I am grateful for the opportunity to respond to Sarah A. Seo’s excellent take on Whren v. United States (1996), a dismaying case that speaks volumes about the Supreme Court’s abdication of its duty to fully enforce constitutional limits on government power. As discussed below, Whren is not just an affront to the values underlying the Fourth Amendment (though it certainly is that), but also a vivid manifestation of the “deferential standard” that has spread like a disease throughout the Court’s constitutional jurisprudence, resulting in its endorsement of a federal Leviathan that would have horrified the Founders and the habitual rubber-stamping of arbitrary infringements on liberty by government at all levels. Thus, Whren is a kind of constitutional microcosm: what it allows police to do to the Fourth Amendment specifically, the Supreme Court frequently allows government to do to the Constitution generally.
Professor Seo notes that Whren was the case in which the Supreme Court “legitimized pretextual policing.” She’s right, and it’s vital to understand precisely what that entails. It is well-known that America’s criminal justice system features massive and widespread racial disparities. Those disparities include everything from the frequency of traffic stops and vehicle searches to the quality of plea offers and the length of prison sentences. Another practice that appears to be widespread is racial profiling, which includes targeting motorists for “driving while black.” As Radley Balko relates in a Washington Post piece exhaustively documenting racial disparities in our criminal justice system, “there is a running joke in law enforcement when it comes to racial profiling: It never happens … and it works.” But what, if anything, judges should do about it is an important question, and it was that question the Supreme Court confronted in Whren.
As Professor Seo recounts, the defendants in Whren were two young black men who were pulled over by plainclothes detectives in Washington, D.C., ostensibly for making an unsignaled turn and then taking off at an “unreasonable speed.” The detectives found crack cocaine in the car, and the driver and passenger were charged with federal drug felonies carrying significant prison time. The defendants invoked the Fourth Amendment’s exclusionary rule on the grounds that the traffic stop was pretextual and would not have been undertaken but for the officers’ desire to look inside the car and investigate their hunch that it might contain drugs. Their contention about the pretextual nature of the stop was bolstered by the fact that the plainclothes detectives who made the stop were part of a special vice squad whose members were specifically forbidden by department regulations from enforcing traffic laws unless they observed a violation “‘so grave as to pose an immediate threat to the safety of others.’”
But the Supreme Court rejected the Fourth Amendment challenge and held that it was irrelevant whether the defendants had been targets of racial profiling because the Court’s precedents “foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.”
As the kids say these days, Wait—what?
Yes, you read that right. According to the unanimous Supreme Court, “the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the [officers’] subjective intent.”
To fully appreciate the implications of that remarkable assertion, let’s hypothesize a perfectly candid officer, or “PCO,” who works for a department that tolerates (or perhaps even tacitly encourages) racial profiling. We can imagine the following exchange with defense counsel (DC) during a suppression hearing:
DC: You were working undercover at the time you stopped my client for failing to use his turn signal, correct?
PCO: That’s correct.
DC: And you were specifically forbidden by department regulations from initiating any traffic stops except in cases of immediate danger to others, is that right?
DC: You didn’t think an unsignaled turn represented an immediate danger to others, did you?
PCO: No, I did not.
DC: So how long had you been following Mr. Doe before you made the traffic stop in specific violation of department regulations?
PCO: I don’t know exactly [checks notes]—for a few minutes at least.
DC: And why were you following him?
PCO: Because I wanted to pull him over and look inside his car, and I was waiting for him to commit a traffic violation so I could initiate the stop.
DC: Why did you want to look inside his car?
PCO: Because he’s a young black guy driving an expensive SUV in a certain part of town at night, and to me that adds up to drugs in the car.
DC: So you admit you were engaged in racial profiling?
DC: And to be clear, you would not have started following my client but for the fact that he was a young black guy driving a nice car, correct?
DC: Nor would you have initiated the traffic stop but for the fact that my client was black, is that right?
PCO: Yes, that’s 100% accurate.
So to summarize, the hypothetically candid police officer has admitted to violating the defendant’s civil rights by engaging in illegal racial profiling, and he has acknowledged that he would not have made the stop but for the driver’s race, which is a federal crime. Nevertheless, the Supreme Court would find no Fourth Amendment violation here because under Whren, the only thing that matters is whether there was a legitimate reason why the police could have stopped the car (in this case, failure to signal a turn)—regardless of why they actually did make the stop.
Indeed, far from denying that the detectives may have acted unlawfully in Whren, the Supreme Court expressly acknowledges that possibility, but then blithely asserts that the constitutional basis for objecting to the intentionally discriminatory application of laws is “the Equal Protection Clause, not the Fourth Amendment.” In other words, a traffic stop that constitutes both an equal-protection violation and a criminal act on the part of the police may nevertheless be “reasonable” for Fourth Amendment purposes, according to the unanimous Supreme Court in Whren.
That is, of course, preposterous. But such is the state of Fourth Amendment jurisprudence today—and of many other constitutional provisions whose government-limiting substance has been sapped by generations of deference-venerating judges.
And lest we suppose the Supreme Court’s breathtaking abdication in Whren will have only limited or sporadic real-world consequences, Professor Seo reminds us that “pretextual enforcement of the traffic code has been an official strategy in the war on drugs since at least the 1980s,” and in fact the Drug Enforcement Administration has “trained state highway patrols to use such tactics” in support of the so-called “‘criminal patrol,’ a term that reflects the merger of criminal investigations and traffic patrol duties.”
Honestly, it’s hard to say which is more dismaying: the continued use of racial profiling by law enforcement agencies that were supposed to have evolved as part of the “new professionalism,” or the judiciary’s persistent indifference to the fact that the ability to fully enjoy Fourth Amendment rights while driving a car in America still turns in significant measure upon the color of one’s skin and the discretion of those who patrol our nation’s roads.