The Fourth Amendment and traffic stops: bright-line rules in conjunction with the totality of the circumstances test.

• Author: Mendelsohn, Aaron H.
• Position: Supreme Court Review - Case Note

1. INTRODUCTION

   In Ohio v. Robinette,(1) the United States Supreme Court addressed whether a law enforcement officer must advise a detained motorist that he is "free to go" before the motorist's consent to search will be recognized as voluntary.(2) The Court held that the Fourth Amendment does not require the application of any such bright-line rule, but rather is based on a fact-specific reasonableness inquiry.(3) In so deciding, the Court further expanded the power of law enforcement officers to detain motorists as defined in Whren v. United States(4) and Schneckloth v. Bustamonte.(5) The Robinette Court held that the Ohio Supreme Court's application of a bright-line rule, requiring police officers to inform detained motorists that they are "free to go" before a consent to search may be deemed voluntary, is unrealistic and "thoroughly impractical."(6)

   This Note argues that, although the totality of the circumstances test is the appropriate test to apply to consensual officer-pedestrian encounters, that test alone may not be adequate to determine the legality of the officer's conduct in the instant case.(7) Therefore, the additional application of a bright-line rule to the officer-motorist encounter is necessary to delineate the constitutional boundaries of traffic stops and to check the substantial discretion afforded police officers in traffic detentions.(8) This Note concludes that, in the wake of Ohio v. Robinette, individual states should be encouraged to promulgate bright-line rules similar to Ohio's "free to go" advisory rule, based on their state constitutions, rather than on the Fourth Amendment of the United States Constitution.(9)

2. BACKGROUND

   1. ORIGINS AND APPLICATIONS OF THE FOURTH AMENDMENT

      The Fourth Amendment of the United States Constitution provides:

      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 person or things to be seized.(10)

      The Fourth Amendment was adopted in response to the abusive search and seizure practices used by the British government during the American colonial period.(11) Accordingly, its enactment guaranteed to each individual "[t] he security of one's privacy against arbitrary intrusion by the police."(12)

      In Wolf v. Colorado,(13) the Supreme Court held that the Fourth Amendment is enforceable against the states.(14) In Wolf, the Court recognized that Fourth Amendment rights are "basic to a free society" and, thus, are implicit in "the concept of ordered liberty."(15) Therefore, the Court held that the Fourth Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.(16) The Ohio counterpart to the Fourth Amendment, which likewise secures an individual's right to be free from unreasonable searches and seizures, is found in Article I, [sections] 14 of the Ohio Constitution.(17)

      As indicated by the wording of the Fourth Amendment and mirrored by the language of the Ohio Constitution, "reasonableness" is the defining measure of the constitutionality of a government search or seizure.(18) Courts generally find that a person has been "seized" within the meaning of the Fourth Amendment "only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave."(19) The Supreme Court determines the constitutionality of law enforcement practices by weighing the practice's intrusion on a citizen's Fourth Amendment interests against its promotion of legitimate governmental interests.(20)

   2. ENCOUNTERS BETWEEN POLICE OFFICERS AND PEDESTRIANS

      Fourth Amendment interests are not triggered unless a "search" or "seizure" has occurred.(21) But not every encounter between an officer and a pedestrian is a seizure.(22) If a reasonable person would "feel free to decline the officer's requests or otherwise terminate the encounter," no seizure has occurred and no reasonable suspicion is required to justify the officer's conduct.(23) For example, a police officer may approach a pedestrian and ask questions;(24) seek to examine a person's identification or passport;(25) pursue a pedestrian as he runs down the street;(26) and request to search a person's baggage.(27) None of these encounters triggers Fourth Amendment scrutiny so long as "the police do not convey a message that compliance with their requests is required."(28) These decisions reflect the Court's philosophy that the typical police officer-pedestrian encounter does not constitute a seizure where the pedestrians involved are at liberty to come and go as they please.(29)

   3. ENCOUNTERS BETWEEN POLICE OFFICERS AND MOTORISTS

      In contrast to the officer-pedestrian encounter case law, the Supreme Court has recognized that the objective intrusion, authority of the police, and potential for abuse of discretionary power in the context of the officer-motorist encounter raise distinct Fourth Amendment issues.(30) For instance, the Supreme Court stated in Delaware v. Prouse(31) that people are not stripped of their Fourth Amendment rights "when they step from the sidewalks into their automobiles."(32) In Prouse, the Court held that a discretionary spot-check by police officers to verify a motorist's driver's license and registration was unconstitutional.(33) Although the Prouse Court recognized that the purpose of a traffic stop is limited and the subsequent detention is brief, the Court ruled that the act of stopping a vehicle and detaining its occupants constitutes a seizure under the Fourth Amendment.(34)

      1. Legality of a Traffic Stop Depends on Objective Standards

         When considering challenges to police intrusions that occur in the context of a motorist detention, the Court looks to the reasonableness component of the Fourth Amendment.(35) While motorists enjoy significant interests in automobile travel which are protected by the Fourth Amendment,(36) a traffic stop lawfully may be initiated based on an officer's articulable and reasonable belief that a motorist is in violation of the traffic laws.(37)

         The law regarding an officer's intentions during traffic stops developed from the Supreme Court's holding in Terry v. Ohio.(38) Terry represented a departure from the Court's prior requirement that a police officer needed probable cause to suspect criminal activity when detaining an individual.(39) The central tenet of Terry provides that, "[in] justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant that intrusion."(40) The Terry Court employed a two-prong analysis to determine whether the step was reasonable: (1) whether the police officer was justified at the beginning of the stop; and (2) whether the officer's actions were reasonably related to the circumstances that triggered the initial interference.(41)

         Having thus established a framework for judging police behavior during traffic stops by objective criteria, the Supreme Court thereafter consistently held that an officer's subjective intentions do not invalidate reasonably--i.e., objectively--justifiable behavior under the Fourth Amendment.(42) For example, in United States v. Robinson,(43) the Court held that a traffic-violation arrest is not invalidated by the fact that it was "a mere pretext for a narcotics search."(44) Five years later, the Court characterized Robinson as having established that an officer's actions are legally justifiable, regardless of his state of mind, "as long as the circumstances, viewed objectively, justify that action."(45) The Court further expanded this concept in Pennsylvania v. Mimms,(46) holding that, under the Fourth Amendment, an officer may order a motorist who has been validly stopped for a traffic violation to exit his vehicle.(47)

         Most recently, in Whren v. United States,(48) the Court foreclosed any argument that the "constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved."(49) In Whren, the officers used traffic violations as a pretext to stop a car and investigate possible narcotics offenses.(50) The police officers had neither probable cause nor reasonable suspicion to detain the motorist for a drug search after the traffic stop.(51) Therefore, within the context of an officer-motorist encounter, the Whren Court explicitly stated that "subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis."(52)

      2. The Totality of the Circumstances Test Governs Determination of Consensual Encounter vs. Seizure

         A person is "seized" by the police within the meaning of the Fourth Amendment only if, in view of the "totality of the circumstances"(53) surrounding the incident, a reasonable person would have believed that he was not free to leave.(54) Otherwise, any counter between a police officer and a person is deemed consensual."

         Since its decision in United States v. Mendenhall, the Court has rejected efforts to replace the totality of the circumstances test with bright-line rules based on the United States Constitution.(56) In Florida v. Royer, the Court rejected the idea that a distinct dividing-line could be drawn between consensual encounters and Fourth Amendment seizures.(57) The Court stated:

         We do not suggest that there is a litmus-paper test for distinguishing a

         consensual encounter from a seizure or for determining when a seizure

         exceed the bounds of an investigative stop.... [As] there will be endless

         variations in the facts and circumstances, so much variation that it is

         unlikely that the courts can reduce to a sentence or a paragraph a rule

         that will provide unarguable answers....(58)

         The Supreme Court also applied this reasoning in Michigan v. Chesternut,(59)...