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87 J. Crim. L. & Criminology 544 (1996-1997)
Driving While Black and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops

handle is hein.journals/jclc87 and id is 554 raw text is: 0091-4169/96/8702-0544
THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY                      Vol. 87, No. 2
Copyright © 1997 by David A. Harris                          Pinted in U.S.A.
The Supreme Court's decision in Whren v. United States' could not
have surprised many observers of the Court's Fourth Amendment ju-
risprudence. In Whren, police officers used traffic violations as a pre-
text to stop a car and investigate possible drug offenses; the officers
had neither probable cause nor reasonable suspicion to stop the
driver for narcotics crimes.2 In the Supreme Court, the government
advocated the could have standard: any time the police could have
stopped the defendant for a traffic infraction, it does not matter that
police actually stopped him to investigate a crime for which the police
had little or no evidence.3 The defense asked the Court to adopt a
would have rule: a seizure based on a traffic stop would only stand if
a reasonable officer would have made this particular stop.4 The Court
sided with the government If police witness a traffic violation, the
* Eugene N. Balk Professor of Law and Values, University of Toledo College of Law.
J.D. 1983, Yale Law School; LL.M. 1988, Georgetown University Law Center. My thanks to
Jeffrey Gamso, Deborah Jeon, Mark Kappelhoff, Tom Perez, Daniel Steinbock and Lisa
Burget Wright for helpful comments on an earlier draft of this piece. Thanks also to Eric
Crytzer and Mary L. Sawyers for research and editorial assistance.
1 116 S. Ct. 1769 (1996).
2 See infra notes 15 through 19 and accompanying text. To legally stop a person, a
police officer must have at least reasonable suspicion of criminal activity. Terry v. Ohio,
392 U.S. 1 (1968).
S Brief for the United States at 5-6, United States v. Whren, 116 S. Ct. 1769 (1996) (No.
4 Whren, 116 S. Ct. at 1773 (defendant petitioners asked that the standard be whether
a police officer, acting reasonably, would have made the stop for the reason given (empha-
sis added)).


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