Abstract

Excerpted From: Lauren McLane, Confronting Racist Authority: The Vertical Narrowing of Whren V. United States, 15 Georgetown Journal of Law & Modern Critical Race Perspectives 71 (2023) (323 Footnotes) (Full Document)

In 1996, a unanimous Supreme Court ratified the pretextual traffic stop in the case of Whren v. United States. In a pretextual stop, police use minor traffic violations as justifications to engage with motorists for suspicion-less reasons, such as to conduct a drug investigation for which there is no reasonable suspicion or probable cause. The facts of Whren illustrate this type of stop in action. On June 10, 1993, plain clothed vice-squad officers were patrolling a “high drug area” in Washington, D.C. As Justice Scalia wrote, “[t]heir suspicions were aroused” when two “youthful” Black men, Mr. Brown and Mr. Whren, were sitting in a dark truck with temporary license plates. The officers stated the men were waiting at a stop sign for “an unusually long time--more than 20 seconds.” Reportedly, Mr. Brown, the driver, was looking into the lap of his passenger, Mr. Whren. After only these observations, the police decided to perform a U-turn to follow the vehicle. This corroborates what one of the vice officers admitted--that their actual intention was to investigate for drugs, not the minor traffic infractions they observed.

After their U-turn, the vice officers observed the truck make a sudden right turn without signaling and then speed off at an “unreasonable speed.” A traffic stop ensued where an officer approached the driver's side of the truck and saw two bags of what appeared to be cocaine in Mr. Whren's hands. Mr. Brown and Mr. Whren were arrested and convicted of various federal drug crimes. At the Supreme Court, the issue was whether the stop was justified even if the vice officers were not interested in the minor traffic infractions but rather, in conducting a suspicionless drug investigation.

First, the Supreme Court held that the subjective motivations of police are irrelevant under the Fourth Amendment. Thus, it did not matter if the vice officers intended to stop Mr. Brown and Mr. Whren for a baseless drug investigation, and not a traffic violation. Justice Scalia wrote, “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” While the Court claimed to agree that the Constitution prohibited racial profiling, it referred Mr. Brown and Mr. Whren to the Equal Protection Clause under the Fourteenth Amendment, not the Fourth Amendment, for relief from racial discrimination. The “cruel irony” is that the Equal Protection Clause requires purposeful discrimination for relief, which is next-to impossible to prove.

Next, the Supreme Court decided that there was no need for the Fourth Amendment reasonableness balancing test, where courts look at the totality of the circumstances and balance the people's privacy, security, and physical interests against the relevant government interests. Here, the Court stated that balancing was not needed because the police had probable cause to investigate the traffic infractions, and therefore, the stop was reasonable. Even in 1996, this conclusion seemed counterintuitive. Whren readily allows for unbridled police discretion because police can use any traffic violation to conduct secondary investigations for which they have no reasonable suspicion or probable cause.

However, the founders expressed deep concern of this type of arbitrary and unfettered police discretion. The text of the Fourth Amendment itself plainly states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” To provide this security, “[the Amendment] erects a wall between a free society and overzealous police action--a line of defense implemented by the framers to protect individuals from the tyranny of the police state.” The foundation of this wall is reasonableness balancing where the government's interests are tempered by the need to secure to the people their privacy, security, and physical interests. The question to be answered is whether the police intrusion is reasonable based on the totality of the circumstances.

The Whren Court said the question was sufficiently answered if there was probable cause that even the most minor traffic violation occurred. The Court decided that so long as police had probable cause to stop a motorist for a traffic violation, there was de facto reasonableness. This is how the Court distinguished the case from others where a reasonableness balancing was required in the absence of probable cause.

After Whren, police were licensed to conduct suspicionless investigations justified by minor traffic violations. The Police Chief magazine, produced by the International Association of Chiefs of Police (IACP), “immediately reported that Whren 'preserve[s] officers' ability to use traffic stops to uncover other criminal activities.”’ As Professor Devon Carbado has noted, “[t]he short of it is that Whren is problematic not only because it creates an incentive for police officers to continue to perform pretextual stops, but also because it legalizes those stops, which helps make them an institutional practice.”

The institutionalization of pretextual traffic stops was, and remains, at the center of the failed “War on Drugs,” the primary cause of the onset of mass and over-incarceration of Black and Brown people in the 1980s and 1990s. In addition, lower courts have eliminated Whren's probable cause requirement, reducing what little “protection” that may have offered, to mere reasonable suspicion that a traffic violation has occurred. Therefore, it has become even easier since Whren for police to engage in the racial profiling and pretextual stops of Black and Brown motorists.

In telling words, one training officer exclaimed, “[a]fter Whren the game was over. We won.” That win would come at great costs; thousands of motorists, especially Black and Brown people, would suffer demoralizing, suspicionless, (and fruitless) pretextual traffic stops. Much worse, many would lose their lives. When the Whren Court condoned the pretextual stop of Mr. Brown and Mr. Whren, the Court also authorized the stopping and killing of Sandra Bland, Philando Castile, Patrick Lyoya, Daunte Wright, Giovonn Joseph-McDade, and numerous others. These traffic stops consisted of a failure to signal a lane change, malfunctioning taillights, improper vehicle registration, an air freshener hanging from the rearview mirror, expired tags, and then ... death. Each was made possible by Whren.

What the Whren Court once described as the “run-of-the-mine” traffic stop has predictably progressed into a colonizing and abusive police practice that is “unusually harmful” to the privacy, security, and physical interests of the people, especially Black and Brown people. The language of Whren itself, the evolution of the pretextual traffic stop, the surrounding facts and circumstances, and the roots of the Fourth Amendment all support a long overdue vertical narrowing of this precedent.

Coined by Professor Richard M. Re, “narrowing from below” (also known as vertical narrowing) occurs when lower courts interpret a higher court precedent more narrowly than its “best” or conventional reading, adopting a reasonable alternative interpretation of the precedent. Lower courts engage in vertical narrowing based on the precedent's language, facts, adjacent case law, foundational constitutional principles, policy arguments, and, sometimes, reasons far outside the precedent. As Professor Re asserts, “[T]here are more ways of honoring precedent than adhering to the best available reading.”

While narrowing is frequently utilized, it is an under-recognized form of case interpretation. The Supreme Court itself engages in the narrowing of its own precedent as do lower courts, with no repercussions or substantiated allegations of anarchy. This seems to be the case because narrowing is good for precedent, which, much like tree pruning, supports growth and structure. This is especially true when courts are tasked with applying out-of-date or impractical precedent to a new situation or set of circumstances. Narrowing is particularly fitting for Supreme Court precedent that is racist or preserves the subjugation of minoritized individuals, such as Whren. While in practice, it is difficult to rewrite or overrule racist precedent, it can and should be narrowed.

Here, there is an opportunity to do just that, and address the racist legacy of Whren through narrowing. Practitioners can narrow Whren by arguing that pretextual traffic stops are no longer “run-of-the-mine,” and instead something more akin to seizures that are conducted in an “extraordinary manner” and are “unusually harmful” to the privacy, security, and physical interests of the people, especially Black and Brown people.

These harms are not merely perceived but have real impacts and actual consequences. For example, a study of 20 million traffic stops in North Carolina showed that African Americans were 63 percent more likely than white people to be stopped by police. This study, in combination with others, also demonstrates that Black and Brown people are far more likely to be subjected to pretextual traffic stops than white people. Further, as we have witnessed, pretextual traffic stops have become increasingly physically harmful, particularly to Black and Brown people. Traffic stops are among those police encounters where most fatal police shootings occur. These harms, inter alia, have propelled commentators to criticize Whren vehemently. Professors Carbado and Feingold have rewritten Whren as part of a project that challenges racist Supreme Court precedent.

Critically, in denying the need for reasonableness balancing beyond probable cause, the Whren Court noted, “the only cases in which we have found it necessary actually to perform the 'balancing’ analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interests ...” The Court gave examples, including Wilson v. Arkansas, which involved police serving a search warrant and announcing their entry only after breaching the home's threshold, and Welsh v. Wisconsin, which involved a warrantless entry into a home to arrest Mr. Welsh for a misdemeanor offense. In addition, the Court wrote, “For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional common-law rule that probable cause justifies a search and seizure.” The juxtaposition of the “run-of-the-mine” case against cases involving police action that is unusually harmful to the privacy and physical interests of the people left the door ajar for “narrowing” Whren.

This article is intended as a guide for practitioners and lower courts, respectively, to, argue for or enact the vertical narrowing of Whren. To that end, Part I focuses on the legitimacy of vertical narrowing, including its definition, its framework, examples of vertical narrowing in practice, and discussion of what remains of precedent after its narrowing. Part II lays out how Whren can legitimately be vertically narrowed, including observations that Whren's own language, social facts, social developments, and the first principles of the Fourth Amendment all point toward the need to vertically narrow Whren. Finally, Part III proposes a set of viable narrowed rules for Whren, anchored in Fourth Amendment reasonableness. It argues courts should presume pretextual traffic stops (apart from traffic-safety stops) unreasonable unless the government presents a compelling safety concern. Where the government does present such evidence, reasonableness balancing requires the stop be evaluated under the totality of circumstances.

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Lower courts can and should vertically narrow racist precedent, such as Whren. It is not necessary to overrule Whren. Narrowing has been embraced by the Supreme Court itself as it has horizontally narrowed its own precedent and accepted lower courts' narrowing of its precedent. There is readily available and useful language in Whren itself--the “unusually harmful” search or seizure doctrine. Purposeful or not, Justice Scalia inserted that language. The facts, including social facts, and circumstances surrounding pretextual stops today further legitimize its narrowing. Pretextual traffic stops, steeped in racism from their outset and soaked still in racial discrimination today (albeit more implicitly), are unusually harmful to the privacy, security, and physical interests of the people--Black, Brown, or white. Vertically narrowing Whren yields a workable and just rule that can better protect our Fourth Amendment rights.

Associate Professor of Law, University of Wyoming, College of Law. J.D., Seattle University School of Law.