 p.m., and any student entering after 2:00 p.m. will be marked late--and suffer a corresponding penalty in the class participation grade.

   For the first few classes, nervous supplicants come to the podium after class, begging forgiveness for arriving one or two minutes late--always with a good reason. I reassure each of them that I will not penalize them for their minor tardiness; I am understanding professor. After a few weeks, my students have learned that my written 2:00 p.m. policy actually has a built-in buffer zone. Only students who show up significantly late are penalized. By halfway through the semester students even have a pretty good sense of what "significantly late" means--somewhere around five to six minutes. I have never told them there is a five-minute grace period, but they have learned it nonetheless.

   Near the end of the term, one of my students (Maggie) walks into class at 2:03 p.m.--plainly a few minutes late for class. After class, Maggie smiles politely at me as she walks past my podium on her way out, and I inform her, "Just so you know, you just lost five class participation points for your tardiness today." Stunned and (initially) ashamed, she turns red and mumbles an apology.

   Later, having had the time to compose herself and talk with other students in the class, Maggie's embarrassment turns to anger. She petitions me to remove the penalty; I refuse. She then petitions the academic standards committee, arguing that my imposition of a penalty on her was unreasonable.

   You are on the committee. I defend my sanction by pointing to the written policy in the syllabus, adding that I also read the policy aloud on the first day of class.

   So, I ask my students: Am I being unreasonable?

   My students overwhelmingly conclude that I am. What is the nature of my unreasonableness? It is clear--my imposition of a sanction on Maggie is arbitrary. It is true that I wrote and explained a 2:00 p.m. attendance policy. But then, through my conduct, I repeatedly and consistently adopted a "de minimis" enforcement practice...