NCJ Number
169228
Journal
Journal of Criminal Law and Criminology Volume: 87 Issue: 2 Dated: (Winter 1997) Pages: 544-582
Date Published
1997
Length
39 pages
Annotation
The U.S. Supreme Court's decision in Whren v. United States (1996) approves two alarming law enforcement practices.
Abstract
In "Whren" the court held that if police witness a traffic violation, they have the simplest and clearest type of probable cause imaginable for a stop. Requiring more would force lower courts to make post hoc Fourth Amendment judgments based on either the mind-set of a reasonable officer of the actual (perhaps ulterior) motives of the arresting officer, neither one of which the Court saw as necessary, useful, or relevant to the task of judging the constitutionality of a seizure. After "Whren," courts will not ask whether police conducted a traffic stop because officers felt the occupants of the car were involved in some other crime about which they had only a hunch but no probable cause; rather, once a driver commits a traffic infraction, the officer's "real" purpose for the stop will make no difference at all. This decision by the Court approves two alarming law enforcement practices. First, the comprehensive scope of State traffic codes makes them extremely powerful tools under "Whren." Under current traffic codes, which regulate the details of driving in both obvious and arcane ways, it is nearly impossible for a driver to avoid violating some traffic law during even a short drive in which the driver attempts to obey traffic laws. This means that "Whren" gives a license to the police to stop virtually any citizen for even the most minor traffic offense in order to conduct a vehicle search. The second danger of "Whren" stems from the first danger; that is, that the police will not subject all drivers to traffic stops as allowed by "Whren," but will disproportionately stop African-Americans and Hispanics, whom the police view as a criminal class disproportionately involved in crime, particularly drug trafficking and use. "Whren" is more than a missed opportunity for the Court to rein in some police practices that strike at the heart of the concepts of freedom and equal treatment; this is a clear step toward authoritarianism, racist policing, and toward a view of minorities as criminals rather than citizens. 211 footnotes