An Empirical Assessment of Pretextual Stops and Racial Profiling.

AuthorRushin, Stephen

Introduction I. The Fourth Amendment and Pretextual Stops A. Whren v. United States B. Scholarly Criticism of Whren. C. State Departures from Whren 1. State v. Ladson: A ban on pretextual stops 2. State v. Arreola: The introduction of mixed-motive stops II. Existing Literature III. The Effects of Arreola on Police Behavior A. Study Design B. Dataset C. Trends in the Raw Data D. Effects of Arreola on Traffic Stops E. Effects of Daylight on Traffic Stops F. Event Study G. Methodological Limitations IV. Implications for the Law of Policing A. Harmful Consequences of Whren B. Lack of Options for Redress 700 C. Decoupling Criminal Investigations and Traffic Enforcement Conclusion Appendix A. Modeling Choices 1. Reliance on the number of traffic stops by race by county 2. Calculating and clustering of standard errors 3. Parallel-trends assumption 4. Use of triple-difference regressions and a placebo test 5. Additional controls and fixed effects B. Alternative Models That Include Stops Where Race Is Unidentified as Stops of Non white Drivers C. Alternative Models Assuming Delayed Effect of Training in Mixed- Motive Stops D. Effects of Arreola on Searches Introduction

In 1996, the U.S. Supreme Court held in Whren v. United States that pretextual traffic stops do not violate the Fourth Amendment. (1) As long as a police officer identifies an objective violation of a traffic law, the officer may lawfully stop a motorist--even if the officer's actual intention is to use the stop to investigate a hunch that, by itself, would not amount to reasonable suspicion or probable cause. (2) In a unanimous decision, the Court concluded that an officer's "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." (3)

The scholarly response to Whren has been "overwhelmingly critical." (4) Modern traffic codes "regulate the details of driving in ways both big and small, obvious and arcane." (5) If an officer follows any motorist long enough, the motorist will eventually "violat[e] some traffic law," making "any citizen fair game for a stop, almost any time, anywhere, virtually at the whim of police." (6) Scholars have suggested that when given this unfettered discretion, police officers will use it in a way that disproportionately targets motorists of color. (7) And given the high bar that litigants must clear in order to prevail on a selective-enforcement claim under the Equal Protection Clause of the Fourteenth Amendment or its Fifth Amendment analog, the Whren decision left individuals of color with few means to challenge the discriminatory use of pretextual stops. (8) Thus, scholars and activists have long worried that by allowing officers to engage in pretextual stops, Whren contributed to widespread and unchecked racial profiling (9) by American police officers. (10)

Despite concern about the link between racial profiling and pretextual stops, no academic study to date has empirically evaluated the effect of Whren (or similar state cases) on law-enforcement behavior. (11) This gap in the literature stems not from a shortage of scholarly interest, but from the limited data available on police behavior and a lack of within-jurisdiction variation in pretextual-stop policies. (12) While many studies have found evidence of police officers engaging in racially biased behavior, (13) no existing research has been able to empirically link pretextual-stop doctrines like Whren to subsequent patterns of racial profiling. (14)

Employing a novel analysis of a newly available dataset, this Article is the first to illustrate empirically that judicial doctrines permitting police officers to engage in pretextual traffic stops contribute to a statistically significant increase in racial profiling of minority drivers. (15) We focus our analysis on a series of legal events in State of Washington that presents a rare opportunity to analyze the effects of pretextual stops on police behavior. After the U.S. Supreme Court decided Whren in 1996, the Washington Supreme Court established differing levels of protection against pretextual stops in a series of opinions. (16) In 1999, the Washington Supreme Court held in State v. Ladson that the state constitution barred police from conducting pretextual traffic stops. (17) Then, in 2012, the court changed course in State v. Arreola, concluding that officers could conduct "mixed-motive traffic stop[s]," effectively legalizing the use of tactics akin to pretextual traffic stops. (18) Thus, between 1999 and 2012, Washington effectively barred the use of pretextual stops. (19) Since 2012, however, the police in Washington have operated under a narrowed definition of pretextual stops that more closely mirrors the holding in Whren. (20)

We draw on a comprehensive dataset of 8,257,527 traffic stops conducted by the Washington State Patrol between 2008 and 2015 to examine the effect of Arreola on police behavior. (21) The Washington State Patrol employs around 1,100 state troopers, who are primarily responsible for enforcing traffic laws on highways throughout the state. (22) By employing a difference-in-differences framework, we find that Arreola is associated with a statistically significant increase in traffic stops and searches of nonwhite drivers relative to white drivers. (23) To further bolster our analysis, we use a triple-difference framework to observe the effect of daylight on officer behavior before and after Arreola. (24) We find that most of the increase in traffic stops of nonwhite drivers after Arreola occurred during the daytime, when police officers could more easily ascertain a driver's race. (25) This increase in traffic stops of nonwhite drivers during the daytime hours is also statistically significant. (26) These results support the hypothesis that judicial approval of pretextual stops contributes to racial profiling.

Our analysis has important implications for the study of policing and criminal procedure. Our findings are consistent with one of the most common critiques of the Whren decision: that it leads to racial discrimination in policing. If the Washington Supreme Court's decision in Arreola, with its somewhat narrower holding than Whren, has contributed to a statistically significant increase in the targeting of drivers of color, then Whren may have had the same effect on policing all across the country. This increased targeting of drivers of color via pretextual stops is a matter of serious concern, as even routine traffic stops can escalate to more serious encounters involving the use of force, searches, and other coercive police actions. (27) More broadly, our findings suggest that legal rules granting police officers increased discretionary authority may create the risk of racially discriminatory law enforcement. This insight provides ammunition for scholarly proposals to decouple criminal investigations from traffic enforcement. It may also strengthen calls for the integration of technology into traffic enforcement so as to limit police discretion.

This Article proceeds in four parts. Part I summarizes the history of judicial regulation of pretextual stops, with a particular focus on the scholarly criticisms of Whren and the various sets of rules governing pretextual stops in Washington. Part II evaluates the existing literature on the relationship between pretextual stops and racial profiling. Part III sets out the methodology and results of our difference-in-differences and triple-difference frameworks. Part IV considers the implications of our findings.

  1. The Fourth Amendment and Pretextual Stops

    The Fourth Amendment protects against unreasonable searches and seizures by the government. (28) Police conduct is typically considered a seizure for Fourth Amendment purposes if, under a totality of the circumstances, a police officer restrains a person's freedom of movement either through the use of force or through some show of authority. (29) Traffic stops entail a seizure of a driver "even though the purpose of the stop is limited and the resulting detention is quite brief." (30) A traffic stop is ordinarily considered reasonable for Fourth Amendment purposes when a police officer witnesses a traffic infraction and thus has probable cause to believe a traffic infraction has occurred (31) or when a police officer has reasonable suspicion based on articulable facts that a criminal act is ongoing. (32) In the years leading up to the Whren decision, federal courts of appeals were split on whether pretextual traffic stops complied with the Fourth Amendment. (33) This circuit split set the stage for Whren. (34)

    1. Whren v. United States

      On June 10, 1993, police officers were patrolling a "high drug area" in Washington, D.C., when they observed two young Black men driving a vehicle in a manner that the officers alleged aroused their suspicions. (35) The vehicle sat at a stop sign for "what seemed an unusually long time--more than 20 seconds." (36) The officers also observed one of the youthful occupants of the car looking at the lap of another passenger. (37) When the police car made a U-turn to further investigate, the vehicle allegedly made a sudden right turn without signaling and drove away at an "unreasonable" speed. (38) The officers then pursued the vehicle for a short time before executing a traffic stop. (39) One officer observed two large plastic bags of crack cocaine in the hands of a passenger, Michael Whren. (40) The officers arrested Whren and the car's driver, James Brown. (41) In a search of the vehicle incident to the arrests, they discovered additional drugs. (42)

      Whren and Brown subsequently faced multiple drug-related charges. (43) They tried to suppress the evidence against them by arguing that the officers lacked probable cause or reasonable suspicion to conduct the original traffic stop. (44)

      The government maintained that the stop was objectively reasonable. (45) Regardless of their subjective intentions, the...

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