| When
they hear some of the personal stories concerning traffic
stops, some lay people (almost always whites) are genuinely
surprised. Aside from issues concerning the racial aspects
of the problem, the same questions almost always come up:
Can the police do this? Does the law allow police to stop
any driver, any time they wish? Don't they have to have a
reason, some rationale, to think the occupants of the car
committed a crime? The answer usually surprises them. Yes,
police need a reason to stop the car, but they virtually
always have it, without seeing any criminal activity. And
the law makes it very easy to proceed from the stop to
questioning and searching, with no more evidence than a
hunch.
For many years, the Supreme Court has
allowed police to stop and search a vehicle without a
warrant when they have probable cause to believe that it
contains contraband or evidence of a crime. The Court
reasoned that since automobiles were inherently mobile, it
made no sense to require officers to leave and obtain a
warrant because the suspect would simply drive away. Over
the years, the Court has broadened the rationale for the
"automobile exception," saying that in addition to
mobility, the fact that cars are heavily regulated and
inherently less private means that warrants should not be
required.
But the automobile exception only
represents the beginning of the Court's cases that allow
police considerable discretion over cars, their drivers, and
their passengers. In 1996, the Supreme Court addressed
directly the constitutionality of pretextual traffic stops.
The Court used Whren v. United States to resolve a circuit
split, ruling that police can use traffic stops to
investigate their suspicions, even if those suspicions have
nothing to do with traffic enforcement and even if there is
no evidence of criminal behavior by the driver upon which to
base those suspicions. The officer's subjective intent makes
no difference. This is true, the Court said, even if a
reasonable officer would not have stopped the car in
question. As long as there was, in fact, a traffic offense,
the officer had probable cause to stop the car. The fact
that traffic enforcement was only a pretext for the stop had
no Fourth Amendment significance, and no evidence would be
excluded as a result. Since no one can drive for even a few
blocks without committing a minor violation-- speeding,
failing to signal or make a complete stop, touching a lane
or center line, or driving with a defective piece of vehicle
equipment--Whren means that police officers can stop any
driver, any time they are willing to follow the car for a
short distance. In other words, police know that they can
use the traffic code to their advantage, and they utilize it
to stop vehicles for many nontraffic enforcement purposes.
But Whren does not stand alone. It
represents the culmination of twenty years of cases in which
the Court has steadily increased police power and discretion
over vehicles and drivers. Once the police stop a car,
utilizing Whren, the plain view exception may come into
play. During the traffic stop, officers have the opportunity
to walk to the driver's side window and, while requesting
license and registration, observe everything inside the car.
This includes not only the car and its contents, but the
driver. If it is dark, the officers can enhance a plain view
search by shining a flashlight into any area that would be
visible if it were daylight. If the officers observe an
object in plain view and it is immediately apparent, without
further searching, that it is contraband, they can make an
arrest on the spot. During this initial encounter, they can
also have both the driver and the passenger get out of the
vehicle, without any reason to suspect them of any
wrongdoing.
If there is an arrest, the police can go
further. They can do a thorough search of the passenger
compartment and all closed containers inside. They
can also "frisk" the car if there is anything
resembling a weapon in plain view. Even if nothing is
seen in plain view, police can question the driver and
passengers without giving them Miranda warnings. The
officers are likely to keep the tone of the
questioning amicable, but this is more than just carside
chit-chat. It is a purposeful, directed effort to get the
driver talking. The answers may disclose something that
seems suspicious.
Police may continue questioning even after
a driver answers every question satisfactorily and in a way
that does not raise any suspicion of guilt. The real goal of
the questioning is to gather information and impressions
that will help the officers decide whether they want to
search the car. In the event that they do, the officers will
try to obtain the driver's consent. A great number of
vehicle searches begin with a request for consent.
The initial friendly discussion helps put the driver in the
frame of mind to respond to the troopers helpfully, making
cooperation and consent more likely. And this technique
usually works. Whether out of a desire to help, fear,
intimidation, or a belief that they cannot refuse, most
people consent. The police need not tell the driver that she
has a right to refuse consent, or that she is free to go. As
one veteran state trooper told a reporter, in two years of
stops, "I've never had anyone tell me I couldn't
search." And while a driver could surely limit
consent-- "You can look through my car, but not my
luggage"--most of the searches are in fact quite
thorough and include personal effects.
But even if there is no contraband in
plain view, and the driver refuses consent, the officers'
quiver is still not empty: they may still use a dog trained
to detect narcotics. Since the Supreme Court has declared
that the use of these dogs does not constitute a search,
police may use them without probable cause or reasonable
suspicion of any kind. This makes them ideal tools for the
"no consent and no visible evidence" situation,
because no consent or evidence--in fact, no justification at
all--is necessary. Any police department with the funds to
pay for them has one or more "K-9 teams"
available at all times. The dogs can be called in to search
when there is a refusal. Better yet, officers might short
circuit the whole process by using the dog as soon as a car
is stopped, without even seeking consent. If the dog
indicates the presence of narcotics by characteristic
barking or scratching, that information itself constitutes
probable cause for a full-scale search.
The upshot is that officers are free to
exercise a vast amount of discretion when they decide who to
stop. And as the statistics show, police stop African-
Americans more often than their presence in the driving
population would predict, since blacks and whites violate
the traffic laws at about the same rate. There are two
likely explanations for this. First, the decisions of the
last twenty years surveyed here allowing police ever-greater
power over vehicles, drivers and even passengers, come from
the crime-control model of criminal procedure. One can see
this in numerous decisions, but especially in the consent
search cases, Schneckloth v. Bustamonte and Ohio v.
Robinette. In both, the Court used the rhetoric of
balancing, but in reality gave short shrift to any interest
other than law enforcement. It would be "thoroughly
impractical" to tell citizens they have a right to
refuse to consent to a search, the Court said in Schneckloth,
because this might interfere with the ability of the
police to utilize consent searches. In other words, if
people were told they did not have to consent, some might
actually exercise this right and refuse. Because of law
enforcement's interest in performing consent searches, it is
preferable to enable the police to take advantage of
citizens' ignorance of their rights. Robinette, decided more
than twenty years later, sounded the same note. It would be
"unrealistic" to tell citizens whom the police
have no reason to detain that they are free to go before the
police ask for consent to search. This statement is
unaccompanied by even the barest explanation or analysis,
save reference to Schneckloth. Years of cases like these
make it obvious that the Court has control of crime at the
top of its criminal law agenda, and it has decided cases in
ways designed to enable the police to do whatever is
necessary to "win."
Second, by making the power of the police
to control crime its top priority in criminal law, the
Court--whether intentionally or not--has freed law
enforcement from traditional constraints to such a degree
that police can use blackness as a proxy for criminal
propensity. In other words, officers are free, for
allpractical purposes, to act on the assumption that being
black increases the probability that an individual is a
criminal. The statistics presented here suggest that is
exactly what the police are doing. But this means that all
African-Americans get treated as criminal suspects, not just
those who have committed crimes. And there are virtually no
data that tell us just how many innocent people police
officers stop for each criminal they catch.
Next: Addressing
the Problem |
