Whren v. United States

• Do you agree with the authors contention that the Court's refusal to consider the intent of police officers in its Fourth Amendment analysis? why do you believe they refused to make this consideration?
• The author notes that after the September 11, 2001 attack that racial profiling of Arab or Muslims increased, do you agree that racial profiling is still prevalent in 2017?
• The author also contends that the "drug war fits comfortably in a long history of the enforcement of the criminal laws in ways that punish racial minorites" do you agree?
• Do you think the media plays a role in how minorities and drug offenses are punished?

June 10, 1993

The Case

• On June 10th, DC police vice officers Efrain Soto and Homer Littlejohn were patrolling a "high drug area" of the city.
• Soto noticed a dark Nissan Pathfinder with temp. tags at a stop sign with Two African-American men in the vehicle (Michael Whren and James Brown)
• The Pathfinder stopped at an intersection for more than "twenty seconds" and turned west without signaling then "sped off quickly"
• Ultimately they were pulled over and found drugs in the car
• What had been a routine stop for a traffic violation ended in a drug bust

• June 1993 DC was a crime filled month in Washington, DC
• Police Dept. chief's new initiative was for "the department's narcotics and special investigation division will be focusing more on arresting smaller-time drug dealers on the streets instead of larger, more sophisticated rings"
• Ultimately minority citizens complained of abuse at the hands of the local police.
• DC police regulations permit plainclothes officers to make traffic stops "only in the case of a violation that is so grave as to pose an immediate threat" to the safety of others

Fourth Amendment

• The officer never claimed that the driving of James Brown constituted a traffic violation that was so grave as to pose an immediate safety threat and in effect the officers admitted that they had violated regulations.
• Both Brown and Whren were charged to distribute 50 grams or more of crack cocaine in violation of a variety of fed. statutes

• Defense argued that the traffic stop violated the Fourth Amendment's prohibition of unreasonable searches and seizure.

• The ruling blunted any efforts to eradicate racial profiling through the Fourth Amendment
• The ruling authorized and encouraged police to employ traffic stops as a tool in the war on drugs.
• The decision encourages police to act on a "hunch"

The Court of Appeals

• The defense argued again that the Police officers obtained evidence through an illegal search and seizure in violation of the Fourth Amendment.
• Specifically that the police officers used the traffic violations as a pretext for a search for drugs without probable cause and that the search was objectively unreasonable under the Fourth Amendment.
• BUT, ultimately the District Court applied the "could have" test--a stop was reasonable so long as an officer observed a traffic violation.
• The "could have" test avoided inquiry into the officer's state of mind, in the court's view, the probable cause required for the traffic stop sufficiently limited police discretion.

Discussion Questions

War on Drugs

District Court

Supreme Court Litigation

• Up until the Supreme Court decided to hear their case. The Court had not explicitly decided whether the police could use the legal justification of a minor crime as a pretext to stop a person in order to search or interrogate that person for an unrelated, more serious crime for which the police did not have reasonable suspicion
• Whren and Brown argued on the theme that police discretion must be limited, as well as emphasizing the role of race in traffic stops
• Supreme Court upheld the decision of the District Court

• Officers claimed that they stopped the driver to "inquire" about why Brown was obstructing traffic
• Judge Johnson had doubts about the validity of why Whren and Brown were stopped based on the trial testimony
• But she still sentenced Whren and Brown to fourteen years in prison, along with supervised release and fines

Justice Scalia

• The Justice framed the question as "whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment's prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce traffic laws
• The court failed to mention that Whren and Brown were African American, until very later in the opinion.
• The court addressed that because the police officer could almost invariably find a technical traffic code violation for virtually anyone driving on the roads, upholding Whren and Brown's crime would allow the police to use pretextual ground to investigate other crimes.

• In the early 1990s, the perception among the general public was that crime was out of control on the streets of Urban America and law enforcement responded aggressively

• The proposed standard to ask whether a police officer had the proper state of mind based on what a reasonable officer might believe given teh same set of fact. Scalia saw it as reducing a reviewing court to speculating about the hypothetical reaction of a hypothetical constable-an exercise that might be called "virtual subjectivity"
• Court suggested that the proper remedy would have been the Equal Protection Clause not the Fourth Amendment. BUT they failed to cite any cases to show any proper remedy.
• Equal Protection Clause would be useless to Whren and Brown

Race and Drugs

Racial profiling of young African-American and Latino men in traffic stops on the American roads and highways emerged as a central law enforcement tool in the war on drugs .

• Statistical data suggests that whites, Latina/os, blacks and Asian Americans have roughly similar rates of illicit drug use
• Blacks and Latina/os have been stopped in number disproportionately large compared to their percentage of the general population. A study by the NJ Attorney General found that "overwhelming majority of searches (77.2%) Minorities complained of "driving while black" and "driving while brown"
• By 2002 around 12% of all black men in their twenties were in prison or jail

Aftermath of Whren v. United States

• Whren v. US quickly emerged as the leading traffic stops case in both Supreme Court and the lower courts.
• Today the decision upholds the proposition that the subjective motive of the police in making a stop is irrelevant in evaluating the stops constitutionality under the Fourth Amendment
• Countless cases have distinguished this decision and the case has had its share of criticism

Whren v. United States