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Pretexual Stops

This area of law is another way that law enforcement circumvents the Fourth Amendment. This is

when an individual is driving down the road and law enforcement wants to take a peek, but they do not

have suspicion of a crime (i.e., they lack probable cause). In these types of situations, the officer has no

desire to conduct a true traffic stop based on some traffic violation, but instead to search for fruits of a

crime. Please refer to “Probable Cause” for further explanation of why officers use the pretextual stops

as a ruse and in discriminatory ways.

Many have heard the saying "driving while black," but some think it’s a joke. The United States

Supreme Court has held that it is permissible under the Fourteenth Amendment (The Equal Protection

Clause) for law enforcement to use race as a reason for deciding which vehicles to stop and search.

[United States v Brignoni-Ponce, 422 U.S. 873 (1975); and United States v Martinez-Fuerte, 428 U.S. 543

(1976)]. There is a great body of research to show that law enforcement does in fact use race as a

reason. [See e.g., David Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (New York: The

New Press, 2002)(Studies showing that police do in fact use race in a discriminatory manner; 21% of

drivers were racial minorities on this stretch of highway, but of those pulled over and searched, almost

80% were racial minorities); Jeff Brazil and Steve Berry, "Color of Drivers Is Key to Stops on I-95 Videos,"

Orlando Sentinel, Aug. 23, 1992; David Harris "Driving While Black and All Other Traffic Offenses: The

Supreme Court and Pretextual Traffic Stops," Journal of Criminal Law and Criminology 87 (1997): 544,

561-62 (5% of drivers in Volusia County Florida were African American or Hispanic, but made up over

80% of the drivers stopped and searched); ACLU, "Driving While Black: Racial Profiling on Our Nation’s

Highways (New York: American Civil Liberties Union, 1999) 3, 27-28 (similar statistics in Illinois); ACLU of

Northern California, "Oakland Police Department Announces Results of Racial Profiling Data Collection

Program Praised by ACLU," Press Release, May 11, 2001,

g_data_collection_program_praised_by_aclu.shtml. (Study in Oakland California in 2001 shows African

Americans twice as likely as whites to be stopped and three times likely to be searched); Al Baker and

Emily Vasquez, "Number of People Stopped by Police Soars in New York," New York Times, Feb. 3, 2007

(New York study showing similar results for pedestrians).].

Research has shown statistical evidence where law enforcement and elected officials admit to racial

profiling. [See e.g. State v. Soto, 734 A.2d 350 (N.J. Super 1996) ( citing statistical evidence that New

Jersey state police engaged in racial discrimination in its enforcement of traffic laws )); Iver Peterson

Whitman concedes troopers used race in stopping drivers, New York Times, Apr. 21, 1999, at Al (the

governor of New Jersey conceded that state troopers singled out African American and Hispanic

motorists on the highway for stops, and then searched their vehicles three times more often than in the

case of white motorists); Albert J. Meehan and Michael C. Ponder, Race and Place: The Ecology od Racial

Profiling African American Motorists, 19 Justice Q. 399 (2002) (Finding that African Americans are

subject to disproportionate surveillance and detentions by police when driving through white areas, a

finding not explained by any higher criminality rates among African Americans).

Beyond this, history shows this consistently to be true. For example, on April 23, 1902 when two

black men innocently walked through Goodwater, GA they were stopped by J.G. Dunbar, night watch.

His reasoning was “I discovered two slouchy negroes slipping towards town, and I supposed they were

up to some devilment”. [Affidavit of J. G. Dunbar, May 11, 1903, File 76909. National Archives, Regional

Records Center, East Point Georgia].

As discussed above, the Fourth Amendment is said to protect citizens from arbitrary searches.

However, the Supreme Court has held that "an officer's motivations to pull a driver over is irrelevant

when evaluating the reasonableness of police activity under the Fourth Amendment." The Court

continued "It does not matter why the police are stopping motorists under the Fourth Amendment, so

long as some kind of traffic violation gives them an excuse." [Whren v United States, 517 U.S. 806

(1996)]. The Supreme Court has also explained that this justification can be reinforced and backed up by

using information such as where the accused lives [Adams v Williams, 407 U.S. 143, 147 (1972)]; what

the accused is wearing [United States v Sokolow, 490 U.S. 1, 4-5 (1989)]; and how the accused behaved

[Illinois v Wardlow, 528 U.S. 119, 124-125 (2000)]. However, law enforcement does not even need to

know which law was broken so long as they can later point to any possible infraction - even one that is

minor, unrelated, or ambiguous [Utah v Strieff, 136 S. Ct. 2056, 2069-70 (2016)(Sotomayor;

Kagan)(citing Devenpeck v Alford, 543 U.S. 146, 154-155 (2004); Heien v North Carolina, 135 S. Ct. 530

(2014).]. The question becomes, ”who does the fifth and Fourteenth Amendment apply to”?

Now that law enforcement has the citizen pulled over with one of the thousands of traffic violations

permissible (i.e., not enough distance between cars, not right amount of time before merging into other

lane, or many others), they have a whole new set of ways to seek out probable cause. They do not have

to inform the motorist of their right not to consent to a search. Instead the United States Supreme Court

shortly after ruling that race can be a factor, held that it is unrealistic for law enforcement to advise

motorists of their right to refuse consent and leave, if they choose to, when they were simply pulled

over for a traffic violation. [Ohio v Robinette, 519 U.S. 33 (1996)]. Please see Probable Cause and


If law enforcement still haven’t acquired their probable cause, or the motorist was brave enough to

refuse consent to search, law enforcement can still arrest the motorist for a minor traffic violation. This

is the case even if the statutory penalty for the traffic violation is only a fine. [Atwater v City of Lago

Vista, 532 U.S. 318 (2001)]. Once the accused has been arrested law enforcement is now legally allowed

to search the vehicle. This is called an "incident to arrest search," which does not require any probable

cause. The justification behind it is so law enforcement can inventory the contents to avoid disputes

with the accused and law enforcement over theft and damage. [Florida v Wells, 495 U.S. 1, 4 (1990)].

The only requirements are they must do so pursuant to established procedures and policies. [Illinois v

Layfayette, 462 U.S. 640, 648 (1983))]. However, there are no limits by the Supreme Court of the scope

or breadth of these policies. Law enforcement can have a policy of opening all containers or no

containers as long as the policy is not a ruse for gathering discriminating evidence. [Florida v Wells, 495

U.S. 1, 4 (1990)]. If, however, at this stage law enforcement finds illegal contraband then it is permissible

to introduce into evidence. On the other hand, if they do not find any illegal contraband, then no harm

no foul, at least in their eyes.

Sometimes law enforcement wants to go above and beyond so while they have a motorist pulled

over, or just prior to flashing their lights they call for a K9 (drug-sniffing dog) to come to the scene. Law

enforcement are then allowed to walk the K9 around the vehicle, and if the K9 alerts to possible drugs

then law enforcement now has probable cause. This type of search has been held by the United States

Supreme Court to not constitute a "search" under the Fourth Amendment [Illinois v Caballes, 543 U.S.

405 (2005); United States v Place, 462 U.S. 696 (1983)].

One should ask themselves, does the Fourth Amendment still exist, and if it does then who does it

apply to? This is an area that voters have the right to demand to be changed, because a United States

Citizen is quickly losing any and all rights including the right to privacy.

When law enforcement stands before a judge, they tell the judge "I had a hunch. . . based on my

experience and training as a law enforcement officer." Courts have continuously upheld this despite it

being completely untrue. Part of the reason for this is because so many who come before a judge is

guilty, or at least they plead guilty. When in fact a vast majority of those pulled over and/or searched

have not actually committed any crime. [For example, Florida v Kerwick, 512 So.2d 347, 349 (Fla. App. 4

Dist 1987)(Showing one officer being able to search over three thousands bags in a nine-month period);

United States v Flowers, 912 F.2d 707, 710 (4th Cir. 1990)(a sweep of over one hundred buses only

resulted in seven arrests); Gary Webb, "Driving While Black" esquire, Apr. 1, 1992, 122 (A California

Highway Patrol Officer saying "It's sheer numbers. . . you've got to kiss a lot of frogs before you find a

prince."); Gary Webb, "Driving While Black" Esquire, Apr. 1, 1992, 122 (estimating 95% of Pipeline stops

yield no illegal drugs); Scott Henson, Flawed Enforcement: Why Drug Task Force Highway Interdiction

Violates Rights, Wastes Tax Dollars, and fails to limit the Availability of Drugs in Texas (Austin: American

Civil Liberties Union -- Texas Chapter, 2004), 9, 98% of task-force searches

during traffic stops are discretionary searches in which the officer searches the car with the driver's

verbal consent but has no other legal authority to do so)].

It is true that law enforcement receives specialized training in this area. Take a look at Operation

Pipeline where the DEA in 1984 (Regan Administration) trained State and local law enforcement officers

on how to use these pretextual stops, how to lengthen traffic stops to turn it into a search, how to use

traffic violations, how to coerce consent from a motorist unwillingly to give consent, and, if all else fails

how to use a drug-sniffing dog, all to obtain probable cause without violating the very loose standards

(the Judiciary, i.e. courts have created) of the Fourth Amendment, which was intended in being the

exact opposite. [See U.S. Dept of Justice, Drug Enforcement Administration, Operations Pipeline and

Convoy (Washington, DC, n.d),; See also Ricardo J. Bascuas,

"Fourth Amendment Lessons From the Highway and the Subway: A Principle Approach to Suspicionless

Searches," Rutgers Law Journal 38 (2007): 719, 763 ("Operation Pipeline is exactly what the Framers

meant to prohibit: a Federally-run Search Program that targets people without cause for suspicion,

particularly those who belong to disfavored groups.")].

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