Probable Cause, Pretext and the Proliferation of Crimes

I concluded last week’s post on District of Columbia v. Wesby, ___ U.S. ___ (2018), with a promise to return to Justice Ginsburg’s suggestion in her concurring opinion that it might be time for the Court to re-think Whren v. United States, 517 U.S. 806 (1996). So let’s take a closer look.

What RBG said. As I noted last week, Wesby involved an evaluation of whether police officers had probable cause to arrest partygoers discovered inside a vacant house without the permission of its owner. The majority held that they did and, moreover, that they were entitled to qualified immunity for their actions. Justice Ginsburg concurred in the judgment in part, agreeing that the officers were entitled to qualified immunity.

Justice Ginsburg nevertheless expressed concern that the Court’s jurisprudence “sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” Ginsburg, J., concurring, slip op. at 2. She stated that she “would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.” Id. She noted that commentators had criticized the court’s decision in Whren v. United States, 517 U.S. 806 (1996), and its progeny, which establish that “‘an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause.’” Ginsburg, J., concurring, slip op. at 2 (quoting Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). Justice Ginsburg quoted Professor Wayne LaFave’s statement that the Whren Court’s apparent assumption that “‘no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.’” Id. (quoting 1 W. LaFave, Search and Seizure § 1.4(f), p. 186 (5th ed. 2012)).

Remember Whren? Whren v. United States, 517 U.S. 806 (1996), was a unanimous opinion, written by Justice Scalia and joined by every other member of the Court, including Justice Ginsburg.

The facts were as follows: Plainclothes vice-squad officers of the District of Columbia Metropolitan Police Department were patrolling a high drug area in an unmarked car when they drove past a dark truck with temporary tags and two young black men inside. The officers noticed that the driver was looking down into his passenger’s lap and that the truck remained stopped at a stop sign for more than twenty seconds. The officers became suspicious and made a U-turn to head back toward the truck. As they approached, the truck turned suddenly to its right, without signaling, and sped off at a speed they deemed unreasonable. The police officers followed, and pulled up alongside the truck at a red light. One of the officers got out of the car and approached the driver’s door, instructing the driver to put the truck in park. When he approached, the officer saw two bags of what appeared to be crack cocaine in the hands of the vehicle’s passenger, Michael Whren. Whren and the driver were arrested and were charged with various drug crimes.

Whren moved to suppress the evidence, arguing that the stop was not justified by probable cause or reasonable suspicion of drug activity and that the officer’s asserted ground for stopping the truck, namely to give the driver a warning about traffic violations, was pretextual. The trial court denied the motion, and Whren was convicted. He appealed, and the court of appeals affirmed. He sought review before the U.S. Supreme Court, which affirmed the ruling below.

No one disputed that the officer who stopped Whren had probable cause to believe that the D.C. traffic code had been violated by the driver’s inattention, his failure to signal, and the vehicle’s unreasonable speed. Whren argued, however, that in the context of the heavy and minute regulation of vehicles, probable cause was insufficient to render the seizure reasonable because a police officer will almost invariably be able to catch any given motorist in a technical violation. This, argued Whren, tempts officers to use traffic stops to investigate violations of other, unrelated laws for which they have no articulable suspicion, and allows police officer to stop drivers based on impermissible reasons such as race. Thus, Whren argued, the test for Fourth Amendment reasonableness should not be whether the stop was supported by probable cause but whether a police officer, acting reasonably and in accordance with usual police practices, would have made the stop for the reason given.

The Supreme Court rejected Whren’s arguments, reasoning that precedent foreclosed “any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officer involved.” 517 U.S. at 813.  Here, the Court explained, the trial court found that the officers had probable cause to believe that the driver had violated the traffic code. That “rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct.” Id. at 819. The Court noted that it agreed “of course” with Whren’s argument that the U.S. Constitution prohibits selective enforcement of the law based on race, but said that the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions, said the Court, “play no role in ordinary, probable-cause Fourth Amendment analysis.” Id. at 813.

Call to reexamine. Presumably Justice Ginsburg raised the possibility of rethinking Whren in her Wesby concurrence because the probable cause analysis in the majority opinion demonstrates the relatively low standard of proof required to cross the probable cause threshold.

Dissatisfaction with Whren is not, of course, new. Professor LaFave systematically deconstructs Whren’s legal analysis in his treatise on search and seizure and criticizes the policing practices it encourages. LaFave notes that race is often a factor in the drug courier profile, which may lead to more minorities being stopped for minor traffic offenses and thereafter “subjected to roadside indignities.” LaFave at 187. LaFave quotes educator Henry Louis Gates, Jr.’s statement that “‘there’s a moving violation that many African-Americans know as D.W.B:  Driving While Black.’” Id. at 187-88. LaFave also analyzes the shortcomings of raising an equal protection claim in this context since the doctrine is not well equipped to address claims of inequitable policing. My colleagues, Alyson A. Grine and Emily Coward, took a slightly more optimistic view of pursuing equal protection challenges to police action in their 2014 manual Raising Issues of Race in North Carolina Criminal Cases (UNC School of Government 2014), noting that such claims may strengthen Fourth Amendment challenges. Grine and Coward at § 2.3.

Other responses to Justice Ginsburg’s concerns. I am somewhat doubtful that the Supreme Court will reexamine Whren anytime soon. There are, of course, other ways in which police arbitrariness, or even the perception of arbitrariness, may be limited. State courts may decide that their state constitutions forbid pretextual searches and seizures. See LaFave at 193 and n. 138 (citing, among other decisions, State v. Sullivan, 74 S.W.3d 215 (Ark. 2002)). Law enforcement departments may adopt policies governing the conducting of traffic stops. Several years ago, for example, the police chief in Fayetteville responded to concerns about racial disparities in police encounters in part by instructing his officers not to stop vehicles for regulatory offenses, such as broken taillights or expired registrations. And legislators could reduce the sheer number of offenses, particularly motor vehicle offenses, for which a person may be stopped. Cf. Jeff Welty, Overcriminalization in North Carolina, 92 N.C. L. Rev. 1935, 1946-47 (2014) (noting that one of the most significant decriminalization developments in North Carolina occurred in 1985 when the General Assembly decriminalized may motor vehicle offenses, making them infractions rather than misdemeanors).

4 thoughts on “Probable Cause, Pretext and the Proliferation of Crimes”

  1. The Rodriguez decision ( has fairly well created the dampening effect on law enforcment expressed by those opposed to Whren. Rodriguez essentially prevents officers from engaging in the sorts of conversations with motorist that tended to lead to bigger and better things than a turn signal violation. The only issues Rodriguez doesn’t really impact is the sort of immediate plain-view observation (which occured in Whren) of criminal activity that might lead to an arrest.

  2. Justice Ginsburg went further than that: she indicated (rightfully) that the police did not develop probable cause to arrest because the police lacked evidence that the party-goers knew their permission to be at the property was given by someone without authority to give that permission. Ginsburg pointed out that the police erroneously thought it was a crime to be on the property regardless of knowledge of faulty permission to be there. The police figured out their mistake and charged the party-goers with disorderly conduct instead, apparently hoping the broader charge would stick, even though they also lacked evidence of disorderly conduct. It did not stick. I wish Ginsburg had gone one step further and called out the other justices for their intellectual dishonesty in protecting unlawful police action by pretending that probable cause existed when it did not.


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