"Driving while black" and all other traffic offenses: the Supreme Court and pretextual traffic stops.

• Author: Harris, David A.

1. Introduction

   The Supreme Court's decision in Whren v. United States(1) could not have surprised many observers of the Court's Fourth Amendment jurisprudence. In Whren, police officers used traffic violations as a pretext to stop a car and investigate possible drug offenses; the officers had neither probable cause nor reasonable suspicion to stop the driver for narcotics crimes.(2) In the Supreme Court, the government advocated the "could have" standard: any time the police could have stopped the defendant for a traffic infraction, it does not matter that police actually stopped him to investigate a crime for which the police had little or no evidence.(3) The defense asked the Court to adopt a "would have" rule: a seizure based on a traffic stop would only stand if a reasonable officer would have made this particular stop.(4) The Court sided with the government If police witness a traffic violation, the Court said, they have the simplest and clearest type of probable cause imaginable for a stop.(5) Requiring more would force lower courts to make post hoc Fourth Amendment judgments based on either the mindset of a reasonable officer or the actual (perhaps ulterior) motives of the arresting officer, neither one of which the Court saw as necessary, useful, or relevant to the task of judging the constitutionality of a seizure.(6) After Whren, courts will not ask whether police conducted a traffic stop because officers felt the occupants of the car were involved in some other crime about which they had only a hunch; rather, once a driver commits a traffic infraction, the officer's "real" purpose will make no difference at all.(7)

   For the sake of of argument, I will concede that the decision in Whren makes some sense, at least from the point of view of judicial administration. But examined more carefully, Whren does more than opt for a more workable rule: it approves two alarming law enforcement practices. Neither are secret; on the contrary, the law of search and seizure has reflected both for a long time.(8) But both represent profoundly dangerous developments for a free society, especially one dedicated to the equal treatment of all citizens.

   First, the comprehensive scope of state traffic codes makes them extremely powerful tools under Whren. These codes regulate the details of driving in ways both big and small, obvious and arcane. In the most literal sense, no driver can avoid violating some traffic law during a short drive, even with the most careful attention. Fairly read, Whren says that any traffic violation can support a stop, no matter what the real reason for it is; this makes any citizen fair game for a stop, almost any time, anywhere, virtually at the whim of police. Given how important an activity driving has become in American society, Whren changes the Fourth Amendment's rule that police must have a reason to forcibly interfere in our business -- some basis to suspect wrongdoing that is more than a hunch.(9) Simply put, that rule no longer applies when a person drives a car.

   This alone should worry us, but the second police practice Whren approves is in fact far worse. It is this: Police will not subject all drivers to traffic stops in the way Whren allows. Rather, if past practice is any indication, they will use the traffic code to stop a hugely disproportionate number of African-Americans and Hispanics. We know this because it is exactly what has been happening already, even before receiving the Supreme Court's imprimatur in Whren. In fact, the stopping of black drivers, just to see what officers can find, has become so common in some places that this practice has its own name: African-Americans sometimes say they have been stopped for the offense of "driving while black."(10) With Whren, we should expect African-Americans and Hispanics to experience an even greater number of pretextual traffic stops. And once police stop a car, they often search it, either by obtaining consent, using a drug sniffing dog, or by some other means.(11) In fact, searching cars for narcotics is perhaps the major motivation for making these stops.

   Under a Constitution that restrains the government vis-a-vis the individual(12) and that puts some limits on what the authorities may do in the pursuit of the guilty, the power of the police to stop any particular driver, at almost any time,(13) seems oddly out of place. And with the words "equal justice under law" carved into the stone of the Supreme Court itself, one might think that the use of police power in one of its rawest forms against members of particular racial or ethnic groups might prompt the Court to show some interest in curbing such abuses.(14) The defendant-petitioners presented both of these arguments -- the almost arbitrary power over any driver inherent in the "could have" approach, and the racially biased use of traffic stops -- to the Court. Yet the Court paid little attention to these obvious implications of its decision. Whren is more than a missed opportunity for the Court to rein in some police practices that strike at the heart of the ideas of freedom and equal treatment; Whren represents a clear step in the other direction -- toward authoritarianism, toward racist policing, and toward a view of minorities as criminals, rather than citizens.

2. THE CASE

   Whren presented the Court with relatively simple facts. Plain clothes vice officers in an unmarked police car saw two young men driving a vehicle with temporary tags in an area known for drug activity.(15) The police observed the vehicle pause at a stop sign for longer than usual.(16) While the officers did not see the men do anything to indicate involvement in criminal activity, they still became suspicious.(17) The driver turned without signalling and sped off.(18) The police stopped the vehicle, and observed the passenger holding a bag of cocaine in each hand.(19)

   The government argued that the traffic violations the driver committed -- not giving "full time and attention to the operation of the vehicle,"(20) failing to signal,(21) and travelling at a speed "greater than is reasonable and prudent under the conditions"(22) -- gave the police probable cause to stop the car. The government contended that with probable cause arising from the traffic violations, the stop of the car passed constitutional standards, regardless of the fact that the officers may actually have intended to investigate drug offenses and not traffic infractions.(23) The defense asserted that the officers had no actual interest in traffic enforcement, and had used the traffic infraction only as a pretext. For the real objective of the police -- searching for evidence of possible drug offenses -- no probable cause or reasonable suspicion existed.(24) The defense contended that this made the stop (and the resulting seizure of the cocaine) unconstitutional.(25) The District Court admitted the evidence, and at trial both defendants were found guilty.(26) The U.S. Court of Appeals for the District of Columbia Circuit affirmed, stating that "a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation," despite the fact that the officer may subjectively believe that those in the car may be engaging in some other illegal behavior.(27)

   The Supreme Court adopted the "could have" theory. The Court said that any time a police officer observes a traffic violation, she has probable cause to stop the vehicle, regardless of the fact that the detailed nature of traffic codes enables any officer that wishes to do so to stop virtually any motorist at almost any time by using the traffic infraction as a pretext.(28) The Court discounted statements in prior cases that seemed to cast pretextual stops in an unfavorable light,(29) and stated that the law actually supported the opposite proposition: An officer's motive does not "invalidate[] objectively reasonable behavior under the Fourth Amendment."(30) Relying heavily on United States v. Robinson(31) and Scott v. United States,(32) the Court said that the officer's state of mind in a Fourth Amendment situation is irrelevant, "as long as the circumstances viewed objectively, justify that action."(33) "We think," the Court went on, that Robinson and other cases "foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivation of the individual officers involved."(34)

   Addressing the "would have" standard that the defendant proposed, the Court reject,6d the notion that the results of a suppression motion should turn on whether a reasonable officer, under the police practices and regulations in the jurisdiction in which the case arose, would have made the stop for the purposes of traffic enforcement.(35) Trial courts would find such a test much too difficult to administer, the Court said, and would end up "speculating about the hypothetical reaction of a hypothetical constable -- an exercise that might be called virtual subjectivity."(36) The result would be that the application of Fourth Amendment law would vary from place to place, depending on police regulations and practices, a result the Court found unacceptable.(37) But the Court failed to acknowledge that the district court in Whren would not have needed to speculate to apply the "would have" standard. District of Columbia Police regulations prohibited officers in plain clothes and officers in unmarked vehicles from making traffic stops unless the violations posed an immediate threat to others.(38) The officers clearly violated this rule in Whren, thus, there is little doubt that their conduct was not what a reasonable officer in their department would do, at least assuming that a reasonable officer follows regulations. Additionally, there was no doubt that their traffic enforcement actions were a pretext for drug investigation without probable cause or reasonable suspicion.(39)

   The Court gave...