Pretext Seizures: The Constitutional Question

Article excerpt

The fourth amendment to the U.S. Constitution prohibits unreasonable searches and seizures.(1) Searches are presumed unreasonable if conducted without search warrants and the burden of proof is on the government to establish that a warrantless search was justified under an exception to the warrant requirement.(2)

With respect to seizures, there is no presumption that the government needs a warrant. To be reasonable under the fourth amendment, seizures need only be based on governmental interests that outweigh the intrusions upon an individual's privacy rights.(3)

In theory, the formula for determining the reasonableness of a seizure is relatively simple: The greater the intrusion on an individual's privacy interests, the more facts and circumstances the government must have to support its claim of an overriding interest. Thus, an arrest, which is the most significant form of seizure, requires the government to establish its interests to the level of probable cause.(4) In contrast, an investigative detention, which is a much reduced intrusion, requires only a showing of reasonable suspicion.(5)

In reality, however, determining the reasonableness of a seizure can be an extremely difficult task. No mathematical or scientific formula exists for predicting when facts and circumstances rise to the level of reasonable suspicion or probable cause; yet, law enforcement officers are required to make such judgments on a daily basis and act on them. Once acted upon, those judgments are subject to seemingly endless defense challenges.

Traditionally, defense challenges to seizures have centered around the facts and circumstances used to justify the action or the amount of force used to accomplish it. However, one defense challenge to seizures goes beyond the traditional arguments and focuses on the law enforcement officer's state of mind. This challenge alleges that a seizure is unconstitutional if the seizing officer has an ulterior motive and uses the seizure merely as a pretext to allow further investigation.

This article discusses the nature of pretext seizures and reviews the courts' methods for determining their legality. Additionally, it suggests a law enforcement practice to combat defense challenges alleging unlawful pretext seizures.


One of the first cases of note to address the issue of pretext seizures was State v. Blair.(6) In Blair, police officers investigating a murder had as their primary evidence a palm print on the door of the victim' s van. An anonymous tip indicated that a member of the Blair family was involved in the crime.

Finding that three of four members of the local Blair family had major case prints on file and that none of the prints matched the one on the victim's van, the police focused their attention on Zola Blair, the fourth member of the family. Although Zola had no prints on file, the police discovered that there was an outstanding traffic warrant for her arrest. After executing that warrant, the police obtained finger and palm prints from Zola and questioned her about the murder before booking her on the traffic warrant and allowing her to make bond.

When fingerprint experts made a match on the prints, the officers arrested Zola on a murder warrant. She then made incriminating statements during interrogation. Prior to trial, however, the defense moved to suppress both the fingerprint evidence and the incriminating statements as being the products of an unlawful pretext arrest. The prosecution, on the other hand, argued that the original arrest of Zola Blair was pursuant to a lawful traffic warrant and that any ulterior motive on the part of the law enforcement officers was irrelevant.

Finding that the defendant had been treated as a murder suspect when arrested and not as a minor traffic offender,(7) the trial court concluded without precedent that the arrest was unlawful because it was pretextual and that the evidence obtained as a result of that arrest were fruits of the poisonous tree. …