"Driving while black" and all other traffic offenses: the Supreme Court and Pretextual Traffic Stops

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Citation: David Harris (1997) "Driving while black" and all other traffic offenses: the Supreme Court and Pretextual Traffic Stops. The Journal of Criminal Law and Criminology (Volume 87) (RSS)
Internet Archive Scholar (search for fulltext): "Driving while black" and all other traffic offenses: the Supreme Court and Pretextual Traffic Stops
Tagged: Law (RSS)


David Harris examines the landmark United States Supreme Court ruling Whren v. U.S. (1996). In the Whren case, the Supreme Court ruled in favor of the "could have" standard that allowed wide discretion for police officers to stop motorists. By adopting this standard, the Supreme Court said that any traffic violation allows police probable cause to stop and investigate a motorist, even if the officer's "real" purpose is to investigate some other crime. Harris writes "this makes any citizen fair game for a stop, almost any time, anywhere, virtually at the whim of the police" (545). No longer to police need probable cause--"more than a hunch"--to stop a citizen if they are in the car. Harris says this should worry us not just because of the infringement on Fourth Amendment search and seizure rights, but because not all citizens will be stopped proportionately. Under Whren, Harris argues "we should expect African-American and Hispanics to experience an even greater number of pretextual stops" than already existed (546). Harris argues that the decision in Whren is a "missed opportunity...to rein in some police practices that strike at the heart of ideas of freedom and equal treatment" and "represents a clear step in the other direction--toward authoritarianism, toward racist policing, and toward a view of minorities as criminals, rather than citizens" (547).

The case of Whren involved two young African-American men stopped by an police officer after pausing at a stop sign for longer than usual and then turning without signaling and speeding off. Police stopped the vehicle and the passenger possessed a bag of cocaine in each hand. Attorneys for the defense argued the "would have" standard--that a reasonable officer in that situation would have had no reason to suspect criminal wrongdoing and thus was unlikely to pull over Whren. Instead the defense argued the police used the traffic stop as a pretext for pulling Whren over to investigate drug crimes, for which no probable cause existed. The court argued that the "would have" standard would have been too difficult for the trial court to administer and wide variance in 4th amendment law would result. Yet, Harris notes that in the case of Whren, the court wouldn't have to speculate since the officers that pulled Whren over were in an unmarked vehicle and plain clothes. The District of Columbia, where the incident took place, already had a law preventing such officers from making traffic stops, unless an immediate threat existed. Harris says "officers clearly violated this rule in Whren" (549).

Whren argues that the Court also effectively prevented redress for racial discrimination. In the opinion of the Court, fourth amendment probable cause cases need not consider racial biases or the "real" reasons police act. Instead, the court argued, these types of claims should be brought under the Equal Protection Act (EPA). Harris argues that in other cases, such as McCleskey v. Kemp and United States v Armstrong, the court rejected claims for redress based in statistical showings of racial discrimination. In these cases, the court insisted that to prove that a practice violated the EPA, defendants would have to show racial animus on the part of specific officials in the case, not solely a statistical showing. Thus, the claim that the issue of racial profiling of pretextual stops should be met with an equal protection claim belies the court's own precedent, according to Harris.

Police must have reasonable suspicion or probable cause to stop a person and without such, a citizen can ignore police, a finding upheld when the Supreme Court invalidated a Texas statute that criminalized refusal to provide name and address upon a stop. With Whren, anyone driving a car can now be stopped without reasonable suspicion or probable cause, a problem in a society such as the U.S. where the car is a central part of many people's daily lives. Traffic codes are so immense that a police officer rule of thumb is that everyone breaks at least one traffic code every three blocks, thus providing ample opportunity to pull someone over if police so desire.

Harris says this opportunity provides wide latitude for police to continue stopping motorists of color. Harris provides four different stories as evidence of racial profiling since at the time of the article virtually no institution kept data on who police stop.

In Volusia County, Florida deputies' cars were fitted with video cameras, which the Florida Sentinel used public records laws to obtain. In just 148 hours of videotape, police made 1100 stops. Over 70% of stops were African-American or Latino drivers, though they made up just 5% of the population, and eighty percent of the cars search were black or Latino. One man was stopped seven times by police and another was stopped twice within minutes. Only nine received tickets and deputies even allowed several people to go who admitted to crimes, but the tapes showed that the searches allowed deputies to seize cash (which they did almost three times as often as drug arrests). "Ninety percent of the drivers from whom cash was taken, but who were not arrested, were Black or Hispanic" (563).

In Maryland, a state patrol office stopped four relatives, all African-American who were traveling in a rental car back to Washington D.C. from Chicago. The officer asked for consent to search and one of the occupants in the car at that time identified himself as an attorney. The officers detained the group for more than a half an hour while they brought a drug sniffing dog to the scene. The driver asked if a ticket was to be issued, and the officers said no. When the attorney protested, the officers ignored them and when the dog arrived and sniffed around the car to no avail, the driver ended up getting a speeding ticket. Eventually, the attorney helped file a class action suit against the Maryland Police and won a settlement that forces the state patrol to maintain records on who they stop.

In Illinois, a private detective hired by the ACLU to investigate racial profiling was stopped by police while a paralegal followed and videotaped. The officer followed the investigator for 20 miles, until eventually he pulled him over for failing to signal when changing lanes. The paralegal saw no such violation. The police then asked the investigator for consent to search the car; when the investigator questioned whether he could refuse, the officer said that they wanted to bring a drug dog to the car. When the investigator refused, the officers detained him anyway. When the dog arrived, the officer said it indicated narcotics and that they would have to search the investigator's car thoroughly.

In Colorado, a mom who was stopped by the police and asked for a consent search now doesn't drive out of town.

Harris argues that we should be concerned about these practices for both the psychic and real costs to those who are subjected to unreasonable stops and searches, but also because it is also shoddy police work. Harris argues it represents police treating all people one way because some commit crime. Harris suggests administrative regulations to change the system since the Supreme Court is unlikely to reverse Whren. He also suggests collecting data on traffic stops and passing legislation to govern such stops.