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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. ESSAY DRIVING WHILE BLACK AND ALL OTHER TRAFFIC OFFENSES: THE SUPREME COURT AND PRETEXTUAL TRAFFIC STOPS DAVID A. HARRIS* I. INTRODUCTION 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. 95-5841). 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)). 544

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