Academic journal article Journal of Criminal Law and Criminology

The Fourth Amendment and Traffic Stops: Bright-Line Rules in Conjunction with the Totality of the Circumstances Test

Academic journal article Journal of Criminal Law and Criminology

The Fourth Amendment and Traffic Stops: Bright-Line Rules in Conjunction with the Totality of the Circumstances Test

Article excerpt


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)



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)


Fourth Amendment interests are not triggered unless a "search" or "seizure" has occurred. …

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