Amicus Curiae Brief — Whren v. United States

Supreme Court of the

OCTOBER TERM, 1995

>

MICHAEL A. WHREN, et ai.,

Petitioners,

-—V —

UNITED STATES OF AMERICA,

Respondent.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF AMICUS CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION IN SUPPORT OF PETITIONERS

Steven R. Shapiro

(Counsel of Record)

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Susan N. Herman

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-7945

pul

I.

TABLE OF CONTENTS

THE FOURTH AMENDMENT PROHIB-

ITS OFFICERS FROM USING PRETEX-

TUAL REASONS TO MAKE A STOP,

CONDUCT A SEARCH, OR EFFECT A

. THE STANDARD FOR DETERMINING

PRETEXT ADOPTED BY THE COURT

BELOW IS INADEQUATE TO PRE-

SERVE CORE FOURTH AMENDMENT

A. The Stop And Search In This Case

Should Have Been Invalidated Under

Any Plausible Fourth Amendment

In The Absence Of A Controlling

Regulation, The Appropriate Question

Is How A Reasonable Officer Would

Have Acted Under Similar Circum-

Page

C. Courts Need Not And Should Not Ig-

nore Clear Evidence That A Police

Officer Acted With Subjective Bad

Faith To Evade The Fourth Amend-

sates: 6 erg 66S 6A SG e008 6 6 6 17

eee chee se be eee ee 21

TABLE OF AUTHORITIES

Page

Cases

Abel v. United States,

362 U.S. 217 (1960) ... 2... ees 7,14

Anderson v. Creighton,

Se I PED ccc ccccccccccececceccces 16

Batson v. Kentucky,

476 U.S. 79 (1986)... .........000565. 4, 5, 9, 10, 17

Camara v. Municipal Court,

387 U.S. 523 (1967) ... 2... ee ee ee 8

Colorado v. Bannister,

449 U.S. 1 (1980) 2.02. cen 8, 14

Colorado v. Bertine,

479 U.S. 367 (1987)... ee es 7, 12, 17

Delaware v. Prouse,

440 U.S. 648 (1979) . 6 ee 6, 10

Florida v. Wells,

495 U.S. 1,4 (1990)... eee 6

J E.B. v. Alabama,

511 U.S. __, 114 S.Ct. 1419 (1994) ............. 4,9

Jones v. United States,

357 U.S. 493 (1958)... ce 8

Marshall v. Barlow's Inc..,

436 U.S. 307 (1978) .. 2. eee 3

Maryland v. Macon,

472 U.S. 463 (1985)... cee 19

McCleskey v. Kemp,

481 U.S. 279 (1987)... 2. cee ll

Michigan v. Sitz,

496 UG. 444 (1IDBD) nc ccc cece ccccccscsecess 3,9

Mount Healthy v. Doyle,

ry Jil ®&. V. ), Peeweerrrerrre es 9

Murray v. United States,

467 UB. SEB CIDER 2 cc ccc ccccccccscecvesesss 15

New Jersey v. T.L.O.,

469 US. 52S CIGES) oc ccc cc cescccccccccesees 9

New York v. Burger,

462 UB. G4 CIGET) . wc ccc cc cccccccseccssess 7

Perry v. Sindermann,

GOB UG, SEB CGT occ cece cccccccssuccosess 4,9

Pickering v. Board of Educ.,

ry Bil eS ... Peer eee 9

Price Waterhouse v. Hopkins,

P Jil |. eevee 9

Scott v. United States,

496 UG. UFB (IGT oc ccc ccc ccccccvcces 18, 19, 20

South Dakota v. Opperman,

GBB UD. BG4 CGT oc ccc cc ccccvccccccccsncs 7

Steagald v. United States,

rE ' @ 7. Pe ee 8

Swain v. Alabama,

. Lil & | ares sr tr 10

Tennessee v. Garner,

fh | SY ee 3, 10

Terry v. Ohio,

. fle), eae: 5, 6, 15, 19

iv

Texas v. Brown,

460 U.S. 730 (1983) ...........

United States v. Botero-Ospina,

71 F.3d 783 (9th Cir. 1995) ......

United States v. Brignoni-Ponce,

GED We BFP CROPS occ cc ccc:

United States v. Cannon,

29 F.3d 472 (9th Cir. 1994) ......

United States v. Guzman,

864 F.2d 1512 (10th Cir. 1988) ...

United States v. Lefkowitz,

285 U.S. 452 (1932) ...........

United States v. Robinson,

414 U.S. 218 (1973) ...........

United States v. Scopo,

19 F.3d 777 (2d Cir.),

cert. denied,

_ US. _., 115 S.Ct. 207 (1994) ..

United States v. Smith,

799 F.2d 704 (11th Cir. 1986) ....

United States v. Valdez,

931 F.2d 1448 (9th Cir. 1991) ....

United States v. Villamonte-Marquez,

GES Gs BOP GOED 0 ccc csicces

Vernonia School District v. Acton,

515 U.S. __, 115 S.Ct. 2386 (1995)

Wilson v. Arkansas,

514 U.S. __, 115 S.Ct. 1914 (1995)

Other Authorities

1 LaFave,

SEARCH AND SEIZURE

SP, EE cnc ncnseccsccddocesnabeseobeces 11

Burkoff, "Bad Faith Searches,"

S7 W.LY.U. Lev. TO (ISEZ) 0. cc ccccccess 17, 19

Rudovsky, "The Impact of the War

on Drugs on Procedural Fairness

and Racial Equality,”

ED nes oa oc aceon ekesaeen 11

Washington Metropolitan Police

Department General Order

303.1(1IMA\(2)ay(4)

fk errr ry) 2

INTEREST OF AMICUS '

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Bill of Rights. Both principles are

involved in this important Fourth Amendment case. By pre-

serving a zone of personal privacy, the Fourth Amendment

protects an important aspect of individual liberty. By limit-

ing police discretion to invade that zone of personal privacy

for inappropriate reasons, the Fourth Amendment promotes

equal treatment under the law. Pretextual searches, on the

other hand, trivialize the interest in personal privacy and en-

courage discriminatory law enforcement. The proper resolu-

tion of this case is, therefore, a matter of concern to the

ACLU and its members around the country.

STATEMENT OF THE CASE

On June 10, 1993, Michael Whren and James Brown,

two young black men, were driving a Nissan Pathfinder

with temporary tags through the streets of Southeast Wash-

ington, D.C. Their car was stopped by plainclothes officers

from a vice unit who were patrolling the area looking for il-

legal drug activity. The defendants were arrested after the

police discovered crack cocaine in the car.

The police contend that they stopped the car for alleged

traffic violations, although it is undisputed that the policy of

the D.C. Police Department is that officers "who are not in

uniform or are in unmarked vehicles may take [traffic] en-

forcement action only in the case of a violation that is so

grave as to pose an immediate threat to the safety of

' Letters of consent to the filing of this brief have been lodged with the

Clerk of the Court pursuant to Rule 37.3.

|

others,"’ and that no such threat existed in this case. De-

fendants contend that the alleged traffic violations were a

mere pretext that allowed plainclothes vice officers to stop

the car for a drug search without probable cause or reasona-

ble suspicion.

In denying defendants’ motion to suppress, both the dis-

trict court and the court of appeals acknowledged that the

police lacked any constitutionally adequate suspicion to stop

the car and search for drugs. And neither court quarreled

with defendants’ assertion that the alleged traffic violations

were only a pretext to conduct a drug search for which there

was no other colorable constitutional basis. Both courts

nevertheless concluded that the issue of pretext was constitu-

tionally irrelevant so long as there was reason to believe that

defendants were actually committing a traffic violation.

The court of appeals in this case recognized that the

standard for reviewing pretextual searches has divided the

circuits and chose to embrace a standard under which the

only relevant inquiry is whether the defendants "could have"

been stopped for violating the traffic laws. Since the an-

swer to that question in this case is obviously yes, the court

ruled that there had been no Fourth Amendment violation.

In reaching this determination, the D.C. Circuit specifically

rejected the test adopted by two other circuits, which asks

whether a reasonable police officer "would have" conducted

the search under similar circumstances. In addition, the

D.C. Circuit interpreted the "could have" test in the broadest

possible fashion. Thus, the fact that these officers could not

have stopped defendants’ car for a mere traffic violation

under existing regulations was deemed irrelevant so long as

some officer on the D.C. police force could have done so.

* Washington Metropolitan Police Department General Order 303.1(1)

(A\(2)(a\(4), issued April 30, 1992 (emphasis in original).

2

SUMMARY OF ARGUMENT

This case raises a fundamental Fourth Amendment issue

in a common factual setting. Whether intentionally or not,

virtually everyone violates the traffic laws at one point or

another. Inevitably, the police exercise broad discretion in

deciding whom to stop. According to the court below, that

discretion cannot be questioned even if the police act on the

one basis that the Fourth Amendment most clearly forbids --

namely, the inarticulate and unsubstantiated hunch that the

person stopped may be violating some other criminal law.

This result cannot be reconciled with either the underly-

ing principles of the Fourth Amendment or this Court’s pre-

vious decisions. In particular, the Court has never adopted

such a cramped view of the Fourth Amendment’s reasona-

bleness requirement. As this Court has recognized, reasona-

bleness can only be judged in context. In circumstances

where there is no reason to fear the abuse of police discre-

tion, such as drunk driving roadblocks, the police may be al-

lowed to stop cars on the highway even in the absence of

individualized suspicion. See Michigan v. Sitz, 496 U.S.

444 (1990). But the corollary proposition is also true. The

concerns of the Fourth Amendment are not automatically

satisfied merely because there is a basis to stop a person or

car. See Tennessee v. Garner, 471 U.S. 1 (1985).

For example, if the police singled out cars for traffic

stops on the basis of race or the political views expressed on

a bumper sticker, important constitutional norms would be

violated. Those norms, moreover, are not limited to the

Equal Protection Clause and the First Amendment. The

Fourth Amendment also embodies an important equality

principle. Indeed, one of the basic purposes of the Fourth

Amendment is to reduce the risk of arbitrary or discrimina-

tory police behavior, and thereby insure equal treatment

under the law. See Marshall v. Barlow's Inc., 436 U.S. 307

(1978); United States v. Brignoni-Ponce, 422 U.S. 873

(1975).

It is not surprising, therefore, that this Court’s opinions

repeatedly suggest, albeit in dicta, that pretextual siops vio-

late the Fourth Amendment. That proposition, of course, is

consistent with a broader body of constitutional law, which

holds that government violates the Constitution when it acts

for the wrong reason even though it has broad discretion to

act for almost any reason at all. Thus, a public university

may refuse to renew the contract of a non-tenured faculty

member for a multitude of reasons without being subject to

constitutional scrutiny. But it may not do so to punish the

faculty member for the expression of his or her constitution-

ally protected views. See Perry v. Sindermann, 408 U.S.

593 (1972). In another analogue that is perhaps closer to

the facts of this case because it first arose in a criminal con-

text, a prosecutor may use peremptory challenges to disqual-

ify prospective jurors for many reasons, including entirely

frivolous ones. But this Court has made clear that a prose-

cutor may not act on the basis of a juror’s race or gender.

See Batson v. Kentucky, 476 U.S. 79 (1986); J. E.B. v. Ala-

bama, 511 U.S. __, 114 S.Ct. 1419 (1994).

A search that would never have taken place if the police

were not looking for an excuse to circumvent the require-

ments of the Fourth Amendment is a search for the wrong

reasons and should be condemned. Among other things, it

is too easy for the police either to invoke or invent a traffic

violation after the fact to justify a search that was unlawful

at its inception. The more difficult question is not whether

to prohibit pretextual searches but how to determine whether

a pretextual search has occurred.

On that issue, this is an easy case. The D.C. Police De-

partment has an explicit regulation that bars plainclothes of-

ficers in unmarked cars from making traffic stops. There is

not even a pretense, therefore, that the officers in this case

were engaged in routine traffic enforcement. The traffic

stop was simply a means to an end, and the end was a

search for illegal drugs that was plainly unjustified based on

the facts that the police knew at the time.

Most cases, unfortunately, will not be so easy because

there will not always be written regulations. The existence

of a written regulation, however, is only one form of objec-

tive proof that the police were acting for pretextual reasons.

It is not the only form. Indeed, the general rule when ana-

lyzing the reasonableness of a police stop is to ask whether

the stop would have been made by a reasonable officer in

similar circumstances. Terry v. Ohio, 392 U.S. 1 (1968).

That is the test now applied by the Ninth and Eleventh Cir-

cuits and it is an appropriate test in our view, as well. At

the very least, it should shift the burden to the police, as the

burden shifts to the prosecutor under Batson, to establish a

valid, non-pretextual reason for the search.

The court below rejected the "would have" test in favor

of a test that merely asks whether any police officer "could

have" stopped the defendants under equivalent facts. The is-

sue of pretext, however, only arises when the defendants

"could have" been stopped for other reasons. Thus, the

"could have" test applied by the D.C. Circuit in this case is

not really a test for pretext at all. It is, instead, a mecha-

nism for rejecting each and every pretext claim.

Finally, there may be some cases where even the

"would have" test may be insufficient to ferret out all pre-

textual searches. For example, a reasonable traffic officer

will, in most cases, stop speeding motorists who go through

red lights. Yet, a particular officer may still stop a particu-

lar motorist for constitutionally impermissible reasons. Such

subjective bad faith is notoriously difficult to prove. Noth-

ing in this Court’s Fourth Amendment jurisprudence, how-

ever, requires a trial judge to ignore evidence of unconstitu-

5

tional motive when it comes to light. To the contrary, this

Court’s precedents make clear that use of the exclusionary

rule makes perfect sense under these circumstances precisely

because it removes the incentive for unconstitutional police

behavior.

ARGUMENT

I. THE FOURTH AMENDMENT PROHIBITS

OFFICERS FROM USING PRETEXTUAL

REASONS TO MAKE A STOP, CONDUCT A

SEARCH, OR EFFECT A SEIZURE

The Fourth Amendment prohibits "unreasonable

searches and seizures." Thus, a "police officer must be able

to point to specific and articulable facts" to justify an intru-

sion. Terry v. Ohio, 392 U.S. at 21. A judge must then de-

cide whether a search or seizure was reasonable based on

the circumstances. Jd. To do less "would invite intrusions

upon constitutionally guaranteed rights based on nothing

more substantial than inarticulate hunches, a result this

Court has consistently refused to sanction." Jd. at 22; ac-

cord Delaware v. Prouse, 440 U.S. 648, 661 (1979)(extend-

ing Terry rationale to vehicle stops).

In a pretext case, the "inarticulate hunches" denounced

in Terry and Prouse become the operative reason for an in-

vestigative stop. Time and again, therefore, this Court has

carefully distinguished lawful -searches from pretextual

searches in a series of opinions spanning more than six dec-

ades. Many of those opinions deal with inventory searches.

For example, in Florida v. Wells, 495 U.S. 1, 4 (1990),

Chief Justice Rehnquist stressed that "[t]he policy or practice

governing inventory searches should be designed to produce

an inventory. The individual police officer must not be al-

lowed so much latitude that inventory searches are turned

into a purposeful and general means of discovering evidence

6

of crime")(citations omitted). In Colorado v. Bertine, 479

U.S. 367, 376 (1987), Chief Justice Rehnquist again noted

the absence of any evidence "that the police chose to im-

pound Bertine’s van in order to investigate suspected crimi-

nal activity." See also South Dakota v. Opperman, 428 U.S.

364, 376 (1976)(upholding inventory search of impounded

car and noting that "there is no suggestion whatever that this

standard procedure, essentially like that followed throughout

the country, was a pretext concealing an investigatory police

motive")(footnote omitted).

Concern about pretext also pervades this Court’s other

administrative search cases. In New York v. Burger, 482

U.S. 691, 716 n.27 (1987), the Court upheld an administra-

tive search of Burger’s automobile junkyard only after not-

ing that there was "no reason to believe that the instant in-

spection was a ‘pretext’ for obtaining evidence of respon-

dent’s violation of the penal laws." In Abel v. United

States, 362 U.S. 217, 226 (1960), Justice Frankfurter used

even stronger language when he wrote:

[D]eliberate use by the Government of an ad-

ministrative warrant for the purpose of gather-

ing evidence in a criminal case must meet stern

resistance by the courts. The preliminary

stages of a criminal prosecution must be pur-

sued in strict obedience to the safeguards and

restrictions of the Constitution and laws of the

United States.

Similar statements appear throughout this Court’s

Fourth Amendment jurisprudence. Texas v. Brown, 460

U.S. 730, 743 (1983), is illustrative. In Brown, the Court

upheld the seizure of narcotics discovered by the police in

plain view at a routine driver license checkpoint. Writing

for the plurality, then-Justice Rehnquist was careful to note

that there was "no suggestion that the roadblock was a pre-

text whereby evidence of narcotics violation might be un-

covered." See also Steagald v. United States, 451 U.S. 204,

215 (1981)(ruling arrest warrant does not legitimize search

of house of person not named in warrant and stressing pos-

sibility for abuse if "an arrest warrant may serve as the pre-

text for entering a home in which the police have a suspi-

cion, but not probable cause to believe, that illegal activity

is taking place"); Colorado v. Bannister, 449 U.S. 1, 4 n.4

(1980)(per curiam)(denying motion to suppress after discus-

sing lack of any “evidence whatsoever that the officer’s

presence to issue a traffic citation was a pretext to confirm

any other previous suspicion about the occupants"); Jones v.

United States, 357 U.S. 493, 500 (1958)(suppressing evi-

dence that government maintained had been found in search

incident to arrest and refusing to consider argument that

probable cause existed for arrest because "testimony of the

federal officers makes clear beyond dispute that their pur-

pose in entering was to search ... not to arrest"); United

States v. Lefkowitz, 285 U.S. 452, 467 (1932)(providing that

otherwise lawful "arrest may not be used as a pretext to

search for evidence").

The cumulative wisdom of all of these cases is that pre-

textual searches cannot be regarded as reasonable searches

under the Fourth Amendment. “As this Court has repeatedly

recognized, the "basic purpose" of the Fourth Amendment is

"to safeguard the privacy and security of individuals against

arbitrary invasions by government officials." Camara v.

Municipal Court, 387 U.S. 523, 528 (1967).

The Court’s longstanding condemnation of pretextual

searches is neither surprising nor unusual. Indeed, it would

be surprising if pretextual searches were deemed tolerable

under the Fourth Amendment given the fundamental consti-

tutional principle that the government’s broad discretion to

act does not include the right to act for constitutionally im-

permissible reasons. As this Court has broadly stated the

8

proposition, "even though the government may deny [a]

benefit for any number of reasons, there are some reasons

upon which the government may not rely." Perry v. Sinder-

mann, 408 U.S. at 597. Thus, a government employee can-

not be dismissed because the government disagrees with his

constitutionally protected speech. Pickering v. Board of

Educ., 391 U.S. 563 (1968). Furthermore, if a government

employee is fired for two reasons, one constitutional and

one not, the government must prove that it would have

taken the same action even in the absence of any unconstitu-

tional motive. Mount Healthy v. Doyle, 429 U.S. 274

(1977)? Similarly, a prosecutor’s right to exercise peremp-

tory challenges for a broad array of reasons does not include

the right to exclude prospective jurors on the basis of race,

Batson v. Kentucky, 476 U.S. 79, or gender, J. E.B. v. Ala-

bama, 114 S.Ct. 1419.

Beyond these general principles, the Court’s condemna-

tion of pretextual searches also reflects values intrinsic to

the Fourth Amendment. As this Court has often noted, is-

sues of reasonableness turn upon context. New Jersey v.

T.L.O., 469 U.S. 325, 337 (1985). In circumstances where

there is little reason to fear the abuse of police discretion,

the police may be allowed to stop cars on the highway even

in the absence of individualized suspicion. Michigan v. Sitz,

496 U.S. 444. But even individualized suspicion may not

suffice when there is reason to believe that the police are

using traffic stops to circumvent the requirements of the

Fourth Amendment. A contrary rule would effectively au-

thorize what the Fourth Amendment most clearly condemns

-- invasions of privacy based on unsubstantiated hunches

that criminal activity may be taking place.

* See also Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)applying

the Mount Healthy standard to mixed-motive cases under Title VII).

9

It is true, of course, that a pretextual stop has the patina

of legality because it depends on the existence of a plausible

claim that some law has been violated, albeit not the law

that the police are seriously interested in investigating.

However, that is merely the definition of a pretextual stop,

not its justification. This Court long ago rejected the notion

that the concerns of the Fourth Amendment are automatical-

ly satisfied simply because there is a basis to stop a person

or car, e.g., Tennessee v. Garner, 471 U.S. | (lawful stop

does not justify excessive force in achieving stop), or to

execute a search warrant, e.g., Wilson v. Arkansas, 514 U.S.

_, 11S S.Ct. 1914 (1995)(common law knock-and-

announce rule is part of the Fourth Amendment’s reason-

ableness inquiry).

Surely, there can be no serious quarrel with the proposi-

tion that the Constitution forbids the police from

motorists on the basis of race even if each of the motorists

stopped has also committed a traffic violation. Such police

behavior would undoubtedly violate the Equal Protection

Clause. See Delaware v. Prouse, 440 U.S. at 667 (Rehn-

quist, J., dissenting). But it violates important Fourth

Amendment principles, as well. See United States v.

Brignoni-Ponce, 422 U.S. at 885-87.‘

* There are several very practical problems with relying exclusively on

the Equal Protection Clause to remedy a pattern of racial discrimination

in police stops. First, the absence of a pattern and practice of racial dis-

crimination does not prove that an individual motorist was not stopped

for discriminatory reasons. Second, individual defendants face well-

documented and often insurmountable problems in trying to establish

such a pattern and practice, at least in part because of the difficulty in

obtaining relevant police records. Indeed, it was for precisely this rea-

son that the Court in Batson ultimately abandoned the pattern-and-prac-

tice approach of Swain v. Alabama, 380 U.S. 202 (1965), in redressing

the problem of discriminatory jury selection. Finally, even proof of a

pattern and practice of racial discrimination may be insufficient to estab-

(continued...)

10

This Court has stressed that determinations of reasona-

bleness under the Fourth Amendment turn on society's judg-

ment about what is legitimate. See Vernonia School District

v. Acton, 515 U.S. __, __, 115 S.Ct. 2386, 2390 (1995). If

so, we are well past the time when our society is prepared

to describe race-based decisions by government officials as a

"legitimate" basis for the exercise of police authority. This

is especially so "given the pervasiveness of such minor of-

fenses and the ease with which law enforcement agents may

uncover them in the conduct of virtually everyone." |

LaFave, SEARCH AND SEIZURE §1.4(e)4 at 123 (3d ed.

1996).

On its face, of course, this case does not involve a

claim of racial discrimination. However, this case cannot be

resolved in a vacuum. A rule condoning pretextual searches

is a rule that invites discriminatory enforcement. As Judge

Newman has observed,

"(t}he risk inherent in such a practice is that

some police officers will use the pretext of

traffic violations or other minor infractions to

harass members of groups identified by facts

that are totally impermissible as a basis for law

enforcement activity -- factors such as race or

ethnic origin, or simply appearances that some

police officers do not like, such as young men

with long hair, jewelry, and flashy clothing.”

United States v. Scopo, 19 F.3d 777, 785-786 (2d Cir.)

(Newman J., concurring), cert. denied, __ U.S. __, 115 S.

Ct. 207 (1994). See also Rudovsky, "The Impact of the

War on Drugs on Procedural Fairness and Racial Equality,”

* (...continued)

lish discrimination in a particular case. See, eg. McCleskey v. Kemp,

481 U.S. 279 (1987).

ll

1994 U.Chi.L.Rev. 237, 250 (discussing evidence of racial

disparity in traffic stops).

In short, pretextual searches effectively undermine the

critical safeguards against arbitrary and discriminatory law

enforcement that the Fourth Amendment was designed to

erect. The serious question in this case, therefore, is not

whether pretextual searches violate the Fourth Amendment

-- that question has already been answered in numerous

opinions by this Court -- but rather what standard should be

applied in determining whether a pretextual search has oc-

curred.

Il. THE STANDARD FOR DETERMINING PRE-

TEXT ADOPTED BY THE COURT BELOW IS

INADEQUATE TO PRESERVE CORE

FOURTH AMENDMENT VALUES

The court below framed the issue in this case as a dis-

* The willingness of the D.C. Circuit to ignore the police department's

own regulations is revealing. Compare Colorado v. Bertine, 479 U.S. at

375-76 (disregard of standard procedures is relevant in assessing reason-

ableness under the Fourth Amendment). In articulating its rule, the

court below stated that “a traffic stop is permissible as long as a reason-

able officer in the same circumstances could have stopped the car for the

(continued...)

12

The approach followed by the court below is fatally

flawed for several reasons. Most basically, the "could have"

test applied by the D.C. Circuit is not a test for determining

pretext but for excusing it. If the police lack even a facially

plausible reason for conducting a search, there is no need to

claim pretext. The search is unconstitutional because proba-

ble cause is lacking. The issue of pretext only arises when

there is a facially plausible reason to conduct the search but

there is also reason to believe that the police are using the

search to circumvent important Fourth Amendment safe-

guards. Typically, as in this case, that means that the police

are relying on a minor traffic violation to look for evidence

of a more serious crime that they lack sufficient cause to in-

vestigate. If the only question is whether some police offi-

cer “could have" stopped the defendants for violating the

traffic laws, every pretextual search will be sustained. In re-

ality, therefore, the standard proposed by the court below

can more fairly be described as a non-test.

A. The Stop And Search In This Case Should

Have Been Invalidated Under Any Plausible

Fourth Amendment Standard

On these facts, this should have been an easy case. It is

undisputed that the defendants were stopped by plainclothes

officers in an unmarked car who were assigned to search for

illegal drug activity. It is also undisputed that these officers

* (..continued)

suspected traffic violations." United States v. Whren, 53 F 3d 371, 375

(D.C.Cir. 1995)emphasis in original). Because of the police regula-

tions, however, an officer "in the same circumstances” as the officers in

this case could not have stopped defendants’ car. Thus, it is clear that

the D.C. Circuit meant to give its rule the broadest possible interpreta-

tion and to sustain any search that at least some police officer on the

force could have conducted.

13

were prohibited by their own regulations from enforcing the

traffic laws. Whether one believes that is a wise regulation

or not, the existence of the regulation removes any doubt

about what was going on in this case. The police had a

hunch that the defendants were engaged in illegal drug ac-

tivity but no probable cause or reasonable suspicion. They

followed defendants’ car until they observed a minor traftic

violation and then used the excuse of the traffic violation to

stop the car and look for drugs.°

This is a classic definition of a pretextual search. It is

no different than the "deliberate use by the Government of

an administrative warrant for the purpose of gathering evi-

dence in a criminal case." Abel v. United States, 362 U.S.

at 226. As Justice Frankfurter appropriately noted, such a

deliberate end run around the Constitution "must meet stern

resistance by the courts." Jd. The fact that this behavior

was condoned by the D.C. Circuit is sufficient to show that

the "could have” test it proposed is both functionally mean-

ingless and doctrinally unsound.

It is also a test that this Court implicitly rejected in Col-

orado v. Bannister, 449 U.S. 1. In Bannister, the Court up-

held a traffic stop that led to an arrest for stealing, noting

the lack of any “evidence whatsoever that the officer’s pres-

ence to issue a traffic citation was a pretext to confirm any

other previous suspicion about the occupants." /d. at 4 n.4.

This reservation would not have been necessary if the

"could have" test applied since there, as here, it was clear

that the traffic violation gave the police ample cause to stop

the defendants’ vehicle.

* By the same token, had the police conducted themselves in accordance

with the regulation a court could presume, subject to rebuttal, that the

search was not pretextual. See n.10, infra.

14

B. In The Absence Of A Controlling Regula-

tion, The Appropriate Question Is How A

Reasonable Officer Would Have Acted

Under Similar Circumstances

Not every case will be as easy as this one because not

every case will involve police officers who so clearly vio-

lated a departmental regulation that prohibited them from

engaging in the search they now seek to justify. But the ex-

istence of a regulation of this sort is only one form of objec-

tive proof. In the absence of such a regulation, it is appro-

priate to ask the question that this Court asked in Terry:

"{W]ould the facts available to the officer at the moment of

the seizure ‘warrant a man of reasonable caution in the be-

lief’ that the action taken was appropriate?" 392 U.S. at 21-

22 (citations omitted). In essence, this test asks what a rea-

sonable officer would have done in the circumstances pre-

sented. Or, as the Ninth and Eleventh Circuits have framed

the issue, a stop is valid only if "under the same circum-

stances a reasonable officer would have made the stop in the

absence of the invalid purpose." See United States v. Val-

dez, 931 F.2d 1448, 1450 (9th Cir. 1991); United States v.

Smith, 799 F.2d 704, 709 (11th Cir. 1986); United States v.

Cannon, 29 F.3d 472, 475-76 (9th Cir. 1994).’ Applied to

-the facts of this case, for example, the issue is whether a

reasonable narcotics officers, bound by his department's

own regulations, would have stopped defendants’ car for a

minor traffic violation were it not for the hope of obtaining

evidence of drugs.*

” At the time of the decision below, the Tenth Circuit also embraced the

“would have” test, see United States v. Guzman, 864 F.2d 1512, 1517

(10th Cir. 1988). It has sinced adopted the “could have” test instead.

United States v. Botero-Ospina, 71 F.3d 783, 786-87 (9th Cir. 1995).

* See also Murray v. United States, 487 U.S. 533 (1988)remanding for

(continued...)

15

The court below offered two reasons for rejecting the

"would have" test, neither of which has validity. First, the

court mischaracterized the "would have" test as requiring an

inquiry into the "officer’s subjective state of mind." 53 F.3d

at 375. That characterization is manifestly incorrect.

Here, as in Terry, the reference point is what a reasonable

officer would have done under similar circumstances. Not

only is that an objective inquiry, it is the sort of inquiry that

courts undertake on a daily basis. The court need not look

into the officer’s mind; the court need only look at the cir-

cumstances confronting the officer and determine whether

the response was an objectively reasonable one.

The second reason offered by the D.C. Circuit for rejec-

ting the "would have" test was the belief that it would not

“provide[] a principled limitation on abuse of power." 53

F.3d at 376. As demonstrated above, however, it is the

D.C. Circuit’s "could have" test that does not work unless

the definition of working is a test that sustains every pretex-

tual search. There is no more reason to question the utility

of a reasonableness test in this context than in any of the

other contexts where it is routinely applied, including the

evaluation of qualified immunity defenses in affirmative

Fourth Amendment challenges. See, e.g., Anderson v.

Creighton, 483 U.S. 635 (1987).

If a defendant succeeds in demonstrating that a reasona-

ble officer would have acted differently under the same cir-

cumstances -- a showing that will presumably be difficult-to

* (...continued)

further hearings to determine whether police officers, who illegally en-

tered a warehouse without a warrant, "would have” sought a search war-

rant anyway and thus obtained the marijuana they discovered during the

illegal search under the independent source doctrine).

* See also United States v. Scopo, 19 F.3d at 782.

16

make in most cases -- Batson provides an appropriate model

of how to proceed. Specifically, the burden should shift to

the police to establish a valid, non-pretextual reason for the

search. If the police meet this burden, the evidence should

be admissible. If they do not, it should be excluded.’®

C. Courts Need Not And Should Not Ignore

Clear Evidence That A Police Officer Acted

With Subjective Bad Faith To Evade The

Fourth Amendment

In some cases, the "would have" test alone will be in-

sufficient to fulfill the purposes of the Fourth Amendment.

See Burkoff, "Bad Faith Searches," 57 N.Y.U. L.Rev. 70, 81

(1982). Objective circumstances examined without refer-

ence to motive can often be misleading. /d. at 120. Any

objective test will undoubtedly miss some improper actions

that appear objectively reasonable. For instance, an officer’s

statement that "I stopped the car because the driver was

black" should be admissible to show unreasonableness even

if the car was speeding. If the Court rules that an inquiry

'° An additional benefit of this test is that it may encourage police de-

partments to promulgate general guidelines for its officers. If an officer

can show that his actions were taken pursuant to a standardized policy,

then those actions are likely to be upheld unless the policy is itself un-

reasonable. See United States v. Robinson, 414 U.S. 218, 221 nl

(1973).

As this Court noted when commenting on the inventory search prac-

tices of the Boulder Police Department:

Nothing . . . prohibits the exercise of police discretion so long

as that discretion is exercised according to standard criteria

and on the basis of something other than suspicion of evi-

dence of criminal activity.

Colorado v. Bertine, 479 U.S. at 375.

17

into motive is never relevant in pretext cases, officers could

admit that they stopped someone because he was black with-

out affecting a criminal prosecution. Such a holding would

ignore the anti-discrimination principle of the Fourth

Amendment. See United States v. Brignoni-Ponce, 422 U.S.

at 885-87.

The whole point of Fourth Amerdment doctrine has

been to send messages to officers about their conduct in or-

der to protect constitutional values. It would be inconsistent

to ignore the real reason officers act and, instead, ask only

whether there might be an acceptable reason that could have

justified the officers’ behavior. The latter approach encour-

ages pretextual claims; it does not encourage compliance

with the requirements of the Fourth Amendment.

In suggesting that an inquiry into motive is appropriate,

we do not mean to say that the mere thought that someone

might have drugs is enough to invalidate actions taken to

enforce traffic laws. The relevant question is whether the

operative reason for the stop was invalid. It is the defen-

dants’ burden to make that showing and the burden is a

heavy one. But, if that showing can be made, it would be

an odd notion of law that asked the court to ignore it.

None of this Court’s prior decisions compel such a per-

verse result. Two cases are most frequently cited for the

proposition that an officer’s subjective motivation is irrele-

vant to Fourth Amendment analysis. In fact, neither case

stands for such an extreme proposition. The primary case,

on which the other one relies, is Scott v. United States, 436

U.S. 128 (1978). The issue in Scott was whether federal

agents violated the Fourth Amendment during a court-

ordered wiretap. In addressing that question, the Court

ruled that the inquiry should focus on whether the agents’

actions were objectively justified. /d. at 137-38.

Unlike this case, however, Scott was not a case about

18

pretext. The question in Scott was whether the agents made

reasonable efforts at minimizing the calls they intercepted.

The holding of Scott is that the answer to that question

should not depend on the agents’ subjective motivation.'!

_ In a pretext situation, by contrast, the question is precisely

whether officers had an improper purpose.'? Whether this

issue can be resolved without reference to subjective motiva-

tion is a question the Court did not answer in Scort.'°

'' Significantly, the agents in Scott did not exceed minimization con-

straints even though they apparently intended to do so. See Burkoff,

p.17, supra, at 83-84. Scott, therefore, "merely held that improper intent

that is not acted upon does not render unconstitutional an otherwise con-

stitutional search." Burkoff, id.

'? Indeed, Scott expressly left open the possibility that in some situations

motive can play a role in a suppression inquiry. 436 U.S. at 139 n.13.

The Court provided two “limited” examples. The first example involved

the applicability of the exclusionary rule in non-criminal settings, where

it becomes relevant to ask whether the exclusion of evidence will effec-

tively deter unlawful conduct. The second example involved the use of

motive as a factor in assessing the credibility of officers who testify

about the facts available to them at the time of the search. /d. Al-

though neither of these examples touches on pretext, nothing in Scort

forecloses the use of subjective evidence in evaluating pretext.

'’ The question was also not addressed in Terry, which provided for an

objective standard in ordinary reasonable suspicion cases. 392 US. at

21-22. As Terry makes clear, this standard was a response to the sug-

gestion that subjective good faith was enough to validate a stop. /d. at

22. The pretext question of subjective bad faith was irrelevant in Terry.

Nor was the question addressed in Maryland v. Macon, 472 U.S. 463,

471-72 (1985). There, the Court, citing Scott for the proposition that a

determination of whether the Fourth Amendment has been violated de-

pends on an objective assessment of the officer’s actions, held that a sale

does not become a seizure merely because an officer kept the money.

Id. at 471-72. Like Scott, Terry and Macon did not arise in the pretext

context, and are similarly limited.

19

The second case that has been said to preclude inquiry

into motive in pretext cases is United States v. Villamonte-

Marquez, 462 U.S. 579, 584 n.3 (1983). Villamonte-

Marquez cites to Scott in a footnote dismissing the conten-

tion that, because customs officers were following a drug

tip, they could not rely on a statute authorizing random

boarding for document checks.'* To the extent Villamonte-

Marquez relies on Scott in a pretext context, that reliance is

misplaced. Additionally, the footnote in Villamonte-

Marquez does not state that there was evidence that the

boarding would not have occurred but for the drug hunch.

Instead, the evidence apparently only showed that drugs

were an issue in the minds of officers. This is not sur-

prising given that customs officers are supposed to stop drug

importation. If Villamonte-Marquez forecloses anything in

the pretext context, it stands for the proposition that it is not

enough that there might be another issue on the minds of of-

ficers. We do not disagree; as discussed above, the evi-

dence must show that the operative reason for action was

improper.

' The footnote states that respondents “contend in the alternative that

because the customs officers were accompanied by a Louisiana state po-

liceman, and were following an informant’s tip that a vessel in the ship

channel was thought to be carrying marihuana, they may not rely on the

statute authorizing boarding for inspection of the vessel’s documenta-

tion.” The footnote then declares that such a “line of reasoning was re-

jected in a similar situation in Scoft."

20

CONCLUSION

For the reasons stated herein, the judgment of the Court

of Appeals for the District of Columbia Circuit should be

reversed.

Respectfully submitted,

Steven R. Shapiro

(Counsel of Record)

American Civil Liberties Union

Foundation

132 West 43 Street

New York, New York 10036

(212) 944-9800

Susan N. Herman

250 Joralemon Street

Brooklyn, New York 11201

(718) 780-7945

Dated: February 16, 1996

21