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14 Harv. Blackletter L. J. 91 (1998)
Whren v. United States: A Pretext to Subvert the Fourth Amendment

handle is hein.journals/hblj14 and id is 95 raw text is: WBR-tN V. UNITED STATES: A PRETEXT TO SUBVERT THE FOURTH AMENDMENT David 0. Markus* Four White plaindothes Drug Enforcement Agency (DEA) agents in an unmarked car are suspicious that a Black man, driving a new Pathfin- der with tinted windows, has drugs. They do not have reasonable sus- picion, and certainly do not have probable cause to stop this man for drugs, but he is a Black man in a poor neighborhood driving a nice car. They start to follow, waiting for the inevitable mistake. The man slows at a stop sign and proceeds through the intersection, failing to come to a complete stop. The DEA agents snap into action. They immediately pull the Black man over and begin the following interrogation: Agent: Hey nigger, what are you doing driving such a nice car? You must have some drugs in there, don't you? Driver: I don't have drugs in this car, and you have no right to pull me over. Agent: Guess what-you didn't stop for the required three seconds at that stop sign, so I can pull your Black ass over. You want to answer my questions about the drugs or should I write you that ticket? Driver: Why do you think I have drugs? Agent: The great thing is that it doesn't matter. Personally, I think you have drugs because you are Black and you are driving a nice car. So long as you violated one of our numerous traffic infractions, I can stop you for whatever reason I want. Unfortunately, the DEA agent is correct. In Whren v. United States,' Justice Scalia, writing for a unanimous Court, held that the motivations of an officer-no matter how evil-are not calculated in determining whether a seizure is reasonable under the Fourth Amendment.2 This Note will examine the Court's decision in Whren. It will then explain why the * Law Clerk, Chief Judge Edward B. Davis, Southern District of Florida; Instructor, University of Miami School of Law. B.A., Emory University, 1994; J.D., Harvard Law School, 1997. I would like to thank Mona Mitrani, Stuart Markus, Ilene Markus, Alan Dershowitz, Tracey Maclin, Milton Hirsch, Astrid Andre, and Carmen Pearson for their comments and suggestions. 1. 116 S. Ct. 1769 (1996). 2. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no War- rants shall issue, but upon probable cause, supported by Oath or affirmation,

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