Pretext traffic stops.

Whren v. United States 

In its July 1995 issue, the FBI Law Enforcement Bulletin(1) featured an article that identified pretext seizures by law enforcement officers as an emerging problem for the police and the courts. The author of this article observed that in addition to the usual defense challenges to the factual bases for making seizures, defendants were increasingly challenging the validity of the seizures by asserting that the officers were using traffic-related stops as pretexts for conducting investigations into other offenses. In other words, apart from the existence of objective facts - i.e., either probable cause to make an arrest or reasonable suspicion to effect an investigative detention - an officer's subjective intent or motivation also should be considered in deciding whether the action is reasonable under the fourth amendment.

For a time, some courts accepted the idea and condemned what they viewed as "pretextual" seizures. However, in recent years, the Supreme Court has repeatedly held that the reasonableness of a fourth amendment seizure" 'turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time' and not on the officer's actual state of mind at the time the challenged action was taken."(2) Nevertheless, despite the Supreme Court's insistence on a purely objective standard to govern fourth amendment actions, two distinct lines of cases developed, both purportedly applying the same objective standard.

Some courts applied a "could have" test, asking simply whether officers could have effected a constitutional seizure; others applied a "would have" test, asking whether officers would have taken the action under the circumstances, absent some ulterior motive. This conflict among the lower courts made the issue ripe for Supreme Court review, and the case of Whren v. United States(3) provided the opportunity. This article discusses the Court's decision and its implications for law enforcement.

The Facts

On the evening of June 10, 1993, several plainclothes police officers in unmarked police cars were patrolling for illegal drug activity in a "high drug area" of Washington, DC. The officers noticed a dark-colored Nissan Pathfinder with temporary tags stopped at a stop sign. The Pathfinder remained stopped at the intersection for an extended period of time - more than 20 seconds - blocking other vehicles that had stopped behind it. As the officers passed the Pathfinder going in the opposite direction, they observed that the driver appeared to be looking into the lap of the passenger to his right. The officers made a U-turn with the intention of following the Pathfinder when its driver suddenly made a right-hand turn without signalling and drove down the street at an "unreasonable speed." The officers followed until the vehicle stopped behind other vehicles at a traffic light.

One of the officers quickly got out of the police car and walked up to the driver's side of the Pathfinder. From that vantage point, he observed the passenger, Whren, holding a large plastic bag in each hand, the contents of which appeared to be cocaine base. When the officer yelled, "CSA," to advise his partners of a possible violation of the Controlled Substances Act, he heard Whren yell, "Pull off! Pull off!" and saw him take the cover off a power window control panel and put one of the bags inside a hidden compartment. The officer immediately dove across the driver and seized the second bag from Whren's hand.

The officers arrested the occupants and searched the Pathfinder at the scene. They uncovered two tinfoil packets containing marijuana laced with PCP, a bag of chunky white rocks and a large white rock of crack cocaine, numerous unused zip-lock bags, a portable phone, and personal papers.

Arguably, the facts and circumstances confronting the officers at the time they decided to stop the vehicle provided, at least, a reasonable suspicion to support an investigative detention to ascertain whether criminal activity was occurring. The time of evening, the nature of the area in which the officers were patrolling for drug activity, the excessive period of time the suspect vehicle remained stopped at the intersection blocking traffic for no apparent reason, and the unusual actions of the driver "looking down into the lap of the passenger" may well support a reasonable suspicion that "criminal activity may be afoot."(4)

Regardless of the possible existence of a factual justification for investigating drug activity, the officers testified that the purpose for making the vehicle stop was "to enquire why it was obstructing traffic and why it sped off without signalling in a school area."(5) One of the officers conceded that he did not intend to issue a ticket to the driver; he only wanted to ascertain why the driver "was not paying full time and attention to his driving."(6)

The defendants sought to suppress the evidence on the grounds that the vehicle stop was pretextual. They argued the vehicle stop was not supported by probable cause, or even reasonable suspicion, that the defendants were engaged in illegal drug activity. They also contended that the officers used the pretense of making a traffic stop to investigate for evidence of other crimes.

The district court denied the motions to suppress. The court of appeals affirmed that ruling, holding 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 violations."(7)

The defendants appealed this ruling to the Supreme Court, conceding the existence of probable cause to make a traffic stop but arguing that in the unique context of civil traffic regulations, probable cause should not be enough. First, they argued that vehicles are so heavily regulated that an officer will almost always be able to catch a motorist in a technical violation. This, in turn, tempts officers to use traffic stops as a means of investigating other violations for which no factual justification exists. Second, the defendants contended that officers may rely upon such impermissible factors as race in deciding which vehicles to stop.

The Issue and the Court's decisions

The Supreme Court framed the issue in this case as follows:

[W]hether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment's prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws.(8) (emphasis added)

Having framed the issue to squarely address the "would have" test, the Court unanimously rejected it: "As 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...."(9)

The Court noted the district court's finding that the officers had probable cause to believe the defendants had violated the traffic code. Consequently, the vehicle stop was reasonable under the fourth amendment, the evidence thereby discovered was admissible, and the appellate court's upholding of the convictions was correct.

The Whren decision strongly affirms the Court's earlier rulings that neither an officer's intent nor motivation is relevant to the fourth amendment standard of "reasonableness" and emphatically rejects the notion that the "would have" test is consistent with that standard. The Court observed that "...although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations."(10)

The Rationale

The reasonableness required by the fourth amendment is generally determined by balancing the interests of the government (society) and the interests of the individual. The defendants in Whren argued that a balancing of those interests does not support the investigation of minor traffic violations by plain-clothes police officers, such as the one that occurred in this case. Such investigations, they argued, do little to advance the government's interest in traffic safety while potentially producing motorist confusion and alarm.

Acknowledging the balancing test as an integral part of its fourth amendment analysis, the Court stated, "...with rare exceptions...the result of that balancing is not in doubt where the search or seizure is based upon probable cause."(11) When there is probable cause to support the police action, that quantum of information is generally sufficient "to ensure that police discretion is sufficiently constrained."(12) The Court carefully distinguished those cases where a factual justification is not required - e.g., inventory searches or administrative searches - and where unconstrained discretion could lead to unreasonable intrusions.

The nature of inventory searches as caretaking functions permits officers to engage in them in the absence of any factual reasons for believing that valuables or dangerous instrumentalities are present in the seized property. But the Court has consistently required that objectively reasonable and standardized procedures be established to avoid unbridled officer discretion.

With respect to administrative searches, the Court has recognized the validity of specially devised administrative warrants. The requirements of standardized procedures for inventories and special warrants for administrative searches reflect the Court's efforts to balance the competing interests of the individual and society. Significantly, in those instances, society's legitimate interests could never be addressed if a factual justification such as probable cause were required.

Conversely, when a factual justification has existed, the Court has generally viewed the quantum of facts as the basis for striking the balance. For example, the Court observed:

Where probable cause has existed, the only cases in which we have found it necessary actually to perform the 'balancing' analysis involved searches or seizures conducted in an extraordinary manner, usually harmful to an individual's privacy or even physical interests....(13)

Examples of such extraordinary intrusions are seizures by use of deadly force,(14) unannounced entries into dwellings,(15) entries into homes without warrants,(16) or physical penetration of the body, such as bullet-removal surgery.(17) In each of these instances, the existence of probable cause, or even of a warrant, would not be sufficient, standing alone, to make the action constitutionally reasonable.

Probable cause or even a warrant to arrest a subject is insufficient justification to use deadly force to effect the arrest. As the Court stated in Tennessee v. Garner, "...notwithstanding probable cause to seize a subject, an officer may not always do so by killing him."(18)

Similarly, a warrant to enter a home to arrest the occupant or to search for evidence is insufficient justification to make the entry without first complying with the knock-and-announce requirement. Also, probable cause to believe that evidence of a crime is inside a subject's body is insufficient - even if supported by a court order - to justify its removal by surgery if the risks to the subject outweigh the interests of the government in securing the evidence.

Apart from these extraordinary circumstances, the Court pointed out that no actual balancing of interests is necessary when the requisite factual justification exists to support the particular fourth amendment activity. Accordingly, "...probable cause to believe the law has been broken 'outbalances' private interest in avoiding police contact."(19) With respect to the defendants' claims that if left unconstrained police officers might decide which motorists to stop based on such factors as race, the Court responded:

We of course agree with [defendants] that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of law is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.(20)

Implications for Law Enforcement

The implications of the Whren decision for law enforcement are numerous. First, it maintains consistency in the Supreme Court's decisions interpreting the fourth amendment standard of "reasonableness" as being objective, thus precluding consideration of an officer's subjective motivation.

Second, the Whren decision continues to permit officer discretion in the enforcement of traffic and other relatively minor violations. By virtue of their volume and nature, minor infractions of the law are less compelling of law enforcement time and resources than more serious offenses; consequently, their enforcement must, of necessity, be somewhat selective and discretionary. At the same time, an officer's authority to act in such cases is essential if enforcement is to provide any deterrence.

Third, while generally arising in the context of minor offenses, a pretextual arrest or seizure may occur in more serious cases. For example, officers may make an arrest for a drug violation when their primary interest is finding evidence of a more serious offense, such as murder. The fact that the motivation for the stop was interest in a totally separate crime does not preclude an arrest on the drug charge, as long as probable cause exists to support it. By declaring an officer's subjective motivation irrelevant to the fourth amendment issue of reasonableness, the Court has permitted law enforcement to retain a range of investigative options.

It is important to note that the Supreme Court's decision in Whren is not a signal for law enforcement officers to become arbitrary and capricious in deciding when to make a fourth amendment search or seizure. An officer's discretion to act is not unconstrained, even when probable cause or reasonable suspicion exists.

First, there are other constitutional guarantees, such as the Equal Protection Clause of the 14th amendment, to safeguard against police use of an impermissible factor such as race. Second, the fourth amendment requirements of probable cause to make arrests and reasonable suspicion to conduct investigative detentions continue to provide safeguards against unreasonable police actions in those contexts. Finally, the fourth amendment balancing test continues to provide a safeguard in those instances where the probable cause and reasonable suspicion standards are not practicable - i.e., inventories and administrative searches.

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.

Endnotes

1 Kimberly A. Crawford, "Pretext Seizures: The Constitutional Question," FBI Law Enforcement Bulletin, July 1995, 28-32.

2 Maryland v. Macon, 472 U.S. 463, at 470471 (1985).

3 116 S. Ct. 1769 (1996).

4 See, Terry v. Ohio, 392 U.S. 1, at 30 (1968).

5 United States v. Whren, 53 F.3d 371, at 373 (D.C. Cir. 1995).

6 Id.

7 Id. at 375.

8 Whren, 116 S. Ct., at 1771.

9 Id. at 1772.

10 Id. at 1774.

11 Id. at 1776.

12 Id.

13 Id.

14 Tennessee v. Garner, 471 U.S. 1, 1985.

15 Wilson v. Arkansas, 115 S. Ct. 1914 (1995).

16 See, Welsh v. Wisconsin, 466 U.S. 740 (1984).

17 Winston v. Lee, 470 U.S. 753 (1985).

18 Tennessee v. Garner, 471 U.S., at 9.

19 Whren, 116 S. Ct., at 1777.

20 Id. at 1774.

Special Agent Hall is a legal instructor at the FBI Academy.