“lonesome Road”: Driving Without the Fourth Amendment

• Publication year: 2013

Washington Law ReviewVolume 36, No. 3, SPRING 2013

“Lonesome Road”(fn*): Driving Without the Fourth Amendment

Lewis R. Katz(fn**)

I. INTRODUCTION

While America promotes the need for governments to act in accord with the rule of law throughout the world, we have abandoned the rule of law in our own country. Our streets and highways have become a police state where officers have virtually unchecked discretion about which cars to stop for the myriad of traffic offenses contained in state statutes and municipal ordinances, and that discretion is often aimed at minority motorists. Courts look the other way and will not inquire into the officer's decision to stop a particular motorist if the reviewing court finds that the officer had sufficient facts to believe that the motorist committed a traffic offense.(fn1) Where there is an objectively reasonable justification for the stop, pretextual traffic stops may not be challenged even when the underlying reason for the stop is race.(fn2)

Once an officer stops a motorist for a traffic offense, the officer has discretion to transform that traffic stop into an investigation of other serious crimes without the check of reasonable suspicion or probable cause to limit the inquiry.(fn3) The only limitation on the investigation of other crimes is that the duration of that stop is subject to the Fourth Amendment reasonableness standard.(fn4) Courts disagree on what length of time is reasonable, but even a fifteen-minute traffic stop is long enough for an officer to run a drug dog around the car, ask the motorist about nontraffic offenses, and request permission to search the car.(fn5) Many police routinely ask people stopped for nonarrestable traffic violations for permission to search the car, obviously to look for evidence unrelated to the traffic offense. Whether the motorist voluntarily consents to the search will be litigated only if that search leads to the discovery of evidence; courts determine the voluntariness of the consent without regard to the critical issue of whether the motorist knew that he or she had a right to refuse.

In some states, police also have discretion to arrest rather than issue a traffic citation even for a minor traffic offense, further enhancing the officer's status as the unchecked king of the highway. The Supreme Court has held that an arrest for the most trivial offense does not violate the Fourth Amendment if state law allows it.(fn6) In states where officers have the discretion to write a ticket or to arrest, officers may base that decision upon whether they want to search the motorist and possibly even the vehicle.(fn7) The law has developed so that the officer need not articulate a legal basis for the search.(fn8) When the officer's testimony of the incident indicates an absence of lawful justification for the search, the reviewing and appellate courts will uphold the search if there are other legal grounds for the search.(fn9) The message those courts are sending to the police is search the car now, and a reviewing court will find a lawful justification for the search later.

The protections of the Fourth Amendment on the streets and highways of America have been drastically curtailed. This Article traces the debasement of Fourth Amendment protections on the road and how the Fourth Amendment's core value of preventing arbitrary police behavior has been marginalized.(fn10) Over the past fifteen years, the Supreme Court has handed down four decisions solidifying police discretion and largely eliminating Fourth Amendment oversight of the decision to stop a particular car and the scope of investigation that follows the stop.(fn11) The remaining Fourth Amendment issues provide scant protection for motorists. This Article first discusses Whren v. United States,(fn12) which insulates pretextual traffic stops from Fourth Amendment challenges.

This Article contends that the existence of a traffic offense should not be the end of the inquiry but the first step, and that defendants should be able to challenge the reasonableness even when there is proof of a traffic offense.(fn13) Similarly, the Article contends that the existence of state law authorizing arrests for minor, often trivial traffic offenses should be assessed next in determining the reasonableness of an officer's decision to make a custodial arrest for a minor traffic offense.(fn14) The Article outlines the many different categories of encounters between police and motorists, and then sets forth how police are empowered to transform the traffic stop into an investigation of more serious crimes.(fn15) Finally, the Article proposes that a police officer should be required to offer a reasonable explanation for subjecting a defendant stopped for a minor traffic offense to an expanded investigation.(fn16) Motorists subject to the broader inquiry tend to be young, black or Hispanic men who are profiled as potential drug carriers.(fn17) The Supreme Court has turned its back on this population and has eliminated meaningful Fourth Amendment review of what happens on the streets and highways after it is established that a traffic offense has occurred. This Article suggests that the Supreme Court reconsider its uninterrupted line of cases over the past fifteen years that have stripped the Fourth Amendment of its meaningfulness on the roads and highways of America. The Article proposes the following: (1) police should be limited in the stops that they can make, and stops should be required to serve a highway safety purpose; (2) the commission of a minor traffic offense should not be sufficient justification for a custodial arrest without a showing of additional need; (3) police should not be allowed to escalate every traffic stop into an inquiry about more serious offenses without reasonable suspicion; and (4) police should demonstrate a reason for requesting to search a minor traffic offender's vehicle. Without such reform, American motorists will continue to be subject to the whims of police officers every time they step foot into their cars.

II. THE COLLAPSE OF FOURTH AMENDMENT PROTECTIONS IN TRAFFIC STOPS

A. Whren v. United States

Many factors influence a police officer's decision not only to single out and stop a vehicle for a traffic infraction, but whether to warn, cite, or arrest the motorist in jurisdictions where arrest for a traffic offense is an available option.(fn18) The law finds some factors permissible and beyond reproach, such as when the traffic violation creates a risk to the motorist or to other cars on the road.(fn19) However, some factors are not beyond reproach; some motorists are targeted because the officer wants to investigate more serious crimes and hopes to obtain the motorist's “consent” to search the vehicle.(fn20) Some officers single out motorists from the larger driving population based on race or ethnicity, which is an unconstitutional practice.(fn21) However, the Supreme Court has foreclosed the pretext challenge under the Fourth Amendment if a legal basis existed for the traffic stop, regardless of the officer's motivation.(fn22) Moreover, the Equal Protection Clause, as demonstrated below, is unlikely to gain footing as a viable alternative to litigate and control pretextual stops.

In Whren v. United States,(fn23) plainclothes officers in two unmarked police cars patrolling in a “high drug area” observed young black men in a truck with temporary license plates.(fn24) The men were stopped at a stop sign for more than twenty seconds, and the driver was looking down into his passenger's lap. The driver turned right without signaling and sped off at an unreasonable speed. One of the unmarked police cars went after the truck and stopped alongside the truck, which by then was stopped at a red light behind other traffic. The officer testified that he intended to issue a warning to the driver for his failure to signal a turn and for speeding. When the officer approached the driver's side of the vehicle and ordered the driver to put the car in park, the officer saw two large plastic bags that appeared to contain crack cocaine in the driver's hands. By initiating the traffic stop, the officers violated District of Columbia police regulations that allow plainclothes officers in unmarked police cars to enforce traffic laws “only in the case of a violation that is so grave as to pose an immediate threat to the safety of others.”(fn25) At the pretrial suppression hearing, the arresting officer denied that he stopped the car because of racial profiling.(fn26)

Justice Scalia, writing for a unanimous Court, said, “We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race,”(fn27) but then eliminated Fourth Amendment pretext challenges based upon race in a criminal case: “Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”(fn28) The officer's state of mind “does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”(fn29) When the prosecution can demonstrate probable cause or reasonable suspicion to justify a traffic stop or arrest, an officer's ulterior motive is irrelevant. Of course, in most cases it will be impossible to prove an officer's ulterior motive-as in Whren where the officer denied engaging in racial profiling. However, the Court's test also forecloses such challenges even when...