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David A. Harris

84 Minnesota Law Review 265-326 (1999)
(Permission Requested, citations omitted)

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.

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