A typical DWI scenario might be a police officer observes a car repeatedly cross the center line, and then the officer stops the driver based on reasonable suspicion of impaired driving. However, what if instead the police officer observed a more minor traffic infraction such as a seatbelt violation or a burned out headlight and used this infraction to stop the driver, but really the police officer was looking for impaired drivers. This is sometimes referred to as a pretextual stop.
To understand a pretextual stop, let’s start with the Fourth Amendment. The Fourth Amendment protects us against unreasonable searches and seizures and states that
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The US Supreme Court has held that a “traffic stop is a seizure ‘even though the purpose of the stop is limited and the resulting detention quite brief.’” To make a traffic stop, an officer must have "reasonable, articulable suspicion that criminal activity is afoot." This standard is less demanding than probable cause and “requires a showing considerably less than preponderance of the evidence." The North Carolina Supreme Court has stated that reasonable suspicion “is satisfied by ‘some minimal level of objective justification’” but must “be based on specific and articulable facts, as well as the rational inferences from those facts, as viewed through the eyes of a reasonable, cautious officer, guided by his experience and training." To determine if reasonable suspicion exists, a court must look at the totality of the circumstances.
So let’s go back to our initial question. It makes sense that an officer can stop a driver to see if he has been drinking if the officer makes observations that create reasonable suspicion of DWI. But is it okay for the officer to stop a driver who the officer wants to check if he has been drinking but the officer has not made any observations that would create reasonable suspicion of DWI, so instead the officer stops the driver for a minor traffic violation? In short, yes.
Under the U.S. Supreme Court’s decision in Whren v. United States (1996), the Court held that “the constitutional reasonableness of traffic stops [does not] depend[ ] on the actual motivations of the individual officers involved.” In Whren, the driver and a passenger, both of whom were black, were driving in a “high drug area.” Police officers were patrolling the area in an unmarked car. The officers noticed the driver sitting at a traffic light for “an unusually long time-more than 20 seconds.” When the police car turned around to approach the driver’s truck, the driver turned right without signaling and drove away at an “unreasonable” speed. The police officers stopped the driver’s car and found two large bags of crack cocaine.
The defendant argued that, although the police officers had reasonable suspicion to make a traffic stop based on his inattention at the traffic light, his failure to signal and his speeding away from the light, there are so many traffic regulations that total compliance with these laws is “nearly impossible.” Therefore, a police officer might be tempted “to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists.”
The Court agreed that “the Constitution prohibits selective enforcement of the law based on considerations such as race.” However, the Court explained that “the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Therefore, the Court concluded that pretextual stops based on actual law violations were constitutional.
North Carolina courts have cited Whren in allowing pretextual stops. In the North Carolina Court of Appeals’ case, State v. Ford (2010), police officers observed the defendant’s car circling a neighborhood and subsequently tried to run its tags. When the officers got within fifty feet behind the car, they could not read the license plate. They stopped the defendant for “failing to maintain a properly functioning tag light.” During the stop, the officers searched the car and found weapons and drugs. The defendant argued that “the traffic stop, ostensibly based on the equipment violation, was a pretext for the officers to search the vehicle as they observed it ‘circling around’ for several hours in a high crime neighborhood.” The court cited Whren as rejecting a “pretext argument” and upheld the constitutionality of the officer’s stop since it was based on a violation of North Carolina statute.
In 2012, the court of appeals again upheld an officer’s pretextual stop in State v. Lopez. In Lopez, a sergeant instructed a police officer to stop the defendant’s car and told the officer that the defendant’s car contained drugs. The officer followed the defendant’s car for about three miles and observed the defendant going ten miles per hour over the speed limit. The police officer stopped the defendant for speeding and to investigate the drug activities. During the course of the traffic stop, defendant had no license, only a Mexican identification card, and the officer observed nervous behavior from the defendant and the passengers. After securing permission to search the vehicle, the officer found drugs in the air intake compartment of the car.
The defendant argued that the stop was a pretext to search for drugs. However, the court rejected this argument as irrelevant since the defendant was stopped for an actual speeding violation.
The court did acknowledge that an officer may extend a defendant’s seizure if there is reasonable suspicion to do so.
Once a stop has been lawfully made, the scope of the detention must be carefully tailored to its underlying justification. Once the original purpose of the stop has been addressed, in order to justify further delay, there must be grounds which provide the detaining officer with additional reasonable and articulable suspicion or the encounter must have become consensual. Where no grounds for a reasonable and articulable suspicion exist and where the encounter has not become consensual, a detainee's extended seizure is unconstitutional.
The court then determined that the officer’s observations supported his reasonable suspicion to further detain the defendant.
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