Wednesday, January 26, 2005

The Era of the Pretext Stop Has Begun

AlaskaBlawg connects a few more post-Cabellas dots:
What I have not seen anybody say yet, and if it is out there, feel free to point me to the site or link, is how chilling this decision is when combined with Whren. For those who do not know, in Whren v. US, the Supreme Court held that the subjective intent of a police officer is irrelevant in determining the legality of a traffic stop. So, if a cop wants to stop you because you fit a 'drug courier profile', the cop just has to follow you long enough to make a minor traffic stop and then pull you over. With Cabellas, that cop can have a drug dog in his car and there is nothing you can do about it constitutionally.
Thank you. You heard it here first: We are now in the era of the pretext stop. After Whren and Caballes, traffic enforcement will, over time, have less and less to do with ensuring traffic safety and more with getting around the Fourth Amendment. AlaskaBlawg hardly describes the half of it -- more and more typical will be the following scenario.
Officer: M'am, can I search your car?

Driver: No, not without a warrant.

Officer: Then you're going to have to wait here, m'am while I call in the drug dog.

Driver: And how long is that going to take?

Officer: Oh, twenty or thirty minutes, maybe. Elroy, he and Scooter, that's the dog, he and Scooter are just finishing up at another stop, then I think they've got one more ahead of us.

Driver: I don't have all day to wait here, I have to get back to work.

Officer: Well, you could just give me consent to search, m'am, then you could be on your way.
At that point, how much of that driver's Fourth Amendment rights truly remain?

In Texas and several other states it's even worse after Atwater v. Lago Vista (discussed in the second half of this post). In that case the Supremes ruled that, where state law allows, officers may arrest for fine-only traffic offenses. So in Texas, at least, and for states that have not banned the practice, the conversation might just go like this.
Officer: M'am, can I search your car?

Driver: No, not without a warrant.

Officer: M'am, our drug dog is busy so my only other alternative is to place you under arrest for the offense of failure to signal a lane change, then search the car after we impound it. Is that what you want me to do?

Driver: Of course not! So what choice do I have?

Officer: Well, let me ask you again, m'am, can I have permission to search your car?

Driver: Fine, search the damn car, I have to get back to work.
The Supremes decided that Texas case in January 2001. In response, the Texas Legislature passed legislation that spring banning the practice, but Governor Rick Perry vetoed the bill, dubbed "the soccer mom bill" by the media for Gail Atwater, who was taking her kids home from soccer practice when she was arrested for a seat belt violation. In 2003, the Texas Legislature passed another bill that would have required departments to have written policies at least stating WHEN officers were allowed to arrest for traffic offenses, but Governor Perry vetoed that, too. So officers retain that leverage, and Gov. Perry has promised political backers he'll continue to insist they have that discretion.

I'm sorry, folks, but the Fourth Amendment has vanished in America when you're in a vehicle after this ruling. In Texas, that happened already after Atwater, so this just deep sixed the pesky rascal for the rest of the nation. A certain percentage of traffic enforcement will always be related to actual traffic safety concerns, I hope. But increasingly, traffic stops will become the pretext for all sorts of stuff that police can't get away with elsewhere.

UPDATE: Skelly says he's gotten searches thrown out of Idaho state court when the officer made a driver wait for a dog, and links to the ruling. Texas will take a couple of those appellate judges to go, please, or better, we've got some to swap! He thinks we'll just see more dogs in police cars doing traffic interdiction, until one day we won't remember when every cop didn't have a dog. (That's an ugly thought. I guess they're less lethal than Tasers.)

I'm not an attorney and at the moment can't quote the state case law, but directing ACLU of Texas' Police Accountability Project I've heard plenty of anecdotal evidence on this wait-for-the-dogs question, enough to make me confident the practice goes on here. At a series of town hall meetings across Texas last year
on racial profiling sponsored by the Texas Criminal Justice Coalition, NAACP, ACLU and LULAC, the complaint was raised frequently enough to constitute a pattern. For a detailed analysis of Texas highway drug interdiction practices, see the report I authored for ACLU of Texas, Flawed Enforcement: Why drug task force highway interdiction violates rights, wastes tax dollars, and fails to limit the availability of drugs in Texas (pdf)


Arne Langsetmo said...

Traffic stops have always been an exception to the rules WRT searches. I discuss (but without cites) some of that stuff here. Ever since that bootlegger case (Johnson, was it?), the idea has been that such circumstances are exigent and therefore the Fourth Amendment (whatever's left of it after Terry, Chimel, and their progeny) doesn't apply. Nonsense, of course; automobiles are no different than any number of other situations, but nonetheless there's a specific "automobile exception".

Just another encroachment on our liberties. I'm waiting to see what Scalia would say, though, in the case of a speeding motor home. ;-)


Curtis said...

I couldn't agree with you more. This is very disconcerting.

Arne Langsetmo said...

And another thought: Why "exigent circumstances" has justified ignoring Constitutional rights is beyond me. Sounds a bit like "the ends justify the means". Or perhaps, "let me cheat if it's too rough for me to play fair".

In Terry, the purported justification is the "safety of the officers". One could argue that law officers are paid to take risks all the time (and in fact do, regardless of the Terry rules), but even if you grant that officers need to be afforded some protection, we see that the rule metastasizes, and police are using the rule to try and encroach on the limits of the Fourth Amendment rather than actually just insuring their safety (e.g., "recognizing by feel" a glassine crack envelope in a pat-down search). Once again, as I argue on my blog about this, the solution is to say, go ahead and search, just don't expect any evidence you find to be usable in court (or at least, don't expect such unless it would otherwise have been admissible). This rule would discourage such devious encroachments on the Fourth Amendment.

On particularly optimistic days, I also think that any items found during a search conducted pursuant to a warrant, that are not what are listed and being searched for as detailed on the warrant, should likewise be excluded. And no searching desk drawers for stolen automobiles.


Gritsforbreakfast said...

No searching for automobiles in drawers? You do have your optimistic days, huh Arne? ;-)

Drew said...

I was stopped twice by the same undercover narcortics police officers in less than 30 days. I did not commit any traffic violations nor was there any defective equipment on my vehicle. The officers just simply wanted to search my vehicle for drugs (both times). Initially, there was no reason given for the so-called "traffic stops". However, after I complained of "racial profiling" and fourth amendment violations, the officers quickly fabricated the same reason for both stops. The reason created by the officers was the ole "I smell marijuana" pretext reason....

My question is: what's to prevent an officer (who's illegally stopping someone solely to search for drugs)from claiming that he/she smelled the drugs before actually discovering such drugs? - I've read many cases where an officer smelled marijuana AFTER a legal traffic stop. However, I can not for the life of me find a case where an officer conducted a traffic stop solely because he smelled marijuana (before the stop). Can someone please cite me a case anywhere in this country where an officer conducted a traffic stop soley due to the smell of marijuana. It's happen to me twice in less than 30 days, so surely there must be other cases out there.

Drew (

Anonymous said...

This has been building up for years now and it's just going to get worse until all the sheeple finally get fed up with it and take the country back from the ignorant thugs that run it.

Anonymous said...

As far as exigent circumstances go, they allow officers to search or enter an area where a person would normally have a reasonable expectation of privacy due to some abnormal circumstance. The "automobile exception" (as it has been dubbed) simply states the obvious; the level of privacy that is expected while in a vehicle is absolutely lower than when in your home.

It's understandable that people are going to be upset about being "profiled" because they think that cops should only "serve and protect" as they see fit. It's the same reason people like firefighters and not cops, or anyone else that ever makes them feel uncomfortable.

If the police are saying that they need to find ways around laws in order to effectively do their job, shouldn't the focus be on helping them do just that? Or should we just continue to pick and choose which laws are serious enough to enforce, while the cops take all the blame....and all of the risks.

It's easy to point fingers, especially from behind a keyboard. Instead of being upset about a search, try to understand that the officer doesn’t know if it's you or the next guy who’s moving the drugs. You have a chance to help the fight against crime and instead you decide to cry "fourth amendment violation" making the fight that much harder.

A thankless job I guess......

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