"Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops
Harris, David A., Journal of Criminal Law and Criminology
The Supreme Court's decision in Whren v. United States(1) could not have surprised many observers of the Court's Fourth Amendment jurisprudence. In Whren, police officers used traffic violations as a pretext to stop a car and investigate possible drug offenses; the officers had neither probable cause nor reasonable suspicion to stop the driver for narcotics crimes.(2) In the Supreme Court, the government advocated the "could have" standard: any time the police could have stopped the defendant for a traffic infraction, it does not matter that police actually stopped him to investigate a crime for which the police had little or no evidence.(3) The defense asked the Court to adopt a "would have" rule: a seizure based on a traffic stop would only stand if a reasonable officer would have made this particular stop.(4) The Court sided with the government If police witness a traffic violation, the Court said, they have the simplest and clearest type of probable cause imaginable for a stop.(5) Requiring more would force lower courts to make post hoc Fourth Amendment judgments based on either the mindset of a reasonable officer or the actual (perhaps ulterior) motives of the arresting officer, neither one of which the Court saw as necessary, useful, or relevant to the task of judging the constitutionality of a seizure.(6) After Whren, courts will not ask whether police conducted a traffic stop because officers felt the occupants of the car were involved in some other crime about which they had only a hunch; rather, once a driver commits a traffic infraction, the officer's "real" purpose will make no difference at all.(7)
For the sake of of argument, I will concede that the decision in Whren makes some sense, at least from the point of view of judicial administration. But examined more carefully, Whren does more than opt for a more workable rule: it approves two alarming law enforcement practices. Neither are secret; on the contrary, the law of search and seizure has reflected both for a long time.(8) But both represent profoundly dangerous developments for a free society, especially one dedicated to the equal treatment of all citizens.
First, the comprehensive scope of state traffic codes makes them extremely powerful tools under Whren. These codes regulate the details of driving in ways both big and small, obvious and arcane. In the most literal sense, no driver can avoid violating some traffic law during a short drive, even with the most careful attention. Fairly read, Whren says that any traffic violation can support a stop, no matter what the real reason for it is; this makes any citizen fair game for a stop, almost any time, anywhere, virtually at the whim of police. Given how important an activity driving has become in American society, Whren changes the Fourth Amendment's rule that police must have a reason to forcibly interfere in our business -- some basis to suspect wrongdoing that is more than a hunch.(9) Simply put, that rule no longer applies when a person drives a car.
This alone should worry us, but the second police practice Whren approves is in fact far worse. It is this: Police will not subject all drivers to traffic stops in the way Whren allows. Rather, if past practice is any indication, they will use the traffic code to stop a hugely disproportionate number of African-Americans and Hispanics. We know this because it is exactly what has been happening already, even before receiving the Supreme Court's imprimatur in Whren. In fact, the stopping of black drivers, just to see what officers can find, has become so common in some places that this practice has its own name: African-Americans sometimes say they have been stopped for the offense of "driving while black."(10) With Whren, we should expect African-Americans and Hispanics to experience an even greater number of pretextual traffic stops. And once police stop a car, they often search it, either by obtaining consent, using a drug sniffing dog, or by some other means. …