Pre-textual Stops

We have all heard of “drive while black” and similar sayings. It use to be effectively argued that a stop of a black motorists was unconstitutional if the primary reason the officer stopped the driver was because he was black and in a high crime area.  Essentially the police were profiling and the Constitution does not allow that.  The United State’s Supreme Court changed all this when it decided Whren v. United States, 517 U.S. 806 (1996). In Whren the United State Supreme Court did away with pre-textual stop arguments holding it does not matter if the officer’s primary reason for stopping a vehicle is because the driver is black or some other pre-textual reason as long as there is a valid legal reason justifying the stop regardless of how minor the reason for the stop is or if department policy is different than the manner in which the officer acted.  In other words if the officer wants to stop  you and they can find a legal reason to do so even if it is against their department’s policy then is okay. If an officer wants to stop you they can always find a reason — one mile over the speed limit, failure to use turn signal, not completely stopping at a red light before turning right on red, and any other minor reason.

The Court found the facts of Whren to be as follows:  “On the evening of June 10, 1993, plainclothes vice squad officers of the District of Columbia Metropolitan Police Department were patrolling a ‘high drug area of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long time–more than 20 seconds. When the police car executed a U turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signalling, and sped off at an ‘unreasonable’ speed. The policemen followed, and in a short while overtook the Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver’s door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver’s window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren’s hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle.”

Whren and his passengers where arrested and charged with drug related crimes.  They moved to suppress the stop of their vehicle arguing there was no probable cause or reasonable suspicion of criminal activity to justify the stop.  The Fourth Amendment requires reasonable articulable suspicion (RAS) before a vehicle can be stopped.  Whren was arguing the stop was pre-textual. The lower court denied the motion to suppress finding this was a normal traffic stop.  The Supreme Court upheld the denial of the motion to suppress.

The Supreme Court agreed with Whren 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 laws is the Equal Protection Clause, not the Fourth Amendment. It is extremely difficult to prove an Equal Protection Clause violation.  For example, in Whren the officers would need to admit on the stand that if Whren was white the officer would not have pulled them over for the traffic violation to prove an  Equal Protection Clause violation.  The Court then held that the subject intents of the officers are irrelevant for Fourth Amendment purposes as long as a valid reason justifies the stop regardless of how petty the reason is.


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