"Could" this be the end of Fourth Amendment protections for motorists?

AuthorGlantz, Craig M.
PositionSupreme Court Review

Whren v. United States, 116 S. Ct. 1769 (1996)


    In Whren v. United States,(1) the Supreme Court established a bright-line rule that a police officer's traffic stop is justified by probable cause to believe that a traffic violation has occurred.(2) The Court declined to adopt a standard that would take police officers' subjective motivations into account, asserting that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."(3) Thus, the Court, with its decision, legitimated a purely objective "could" test, which simply asks whether a police officer "could have" stopped a vehicle for a traffic infraction.(4)

    This Note argues that the Court's decision to adopt a purely objective approach to police traffic stops is problematic. First, this Note asserts that the Court's bright-line rule actually facilitates arbitrary searches and seizures, and, therefore, runs counter to the proscriptions of the Fourth Amendment. Second, this Note maintains that the Court's purely objective approach facilitates and, indeed, protects, the use of impermissible bases by police officers to effect traffic stops, and that the Court's proposed remedy to this problem--the Equal Protection Clause--is insufficient. Finally, this Note contends that, in light of the above consequences and competing objectives and issues, the Court should have adopted a modified objective standard--a "totality of the circumstances" approach--that takes police officers' subjective intentions into account, as such a standard is fully consistent with Supreme Court precedent.



      The Fourth Amendment to the United States Constitution prohibits the violation of "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ."(5) In order "to safeguard the privacy and security of individuals against arbitrary invasions,"(6) the Amendment imposes a standard of "reasonableness" upon the discretion of government officials.(7) Invasions are "arbitrary" if they are "conducted at the discretion of executive officials, who may act despotically and capriciously in the exercise of the power to search and seize."(8) Indeed, a law enforcement officer "must be able to point to specific and articulable facts" before he can effect a seizure or undertake a search.(9)


      A pretextual search or seizure is one conducted by law enforcement officers at least partially for reasons other than the justifications later submitted by the government.(10) In other words, activity is pretextual when law enforcement officers engage in conduct on the basis of constitutionally invalid reasons, but behave in an "objectively reasonable" way.(11) This allows prosecutors to later justify police conduct by utilizing a valid Fourth Amendment rationale that is consistent with the conduct's "objective appearance."(12) For example, a pretextual investigatory stop occurs when a police officer, who lacks the requisite "reasonable suspicion" to conduct a search of an automobile and its occupants for drugs, uses a sound justification, such as a traffic violation, as a pretext to pull over the automobile and conduct the search.(13)


      Previous to Whren, the Supreme Court offered little useful guidance regarding pretextual investigatory activity. Describing the doctrine, one commentator said:

      The pretextual search doctrine lies between two distinct and important

      considerations: (1) unfettered police discretion leading to arbitrary

      intrusions into the private rights of everyday citizens and

      (2) unproductive inquiries into a police officer's subjective intent.(14)

      Indeed, several of the Court's cases prior to Whren suggest that governmental employment of pretext and unbridled discretion is unconstitutional. Conversely, some of the Court's other cases favor "objective" standards of review that do not require courts to engage in a subjective investigation into the officer's state of mind.

      1. Early Supreme Court Disapproval of Governmental Use of Pretext and Unbridled Discretion--Lefkowitz, Abel, and Terry

        An early example of Supreme Court condemnation of government agents' use of pretext occurred in United States v. Lefkowitz.(15) In Lefkowitz, government agents arrested the respondent for conspiracy to violate the National Prohibition Act, and made subsequent searches and seizures of the respondent's property.(16) In deciding whether the searches and seizures were reasonable as incidental to the arrest, the Court asserted in dicta that "[a]n arrest may not be used as a pretext to search for evidence."(17)

        In Abel v. United States,(18) the Supreme Court again indicated disapproval with governmental pretextual activity.(19) In Abel, the F.B.I. suspected the petitioner, an illegal alien, of espionage but did not possess sufficient evidence to make an arrest.(20) The F.B.I. notified immigration officials as to the petitioner's illegal status.(21) After the immigration officials arrested the petitioner, the F.B.I. agents immediately searched his hotel room.(22) Speaking for the Court, justice Frankfurter upheld the search, premising his ruling on the district court's finding that the government agents acted in good faith.(23) Frankfurter noted, however, that had the district court found "bad faith" on the part of the agents, "it would indeed reveal a serious misconduct by law enforcing officers ... [that] must meet stern resistance by the courts."(24) The Abel Court thus seemed to suggest that "bad faith" pretextual intrusions were not constitutionally valid.

        Lastly, the Supreme Court denounced the use of unbridled discretion by police officers in the landmark case of Terry v. Ohio,(25) as it condemned police usage of "inarticulate hunches" to justify intrusions.(26) In Terry, a police officer stopped and frisked the defendant on a city street, basing his action on the defendant's "suspicious" behavior.(27) The Court stated that:

        In justifying the particular intrusion the police officer must be able to

        point to specific and articulable facts which, taken together with rational

        inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth

        Amendment becomes meaningful only when it is assured that at some point the

        conduct of those charged with enforcing the laws can be subjected to the more

        detached, neutral scrutiny of a judge who must evaluate the reasonableness of

        a particular search or seizure in light of the particular circumstances. And in

        making that assessment it is imperative that the facts be judged against an

        objective standard: would the facts available to the officer at the moment

        of the seizure or the search "warrant a man of reasonable caution in the belief"

        that the action taken was appropriate. Anything less would invite intrusions upon

        constitutionally guaranteed rights based on nothing more substantial than

        inarticulate hunches, a result this Court has consistently refused to


        Thus, while Terry created an "objective" test, the "evil" against which the test was directed--the "hunch"--is, as one commentator describes, "most assuredly a creature of the officer's subjective consciousness."(29)

      2. The Supreme Court Addresses Traffic Violation Arrests--Robinson and Gustafson

        The Supreme Court seemed to favor objective standards of review as it addressed issues involving traffic violation arrests in the companion cases of United States v. Robinson(30) and Gustafson v. Florida.(31) In Robinson, a police officer pulled over and arrested the respondent for driving an automobile after the revocation of his license.(32) The officer subsequently searched him, resulting in the discovery of heroin.(33) The Court, in a footnote, rejected the respondent's claim that the arrest for a traffic violation served simply as pretext for a police officer to conduct a narcotics search.(34) The Court stated: "We think it is sufficient for purposes of our decision that [the] respondent was lawfully arrested for an offense and that . . . placing him in custody following that arrest was not a departure from established police department practice."(35) Furthermore, the Court did not take subjective factors into account.(36)

        In Gustafson, a police officer pulled over and arrested the petitioner for failure to produce a driver's license.(37) The officer subsequently searched him, resulting in the discovery of marijuana cigarettes.(38) The petitioner argued for suppression of the marijuana, claiming that, unlike Robinson, there was neither a police regulation that obligated the officer to take the petitioner into custody, nor a police policy requiring body searches upon field arrests.(39) The Court rejected these differences as not "determinative of the constitutional issue," holding that it was "sufficient that the officer had probable cause to arrest the petitioner and that he lawfully effectuated the arrest and placed the petitioner in custody."(40)

      3. Supreme Court Concern Over Unfettered Police Discretion--Brignoni-Ponce and Opperman

        The Court exhibited a substantial concern for unfettered police discretion in United States v. Brignoni-Ponce.(41) At issue in Brignoni-Ponce was the constitutionality of a U.S. Border Patrol policy that allowed roving patrols near the Mexican border to stop vehicles and question occupants about their immigration status and citizenship based solely on the occupants' apparent Mexican ancestry.(42) Referring to the hazards posed by unobstructed government power, the Court held that this policy was unconstitutional.(43) The Court noted that "the reasonableness requirement of the Fourth Amendment demands something more than the broad and unlimited discretion sought by the Government," and warned that "[t]o approve roving patrol stops ... without any suspicion ... would. subject residents of these and other areas to potentially unlimited...

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