Pretext Searches and Seizures: in Search of Solid Ground

• Publication year: 2013

§ 30 Alaska L. Rev. 151. PRETEXT SEARCHES AND SEIZURES: IN SEARCH OF SOLID GROUND

Alaska Law Review
Volume 30, No. 2, December 2013
Cited: 30 Alaska L. Rev. 151

PRETEXT SEARCHES AND SEIZURES: IN SEARCH OF SOLID GROUND

Jeff D. May, Rob Duke, and Sean Gueco ^{[*] [**] [***]}

ABSTRACT

Despite numerous attempts to subject the use of pretext law enforcement stops to Alaska Constitutional scrutiny, the issue has never been thoroughly reviewed. Alaska courts currently allow pretext investigative stops so long as a reasonable officer following permissible police practices could have made the stop for the proffered reason. This is a minority position, inconsistent with federal law which deems pretext motivations constitutionally irrelevant. It is also far less protective of individual rights than an outright ban on officer pretext. This reasonable officer standard, however, offers some advantages over banning all types of pretext. This Article explores Alaska's historical treatment of pretext justifications, discusses why pretext is prominent in police work, documents some of the leading arguments against pretext, and frames the issue in light of an opportunity to balance competing policy concerns. After considering precedent, reason, and policy, the authors urge the Court of Appeals to continue use of the reasonable officer standard, because it strikes the best balance between governmental, societal, and individual concerns. Nevertheless, the Article argues that the standard should be refined and suggests a workable test for determining when pretext stops are outside acceptable police practices.

INTRODUCTION

One of the most pressing legal issues facing the nation is the belief that officers engage in racial profiling through the use of the pretext stop. ^[1] If the controversy surrounding Arizona's 2010 legislative attempts to curb illegal immigration demonstrated anything, it is the prevalence of the perception that police target minority racial and ethnic groups. Despite provisions in Arizona Senate Bill 1070 that expressly banned targeting individuals solely on the basis of their apparent ancestry, ^[2] many believed the new legislation shielded profiling from review and even encouraged it. ^[3] Perhaps their fears were justified. Recently, the Southern District of New York ruled that the New York Police Department's "Stop and Frisk" policy allows officers to racially stereotype the individuals they stop and frisk. ^[4] The controversies surrounding these policies in Arizona and New York call attention to a widespread belief that law enforcement officers do not equally enforce the laws of the land on all groups of citizens. ^[5] For many commentators, pretext stops are one of the primary ways in which police engage in discriminatory enforcement of the law.

Pretext stops occur when police officers temporarily detain an individual for particular reasons, but then use that stop to search or question him in relation to offenses for which the officers have neither reasonable suspicion nor probable cause. These stops are "pretextual" in the sense that the purported reason for the stop is not the real reason for which the officers are acting. ^[6] Using pretext legal justifications is a common and efficient tool that allows officers to engage in investigations that they would not otherwise be justified in performing. ^[7]

For example, an officer who wants to question a driver about an unrelated crime can use stopping the driver for a minor traffic violation as a pretext for asking about the other crime. ^[8] Similarly, an officer who stops and frisks persons during street encounters is sometimes using those stops as pretexts for investigating other crimes. ^[9] While some believe these pretextual stops are a useful law enforcement tool, ^[10] others argue that pretext violates constitutional standards for intrusion into the affairs of citizens ^[11] and shields race-based policing from discovery. ^[12]

Alaska has not yet confronted the issue of pretext stops in the same public, controversial manner in which Arizona and New York City have. Nevertheless, this Article recommends a proactive consideration of this issue in order to highlight legal alternatives to the practice and avoid any appearance of providing "legal cover" for discriminatory conduct. Toward this end, we examine pretext stops from three perspectives: precedent, reason, and policy.

This Article highlights the need for Alaska to avoid following precedent that has not been thoroughly explained or deemed constitutional. Toward this end, it examines the development of Alaska law on pretext investigations in the light of how courts in other states have addressed the issue. The Article also seeks to enrich the discussion by adding a law enforcement perspective to what has largely been a discussion amongst lawyers. This added perspective emphasizes why pretext justifications are prevalent in police work and how external influences on officers ensure their continued use. We encourage Alaska to adopt a standard that allows some unavoidable and beneficial forms of pretext while protecting against illegitimate forms such as racial profiling. Such a policy is grounded in reason and reality, while addressing the fears of many minorities regarding the dangers of pretext. If applied correctly, the reasonable officer standard is such a standard.

However, Alaska courts employ the reasonable officer standard differently than other jurisdictions. ^[13] Alaska courts use it to define whether pretext motivations exist. ^[14] Other jurisdictions acknowledge from the outset that pretext is present, and instead use the standard to decide whether the pretext will be permitted. ^[15] Alaska's current application of the standard is problematic because it does not adequately address whether an officer's primary actual reason(s) for the stop are such that they eclipse the relevance of whether a reasonable officer would have acted on the observed infractions alone. For example, sometimes an officer's actual reasons are so illegitimate that the question of whether a reasonable officer might have done something similar is rendered moot. Alaska courts need to articulate a workable test for determining when police actions driven by a complex mixture of pretextual and other reasons are, on the whole, consistent with reasonable police practice or not.

Section One discusses legal standards governing pretext motivations and shows that Alaska courts have been reluctant to address whether pretext stops are allowed under the Alaska Constitution. This review of Alaska's legal precedents highlights the inherent conflict, analyzed in Section Four, between the high value society places on individual autonomy and freedom from government intrusion, and the similarly high value it places on public safety and social responsibility. Alaska courts often decide cases involving these competing values in favor of the former. ^[16]

This preference for individual autonomy closely relates to arguments presented in Section Two, which examines how law enforcement (including the legislative branch, the executive branch, and various levels of law enforcement bureaucracy) balances concerns for individual autonomy and public safety. Police officers, in particular, are often forced to use creative strategies that attempt to bridge the gap between the demand to protect the public and the strict procedural requirements imposed by the courts. This fact places courts in the position of deciding when an officer's use of pretext is a reasonable police practice because it effectively balances competing interests. Recognizing that this balancing of interests is an unavoidable aspect of police work, courts should adopt a standard that allows for reasonable uses of pretext, but imposes sufficient constraints to allow them to adjudicate effectively cases where pretext stops were truly discriminatory.

Section Three examines the arguments against allowing pretext stops. While most jurisdictions allow pretext stops, ^[17] there is a large body of literature criticizing the Supreme Court's decision in Whren v. United States, ^[18] which allowed pretext stops, and an even larger body of research suggesting that racial profiling occurs under the guise of these stops. ^[19] This section highlights the two most prominent arguments against allowing pretext stops and demonstrates the need for Alaska to place some limits on its use.

Section Four argues that courts will be able to devise an adequate approach to pretext stops if they examine the issue in the light of precedent, reason, and public policy. In light of this precedent, we encourage Alaska to adopt a holistic rule for pretext stops based on reason and policy rather than precedent alone. Such an approach offers the best chance of adequately addressing competing concerns raised in this contentious debate.

The final section provides recommendations for analyzing pretext stops that balance precedent, reason, and policy and conform to constitutional standards. We present these recommendations as a path toward devising an alternative to the Alaska Court of Appeals' use of the reasonable officer standard articulated in Nease v. State. ^[20] Our alternative approach does not reject this standard outright, but recommends a different way of understanding it. We believe it is time for the court to survey the landscape and see if this is the appropriate standard. If it is, the court needs to elaborate and defend it. We offer a...