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by Peter Moskos

July 23, 2015

The car-stop game is rigged

Cops can stop a driver for any violation of any traffic rule. And there are a lot of traffic rules. Whren v. United States (1996) is a good illustration of how much discretion the Supreme Court has given police officers. It doesn't even matter what the officers' motive are. (Except for equal protection issues raised by race and intentional discrimination.)

Whren permits "pretextual" car stops. This is when an officer wants to stop a person for some specific reason (usually drugs, but the Court doesn't care what the reason is), and then cherry picks a violation in order to stop the car. I think Whren is a bad decision, but my opinion doesn't matter. As a cop I made pretextual car stops; I played by the rules of the game. And the rules were in my favor. The reason I bring this up is because a similar logic applies to ordering somebody from her car during a car stop. From Whren (but referring to Robinson):
A lawful post-arrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer safety concern that justifies such searches.... "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional."
Subjective intentions play no role in ordinary, probable cause Fourth Amendment analysis.
But wait.... Isn't a true that officers can always find a minor traffic violation? Yes. And the Court is fine with that.
[Some say] the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop.
The Court slaps this down with vengeance:
We are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide.
The Court goes on to say (and this gets into the legal weeds a bit) that even an "objective" standard of "reasonableness" (from Mimms, 1977) would be too "subjective. And Scalia (who wrote the unanimous opinion in Whren) don't play that subjective game! All police need is "probably cause" of a traffic violation. And that is a very low bar indeed.

Ordering somebody from a car during a car stop is distinct from the "reasonable suspicion" to stop or frisk (Terry v. Ohio, 1968) or the "probably cause" needed to search or arrest (4th Amendment). Officers must "articulate" (Florida v. Royer, 1983) the relevant facts based on the "totality of the circumstances" (Illinois v. Gates, 1983, Burnham v. Superior Court, 1990 & United States v. Arvizu, 2002). The latter issues are connected to the "reasonableness" found in the 4th Amendment. If it's not "unreasonable," the Fourth Amendment doesn't kick in. But controlling people in a car stop is something else. In a car stop, you've already been "seized." Going back all the way to Prohibition (starting with Carroll v. US, 1925), car stops have been a bad place to look for 4th-Amendment rights.

Ordering somebody out of a car (or telling them to stay in the car) is rooted in a concern for officer safety. But officers don't have to justify that order based on officer safety. Permission comes with the car stop. The link between ordering a person out of a car an officer safety is more like your mom saying you should carry an umbrella because it might rain. "But it's sunny," you say. It doesn't matter. You can still carry that umbrella because one day it might rain. And you don't have to wait before opening it.

One comparison is with "search incident to arrest" (all people get searched after an arrest). Search incident to arrest is also based on concern for officer safety. And like ordering a woman for a car, there does not have to be any suspicion regarding the individual. No justification, articulation, or reasonableness is necessary. It's permitted. End of story.

Could any of this change? Sure. If the Court issues a new Landmark Decision. But until then these are the rules we have.


Andy D said...

I wonder what an alternative to the Whren decision would look like? Police can only stop the "most serious" violations that they observe? Who decides that? It would make it impossible to sustain any traffic case in court--all the violator would need to do is suggest (and get the judge to agree with) the fact that someone else was committing a more serious violation somewhere nearby. Or else it would become a mockery with officers simply being required to testify that it was the most serious violation they saw at the time.

Another option would be to require the violation to cause some danger to other motorists. That simply would require more creativity on the part of the officers...similar to the way that the Federal Government always had to justify that something they wanted to regulate affected "interstate commerce" and they would do so by finding some slight downstream way that it had an effect, no matter how minor. Officers could justify things based on what *could* have happened or some extremely minor danger that could conceivably have occurred.

A more reasonable option would be for state legislators to cut down on traffic laws and make them more lenient so there are less acceptable reasons for stops. Good luck getting that done in many states, especially ones that have shown nothing but a propensity to make traffic laws MORE strict (for example in Maryland, the seat belt laws started as a secondary citation that could only be written after some other stop was made, then became a primary reason for a stop, then it was extended to front seat passengers, then the fine was increased, then texting, handheld cell phone use and other things were added...and on and on)

I just wonder what the options could be? Aggressive traffic enforcement and large-scale Whren stops are a tool of aggressive drug and alcohol enforcement. Ridding ourselves of the war on drugs would cut down on it a lot...though it would not totally rid us of them.

David Woycechowsky said...

1. It is clear that pretextual traffic stops are okay.

2. It is an open issue as to whether retaliatory arrests are okay. Reichele v. Howard

3. It is an open issue as to whether retaliatory orders to leave the vehicle are okay.

Whem Mims was decided, police didn't have a documented history of abusive removals. At this point in time, when you are driving down the street and see that the popo has had the driver get out of the vehicle, you suspect that the driver is getting something more than a speeding ticket. Mims has changed the way officers use the power to remove occupants from vehicles. Whether SCOTUS is ready to acknowledge that remains to be seen.

Adam said...

Orin Kerr, easily one of the foremost criminal procedure experts in the country, weighs in over on the Volokh Conspiracy blog.

Peter Moskos said...

The Kerr article is good. I haven't given much voice to the 1st Amendment/retaliation issues because A) I'm less familiar with then and B) as Keer says, they don't really work in practice.

As the cigarette, indeed it was *not* phrased as an order, so she didn't disobey. I missed that, which is somewhat ironic since I've written about cops phrasing orders as requests (which in general is a good thing for police to do).

One could also argue that it was interpreted as a order. One could also argue that declining the request is still a safety issue. One could argue it doesn't matter.

I find two things interesting about many people who insist the cop something illegal. One, a lot of people are just ignorant. But even those who are not and raise a good points (like the retaliatory 1st Amendment theory), that seems to be more about prepping for a future court case. Intellectually interesting. But my own perspective is less law-school than police academy. I want to know the the more static constitutional law as it relates (or should relate) to police actions today. If the Court changes their mind. Fine. I'll deal with it after the fact.

Finally, I think it would be a huge jump for the Court to start saying they *do* care about police officer intent or mood. They've stated their position too many times, and in stronger and stronger terms. And Whren was 9-0. How is that going to get overturned?

David Woycechowsky said...

I think the Bland video is important because it shows how judicial assumptions made over the last couple decades (and especially since 9/11) do not really comport with actual police attitudes. As a person interested in the Fourth Amendment, I didn't really become aware of the size of the chasm between how courts think the police think and how police think until I noticed police blogs on the internet. This realization happened for me in late 2006 / early 2007.

One faulty assumption is that police officers care about their own safety. They care about it somewhat, but not when it comes to a choice between safety and collecting drug evidence or a choice between safety and showing the regcits who is the boss.

In the Bland video there can be no question that the officer's course of conduct made things less safe, rather than more safe, for the officer. And by course of conduct I mean everything starting with scaring Bland into a quick lane change. This type of behavior can lead to serious injury. E.g.:


When the courts decided Mimms and Whren and Atwater they made a fundamental assumption that the police were the good guys and would not engage in wholesale abuse of their expanding powers under 4A. There is a marked difference in tone between these opinions, and older opinions like Terry, Miranda and Garner,

But, two things are tearing away at these false assumptions about police honesty and goodness. The first thing, obviously, is video. That is what makes the prospect of a civil suit specifically in the Bland case (or even the Guilford case) so exciting.

The second thing is less obvious, and, as far as I know, I am the only one has noticed it. Specifcally, the second thing is how supportive the police community is the police officers in cases like Bland and Guilford. Before 2006, I was content to believe that officers who enhanced danger to themselves, rather than decreased it, would be subject to scorn, ridicule and admonishment by brothers in blue and criminal justice professors. Since I discovered policemen posting on the internet, I see that I assumed wrong. Eventually, and probably over a long time, I am pretty confident that courts will come to the same realization that I have (for example, the penny seemed to drop with the trial and appellate courts in the Ayers case).

BTW, if any of you are interested in a blog dealing with civil suits against the police, I recommend police4aqi.wordpress.com. Interesting cases and spot on commentary.