Recent Court Decisions: Whren v. United States

Whren v. United States, 116 S.Ct. 1769, 59 CrL 2121, No. 95-5841 (1996).

In this case the Court brought to a conclusion a long-running debate in the state and federal courts over the Fourth Amendment propriety of so-called “pretextual” stops and arrests of motorists, i.e., stops and arrests for traffic infractions where the officer has a motive for his actions unrelated to traffic (frequently drug enforcement). A unanimous Court in an opinion written by Justice Scalia ruled that if the stop is objectively supported by probable cause to believe that a traffic violation has occurred it is reasonable under the Fourth Amendment, even if the officer had a motivation in making the stop different from traffic law enforcement.

Probable cause, the Court said, is an objective standard and is determined by the totality of the circumstances, not by the officer’s subjective intent. Specifically rejected was a test that had been developed by some courts that focused on the question of whether a reasonable officer in the place of the stopping or arresting officer “would have” made the stop in the absence of a secondary motive (such as drug enforcement). The “would have” formulation of these courts, Scalia said, is a variant of subjective considerations and has no place in Fourth Amendment probable cause jurisprudence. It rejected an analogy of officer intent found in the Court’s inventory and administrative inspection cases, noting that those cases were not probable cause cases at all, but administrative procedures based upon necessity and reasonableness, where ulterior motives would be relevant. The Court said it had “repeatedly held” that in the probable cause context motivation is irrelevant. He also noted that a “would have” formulation is based on pure speculation of suppression hearing courts; in part, it would depend upon local police practices, and that would mean that Fourth Amendment protections would vary from place to place and time to time, a wholly unacceptable result.

The defendant in this case had also argued that the “would have” test would eliminate asserted racially motivated enforcement practices of police agencies. If that is a viable issue in a particular case, Scalia said, it should be raised in an equal protection context attacking the fairness of enforcement (and ultimately prosecution) policies, not under the Fourth Amendment probable cause requirement, which he said is a simple process of assessing objective facts and applying the law (he opined that there is “nothing extraordinary” about a traffic stop).

The Court’s decision should end this debate which has diverted numerous courts from a straight-forward assessment of the propriety of traffic stops and arrests. And, just as defense attorneys have realized for same time, it will likely also enhance the value of such procedures as opportunities for enforcement agencies to discover contraband through entirely appropriate procedures after a proper stop has been made, such as plain view seizures and voluntary consent searches for evidence unrelated to the initial traffic stop. It would appear that under the Court’s ruling a dual motive stop that is based on objective probable cause for a traffic violation can be viewed as an appropriate opportunity for more than the writing of a traffic ticket, so long as officers do not abuse their enforcement powers.

Note: As with all the cases discussed on the web pages of LELP, do not assume the law on this subject is the same in your jurisdiction; check with your legal advisor to determine the law in your own jurisdiction and how it would apply in a particular case.

Copyright (c) 1996 Law Enforcement Legal Publications

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