CONTENTS INTRODUCTION I. THE WHREN DECISION II. DEPARTING FROM THE FEDERAL APPROACH A. Washington State Part 1 B. New Mexico C. Alaska D. Washington State Part 2: Another Layer Is Added CONCLUSION INTRODUCTION
Twenty years ago a unanimous United States Supreme Court decided Whren v. United States, (1) a narcotics case resulting from a traffic stop, and held that when police officers make a traffic stop based on objective probable cause of criminal activity, the stop is a reasonable one regardless of the officers' "actual motivations" for making the stop. (2) Under this "could have" test, the officers' "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." (3) As the Court has subsequently stated: "Our unanimous opinion [in Whren] held that we would not look behind an objectively reasonable traffic stop to determine whether racial profiling or a desire to investigate other potential crimes was the real motive." (4)
To say that the Whren decision was and continues to be controversial is an understatement. (5) As two scholars have recently written: "Whren v. United States is notorious for its effective legitimization of racial profiling in the United States." (6) Many have argued for a return to the "reasonable officer" test that some courts used pre- Whren as a means to combat the use of traffic infractions as a pretext for racial profiling. (7) Under the "reasonable officer" test, also known as the "would have" test, a court reviewing an officer's decision to perform a traffic stop would focus not on "whether the [officer] validly could have made the stop, but rather, whether a reasonable officer, given the same circumstances, would have made the stop absent the invalid purpose." (9) The Supreme Court however has not indicated any movement away from the objective probable cause test. (9)
In the years since the Whren decision, only two states, Washington and New Mexico, have determined that their state constitutions provide broader protection than the United States Constitution on this issue. (10) Washington was the first state to do so. Three years after Whren, the Washington Supreme Court ruled that its citizens held "a constitutionally protected interest against warrantless traffic stops or seizures on a mere pretext to dispense with the warrant when the true reason for the seizure is not exempt from the warrant requirement." (11) As discussed below, however, Washington now distinguishes between a "pretextual traffic stop" (12) which would be illegal and a "mixed-motive traffic stop" which might or might not be illegal. (13)
New Mexico was the next state to determine that its state constitution provided protection against pretextual traffic stops. In State v. Ochoa, (14) the New Mexico Court of Appeals departed from Whren instead finding the "federal analysis unpersuasive and incompatible with our state's distinctively protective standards for searches and seizures of automobiles." (15) Alaska courts have considered whether its state constitution provides more protection than the federal constitution, but have not yet decided whether to adopt the pretext doctrine. (16) However, Alaska courts have clarified that if the pretext doctrine did apply, the focus would be on whether a police officer departed from "reasonable police practices" because of the ulterior motive. (17)
In Part I, this Article briefly discusses the Whren decision. Part II discusses the three states that have considered whether to divert from the Whren decision under their own state constitutions. This Article then concludes that while these states have made efforts to combat traffic stops initiated on unconstitutional grounds, such as racial profiling, these state courts are finding it hard to do in the absence of police admission of using a pretext. While this case law suggests that other means of addressing police use of pretext would be more effective than relying on state constitutional law remedies, the Washington mixed-motive test perhaps comes the closest to providing a reviewing court with the means to address whether a police officer has exercised her discretion appropriately.
THE WHREN DECISION
The Fourth Amendment provides the following:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (18) A Fourth Amendment seizure occurs when police order the driver of an automobile to stop, and the driver complies with the order. (19) As the Supreme Court held in Whren, "[a]s a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred." (20)
In Whren, police officers stopped the vehicle in which Michael Whren was a passenger for the stated reason that the driver had violated several provisions of the District of Columbia traffic code. (21) Once the vehicle was stopped, officers observed two large plastic bags of what appeared to be crack cocaine in Whren's hands. (22) The officers arrested Whren and the driver, James Brown, and discovered several types of illegal drugs during a search of the vehicle. (23) Brown and Whren were subsequently convicted for several narcotics violations, and their convictions were upheld on appeal to the District of Columbia Circuit Court of Appeals. (24) Regarding the traffic stop, the Court of Appeals held that "regardless of whether a police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, 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." (25)
At the time of Whren and Brown's petition to the U.S. Supreme Court, "most federal circuits followed the rule that, where an officer has objective probable cause to believe that a traffic violation has occurred, a traffic stop is reasonable under the Fourth Amendment." (26) Two circuits, " [t]he Ninth and Eleventh, however, had held that, when a defendant raised a claim of pretext, 'the proper inquiry ... [was] not whether the officer could validly have made the stop but whether under the same circumstances a reasonable officer would have made the stop in the absence of the invalid purpose.'" (27) The Tenth Circuit had also adopted the reasonable officer test, but prior to Whren, struck the test down "finding that the standard after seven years of application was 'unworkable' and led to 'inconsistent' results." (28)
On appeal to the U.S. Supreme Court, petitioners Whren and Brown accepted that the officers had objective probable cause to believe that Brown had violated several provisions of the traffic code. (29) However, they urged the Court to adopt a different Fourth Amendment test for traffic stops, given the large number of traffic rules and the difficulty of complying with all of these rules; the test the petitioners proposed was: "whether a police officer, acting reasonably, would have made the stop for the reason given." (30) Such a test, petitioners argued, would also prohibit officers from using traffic stops as "a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists" and from deciding "which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants." (31) The petitioners framed this approach as being consistent with "the balancing inherent in any Fourth Amendment inquiry ... weigh[ing] the governmental and individual interests implicated in a traffic stop." (32)
The Court rejected these arguments, noting that "[w]ith rare exceptions not applicable here ... the result of that balancing is not in doubt where the search or seizure is based upon probable cause." (33) In addition, the Court stated: "Not only have we never held, outside the context of inventory search or administrative inspection ... that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary." (34) While agreeing that selective enforcement of the law based upon race was constitutionally prohibited, the Court ruled that the Equal Protection Clause, not the Fourth Amendment, was the constitutional basis for objecting to intentional discrimination: "Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." (35)
Some members of the Court have expressed concern about the "disturbing discretion" afforded to a police officer who can "trail a targeted vehicle with a driver merely suspected of criminal activity, wait for the driver to exceed the speed limit by one mile per hour, arrest the driver for speeding, and conduct a full-blown inventory search of the vehicle with impunity." (36) However, the Court has reaffirmed its holding that a police officer's subjective intentions are not relevant when the officer acts with objective probable cause. (37) For example, in Florida v. Jardines, (38) the Court stated:
a stop or search that is objectively reasonable is not vitiated by the fact that the officer's real reason for making the stop or search has nothing to do with the validating reason. Thus, the defendant will not be heard to complain that although he was speeding the officer's real reason for the stop was racial harassment. (39) II. DEPARTING FROM THE FEDERAL APPROACH
After Whren, the majority of states that considered a claim under their own state constitutions that the police had made a pretextual traffic stop followed the federal precedent even if the state had used a different test prior to the Supreme Court's decision. (40) Nevada, for example, had followed the Ninth, Tenth and Eleventh Federal Circuits in applying...