'Could have,' 'would have': what the Supreme Court should have decided in Whren v. United States.

• Jurisdiction: United States
• Author: Donahoe, Diana Roberto
• Date: 22 March 1997

1. Introduction

   After the Supreme Court decision in Whren v. United States,(1) I cannot drive my car without feeling paranoid that a police officer will single me out for a legitimate stop based upon his unsupported hunch that I might possess drugs. I forget to signal before changing lanes or I stop at a stop sign for twenty seconds to give my daughter a toy in the back seat, and I wonder if I will be stopped because an officer incorrectly believes I possess drugs. Ironically, I find comfort in my belief that officers only arbitrarily stop individuals who fit their stereotype of a drug courier -- a young black male. As a white female, I am uncomfortably comforted.

   The Whren decision is the cause of my paranoia. It held that a police officer may stop a vehicle if there is probable cause that a minor traffic violation has occurred even if that traffic stop is a "pretext" for a suspected crime for which no probable cause exists. In Whren, narcotics officers observed a vehicle stop at a stop sign for more than twenty seconds. That vehicle was a Nissan Pathfinder occupied by two young black males. The Pathfinder turned suddenly without signaling and "sped off quickly."(2) Four or five plainclothes vice officers pursued and stopped the vehicle by cornering it at an intersection, blocking oncoming traffic.(3) As Officer Soto approached the vehicle, he observed what appeared to be crack cocaine in the passenger's hands.(4) Soto opened the driver's door, jumped over the driver, and seized the drugs.(5) Although Officer Soto testified that he did not plan to issue a ticket, his justification for the stop was based upon a District of Columbia traffic infraction for not "paying full time and attention" to driving.(6)

   The District of Columbia Circuit Court adopted the "could have" test and held that the stop was valid under the Fourth Amendment because the officer "could have" stopped the car for the traffic violation.(7) The defendant appealed, arguing that the appropriate test was the "would have" test: the stop was invalid unless "under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose."(8) The Supreme Court resolved a split in the Circuit Courts about the proper test to apply in pretext cases and affirmed the use of the "could have" test.(9)

   Holding simply that probable cause is probable cause, the Supreme Court found the "could have" test to be facially neutral and thus valid. Had the Supreme Court assessed the reality of the enforcement of minor traffic infractions, however, it would have found that probable cause for traffic violations often is used arbitrarily to stop for a suspected crime where probable cause for the suspected crime does not exist. The Fourth Amendment seeks to prohibit arbitrary intrusions that the "could have" test specifically permits, and therefore the Supreme Court's decision was incorrect.

   This Essay criticizes the Court's failure to into the reasonableness of the pretext stop. By affirming the "could have" test without inquiry into its true application, the Whren Court condoned arbitrary, unconstitutional searches and seizures. Part II asserts that Fourth Amendment precedent required the Court to use a balancing test to determine the general reasonableness of pretext cases. It then applies that test to the facts of Whren and concludes that pretext stops are unreasonable. Part III discusses the various tests the lower courts have applied to determine if pretext stops result in arbitrary intrusions. It finds the "would have" test most appropriate and applies that test to the facts of Whren. Part IV explains the ramifications of the Court's failure to adopt the "would have" test. Finally, Part V suggests proposals the legislative and executive branches can adopt to curb the unbridled police discretion that inevitably will result from the Whren decision.

2. The Fourth Amendment Balancing Test

   The Fourth Amendment applies to all seizures, including those that involve only a brief detention.(10) "Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a `seizure' of `persons'"(11) and must be reasonable.(12) The Supreme Court fashioned a balancing test to determine standards of reasonableness."(13) Under this test, the Court determines the reasonableness of a particular law enforcement practice by balancing the intrusion on the individual's Fourth Amendment right to be free from arbitrary interference by law enforcement officers against its promotion of legitimate government interests.(14)

   Although the Supreme Court has stated that this test is necessary to determine the constitutionality of a seizure(15) and has used it historically in Fourth Amendment automobile cases,(16) it failed to apply this test in Whren.(17) Had it done so, the Court would have found the pretext stop unreasonable.

   1. The Historical Use of the Balancing Test in Automobile Cases

      Historically, the Supreme Court has applied the balancing test in automobile cases by weighing the individual's right to be free from arbitrary police interference against various legitimate government interests.(18) For example, in Delaware v. Prouse,(19) the Court held that police could not randomly stop cars to spot check for the validity of drivers' licenses because the minimal contribution to highway safety did not justify the arbitrary intrusion. Similarly, random stops of vehicles on the highway to spot check for illegal aliens without any level of suspicion were not reasonable under the balancing test.(20) On the other hand, systematic stops of all vehicles at permanent checkpoints were reasonable to curb entry of illegal aliens(21) and to limit drunk driving.(22) The Court found the significant difference to be the intrusive nature of being singled out by an officer on the highway: in the field, there is a grave danger of unreviewable discretion that would be abused by some officers, while there is no discretion when all vehicles are stopped at a checkpoint.(23) The pretext stop embodies the grave danger of abused, unreviewable discretion because officers can single out an individual for a crime where no probable cause exists and stop him for a minor traffic violation. It follows logically that the same test should have been applied in Whren, a case involving the reasonableness of the pretext stop.

   2. Whren Failed to Use the Appropriate Balancing Test

      Although the balancing test has been used to determine general reasonableness in automobile cases, the Supreme Court decided that the balancing test was not appropriate in Whren because the stop was based on probable cause and, therefore, the "result of that balancing [was] not in doubt."(24) This reasoning, however, is superficial. The standard of probable cause on its face is reasonable -- if the police have probable cause to believe that a crime has been committed, they should be permitted to stop a suspect. Nevertheless, probable cause of otherwise unenforced, minor traffic violations is used by the police as a vehicle arbitrarily to stop suspects for serious crimes. This abuse of the probable cause standard results in no standard at all for police to follow. Instead, police use the guise of a traffic violation arbitrarily to stop drivers for crimes for which they have no probable cause. Arbitrary intrusions are unreasonable unless they are outweighed by a legitimate government interest. The balancing test was thus necessary in Whren to determine whether the intrusion on the petitioners' Fourth Amendment rights was outweighed by the government interest in traffic safety.

      The Supreme Court rationalized that the balancing test was not used in cases where probable cause existed unless the searches or seizures were conducted in such an extraordinary manner to be unusually harmful to an individual's privacy or even physical interests.(25) But this rationalization is unpersuasive for two reasons: first, lack of probable cause is not a prerequisite for the balancing test; and second, even if it is a prerequisite, pretext stops are unusually harmful to an individual's privacy rights because they result in the arbitrary enforcement of laws, which mandates an inquiry into reasonableness.

      First, the Supreme Court has repeatedly described the balancing of competing interests as "the key principle of the Fourth Amendment"(26) and has Stated that "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."(27) Lack of probable cause has not been a prerequisite for applying the balancing test in these cases.(28) Even more significant is the fact that the Court in Whren admits that "in principle every Fourth Amendment case, since it turns upon a `reasonableness' determination involves a balancing."(29) Yet, the Court failed to apply the test in this case. The balancing in every Fourth Amendment case is thus merely a "principle" on paper, and the petitioners are left with the reality of an unreasonable search.

      Second, even if probable cause were a prerequisite to the balancing test, the pretext stop falls into one of the exceptions suggested by the Court. The arbitrary stopping of individuals in vehicles for an otherwise unenforced minor traffic violation is unusually harmful to an individual's privacy rights. It allows officers arbitrarily to single out individuals on the road, using probable cause as an excuse rather than a valid standard to stop under other circumstances. This behavior poses exactly the danger the Court held in violation of the Fourth Amendment in the prior automobile cases.(30)

      The Supreme Court further attempted to rationalize its failure to use the balancing test by discussing Prouse,(31) the very case that focuses on the importance of the term "arbitrary" and the "grave danger" of abuse...