Supreme Court Upholds Use of Traffic Stops as Pretext for Drug Searches

IN THE COURTS September 1996

On June 10, the Supreme Court unanimously held that evidence seized during a traffic stop can be used in court, even if the traffic stop was only a pretext to look for drugs or evidence of other illegal activities (Whren v. U.S., No. 95-5841, 59CrL2121, (June 10,1996); Aaron Epstein, "Court backs use of evidence gained by pretext," Philadelphia Inquirer, June 11, 1996, p. A2; "Cops' use of traffic stop as pretext for drug search upheld by justices," Star Ledger, June 11, 1996, p. A1).

The case involves Michael A. Whren and James L. Brown who were stopped in the District of Columbia by two plainclothes policemen on June 10, 1993 for failing to signal a right turn. The DC Metropolitan Police Department General Order provides that plainclothes police officers are not to make traffic stops except when "a violation is so grave as to pose an immediate threat to the safety of others." During the traffic stop, the police, who were patrolling a "high drug area," saw two large bags of crack cocaine in Whren's hands. Whren and Brown were convicted of possession with intent to deliver within 1,000 feet of a school (21 USC 860(a)) and each sentenced to 14 years in prison. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the convictions (53 F.3d 371 (CADC)).

The defendants argued that the police did not have probable cause to make a stop for a drug arrest and that the search violated their Fourth Amendment protection against unreasonable search and seizure. They contended that a search during a "pretextual" traffic stop should be allowed only if a reasonable officer "would have" made the traffic stop without an ulterior motive. In his opinion for the unanimous court, Justice Antonin Scalia said the important point is whether an officer "could have" made the same traffic stop. He said probable cause regarding a drug offense was irrelevant because the traffic violation was a valid reason to stop the vehicle. The fact that the traffic stop was a pretext to look for drugs did not deprive officers of their legal justification to search the vehicle. "Subjective intentions play no role in ordinary, probable-cause, Fourth Amendment analysis," wrote Scalia.

Defense lawyers and the ACLU warn that ignoring the motives of officers who make minor traffic stops to search vehicles could open the door for racial discrimination in drug arrests.

Attorneys general from 48 states filed briefs with the high court, asking that the decision be upheld. The ruling merely ratified the legal test for traffic stops that already exists in most states, said Christina Kuo, a state deputy attorney general in San Francisco. "I think it's an affirmation of the manner in which good and innovative police officers are already conducting themselves," said Jim Pasco, executive director of the Fraternal Order of Police. He noted "Officers are still bound by the same rules that they were bound by yesterday."