Leaving Well Enough Alone-why the "would Have" Standard Works Well for Determining Pretext Stops in Washington State: a Critical Analysis of the Whren Decision

• Publication year: 1997
• Citation: Vol. 21 No. 04

SEATTLE UNIVERSITY LAW REVIEWVolume 21, No. 1SUMMER 1997

NOTES

Leaving Well Enough Alone-Why the "Would Have" Standard Works Well for Determining Pretext Stops in Washington State: A Critical Analysis of the Whren Decision

Kelly Montgomery(fn*)

I. Introduction

In the spring of 1995, Tony, a senior at Seattle University, was required to take a "ride-along" for his Police and Community class. Tony chose to take his ride-along with the King County Police Department.(fn1)

It was Saturday night, about 10:30 p.m. Tony and the police officer were traveling down Pacific Highway South when they spotted a dirty Dodge Dart with expired tabs. The officer turned on his flashing lights, and pulled over the Dodge. The police officer shined his vehicle spotlight on the car. Upon illumination, the officer realized an older woman was driving. He said, under his breath, "Darn, it's a chick." He went up to the car, told the woman to get current tabs, and let her drive away.

What if the driver had not been a chick? What if the driver had been a young, black male? At the time, Tony questioned the significance of the officer's words. He was left with the feeling that, if the officer had known the driver was an older woman, he would have never stopped her. His comment, "Darn, it's a chick," made Tony wonder if the police officer would only pull over a potential score-something more exciting than the mundane, run of the mill, expired tabs infraction.

As the above scenario illustrates, police officers have considerable discretion over whom they will stop for a traffic violation. In June 1996, the United States Supreme Court, in Whren v. United States, handed down a ruling that could allow police to exercise nearly limitless discretion.(fn2) The Whren decision effectively overruled the pretext stop doctrine under traditional Fourth Amendment analysis.(fn3) Under the Whren holding, the constitutional standard for a police traffic stop is whether the officer "could have" made the stop, based only on whether the officer had probable cause to believe a traffic infraction occurred.(fn4)

Consider the introductory scenario and substitute a young, longhaired, white male for the older woman. Suppose the officer was a plainclothes narcotics officer, who saw this young male driving his Dodge Dart with expired tabs. Suppose also that this youth fit the King County police department's "drug-image" profile. If the narcotics officer pulled him over, looking for drugs under the guise of expired tabs, would it have been a legal stop? If the narcotics officer found drugs, would they have been admissible at trial?

Under the Whren decision, this stop would have been constitutional, because the officer had some form of probable cause: the youth was driving with expired tabs.(fn5) It would not have mattered that the narcotics officer was not a traffic officer, that is, one who normally enforces traffic infractions. It would not have mattered if the narcotics officer had not even seen the expired tabs. It would not have mattered that a traffic officer in a similar situation would normally not have stopped an individual for that minor violation. As long as the narcotics officer could point to probable cause of any kind, the stop would be constitutional under the Whren decision.(fn6)

In Washington state, however, such a "pretext" stop would not be permissible. Washington courts consider this stop a "pretext" because a reasonable plainclothes narcotics officer would not normally concern him or herself with ordinary traffic stops.(fn7) Washington courts use the "would have" standard to determine whether a stop is pretextual.(fn8) Under this standard, the courts first determine whether the officer had probable cause to believe that a traffic infraction occurred, and second, whether a reasonable officer, acting under the same circumstances, "would have" made the stop.(fn9) Because a reasonable narcotics officer would probably not make an ordinary traffic stop, pulling the youth over because he was driving with expired tabs would probably be a pretext stop. Such a stop would not be permissible under Washington law.(fn10)

This Note argues that the "could have" standard makes a mockery of the probable cause protections provided by the Fourth Amendment and that the Washington courts should not adopt that standard. Instead, because Washington courts have traditionally held that Article 1, Section 7, of the Washington Constitution provides broader protection than the Fourth Amendment of the Federal Constitution, the Washington courts should continue to use the "would have" standard to determine whether a stop is pretextual under Article 1, Section 7.(fn11)

Part II of this Note briefly describes the applicable search and seizure doctrine and tracks the split in the federal circuits regarding which standard is appropriate for the courts to apply in determining whether a pretext stop has occurred. Specifically, this section will compare the strengths and flaws of three standards: (1) the subjective, (2) the "could have," and (3) the "would have."

Part III of this Note introduces the Whren case and analyzes the unanimous opinion, authored by Justice Scalia. This section contrasts Justice Scalia's reasoning and conclusions with those of Washington State courts and various commentators.

Part IV shifts focus and undertakes an independent state constitutional analysis by applying the six nonexclusive Gunwall factors.(fn12) Application of the Gunwall factors indicates whether the Washington State Constitution provides broader protection than does the Fourth Amendment. Next, this section analyzes the facts of Whren under Washington State law to determine whether Washington courts would have decided Whren differently under Article 1, Section 7, of the State Constitution.

This Note concludes that, while the Whren decision textually meets the Fourth Amendment requirements, it tramples on the spirit of the U.S. Constitution in two ways. First, the Whren decision makes a mockery of the probable cause protections of the Fourth Amendment. Second, it effectively discards any meaningful pretext stop doctrine, thus giving police officers nearly unbridled discretion to conduct pretext stops. As such, Washington courts should enforce a pretext doctrine with bite by continuing to apply the "would have" standard.

II. Search and Seizure Principles

The Fourth Amendment to the U.S. Constitution has two equally important parts. The first part of the amendment protects people from unreasonable searches and seizures, while the second part establishes the probable cause requirement for the issuance of warrants.(fn13) Fourth Amendment protections are triggered only when police action rises to the level of a search or seizure and when the police conduct is unreasonable.(fn14) To determine whether police conduct has violated the Fourth Amendment, the courts apply an objective test that considers the officer's conduct under the totality of the circumstances.(fn15) This objective standard is a balancing test that requires the court to weigh the level of intrusion into a person's privacy against the "promotion of legitimate governmental interests."(fn16)

The second part of the Fourth Amendment identifies the probable cause requirement.(fn17) Generally, the police are required to have a warrant based upon probable cause to arrest someone or to search their person, home, or belongings.(fn18) Probable cause to arrest requires that the totality of circumstances apparent to the police officer must be such that a reasonable person could conclude that the particular individual has committed a crime.(fn19) Probable cause to search also contains a temporal limitation and requires that the items sought are reasonably likely to be found at the place to be searched.(fn20) Many arrests and searches, however, are conducted without a warrant, since there are numerous exceptions to the warrant requirement.(fn21) But, even without a warrant, the officer must have probable cause to conduct the search or to make the arrest.(fn22) In most cases, it is the officer who makes the initial determination that probable cause exists, but subject to review by a magistrate at a later time.(fn23)

An officer's actions may amount to something less than a fullblown search or arrest.(fn24) Stop-and-frisk actions are less intrusive to a person than a full-blown search or arrest.(fn25) Therefore, an officer need not have probable cause to conduct a stop-and-frisk. The officer must, however, be able to point to specific and articulable facts, based on the totality of the circumstances, that indicate the person is committing a crime.(fn26)

When a police officer stops and detains an individual for a traffic violation, it is a seizure under the Fourth Amendment.(fn27) Although the detention may be brief, and the purpose of the stop narrowly focused, the officer must at least have specific and articulable facts that support the stop.(fn28) The police officer will normally have more than an articulable suspicion that a traffic infraction has occurred because the police officer usually has seen the infraction, which amounts to probable cause for the stop. Ironically, it is the probable cause that provides the mechanism that gives rise to the whole doctrine of pretext stops, because lawful pretext stops are based on probable cause.

A. Pretext Stops

...