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

How pretextual traffic stops got the judicial stamp of approval.


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.