Pretext traffic stops

FBI Law Enforcement Bulletin,The, Nov, 1996 by John C. Hall

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.