Police

A Supreme Court Decision That Did Lasting Damage to the 4th Amendment

How pretextual traffic stops got the judicial stamp of approval.

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The Fourth Amendment famously guarantees the right to be free from unreasonable searches and seizures. Yet thanks to a 1996 Supreme Court decision, that right has been effectively erased if the police say that a driver has committed even the most minor of traffic infractions.

The case of Whren v. United States began with a 1993 traffic stop in Washington, D.C., over a failure to signal. That stop resulted in the arrest of the car's driver and passenger for drug possession. The arresting officer, a plainclothes member of the city's vice squad, was patrolling what he called a "high drug area" when he saw a car with two young black men inside sitting at a stop sign for 20 seconds, an admittedly long time to wait at an intersection. According to the officer, the car then drove off at what he called an "unreasonable" speed and allegedly failed to signal a right turn. After the officer pulled the car over, he noticed crack cocaine inside the vehicle and made the arrests.

The question before the Supreme Court was whether the officer used that traffic stop as a pretextual excuse to seize the driver and passenger and snoop around for drugs in violation of their Fourth Amendment rights. Put differently, did the officer rely on the traffic code to mask a case of racial profiling? And if he did, should the evidence be excluded?

Writing for a unanimous Supreme Court, Justice Antonin Scalia gave every cop in the country a blank check to search and seize so long as the officer could first point to some sort of ostensible traffic infraction. "The constitutional reasonableness of the traffic stop," Scalia said, does not depend "on the actual motivations of the individual officers involved." All that mattered, he maintained, was that the officer had probable cause to believe that a traffic violation may have occurred. Once that relatively easy standard was met, the police may stop any car and seize any driver.

Of course, every driver will eventually violate some trivial traffic rule at some point. Thanks to Whren, when those inevitable traffic infractions do occur, the police are effectively unshackled from the restraints of the Fourth Amendment. To make matters worse, because the police simply cannot enforce all traffic laws against all drivers at all times, the cops enjoy wide leeway when it comes to picking and choosing which drivers to stop. Needless to say, the record is replete with examples of the police abusing such discretionary law enforcement powers.

In fact, that sort of abusive policing is sometimes official police policy. As Sarah Seo, a Columbia law professor and author of Policing the Open Road: How Cars Transformed American Freedom, has observed,

Pretextual enforcement of the traffic code has been an official strategy in the war on drugs since at least the 1980s. The U.S. Drug Enforcement Agency trained state highway patrols to use such tactics, as did law-enforcement textbooks. Statistics show that police have disproportionately targeted minorities during what is known as "criminal patrol," a term that reflects the merger of criminal investigations and traffic patrol duties.

In other words, Whren's malignant legacy includes the judicial stamp of approval on some of the most aggressive and destructive police tactics of the modern era.

The Supreme Court has issued plenty of regrettable decisions that warrant reversal. Whren v. United States is one of them.

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  1. Thanks to Whren, when those inevitable traffic infractions do occur, the police are effectively unshackled from the restraints of the Fourth Amendment.

    Not even remotely true, but thanks for emoting.

    1. Oops, your citation fell off

      1. The mute feature is useful.

        1. Yes it is. It means I no longer have to read you saying vile and disgusting things about myself and my family.

          1. Then why do you keep coming back here screetch?

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      2. It’s not a Fourth Amendment violation to pull someone over to give them a ticket, if they’re actually breaking the law. Even if the cop might not be bothered to do so, absent the promise of something evidence related to a larger crime. Then, once the violator has been stopped, if they’re stupid enough to continue breaking other laws in front of the cop, we should care because…?

        Something like a Terry stop’s “protective sweep”, where the cop gets to rummage through your shit whether or not the cop has probable cause, seems far more egregious than the point Root is trying to make here. You want to get rid of that type of search? I’m right there with you.

        1. If laws were just then, absent a victim, there’s be no cause of the cop to bother the motorist anyway.

        2. >if they’re actually breaking the law

          The point is that everyone is “always” breaking one stupid law or another. As a country, we have a history of enforcing these stupid laws against black people and not against white people.

          1. Completely agree. We should have fewer laws.

            1. “The more corrupt the state, the more numerous the laws.”

              ― Tacitus, The Annals of Imperial Rome

            2. This is the only correct answer. If they arent going to enforce a law uniformly and consistently, they should get rid of said law.

          2. >>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.

            Does not sound like “everyone” and “always”.

            > enforcing these stupid laws against black people and not against white people.

            Just guess how many traffic tickets I had. But no crack possession though. Racism?

            1. Whren just happened to be holding two large plastic bags of crack cocaine after being pulled over and seeing the cop walking toward him? Does that really pass the smell test for you? If so, I’ve got some prime waterfront property here in Arizona you may be interested in.

            2. In every “in plain sight” case, it should be presumed the cop is lying unless his body cam clearly shows the contraband laying in plain sight _before_ any cop has been near it.

          3. I’m in agreement with a lot of these posts, but why isn’t Damon’s argument to work towards getting rid of minor stops rather than a stop constituting an unlawful search? I know that’s a pie in the sky thinking but it seems more to keep with the supreme court decision which doesn’t say minor traffic stops and inane rules are and should be reduced.

        3. I see your point. Are police just not supposed to enforce traffic laws at all? Or if they pull you over and notice illegal drugs are they supposed to do nothing about it? I mean perhaps from a strict libertarian perspective the answer is yes insofar as these are victimless crimes, but from rule of law perspective I don’t quite get it.

          1. Anybody, “strict libertarian” or otherwise, who believes drug dealing is a victimless crime is a moron. Talk to an addict in rehab if you think there’s no victim. Better still, talk to their families!

            People who have actual experience working with addicts tend to regard drug dealing as literally a crime worse than murder. The end result is the same — the victim ends up dead — but if you kill someone with a gun or a knife at least it’s over quickly. Kill someone with an addiction, and it’s a drawn-out process of torture that lasts for decades.

            1. Yes, drug dealing is tantamount to murder because just like the murderer with the gun or knife, the dealer forcibly put the drugs into the user’s body, the poor user had no choice whatsoever in taking those drugs. I mean it’s like all that weed I’ve bought over the years from drug dealers, I am just a poor victim, abused by them, forced to ingest it. And now I have a high paying job, a wife, kids, and still occasionally (legally now, at least per state laws where I live) smoke the devil’s herb. Ruined my life.

            2. Wow, that’s amazing. All drug addicts end up dead. But it takes awhile. Because there were 70,360 overdose deaths in 2019. At that rate, based on estimated number of US addicts — 21 million — it will only take 297 years for all of them to die from their addiction.

        4. I’ve found it helpful to read the article before commenting. It would be wonderful if you would try that.

  2. The local cops say they target vehicles that are driving under the speed limit on the freeway because that’s a common tactic of drug mules.

    1. It’s well known that suspicious behavior includes driving too fast, driving too slow, and driving the speed limit. Just as suspicious as having a car that’s too cluttered, too clean, or just the right amount of trashy. The most suspicious behavior of course is still having an out-of-state license plate and being brown.

      1. Yay! War on Some Drugs! Taffy pulling the definitions of words since the 1920s.

      2. In north Idaho, they come up with very flimsy pretexts to pull drivers over on I-90 in the pass between Coeur D’Alene and the Montana border if you have Washington plates. As WA has legal pot, and they’re looking for traffickers.

        This happened to me in 2018 when I had a friend drive me to Helena to pick up a car I bought. They immediately separated us and asked us what we were doing. Seeing if there were any discrepancies in our story. Then they just let us go when they figured out I was really going to pick up a car.

        1. I could see that tactic happening a lot – I believe they just had a guy they stopped with nine pounds of meth from wash/cali to mt so it will be probably reinforced as a successful tactic.

        2. Good thing you weren’t carrying cash to buy that car. The cops would have seized it and challenged you to prove it wasn’t from drug dealing.

  3. everybody knows you gotta signal turns if you’re ridin’ dirty.

    1. I only know the Weird Al version…

          1. ja gut. Donnie Osmond dancing is hilarious.

            1. It’s the vital ingredient.

  4. This is all because you Democrats at Reason voted for Biden! Even if you didn’t, you weren’t critical enough! You were too busy being critical of the guy in power! Like you are now! Which doesn’t count because you weren’t mean to Biden during the election!

    Reason is a progressive rag!!!!!!1!aauughh!! 1

    did I get that right?

    1. Nope you fucked it up as usual, leftie shit.

    2. You still don’t get it.

    3. so broken.

  5. While Whren might have been a seminal case, Navarette, where an anonymous 911 call about a reckless driver led to the traffic stop, and Heien, where it turned out there actually was no traffic violation, were just as egregious. The Supreme Court has pretty effectively rendered the Fourth Amendment moot when you have drugs in your car. And you never hear of the vast majority of drivers who get hassled on the mere suspicion that they might have drugs in their car but don’t.

    1. “And you never hear of the vast majority of drivers who get hassled on the mere suspicion that they might have drugs in their car but don’t.”

      This too. What recourse do you have when Officers Friendly and Helpful, with the aid of four-legged probable cause Oujia Dog, toss all of your stuff out along I-95, detain and threaten you for an hour, then drive off? Not a Goddamned thing.

      The War on Some Drugs is unquestionably awful, needed to end twenty years ago, and now serves to highlight that police will do anything immoral, so long as there’s a bitchin’ benefits plan and pension if they play along.

      1. You can file a complaint. Or to save time, you can write out a complaint and throw it in the trash yourself. Lol.

    2. Ya, I read the title and thought… which one?

    3. I got pulled over in Oklahoma for doing 4 over the limit, and the excuse the cop used to search my car was having New Mexico plates.

      I had no drugs, go figure.

    4. I would say those cases are more egregious when it comes to the 4th Amendment. In Navarette, the issue here is not just that it is rife for abuse (as is argued about Whren), but that anonymous tips for traffic violations would seem pointless without the cop witnessing violations as it would be difficult to impossible to confront said anonymous witness in court as required. And Heien, of course which seems close to the doctrine of the fruit from a poisonous tree. It would seem to me that the real problem here are the drug laws, not this precedent.

  6. It’s about time we placed the blame for the destruction of the 4th Amendment (among others) at the feet of who is really to blame: the idiot or idiots who wrote it.

    “…unreasonable…”? Really??? Surely these well-educated and world wise Founders would know that such a weasel word would be folded, spindled and mutilated seconds after the ink dried.
    Could these morons not come up with something better? Talk about a prescription for letting a fundamental right get flushed down the toilet! Fail.

  7. As long as there is civil asset forfeiture, there is no fourth amendment.
    As long as there are strip searches in airports, there is no fourth amendment.
    ETC

  8. I agree with Scalia. Common sense.

  9. When all participants of a “system” are feeding from the same nose-bag, free from competition — and are allowed (by your neighbors and friends — hopefully not you) to
    • Make the laws,
    • Enforce the laws,
    • Prosecute the laws,
    • Hire the prosecutors,
    • License the “defense” attorneys,
    • Pay the “judges”,
    • Build the jails,
    • Contract jails out to private entities,
    • Employ and pay the wardens,
    • Employ and pay the guards,
    • Employ and pay the parole officers,
    One can’t honestly call it a “justice” system. It’s a system of abject tyranny.

    1. Agree.
      Anyone paying the State’s monetary extortion (taxes) enables the corruption not only to continue, but to expand.
      The tyranny is sustained and exists by the very chains that we ourselves are forging.

  10. I’m sure all this self-righteous indignation must feel quite good, Damon, but I’m unclear about what you actually want.

    Should we just not have traffic laws? Or should they not be enforceable? Or should police who observe a crime during a traffic stop be prohibited from enforcing the law?

    I mean, in libertopia, highways would be private, and presumably private security could stop any care for any reason, search any car for any reason, and banish anyone from the road system if they don’t like what they find. Of course, they probably couldn’t put you in jail, but if you trespass on their property the next time, the consequences would get increasingly dire for you. Is that an arrangement you find preferable to the current arrangement?

    1. Overturning Whren would certainly hamper enforcement of traffic laws, but I think the point is they are already unevenly enforced. Making it harder to enforce selectively for racist motives should make people question whether we need so many traffic laws in the first place.

  11. Normally I am all about reducing the power of the police to stop you, but I fail to see how overturning this precedent would work. Maybe this is a strawman, but I don’t know how you could set up a system where you couldn’t charge people with other crimes that are observed during a traffic stop, regardless of the intent in the traffic stop. It would seem that the real problem here are the drug laws, which, I would suspect, are behind the vast majority of pretextual stops, with many of the rest involving other victimless crimes. Eliminate these and I suspect that most of this would be moot anyway, as there would be little reason to perform these stops to begin with.

    In this vein, however, I think there are some other precedents that are more troubling in their scope, as mentioned by other commentators, like the Navarette, Heien, and Terry decisions.

  12. I see twice when I thought the court should have looked and decided a little narrower. In the case above it would only make sense in order not to make the amendment a farce when you’re in a car is that part of the cop’s regular duties would be to stop a car for traffic violations!! That would not be a plains clothes man/woman of any sort, I’m guessing.

    in the case of abortion (I am absolutely against abortion) but even so at the time I thought, “the least they should have included was to state WHEN a human fetus became a human baby!” I turned out I was right – at first I began hearing the doctor would stick scissors in the skull of a live baby as it was leaving the birth canal and vacuum out its brain, then later, I don’t what trimester, they were cutting off the arms and legs in the womb. Last, on national TV I heard a doctor/governor “explain” how a doctor would humanely handle a live baby that survived the abortion until he had talked to the mother. Then what? either leave a human being to die with no help or help it along? Cripes we will have to pay for the heinousness of abortion “someday”!

    1. Huh?

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