Powerpoint
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“PARKING WHILE BLACK”: PRETEXTUAL STOPS, RACISM, PARKING, AND AN ALTERNATIVE APPROACH
Stephen D. Hayden*
I. INTRODUCTION ................................................................................. 109
II. A BRIEF HISTORY ON PRETEXTUAL STOP JURISPRUDENCE
PRIOR TO, AND AFTER, THE WHREN DECISION ............................ 113
A. The Importance of Terry to Pretextual Analysis ........................ 114
B. The Competing Legal Tests Prior to Whren ............................... 115
1. The “Could Have” Test ...................................................... 115
2. The “Would Have” Test ...................................................... 117
C. State and Locality Response to Pretextual Stops Prior To, and
After, Whren .................................................................................... 118
1. Police Department and State Government Approaches to
Pretextual Stops and What’s at Stake for Law Enforcement .. 118
2. State Caselaw Prior to Whren ............................................ 119
3. Difficulty in Classifying States’ Pretextual Stop Approach:
People v. Burrell ..................................................................... 121
III. WHREN v. UNITED STATES ............................................................. 124
A. Facts ............................................................................................ 124
B. Unanimous Opinion .................................................................... 126
1. “Don’t Ask, Don’t Tell”: Analyzing the Precedent Regarding
a Police Officer’s Subjective Intentions .................................. 126
2. Deficiencies of the Petitioner’s Proposed Reasonable Officer
Test .......................................................................................... 127
C. The Whren Effect ........................................................................ 128
IV. UNITED STATES v. JOHNSON ......................................................... 130
A. Facts and Posture of the Case ..................................................... 130
B. Seventh Circuit Court of Appeals’ Majority Opinion ................ 132
1. Statutory Exhaustion ........................................................... 132
2. Applying Whren to Parking Infractions .............................. 133
* Stephen D. Hayden is a third-year law student at Southern Illinois University School of Law,
expecting his J.D. in May of 2020. He would like to thank his parents, Dan and Linda, for their
constant and unconditional support. He would also like to thank Dean Steven Macias for his
direction and guidance in writing this note. For Lee.
108 Southern Illinois University Law Journal [Vol. 44
C. Hamilton’s Dissent ..................................................................... 134
1. The Inherent Unreasonableness of the Seizure ................... 134
2. “Parking While Black” ....................................................... 135
3. How Johnson is Distinguished From United States v. Shields
................................................................................................ 136
V. ANALYSIS...................................................................................... 136
A. Proposal For A New Legal Test ................................................. 137
1. Reasonable Investigation of Statutory Exceptions .............. 137
2. Would a Reasonable Officer Have Made the Seizure? ....... 137
3. More Than Bare Suspicion of a Class of Crimes ............... 138
4. Tangential Relation ............................................................ 138
5. Aggravating Circumstances ................................................ 139
B. The Test Applied ........................................................................ 139
1. The Test Applied to Whren.................................................. 139
2. The Test Applied to Johnson ............................................... 140
3. The Test Applied to United States v. Herrera ...................... 141
C. A Reasonable Expectation of Privacy in Automobiles ............... 142
VI. CONCLUSION .............................................................................. 144
2019] Parking While Black 109
I. INTRODUCTION
So I pull over to the side of the road,
I heard “Son, do you know what I am stopping you for?”
“Cause I’m young and black and my hat’s real low?
Or do I look like a mind reader, sir? I don’t know.
Am I under arrest or should I guess some mo?”
“Well, you was doing fifty-five in the fifty-four” 1
Bill, a 23-year-old African American with a felony record, lives in
Milwaukee, Wisconsin. He has been trying to go straight after his last arrest.
He’s maintained a job and gotten an apartment. In all aspects, he has turned
his life around. His brother, Chris, one night asks Bill to accompany him to
Chris’ girlfriend’s place. Chris tells Bill that his girlfriend and a friend of
hers are having a small get together—Chris promises Bill it will just be the
four of them. Bill agrees. On the way, Chris stops at a liquor store while Bill
waits in the car. Suddenly, there are flashing lights behind the car. Police
officers, guns drawn, are on both sides of the car. The passenger door is
ripped open. Bill is ordered out of the car and handcuffed. A gun is found
under the passenger seat. Bill is convicted under a federal statute prohibiting
felons from being in possession of a firearm. It is a nightmare scenario that
can be a reality for many. 2
The Fourth Amendment guarantees a right to be free from unreasonable
searches and seizures. 3 Traffic stops qualify as a Fourth Amendment seizure
when a police officer restricts a person’s freedom by physical force or by
showing their authority. 4 Society accepts the power to subject automobiles
to reasonable Fourth Amendment search and seizures as necessary to protect
the public from an activity commonly understood to be inherently
dangerous. 5 While the Supreme Court has held the Fourth Amendment
prohibition on unreasonable searches and seizures extends to traffic stops, 6
1 JAY Z, 99 Problems, on THE BLACK ALBUM (Rock-a-Fella, Def Jam Records, 2004). Others in legal
academia have noticed this song’s connections to the Fourth Amendment; see Caleb Mason, Jay-
Z's 99 Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops and Perps,
56 ST. LOUIS U. L.J. 567 (2012). The connection has also been recognized outside of legal academia,
see also Aisha Harris, What Can “99 Problems” Teach Us About the Fourth Amendment?, SLATE
(Jul. 11, 2012 4:52 PM), https://slate.com/culture/2012/07/99-problems-and-the-fourth-
amendment-what-the-jay-z-song-can-teach-us-about-the-constitution.html. 2 This hypothetical is loosely based on the facts of United States v. Johnson, 874 F.3d 571 (7th Cir.
2017). While it is not known what defendant Randy Johnson’s personal history is, the purpose of
the above hypothetical is to demonstrate what most would consider a clearly unreasonable seizure. 3 U.S. CONST. amend. IV. 4 Brendlin v. California, 551 U.S. 249, 254 (2007). 5 See Delaware v. Prouse, 440 U.S. 648, 658 (1979) (explaining that while the record lacked statistics
showing the dangers of highway safety, the Court was aware of the risk to life involved in
motoring). 6 Whren v. United States, 517 U.S. 806, 810 (1996).
110 Southern Illinois University Law Journal [Vol. 44
automobiles have never quite enjoyed the same robust Fourth Amendment
protections stationary dwellings have. 7 Some scholars have even questioned
whether the Court offers any Fourth Amendment protections to motorists. 8
The justifications for the rigid distinction between homes and
automobiles for Fourth Amendment purposes seems to originate from the
automobile’s mobile nature 9 and the American tradition of sanctifying the
home. 10
This distinction became a much brighter line when the Court held
police officers may use minor traffic violations—even if those violations are
not criminal—as a pretense to investigate a suspected underlying crime. 11
This note argues that through a series of Supreme Court holdings
culminating in Whren v. United States, the current view on racially based
profiling in traffic enforcement amounts to “don’t ask, don’t tell.” 12
Courts
should not ask if a police officer racially profiled a driver in determining
whether to stop a car, 13
and in order to avoid accusations of racial profiling,
the officer need only not tell of any subjective intentions that may show
unconstitutional racial profiling. 14
This doctrine is dangerous in light of the
already existing racial biases in enforcing drug 15
and traffic laws. 16
Twenty-two years after Whren, instead of reining in a police tactic that
furthers feelings of resentment towards police by the African American
7 See South Dakota v. Opperman, 428 U.S. 364, 367 (1996) (“[W]arrantless examinations of
automobiles have been upheld in circumstances in which a search of a home or office would not.”). 8 See generally Chris K. Visser, Without a Warrant, Probable Cause, or Reasonable Suspicion: Is
There Any Meaning to the Fourth Amendment While Driving a Car?, 35 HOUS. L. REV. 1683 (1999)
(arguing that through a series of Supreme Court decisions it easier than ever for a police officer to
turn a simple traffic violation into a Fourth Amendment search and seizure). 9 United States v. Chadwick, 433 U.S. 1, 12 (1977). 10 See Payton v. New York, 445 U.S. 573, 601 (1980). 11 See generally Whren, 517 U.S. at 806. 12 “Don’t ask, don’t tell” was the colloquial name for the policy that regulated homosexuality in the
military during the early 1990’s. The policy consisted of a statute passed by Congress and a
Department of Defense regulation that stated the government would not ask about an applicant’s
sexual orientation, and current members of the military would not disclose if they were gay or
bisexual. See Kenji Yoshino, Assimilationist Bias in Equal Protection: The Visibility Presumption
and the Case of "Don't Ask, Don't Tell", 108 YALE L.J. 485, 538 (1998). 13 See Whren, 517 U.S. at 815 (explaining that a police officer’s subjective intentions have no role in
determining the reasonableness of a Fourth Amendment seizure). 14 Proving that an officer stopped a motorist based on that motorist’s race is an extraordinarily hard
feat. In order to succeed on a civil claim of racial profiling, the plaintiff must show the defendant
had discriminatory intent. See Melissa Whitney, The Statistical Evidence of Racial Profiling in
Traffic Stops and Searches: Rethinking the Use of Statistics to Prove Discriminatory Intent, 49 B.C.
L. REV. 263, 265 (2008); see also TELL ME MORE (May 21, 2013),
https://www.npr.org/templates/story/story.php?storyId=185788184. 15 See PAULA S. ROTHENBERG, RACE, CLASS, AND GENDER IN THE UNITED STATES: AN INTEGRATED
STUDY 197 (St. Martin’s Press, 4th ed. 1998). 16 JOSEPH PETROCELLI & MATTHEW PETROCELLI, ANATOMY OF A MOTOR VEHICLE STOP 14
(Looseleaf Law Publications, Inc. 2005) (a study of North Carolina traffic stops showed black
drivers were more likely to be ticketed and have their vehicles searched than white drivers).
2019] Parking While Black 111
community, 17
the courts are expanding pretextual stop doctrine. 18
The latest
evolution of the carte blanche approval of pretextual stops has been for courts
to hold that Whren applies to non-moving, parking violations. 19
This note
will question the wisdom of the hardline distinction between the home and
the automobile, 20
especially when an automobile is parked. As they are
increasingly likely to contain private, personal information that individuals
have a reasonable expectation of privacy to, 21
automobiles are now, more
than ever, deserving of robust Fourth Amendment protections.
This note proposes a new legal test to determine when a pretextual stop
violates the Fourth Amendment. This test is designed with a nonmoving
vehicle in mind but could also be applied to moving vehicles. The first step
to this test is asking whether an officer has exhausted all statutory exceptions
to the alleged traffic violation. For example, if the violation underlying the
justification for the seizure is a parking violation, the court should inquire as
to whether the officer made a “reasonable investigation” to determine if the
car was actually legally parked and only appears to be illegally parked.
The second step of the test asks whether, under similar circumstances,
a reasonable officer would have made the traffic stop. This step is essentially
adopting the “would have” or “reasonable officer” test that many courts had
previously used. 22
Under the reasonable officer test, a court looked to the
intentions of the stopping officer, and if it was determined the stop was
pretextual, the seizure was found to be unreasonable under the Fourth
Amendment. 23
This inquiry alone would signal a return to more robust
Fourth Amendment protections for motorists. 24
The third step is to require the stopping officer to have more than a bare
suspicion of a general class of crimes which they wish to investigate. This
step would clarify to courts that some standard above bare suspicion is
required for police officer to justify a Fourth Amendment seizure. This step
also allows courts some flexibility in choosing an appropriate standard for
17 See David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters,
84 MINN. L. REV. 265, 268 (1999). 18 U.S. v. Johnson, 874 F.3d 571, 577 (7th Cir. 2017), cert. denied, 139 S.Ct. 58 (U.S. Oct. 1, 2018)
(No.17-1349) (denying certiorari effectively expanded the Whren holding to include non-moving,
parking violations). 19 See Johnson, 874 F.3d at 574 (explaining that the Fifth Circuit Court of Appeals, the Sixth Circuit
Court of Appeals, and the Ninth Circuit Court of Appeals came to the conclusion that the Court in
Whren did not distinguish between moving and nonmoving violations). 20 See generally South Dakota v. Opperman, 428 U.S. 364, 367 (1976). 21 See generally United States v. Carpenter, 138 S. Ct. 2206 (2018) (holding that individuals have a
reasonable expectation of privacy as to their physical movements when generated by cell-site
location information); see also Lindsey Barrett, Herbie Fully Downloaded: Data-Driven Vehicles
and the Automobile Exception, 106 GEO. L.J. 181 (2017). 22 See Robert D. Snook, Criminal Law-Pretextual Arrests and Alternatives to the Objective Test, 12
W. NEW ENG. L. REV. 105, 107 (1990). 23 See id. 24 See generally id (the author notes that the “would have” test appears to be the norm prior to 1978).
112 Southern Illinois University Law Journal [Vol. 44
when an officer may conduct a traffic stop based on a pretext (or banning
pretextual stops completely), so long as the standard requires more than bare
suspicion.
The fourth step requires there to be at least some tangential relationship
between the suspected underlying class of crimes (for example, narcotic or
weapons possession or intoxicated driving) the stopping officer wishes to
investigate and the traffic infraction for which there is actual reasonable
suspicion. This step can be justified on two fronts. First, there is precedent
for a similar inquiry. 25
Second, it would reduce incidents of specialized
police task forces being used to accidentally enforce traffic laws. 26
The fifth and final step is to ask if there were aggravating circumstances
that would give the officers more than bare suspicion of an underlying crime
they wish to investigate. This step considers temporal, spatial, and other
factors related to the suspected crime. For example, consider the following
scenario: a car is parked illegally in a handicap space, with the driver’s door
ajar outside of a liquor store in the early morning hours. The aggravating
factors in this scenario would be the driver’s door being ajar, the time of the
morning, and the location of the violation.
This test is admittedly, on the surface, longwinded and complex.
However, it creates a middle ground for proponents of the old “pretext rule”
approach, which stated any seizure based on a pretext was unreasonable
under the Fourth Amendment, and supporters of the current rule coming out
of Whren, which allows pretextual Fourth Amendment seizures. 27
This
approach also addresses those who have long argued for the need of
flexibility in police tactics for enforcing laws, particularly when officers have
developed suspicions based on their observations. 28
25 See State of Hawaii v. Bolosan, 890 P.2d 673, 681 (1995) (“Therefore, we hold that an investigative
stop can be justified based on an objectively reasonable suspicion of any offense, provided that the
offense for which reasonable suspicion exists is related to the offense articulated by the officer
involved. Offenses are related when the conduct that gave rise to the suspicion that was not
objectively reasonable with respect to the articulated offense could, in the eyes of a similarly
situated reasonable officer, also have given rise to an objectively reasonable suspicion with respect
to the justifiable offense.”). 26 In Johnson the police officers were part of the Milwaukee Police Department’s Narcotics Task
Force. This specialized task force likely receives funding and resources greater than those
departments tasked with enforcing traffic laws. If one of these specialized task force officers uses
a traffic violation as a pretext to investigate a hunch of a more serious crime, that hunch proves
wrong, and a ticket is issued for the violation, arguably the law was enforced accidentally. 27 See 1 WAYNE R. LAFAVE, §1.4(f) More on “pretext”: the effects of Whren, SEARCH & SEIZURE: A
TREATISE ON THE FOURTH AMENDMENT (5th ed. 2018). 28 See Terry v. Ohio, 392 U.S. 1, 10 (1968) (establishing the doctrine of “stop and frisk”).
2019] Parking While Black 113
II. A BRIEF HISTORY ON PRETEXTUAL STOP JURISPRUDENCE
PRIOR TO, AND AFTER, THE WHREN DECISION
The Tenth Circuit Court of Appeals has provided a useful definition of
a pretextual stop:
A pretextual stop occurs when the police use a legal justification to make
the stop in order to search a person or place, or to interrogate a person, for
an unrelated serious crime for which they do not have the reasonable
suspicion necessary to support a stop. The classic example, presented in this
case, occurs when an officer stops a driver for a minor traffic violation in
order to investigate a hunch that the driver is engaged in illegal drug
activity.29
In other words, “pretextual stops” allow officers to legally investigate
criminal activity on nothing more than a “hunch.”30 Allowing police officers
to utilize this investigatory tool without any restrictions has had disastrous
effects on the Fourth Amendment, as motorists are now subject to legalized
capricious seizures.31 Allowing seizures of an automobile on the pretext of
a civil infraction, and not requiring even reasonable suspicion for the
underlying crime,32 is a contradiction of the common law doctrines that
inspired the Fourth Amendment.33
The Supreme Court settled a long-standing circuit split regarding the
constitutionality of pretextual stops in Whren v. United States.34 The
influence of Whren on state courts is unquestionable35—however, at least one
state supreme court held, post-Whren, pretextual stops violate their state
constitution.36 Legal scholars have come to differing conclusions regarding
the effects that Whren has had on the Fourth Amendment, but the vast
majority of scholars have harshly criticized the decision as being
fundamentally unfair.37
29 United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir. 1988). 30 See United States v. Botero-Ospina, 71 F.3d 783, 786 (10th Cir. 1995). 31 1 WAYNE R. LAFAVE, supra note 27. 32 See Botero-Ospina, 71 F.3d at 786. 33 See Thomas K. Clancy, The Framers’ Intent: John Adams, His Era, and The Fourth Amendment,
86 IND. L. J. 979, 1010-11, (2011). 34 Delaware v. Heath, 929 A.2d 390, 398 (Del. Super. Ct. 2006). 35 See infra note 196. 36 Washington v. Ladson, 979 P.2d 833, 836 (Wash. 1999). 37 See generally Margaret M. Lawton, The Road to Whren and Beyond: Does the “Would Have” Test
Work?, 57 DEPAUL L. REV. 917 (arguing that the state of Washington’s prohibition on pretextual
stops has little effect on preventing violations of the Fourth Amendment); but cf. GUY PADULA,
COLORBLIND RACIAL PROFILING: A HISTORY, 1974 TO THE PRESENT 167 (Routledge, 1st ed. 2018)
(arguing tens of thousands of pages of scholarly work regarding Whren can be distilled down to it
a single assertion that the holding grants police too much power).
114 Southern Illinois University Law Journal [Vol. 44
However, the question of whether Whren can be applied to nonmoving,
parking violations has not been expressly answered by the Court.38 Circuits
which have dealt with this issue hold Whren should apply to nonmoving
parked automobiles.39 Johnson can be distinguished from other pretextual
stop cases involving nonmoving violations by the sheer unreasonableness of
the police officer’s behavior in that case.40 Warrantless seizures being
reasonable is the very heart of the Fourth Amendment.41 As such, the effect
of the majority opinion in Johnson has been to essentially do away with the
reasonableness requirement in the context of a parked vehicle.
A. The Importance of Terry to Pretextual Analysis
In Terry v. Ohio, Terry and two other defendants were observed by a
veteran police officer repeatedly looking into the window of a jewelry store,
causing the officer to believe the men were armed and were “casing a job.”42
After confronting the defendants, the officer frisked Terry and discovered a
handgun.43 Terry challenged the inclusion of the handgun as evidence,
arguing Terry’s detention was unreasonable under the Fourth Amendment as
the officer lacked probable cause to stop Terry.44 The Court found Terry’s
seizure to be reasonable and affirmed the conviction.45
The Supreme Court’s holding in Terry v. Ohio established three very
important concepts in Fourth Amendment jurisprudence. First, anytime a
police officer limits a person’s physical mobility in anyway, it constitutes a
“seizure” under the Fourth Amendment.46 Second, and perhaps most central
to this note’s argument, is that reasonability is central to the inquiry of a
seizure’s constitutionality under the Fourth Amendment. Finally, the Court
declared that in order for a seizure and search to be constitutionally
reasonable under the Fourth Amendment, two factors must be met: first, the
initial seizure must be justified; and second, the search must be reasonably
related to the circumstances that justified the initial seizure.47
The first factor is clearly defined by the Court as requiring the seizing
officer to show articulable facts that tip the scale balancing the state’s interest
in deterring crime against the individual interest of freedom from
38 U.S. v. Johnson, 874 F.3d 571, 577 (7th Cir. 2017). 39 See Flores v. City of Palacios, 381 F.3d 391 (5th Cir. 2004). 40 See generally discussion infra Section III. 41 See Terry v. Ohio, 392 U.S. 1, 10 (1968). 42 Id. at 7. 43 Id. 44 Id. at 7-8. 45 Id. at 30. 46 See id. at 16. 47 See id. at 19-20.
2019] Parking While Black 115
unreasonable seizures, in the favor of the state.48 The second factor (or the
reasonable relation inquiry) is similar to the inquiry in the fourth step of this
note’s proposed test. The Terry rule relating to seizures can be distilled into
requiring an officer to justify a seizure as being reasonable by a showing of
articulable facts that demonstrate a reasonable suspicion that the person being
seized is engaged in some sort of illicit activity.49
A solid understanding of the Terry rule is important to understanding
the argument against the carte blanche allowance of pretextual stops because
a traffic stop is a type of Terry investigative stop.50
B. The Competing Legal Tests Prior to Whren
Prior to Whren, the federal circuits were split on the constitutionality of
pretextual automobile stops.51 For example, the Sixth Circuit had previously
held pretextual stops were unreasonable under the Fourth Amendment,52
while the Seventh Circuit held a police officer’s subjective state of mind was
irrelevant to the Fourth Amendment reasonableness analysis.53 During this
circuit split, two distinct legal tests competed with each other: the “could
have” test and the “would have” test.54
1. The “Could Have” Test
Under the “could have” test or “objective legality” approach,55 courts
do not consider a police officer’s subjective state of mind prior to the seizure
and only inquire if the police officer could have legally seized the automobile
for some violation no matter how trivial.56 As an example, consider the
following scenario. A police officer patrolling a well-known drug area sees
a vehicle leave the driveway of a residence suspected to be involved in the
drug trade. The officer suspects the house is used to sell drugs because he
overheard other officers saying as much, though he was never directly told
this particular house was under suspicion. The officer wishes to pull the
48 See id. at 19-22. 49 See PADULA, supra note 37, 53-54; see also United States v. Smith, 799 F.2d 704 (11th Cir. 1986). 50 United States v. Green, 897 F.3d 173, 178 (3d Cir. 2018). 51 Delaware v. Heath, 929 A.2d 390, 398 (Del. Super. Ct. 2006). 52 Stephen P. Jones, Criminal Procedure – State v. Williams: Pretextual Vehicle Stops and the Fourth
Amendment, MEM. ST. U. L. REV. 421, 430 (1993). 53 See id. 54 See United States v. Smith, 799 F.2d 704, 708 (11th Cir. 1986) (rejecting the government’s
argument that the inquiry should be if a reasonable officer could have stopped the defendant’s car
and instead held the proper inquiry is if a reasonable officer would stop the defendant’s car). 55 Patricia Leary & Stephanie Rae Williams, Toward a State Constitutional Check on Police
Discretion to Patrol the Fourth Amendment’s Outer Frontier: A Subjective Test for Pretextual
Seizures, 69 TEMP. L. REV. 1007, 1014 (1996). 56 Id. at 1016.
116 Southern Illinois University Law Journal [Vol. 44
vehicle over, and gets the opportunity to do so after noticing that the car may
have a license plate light that is not lit. In this municipality, cars are required
to have two fully lit license plate lights. Not complying with this requirement
is an offense for which the municipality authorizes traffic stops. In this
example, there is no reasonable suspicion for anything other than a minor
equipment violation. Under the “could have” test, this traffic stop would be
automatically seen as reasonable.
Most courts found that the “could have” test included two factors: first,
the officer must have had probable cause that the alleged traffic violation
occurred; and second, the municipality must allow for the officer to pull the
vehicle over.57 As such, no inquiry into the officer’s subjective intentions is
made—even supporters of the competing “would have” test, detailed below,
admit that such an inquiry into subjective intentions would be an exercise in
futility.58
The most obvious flaw with the “could have” test is that it reduces
Fourth Amendment protections for motorists.59 But perhaps the real danger
in the test is that nearly every motorist is susceptible to a Fourth Amendment
seizure at any time they are on a public road. Under the “could have” test,
reasonable suspicion for some minor automobile violation, no matter how
obscure or technical, can almost certainly be universally found in every
moving automobile.60 Even the most pious61 and law abiding62 motorists fail
to completely conform their behavior to complex traffic laws.63 How can we
completely conform our behavior when most of us regard traffic laws as
subjective?64 Any motorist traveling any appreciable distance likely has
violated some traffic rule.65 Additionally, the legal objectivity test allows
57 Matthew J. Saly, Whren v. United States: Buckle-Up and Hold on Tight Because the Constitution
Won't Protect You, 28 PAC. L.J. 595, 605 (1997). 58 See Keith S. Hampton, Stranded in the Wasteland of Unregulated Roadway Police Powers: Can
“Reasonable Officers” Ever Rescue Us?, 35 ST. MARY’S L.J. 499, 529 (2004) (explaining that
Professor Wayne R. LaFave preferred the reasonable officer test); see also 1 WAYNE R. LAFAVE,
§1.4(e) “Pretext” Arrests and Searches Before Whren, SEARCH & SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT (5th ed. 2018) (Professor LaFave believes it is a sound principle to avoid
trying to inquire into subjective minds of police officers). 59 Saly, supra note 57, at 605. 60 LAFAVE, supra note 27. 61 See Pida v. City of Bonners Ferry, 2:17-CV-00195-REB, 2018 WL 2224047, *1 (D. Idaho May 15,
2018) (speeding motorist was a Catholic hermit). 62 See 4 WAYNE R. LAFAVE, §9.3(a) Grounds for Stop, SEARCH & SEIZURE: A TREATISE ON THE
FOURTH AMENDMENT (5th ed. 2018) (citing to a New York Times article explaining that Supreme
Court Justice William Rehnquist was ticketed for speeding). 63 See Gary Richards, Complexity of Road Rules Can Confuse Even Cops, EAST BAY TIMES, (Mar. 4,
2008, 3:44 AM), https://www.eastbaytimes.com/2008/03/04/complexity-of-road-rules-can-
confuse-even-cops/ (explaining that the California Vehicle Code is about 1,500 pages). 64 See DONALD J. BASHAM, TRAFFIC LAW ENFORCEMENT 82 (Charles C. Thomas, 1978) (explaining
that people perceive the term “stop” to mean different things). 65 See Richards, supra note 63.
2019] Parking While Black 117
police officers, who already have almost complete discretion in enforcing
laws,66 or courts, to fabricate probable cause in hindsight.67
2. The “Would Have” Test
In contrast, the “would have” test, or the “reasonable officer” test, asks
whether under similar circumstances if a reasonable police officer would
have made the stop, absent reasonable suspicion of another more serious
crime.68 The “reasonable officer” test likely developed gradually in the
federal courts,69 but its fully developed incarnation can be traced to the 1986
Eleventh Circuit Court of Appeals.70
However, the “reasonable officer” test is not without criticism.71
Perhaps the most worthy and legitimate criticism comes from Professor
Margaret L. Lawton, who notes the “reasonable officer” test rarely, if ever,
results in a finding that the police officer acted contrary to how a reasonable
officer would have acted.72 Interestingly, Professor Lawton admits in the
very same article that the “reasonable officer” test has had the effect of courts
suppressing evidence stemming from pretextual stops in certain
circumstances.73 It appears the best tool available to determine when
unconstitutional selective enforcement is being practiced may be the
reasonable officer test.74 Part IV of this note proposes a new legal test which
attempts to address some of the criticism of the “reasonable officer” test,
while adhering to the purpose and spirit of the test.
Perhaps the least convincing criticism of the reasonable officer test
comes from the United States Supreme Court, discussed in detail later in this
note. Indeed, the unanimous majority opinion’s rejection of the “reasonable
officer” test is so confusing and steeped in irony that this note dedicates a
separate section to it.75
66 Andrew J. Pulliam, Developing a Meaningful Fourth Amendment Approach to Automobile
Investigatory Stops, 47 VAND. L. REV. 477, 491 (1994). 67 United States v. Hawkins, 811 F.2d 210, 220-21 (3d Cir. 1987) (Rosenn, J., dissenting). 68 Diana Roberto Donahoe, “Could Have,” “Would Have:” What the Supreme Court Should Have
Decided in Whren v. United States, 34 AM. CRIM. L. REV. 1193, 1202 (1997). 69 See Snook, supra note 22, at 107. 70 See PADULA supra note 37, at 147; see also United States v. Smith, 799 F.2d 704 (11th Cir. 1986). 71 See Lawton, supra note 37, at 957. 72 Id. 73 Id. at 956. 74 See PADULA, supra note 37, at 176. 75 See discussion infra Section II.
118 Southern Illinois University Law Journal [Vol. 44
C. State and Locality Response to Pretextual Stops Prior To, and After,
Whren
1. Police Department and State Government Approaches to Pretextual
Stops and What’s at Stake for Law Enforcement
Prior to Whren, various police department regulations dealt with
pretextual stops.76 Washington D.C. Metropolitan Police Department issued
an order preventing plain-clothes police officers from enforcing traffic
violations absent exigent circumstances.77 The legislature of Ohio deemed
plain-clothes police officers who enforced traffic laws to be incompetent to
testify at the accused’s trial.78 In 2001, the Texas legislature attempted to
reign in police power by proscribing pretextual stops in certain
circumstances, though the bill was ultimately defeated.79
Regulations that touch upon and effect pretextual stops, such as limiting
when plain-clothes police officers can enforce traffic violations, are typically
done in an attempt to reduce violent confrontations between police officers
and motorists.80 Such justifications seem reasonable in light of the long
history of police officers believing that the routine traffic stop is the most
threatening aspect of their job.81 Additional social benefits from police
regulations like the above likely accrue, as a certain class of police officers
are essentially instructed to turn off their “predatorial instincts” in enforcing
traffic violations.82
Police officers understand using traffic violations to investigate serious
crimes on bare suspicion can been seen as unconstitutional selective
enforcement.83 Unofficial police manuals give police officers advice on how
to avoid accusations of racial profiling.84 Police unions have lobbied
extensively to prevent Congress from commissioning studies on traffic stops
that would survey the race of those stopped and the legal justification of
traffic stops nationwide.85 Lobbying against a bill which would reveal
76 EDWARD LOUIS FIANDACH, §7:23 Abandonment of the Pretextual Analysis– United States v.
Whren; People v. Robinson, NEW YORK DRIVING WHILE INTOXICATED (3d ed. 2018). 77 General Order 303.1(I)(A)(2)(a)(4) (1992), https://go.mpdconline.com/GO/GO_303_01.pdf. 78 OHIO REV. CODE ANN. § 4549.16 (West, Westlaw through 2019-2020). 79 See Hampton, supra note 58, at 550. 80 See PADULA, supra note 37, at 177. 81 See BASHAM, supra note 64, at 36. 82 See id. at 80. 83 See PADULA, supra note 37, at 177. 84 See id. 85 See id. (explaining that police trade groups lobbied heavily against the Traffic Statistics Act).
2019] Parking While Black 119
statistics of pretextual traffic stops is likely an instinctual survival response
as pretextual stops are a cash cow for local police departments.86
For individual police officers, pretextual stops are a win-win situation.
If a traffic stop fails to prove their suspicion of a serious crime, their
department may still reward them for issuing the ticket.87 One must wonder
how the state’s legitimate interest in enforcing traffic laws (particularly in
enforcing parking violations) outweighs the damage to the reputation of the
local police departments caused by using this tactic.88
2. State Caselaw Prior to Whren
Prior to Whren, state courts were split on whether to adopt the “would
have” test or the “could have” test.89 Some state courts passed on the
pretextual stop question all together.90 At least one state likely had a district/
appellate court split on the issue of pretextual stops91 prior to that state’s
supreme court adopting the holding in Whren.92
To study state responses to pretextual stops, this note analyzes state
supreme court cases in which the defendant challenged a conviction based
on a legal pretext. These challenges can be either that the traffic stop was
based on a pretext or their arrest was based on pretext. The dates used to
analyze cases in this note are from the June 10, 196893 to June 10, 1996.94
There was a clear majority in favor of the “could have” test in the federal
circuit courts prior to Whren.95
Not every state can fit neatly into either the “could have” test or the
“would have” test—rather than attempt to pigeonhole states, this note creates
a third category for “other.” This category includes states that for some
reason could not logically be placed in either of the other two. For example,
86 Eric Blemenson & Eva Nilsen, Policing for Profit: The Drug War’s Hidden Economic Agenda, 65
U. CHI. L. REV. 35, 83 (1998) (noting police departments use pretextual stops to intercept drug
money that is ultimately used to fund department operations). 87 See Illya Lichtenberg, Police Discretion and Traffic Enforcement: A Government of Men, CLEV.
ST. L. REV. 443 (2003). 88 David A. Harris, The Stories, the Statistics, and the Law: Why "Driving While Black" Matters, 84
MINN. L. REV. 265, 268 (1999). 89 Jones v. Alaska, WL 16196649 *1 (Alaska Ct. App 1994) (“Courts around the country are split on
the wisdom of adopting the ‘pretext arrest’ rule.”). 90 See Connecticut v. Winfrey, No. CR10-204867, WL 389930 *3 (Dec. 11, 1992) (explaining that it
didn’t matter which test the court used as stop was not pretextual). 91 State v. Roaden, 98 Ohio App. 3d 500, 503, 648 N.E.2d 916 (12th Dist. Clermont County 1994). 92 City of Dayton v. Erickson, 665 N.E.2d 1091, 1097 (Ohio 1996) (the Supreme Court of Ohio
adopted the objective legality test in a case decided on July 3, 1996). The court, rather than citing
to United States v. Whren, cited to United States v. Ferguson, 8 F.3d 385 (6th Cir. 1993). 93 This was the day the Supreme Court decided Terry v. Ohio. 94 This was the day the Supreme Court decided United States v. Whren. 95 Janet Koven Levit, Pretextual Traffic Stops: United States v. Whren and the Death of Terry v. Ohio,
28 LOY. U. CHI. L.J. 145, 162 (1996).
120 Southern Illinois University Law Journal [Vol. 44
a state supreme court that did not hear a pretextual challenge prior to Whren
would fit in the third category.96 Some state supreme courts expressly
adopted one of the tests.97 Other states are not so easily classified as having
adopted one test or the other— or even perfectly fit into the third category.98
At least one state held that a stop may be justified even if the police officer
does not witness any violations.99
This analysis of state supreme court cases assumes if a state supreme
court adopted a test similar to the “objective legality” test or the “reasonable
officer” test for other pretextual criminal concepts (such as a pretextual arrest
or pretextual search), the state supreme court would adopt that same test for
pretextual stops.100 This is a reasonable inference as at least one state has
expressly adopted the “legal objectivity” test to all legal pretexts.101 If a state
supreme court held that a stop was not pretextual, this note groups that state
in with “reasonable officer” test states.102 Finally, if a state supreme court
skirts the defendant’s express pretextual challenge, but finds cases that adopt
one of the tests to be persuasive, the state would be grouped with whatever
test the persuasive cases cited to use.103
As an example of the difficulty in classification, this section discusses
a state supreme court case from Michigan that holds the defendant failed to
show the stop was pretextual while effectively adopting the “could have”
test.104 For states that adopt the pretextual stop rule—that is, banning
96 This category also includes states that did not adopt either standard or had a standard that did not
conform to either the “could have” test or the “would have” test. 97 State v. Everett, 472 N.W.2d 864, 867 (Minn. 1991); State v. Daniel, 665 So. 2d 1040, 1043 (Fla.
1995) (“The reasonable officer test is better suited for an individualized inquiry because it also asks
whether the usual police practice would be to effect a stop when confronted with a particular kind
of minor infraction.”). 98 Some state supreme courts won’t even address the merits of the defendant’s pretextual argument. It
seems a reasonable inference could be made that if a traffic stop or arrest was not based on a pretext,
then that state supreme court views pretextual stops or arrests as unreasonable. See People v.
Burrell, 339 N.W.2d 403, 408 (Mich. 1983) (explaining that the defendant merely failed to show
that the traffic stop originating from a noisy exhaust system was pretextual). 99 See State v. Kissner, 390 N.W.2d 58, 60 (S.D. 1986). 100 See Ex parte Scarbrough, 621 So. 2d 1006, 1009 (Ala. 1993) (citing United States v. Smith, 799
F.2d 704, 708 (11th Cir.1986), which was a pretextual stop challenge, for a definition of the
reasonable officer test, but ultimately adopted the objective legality test); see State v. Towne, 615
A.2d 484, 496-497 (Vt. 1992) (citing United States v. Cummins, 920 F.2d 498, 501 (8th Cir. 1990),
United States v. Hernandez 901 F.2d 1217, 1219 (5th Cir. 1990) and United States v. Hawkins, 811
F.2d 210, 215 (3d Cir. 1987), which all are express challenges of pretextual stops, for applying the
legal objectivity to test to pretextual arrests). 101 Everett, 472 N.W.2d at 867. 102 California is one such state. See People v. Marquez, 822 P.2d 418, 431 (Cal. 1992) (ruling that the
stop of the defendant was not pretextual). 103 See People v. Redinger, 906 P.2d 81, 85–86 (Colo. 1995). The court did not expressly address the
defendant’s assertion that the stop was pretextual, rather it used an investigatory stop analysis.
However, the court cited cases that expressly dealt with pretextual stop challenges and held them
to be persuasive. 104 See People v. Burrell, 339 N.W.2d 403, 408 (Mich. 1983).
2019] Parking While Black 121
pretextual stops altogether105—they are placed with the states that adopted
the “would have” test.
3. Difficulty in Classifying States’ Pretextual Stop Approach: People v.
Burrell
As an illustration, the last express challenge of a traffic stop being
pretextual to the Supreme Court of Michigan came in 1983.106 The
defendants in People v. Burrell were two black males driving an older car
through a predominately white neighborhood.107 The stopping police officer
had said he became suspicious of the defendants because they were driving
at a slow speed and the Grand Rapids area had a recent string of armed
robberies reported to have been committed by two black males.108
After a game of “cat and mouse,”109 the arresting officer was finally
able to establish probable cause to stop the defendant’s vehicle after having
his patrol car’s window rolled down enough to hear a defective exhaust
system.110 The defendant-passenger had given the stopping officer a false
name and thus extended the seizure of the defendants for over an hour while
police verified their identity.111 The defendants were eventually charged with
burglary and sentenced to prison terms of ten to fifteen years.112
In challenging the stop as a pretext for suspicion based upon race, the
defendants noted the arresting officer did not cite either defendant for an
equipment violation.113 The court merely held the defendants failed to show
the stop was pretextual.114 Though this holding is prefaced by the court
stating that while the defective equipment violation justified the initial stop,
the underlying suspicion of two black males driving slowly through a
predominantly white neighborhood and recalling a recent string of armed
robberies would not have not have justified the stop.115
105 Celia Guzaldo Gamrath & Iain D. Johnston, The Law of Pretext Stops Since Whren v. United States,
85 ILL. B.J. 488, 489 (1997). 106 Burrell, 339 N.W.2d at 407. 107 See id. 108 Id. at 404. 109 See id. at 404-07 (detailing events, the opinion notes that the officer lost sight of the slow-moving
automobile, initiated a search for the defendants eventually stopping them for an equipment
violation). 110 Id. at 404. 111 Id. at 404-07. 112 Id. at 404-06. 113 Id. at 404, 407. 114 Id. at 404, 408. 115 Id. at 404, 410.
122 Southern Illinois University Law Journal [Vol. 44
Burrell is of interest to this note for three reasons. First, it perfectly
illustrates a pretextual stop.116 Second, the opinion in Burrell shows an
example of a court not expressly naming one of the tests,117 but the court’s
ruling effectively endorses one of them.118 It is reasonable to infer that since
the court held the stopping officer in Burrell was justified in stopping the
defendants, a reasonable officer could have stopped them—thus effectively
adopting the objective legality test.119
Finally, it should be noted that the Burrell court never defines pretextual
stops—though it can be inferred that the court’s understanding of pretextual
stop means an unconstitutional seizure based on a motorists race.120 This
lack of definition of a pretextual stop in Burrell may stem from either the
overall confusion as to what actually constitutes a pretextual stop,121 the
relative earliness of the opinion in relation to pretextual stop jurisprudence,122
or both. In either case, it is unlikely the seizure in Burrell would be seen as
reasonable today, even under Whren standards.123
116 See generally id. The police officer initially lacked probable for any offense. The stopping officer
testified that he suspected they were connected to a recent string of robberies based solely on the
defendant’s race and type of automobile. However, the police officer only stopped the vehicle after
losing sight of them for 22 minutes and then noticing an equipment violation. 117 Nowhere in the opinion does the court mention either the “could have” test or the “would have test.” 118 See Burrell, 339 N.W.2d at 403. 119 See id. at 408. 120 See id. at 408 (“[W]e conclude that defendants’ argument that the stop was pretextual is without
merit”) (it can be inferred from this quote that race-based pretextual stops are generally
unconstitutional). 121 Some courts have seen the reasonable officer test as unworkable because it is too demanding and
impractical to get inside the officer’s subjective mindset and because an officer could simply lie
about having improper pretext based on race or other factors. See Hampton, supra note 58, at 538. 122 It is difficult to pinpoint the exact year in which a defendant argued that a stop was unreasonable
because it was based on a pretext, but an early case appears in the Eighth Circuit in 1976. See
generally United States v. Hollman, 541 F.2d 196 (8th Cir. 1976) (a defendant challenged the
inclusion of evidence by alleging that it was obtained by a pretextual stop). 123 Under Whren selective enforcement based on race is still unconstitutional. Additionally, the Burrel
court hints that the traffic stop was unreasonably extended beyond the scope of the equipment
violation. See Burrell, 339 N.W.2d at 409 (“[I]t took Deputy Blackport a somewhat incredible 33
minutes to issue a citation to Brown for failure to have a valid driver’s license in his possession.”);
see also Rodriguez v. United States, 135 S. Ct. 1609, 1611 (2015) (holding that a traffic stop is
unconstitutional if it is unreasonably prolonged beyond the scope of the original purpose).
2019] Parking While Black 123
“Could Have” Test124 “Would Have” Test125 Other
Alabama, Iowa,
Massachusetts,
Michigan, Minnesota,
Missouri, North Dakota,
Oregon, South Dakota,
Vermont
California, Colorado,
Florida, Georgia,
Hawaii, Maine,
Nebraska, Nevada,
New Jersey, New
York, North Carolina,
Ohio, Rhode Island,
Utah, West Virginia,
Wyoming
Alaska, Arizona,
Arkansas, Connecticut,
Delaware, Idaho,
Illinois, Indiana, Kansas,
Kentucky, Louisiana,
Mississippi, Montana,
New Hampshire, New
Mexico, Oklahoma,
Pennsylvania, South
Carolina, Tennessee,
Texas, Virginia,
Washington, Wisconsin
124 See Ex parte Scarbrough, 621 So. 2d 1006, 1010 (Ala. 1993) (hearing challenge to defendant’s
arrest as pretextual, the court adopted the legal objectivity test); State v. Aderholdt, 545 N.W.2d
559, 563 (Iowa 1996) (challenging stop as pretextual, court expressly adopted the objective legality
test); Commonwealth v. Santana, 649 N.E.2d 717, 720 (Mass. 1995) (challenging stop as pretextual,
the court adopted the objective legality test, though referred to the test as the “authorization test”);
People v. Burrell, 339 N.W.2d 403, 407 (Mich. 1983) (challenging the stop as pretextual, the court
held the stopping officer could have made the stop because of the equipment violation); State v.
Everett, 472 N.W.2d 864, 867 (Minn. 1991) (challenging arrest as pretextual, the court adopted
objective legality test for all legal pretext challenges); State v. Mease, 842 S.W.2d 98, 105 (Mo.
1992) (holding that legal objectivity test applied to pretextual arrests); Zimmerman v. N. Dakota
Dept. of Transp. Dir., 543 N.W.2d 479, 483 (N.D. 1996) (“The validity of [a] stop is not vitiated
merely because [an officer] subjectively stopped the vehicle for another reason[.]”); State v. Tucker,
595 P.2d 1364, 1368 (Or. 1979) (“We see no reason to hold that such a stop is improper or invalid
simply because, in addition to probable cause to arrest for a specific offense (or to stop for purposes
of issuing a citation), the officer also has a suspicion which contributes to the decision to make the
stop.”); State v. Kissner, 390 N.W.2d 58, 60 (S.D. 1986) (holding a stop can be justified even the
stopping officer witness no violation); State v. Towne, 615 A.2d 484, 496 (Vt. 1992) (challenging
arrest as pretextual, court adopted the objective legality tests and finds pretextual stop cases that
used this test as persuasive). 125 See People v. Marquez, 822 P.2d 418, 431 (Cal. 1992) (rejecting defendant’s argument that traffic
stop was a pretext, the court’s language tends to indicate a pretextual stop would have been
impermissible); People v. Redinger, 906 P.2d 81, 85 (Colo. 1995) (finding cases that adopted
reasonable officer test persuasive); State v. Daniel, 665 So. 2d 1040, 1043 (Fla. 1995) (adopting
reasonable officer test); Tate v. State, 440 S.E.2d 646, 650 (Ga. 1994) (holding defendant’s stop
was pretextual and adopting reasonable officer test); State v. Bolosan, 890 P.2d 673, 681 (Haw.
1995) (adopting reasonable officer test); State v. Haskell, 645 A.2d 619, 621 (Me. 1994) (adopting
reasonable officer test); Alejandre v. State, 903 P.2d 794, 797 (Nev. 1995), overruled by Gama v.
State, 920 P.2d 1010 (Nev. 1996) (adopting reasonable officer test); State v. Prahin, 455 N.W.2d
554, 559 (Neb. 1990) (challenging stop as a pretext for vehicle search, court held arrests may not
be used as a pretext for a search.); State v. Pierce, 642 A.2d 947, 961–62 (N.J. 1994) (citing to a
number of both state and federal courts that suppressed evidence under the reasonable officer test);
People v. Spencer, 646 N.E.2d 785, 787 (N.Y. 1995) (“[P]olice stops of automobiles in this State
are legal only pursuant to routine, nonpretextual traffic checks to enforce traffic regulations[.]”);
State v. Watkins, 446 S.E.2d 67, 70 (N.C. 1994) (“The stop 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.”); State v. Kinley, 651 N.E.2d
419, 426 (Ohio 1995), reh'g granted, opinion recalled, 663 N.E.2d 324 (Ohio 1996) (holding that
evidence obtained through a pretextual arrest must be excluded from trial); State v. Scurry, 636
A.2d 719, 723 (R.I. 1994) (challenging arrest as pretextual, court held the inquiry must focus on the
124 Southern Illinois University Law Journal [Vol. 44
Perhaps more difficult than classifying each state’s pre-Whren
pretextual stop jurisprudence into one of these three columns is deciphering
whether 16 state supreme courts considered subjective intentions. If the
“would have” test is a purely subjective test cloaked in empirical terms, then
16 state supreme courts considered an inquiry into subjective intentions
appropriate. It is clear that more state courts were likely to find pretextual
stops as unreasonable under the Fourth Amendment prior to Whren than
not.126 Though the objective legality test was the clear winner in the Federal
Circuit courts, there was still a sufficient enough split to set the stage for the
Supreme Court to hear Whren.127
III. WHREN v. UNITED STATES
In Whren v. United States the Court considered the question of whether
a plain-clothes police officer patrolling an area of Washington, D.C. known
for drug activity could use actual reasonable suspicion of a traffic violation
as pretext to investigate more serious offenses for which they only had bare
suspicion.128 In other words, the Court was deciding whether federal courts
should use the “could have” test or the “would have” test.129 The Whren court
expressly rejected the “reasonable officer” test,130 holding that an officer’s
subjective intentions do not matter so long as there is sufficient probable
cause.131
A. Facts
On June 10,1993, narcotics officers Tony Howard, Effrain Soto Jr., and
Homer Littlejohn were patrolling the Southeastern quadrant of Washington,
D.C. in an unmarked car.132 The officers were patrolling an area known for
drug activity and violent crimes133 for the purpose of enforcing narcotics
violations.134 The officers noticed defendants Michael Whren and Lester
arresting officers intent and motivation); State v. Arroyo, 796 P.2d 684, 688 (Utah 1990) (affirming
lowers court’s use of the reasonable officer test in pretextual stop challenge); State v. Hefner, 376
S.E.2d 647, 651 (W. Va. 1988) (holding pretextual arrests are unlawful); State v. Welch, 873 P.2d
601, 604 (Wyo. 1994) (holding that officer’s stop of defendant was not pretextual but lawful) It is
reasonable to infer that this court would consider pretextual stops unreasonable. 126 See Table 1. 127 Levit, supra note 95, at 162. 128 See Whren, 517 U.S. at 806. 129 See id. at 808. 130 Id. at 806. 131 Id. at 806. 132 United States v. Whren, 53 F.3d 371, 372 (D.C. Cir. 1995), aff'd, 517 U.S. 806 (1996). 133 See Whren, 517 U.S. at 806. 134 See Whren, 53 F.3d at 372.
2019] Parking While Black 125
Brown stopped at stop sign with at least one car behind them.135 Soto testified
he noticed defendant Brown, the driver of the vehicle, look down into the lap
of defendant Whren and that the defendants remained stopped at the stop sign
for more than twenty seconds.136 Deciding to tail the defendants, the officers
observed the defendants driving off at an “unreasonable” speed and failing
to use a turn signal.137 Eventually pulling the defendants’ vehicle over,138
Soto approached the driver side of the vehicle, noticing a large clear plastic
bag of white powder in each of defendant Whren’s hands.139 Believing the
bags to contain cocaine, Soto yelled out “CSA”—shorthand for “Controlled
Substances Act violation.”140 The defendants were then arrested for various
narcotics violations.141
The defendants moved to have the evidence suppressed, arguing the
traffic stop was pretextual and unreasonable under the Fourth Amendment.142
At the suppression hearing, Soto testified that he did not intend to issue a
traffic ticket. Rather, he wanted to investigate why the defendants’ vehicle
was impeding traffic at the stop sign—denying the decision to stop the
defendants was based on a racial profile.143 The District Court concluded
that the actions of the officers were routine for a traffic stop.144 Although the
District Court admitted the execution and timing of the stop may have been
contrary to how most people would have preferred, it was still appropriate,
and the court denied the defendant’s motion to suppress the physical
evidence.145
The defendants appealed, arguing the “would have” line of federal cases
from the Tenth and Eleventh Circuits should be considered persuasive and
that the “could have” test failed to put any real limitation on police
discretion.146 The defendants noted the stop would not have occurred if the
police officer lacked an ulterior motive.147 The court rejected this argument,
citing another District of Columbia Circuit Court of Appeals case that held
traffic stops as a mere pretext for the officer to search the vehicle are not
unreasonable seizures under the Fourth Amendment.148 The defendants
135 Id. 136 Id. 137 Id. 138 Id. 139 Id. 140 Id. 141 See id. 142 Id. 143 See id. 144 See id. 145 See id. 146 Id. 147 See id. 148 Id.
126 Southern Illinois University Law Journal [Vol. 44
petitioned the Supreme Court and were granted certiorari on January 5,
1996.149
B. Unanimous Opinion
A unanimous Court rejected all of the petitioners’ arguments and held
the police officer’s underlying motivations or subjective intentions (so long
as they are not based upon race)150 are not relevant to a Fourth Amendment
challenge.151 The Court noted that, generally, reasonable suspicion of an
actual traffic violation is needed for a police officer to stop a vehicle and that
even the briefest traffic stop qualifies as a seizure under the Fourth
Amendment.152 As such, the Court noted, the stop must be “reasonable.”153
1. “Don’t Ask, Don’t Tell”: Analyzing the Precedent Regarding a Police
Officer’s Subjective Intentions
The petitioners argued that civil traffic violations are a unique area of
law, and since operating a vehicle is such a heavily regulated aspect of daily
life, the standard should be something higher than reasonable suspicion.154
The petitioners also argued that the objective legality test effectively allows,
and perhaps even encourages, police officers to be able to find reasonable
suspicion on all vehicles on the road.155 To support this proposition, the
petitioners pointed out that the Court had previously held that inventory
searches (a lawful search of an arrestee’s personal effects for which probable
cause is not required)156 could not be a sham for a general search for
incriminating evidence.157 The petitioners noted that the Court held
warrantless administrative searches could not be a pretext to discover
evidence that could lead to criminal charges.158
The Court rejected this precedent as applicable to the petitioners’
situation because the cases cited both involved searches (not seizures) that
lacked, and did not require, probable cause.159 Additionally, the Court noted
149 Whren, 517 U.S. 806 (1996). 150 See id. at 813. 151 See id. at 806. 152 Id. at 810. 153 Id. 154 See id. 155 See id. at 810 (petitioners note that driving an automobile is such a heavily regulated activity that is
it next to impossible to be in full compliance with all rules and regulations at any given moment). 156 1 WAYNE R. LAFAVE, SEARCH & SEIZURE § 5.5(B) (5th ed. 2018). 157 See Whren, 517 U.S. 806, 811 (1996). 158 See id. at 811 (upholding the constitutionality of warrantless administrative inspections in New
York v. Burger, 482 U.S. 691, 716-17 (1987), the Court held these inspections could not be a pretext
to find evidence of violation of penal laws). 159 Id.
2019] Parking While Black 127
that outside of those two narrow circumstances of inventory searches and
warrantless administrative inspections, the Court has never given an officer’s
subjective intentions or underlying motives any weight in determining if a
seizure was reasonable.160
While avoiding a subjective inquiry appears to be an agreeable, sound
legal doctrine,161 the effect of such a hardline stance is the tacit acceptance
of using traffic violations to justify searches and seizures of minority
motorists based on the color of their skin.162 Under the Holmseian “bad man”
theory of the law,163 Whren may encourage police officers to racially profile
motorists and justify the seizure using a minor traffic violation, knowing that
they only have to deny any accusation of racial profiling.164 Absent the police
officer being caught on tape explicitly admitting to using a traffic violation
as a pretext to investigate an unreasonable suspicion based upon the
motorist’s race, it is nearly impossible for a defendant to show the seizure
was unreasonable.165
The Whren opinion essentially amounts to a policy of “don’t ask, don’t
tell” in terms of racial profiling. The Court “won’t ask” of the officer’s
motivations,166 and the officer, in the interest of self-preservation, likely
“won’t tell.”167 The Court’s refusal to inquire into a police officer’s
subjective intentions provides yet another road block to proving civil rights
violations that occurred via pretextual stops.168
2. Deficiencies of the Petitioners’ Proposed Reasonable Officer Test
The Court also rejected the petitioners’ contention that the reasonable
officer test is an objective standard.169 Rather, the Court thought the
160 See id. at 812. 161 See WAYNE R. LAFAVE, SEARCH & SEIZURE § 1.4(E) (5th ed. 2018) (Professor LaFave, a proponent
of the reasonable officer test, believes it is a sound principle to avoid trying to inquire into subjective
minds of police officers). 162 See David A. Harris, The Stories, the Statistics, and the Law: Why “Driving While Black” Matters,
84 MINN. L. REV. 265, 291 (1999). 163 See Oliver Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 459 (1897) (arguing
the “bad man” wished to conform his behavior and avoid incarceration as much as the “good man”
not because of morality, rather because of self-interest and a cost-benefit analysis of the law). 164 See Richard A. Posner, The Path Away from the Law, 110 HARV. L. REV. 1039, 1040 (1997)
(explaining that his understanding of the “bad man” theory is that statutes and judicial opinions
serve as materials for the bad man to predict a potential outcome in court). 165 See Harris, supra note 162, at 291. 166 See Whren, 517 U.S. 806, 812 (1996). 167 See generally Holmes, supra note 163, at 459. 168 See Melissa Whitney, The Statistical Evidence of Racial Profiling in Traffic Stops and Searches:
Rethinking the Use of Statistics to Prove Discriminatory Intent, 49 B.C. L. REV. 263, 265 (2008);
see generally The Difficulties of Proving Racial Profiling, NPR NEWS: TELL ME MORE (May 21,
2013), https://www.npr.org/templates/story/story.php?storyId=185788184. 169 Whren, 517 U.S. at 814.
128 Southern Illinois University Law Journal [Vol. 44
petitioners dressed up a purely subjective test in empirical terminology.170
The Court decided that the petitioners asked the Court not to determine
whether a police officer’s subjective intentions are appropriate, but rather,
whether it is plausible to believe the police officer had appropriate intentions
in conducting the seizure.171 To the Court, this seemed illogical as it seems it
would be a less onerous task to figure out what an individual police officer’s
subjective intentions are than to try to understand what collective police
practices would be deemed “reasonable.”172
The Court’s suggestion that the “would have” test is a subjective
standard masquerading as an objective standard173 is contrary to what some
of the most respected Fourth Amendment scholars have concluded.174 In the
end, the Court’s opinion can be distilled into the following doctrine: (1) if a
stopping officer has reasonable suspicion of a traffic violation,175 then
pretextual stop challenge cases don’t fit within the narrow exceptions of the
Fourth Amendment jurisprudence that do not require reasonable suspicion or
probable cause and do require an inquiry into subjective intentions;176 and (2)
that a police officer’s subjective intent or underlying motivations in
conducting a traffic stop are always irrelevant177 in a Fourth Amendment
analysis, unless those intentions are selective enforcement based upon race
or some other prohibited consideration.178
C. The Whren Effect
One must wonder if the relatively new problem of “racial profiling”179
was exacerbated by the rejection of the reasonable officer test in Whren. As
argued by the defendants in the District of Columbia Circuit Court of
Appeals, the “could have” test fails to place any meaningful or reasonable
checks on the discretionary power of police officers.180 Limiting police
discretionary power and pretextual stops in general is important for two
reasons. First, the law enforcement profession encourages officers to hone
and use predatorial instincts.181 Second, law enforcement as a profession
does not doubt the reality of racial profiling and instructs officers to be
170 See id. 171 See id. 172 See id. 173 See id. 174 See Hampton, supra note 58. 175 Whren, 517 U.S. at 817. 176 See id. at 812. 177 See id. at 806. 178 Id. at 813. 179 PADULA, supra note 37, at 12 (noting that the appearance of the term “racial profiling” did not
surface until the 1990’s). 180 See Whren, 53 F.3d at 374 (D.C. Cir. 1995), aff'd, 517 U.S. 806 (1996). 181 See BASHAM, supra note 64, at 80.
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concerned about it.182 While it may be argued they are instructed “to worry
about” racial profiling in a moral sense,183 not long ago police were instructed
to use racial profiling to enforce a national policy against narcotics.184 Even
today, in some circumstances, police officers are encouraged to consider
socio-economic factors in their enforcement of traffic violations.185
The “could have” test suits the law enforcement profession’s general
hostility towards any legal doctrine that diminishes or questions their
officers’ discretionary authority in any way. In one unofficial police manual
on conducting traffic stops, the authors reproduce a traffic court transcript in
which a defense attorney asks the officer to define the term “discretion.”186
The officer can only give examples of discretion and not a definition.187 The
authors of this traffic enforcement manual seem to be so offended by a
defense attorney questioning police discretionary power, they refer to this
line of questioning as “childish” and “grasping for straws.”188 When an
officer lacks either a “be on the lookout” advisory for a certain vehicle,
knowledge of an active warrant, or only has a bare suspicion of a crime,189
an officer can easily find probable cause for any number of the numerous
municipal vehicle violations.190 As noted above, pretextual stops also present
opportunities for local police departments to fill in budget gaps.191
Perhaps the most important consequence after Whren was the states’
wholesale abandonment of the “would have” test.192 In the twenty-eight
years between Terry and Whren,193 at least seventeen states offered some
182 PETROCELLI & PETROCELLI, supra note 16, at 11-15 (citing various statistics that tend show
selective enforcement against racial minorities and police officers should be concerned with racial
profiling). 183 Id. at 11 (explaining that racial profiling is “unprofessional and unacceptable”). 184 See PADULA, supra note 37, at 51-52 (explaining that police training videos showed and portrayed
drug dealers as almost exclusively either Latino or black); see also PETROCELLI & PETROCELLI,
supra note 16, at 11-15 (noting that racial profiling was a tool that was taught to police officers as
recently as the 1980’s). 185 PETROCELLI & PETROCELLI, supra note 16, at 11 (listing areas that are not police friendly and thus
not good for vehicle stops include “some housing projects, motorcycle club meeting places, certain
bars and known gang hangouts.”). 186 See id. at 7-8. 187 Id. 188 Id. 189 See generally id. at 17-18 (explaining that Delaware v. Prouse, 440 U.S. 648 (1979), requires that
police officers have a lawful reason to stop a vehicle). 190 See Wayne R. LaFave, The “Routine Traffic Stop” from Start to Finish: Too Much “Routine,” Not
Enough Fourth Amendment, 102 MICH. L. REV. 1843, 1846 (2004) (explaining that most traffic
stops stem from direct observation of some vehicle violation); see also Visser, supra note 8, at 1683
(explaining that driving has become an intrinsic part of American life). 191 See Lichtenberg, supra note 87. 192 See Lawton, supra note 37, at 918 (explaining that currently Washington is the only state whose
supreme court has said the “reasonable officer” test is required under Washington’s state
constitution). 193 Terry v. Ohio, 392 U.S. 1 (1968) (decided on June 10); Whren v. United States, 517 U.S. 806 (1996)
(decided on June 10).
130 Southern Illinois University Law Journal [Vol. 44
protection to motorists against pretextual stops—either through expressly
adopting the “reasonable officer” test or some variant.194 This note refers to
this dramatic transformation of how state supreme courts viewed the Fourth
Amendment as the “Whren effect.” In light of the fact that Supreme Court
decisions set the floor and not the ceiling in terms of Fourth Amendment
protections,195 why are state courts so enamored and influenced by Supreme
Court decisions that they would rollback constitutional protections they
previously thought necessary?196 With the near nationwide abandonment of
the “would have” test,197 very little protections against unreasonable Fourth
Amendment seizures are available to motorists traveling any appreciable
amount of distance on American roads.198 This begs the question if the
pretextual stop doctrine should apply to every scenario involving a defendant
in a vehicle—even if the reasonable suspicion is for a nonmoving violation?
IV. UNITED STATES v. JOHNSON
In United States v. Johnson, the Seventh Circuit Court of Appeals
considered the question of whether a pretextual stop is reasonable under the
Fourth Amendment when the only underlying probable cause that exists is
for a civil parking infraction.199 The court held that police officers need not
exhaust every possible statutory exception before approaching a stopped
vehicle and that the Whren pretextual stop rule applies to moving and
nonmoving traffic violations alike.200
A. Facts and Posture of the Case
In January of 2014, three Neighborhood Task Force (NTF) officers with
the Milwaukee Police Department were patrolling a violent crime “hotspot”
of Milwaukee.201 At an evidentiary hearing, the officers testified they were
194 See discussion infra Table 1. 195 See U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the people”); see generally
Erwin Chemerinsky, Two Cheers for State Constitutional Law, 62 STAN. L. REV. 1695, 1696 (2010)
(explaining that state constitutions can offer individual liberties in areas where the United States
Constitution fails). 196 See Sara C. Benesh & Wendy L. Martinek, Context and Compliance: A Comparison of State
Supreme Courts and the Circuits, 93 MARQ. L. REV. 795, 797 (2009) (explaining that state supreme
courts tend to be more influenced by Supreme Court policy than the federal circuit courts,
particularly with regard to Fourth Amendment search and seizure policy). 197 See generally Lawton, supra note 37, at 918. 198 See generally Visser, supra note 8. 199 United States v. Johnson, 874 F.3d 571 (7th Cir. 2017), cert. denied, 17-1349, 2018 WL 1470947
(U.S. Oct. 1, 2018). 200 Id. 201 United States v. Johnson, No. 14-CR-25, 2014 WL 12656901, at *1 (E.D. Wis. Aug. 7, 2014).
2019] Parking While Black 131
part of the Street Crimes division of NTF and were trained to look for laws
being violated, including traffic laws.202 At 7:41 p.m., the NTF officers
spotted an idling black SUV parked within fifteen feet of a crosswalk, in
violation of a Wisconsin state statute.203
The driver of the NTF squad car, Officer Navarette, pulled up parallel
with the SUV.204 With bright lights shining on the vehicles, the officers
approached.205 One of the arresting officers, Officer Conway, testified at the
evidentiary hearing that he saw a large hand gun in defendant Johnson’s left
hand, who was sitting in the back of the SUV, and that Johnson was making
movements consistent with concealing and then attempting to hide a weapon
under the driver’s seat.206 The officers pulled all of the passengers out of the
SUV and handcuffed the defendant.207 Officer Conway spotted a firearm on
the floor of the car underneath the driver’s seat, and the officers arrested all
of the passengers.208 Defendant Johnson was charged under a federal law
that prohibits felons from being in possession of a weapon.209
Supporting his motion for suppressing the firearm found in the SUV,
Johnson argued the seizure of the vehicle was illegal, that the seizure of a
vehicle and its passengers justified by a civil parking infraction is
unreasonable and that the officers exceeded the scope of the traffic stop.210
Finding that seizure of the SUV was lawful, the District Court noted that a
police officer may conduct a traffic stop for even the most minor of
infractions.211 Johnson argued the seizure was unlawful because a reasonable
person could not have formulated a reasonable suspicion of a parking
violation in such a brief time span.212 The District Court rejected this
assertion holding that a reasonable suspicion can be formulated almost
instantaneously.213
Johnson also argued the officers did not have reasonable suspicion of a
parking violation, as the driver was not in the SUV when Johnson was
202 Id. 203 Id. 204 Id. 205 Id. 206 Officer Conway testified at the evidence suppression hearing that Johnson’s furtive behavior caused
him to believe Johnson was concealing a weapon. Interestingly, in the majority opinion for the en
banc rehearing the court states Officer Conway believed he was hiding either alcohol, drugs, or a
weapon. See id. at *1. 207 United States v. Johnson, 874 F.3d 571, 575 (7th Cir. 2017). 208 Johnson, 2014 WL 12656901, at *1. 209 See id. at *1; see also 18 U.S.C. §§ 922(g)(1) (“It shall be unlawful for any person—who has been
convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to
ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm
or ammunition . . . .”). 210 See Johnson, 2014 WL 12656901, at *2. 211 See id. at *2. 212 See id. 213 See id.
132 Southern Illinois University Law Journal [Vol. 44
detained.214 The court rejected this argument, noting it was not the officer’s
reasonable suspicion of the parking violation that allowed the seizure, rather
Johnson’s furtive behavior was consistent with attempting to hide or conceal
a weapon, justifying the detainment.215 Additionally, the District Court
expressed its opinion that Johnson’s furtive gestures justified the detainment
under Terry.216 Finally, the court rejected Johnson’s argument that the NTF
officers went beyond the scope of what is allowable under Terry by acting
with excessive force in relation to a parking infraction.217 Johnson was
sentenced to a prison term of forty-six months.218
B. Seventh Circuit Court of Appeals’ Majority Opinion
Johnson appealed the District Court’s denial of his motion to suppress
the evidence resulting from the NTF officer’s stop.219 Johnson argued that a
“loading and unloading” statutory exception to the parking within fifteen feet
of a crosswalk ordinance could not have been exhausted within the short
amount of time between spotting the SUV the defendant was a passenger in
and seizing that SUV.220 This appeal was heard before a three-judge panel.221
Indicative of the important nature of the question of whether a police officer
may use a civil parking infraction as a pretext to seize a vehicle,222 the
Seventh Circuit Court of Appeals vacated the three-judge panel decision and
granted a rehearing en banc.223
1. Statutory Exhaustion
Johnson argued in both the evidentiary hearing and on appeal that
Wisconsin’s statutory exception to the parking ordinance, which allows a
driver to park within fifteen feet of the crosswalk if they are “loading or
unloading or . . . receiving or discharging passengers,” should have been
214 Id. at *3. 215 Id. 216 See id. at *3-4 (explaining that observation of Johnson’s furtive gestures was sufficient for Officer
Conway to develop reasonable suspicion of criminal activity). 217 See id. at *5. 218 Johnson, 874 F.3d 571, 572 (7th Cir. 2017). 219 See United States v. Johnson, 823 F.3d 408, 409 (7th Cir. 2016), reh'g en banc granted, opinion
vacated (Aug. 8, 2016), on reh'g en banc, 874 F.3d 571 (7th Cir. 2017), cert. denied, 17-1349, 2018
WL 1470947 (U.S. Oct. 1, 2018). 220 See id. 221 See generally Johnson, 823 F.3d 408 (7th Cir. 2016). 222 See Indraneel Sur, How Far Do Voices Carry: Dissents from Denial of Rehearing En Banc, 2006
WIS. L. REV. 1315, 1323–25 (2006) (explaining that Federal Rule of Appellate Procedure 35 deems
an en banc rehearing appropriate only when it would “secure or maintain uniformity of the court’s
decisions,” or when there is a legal question of “exceptional circumstance,” and, as such, en banc
rehearings are exceedingly a rare). 223 See Johnson, 874 F.3d at 572.
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exhausted by the officer.224 Johnson further argued that Wisconsin state
courts would hold that a driver parking a car to run into a store to buy
something would fall within that exception.225
The court chose not to address the issue of state law statutory
interpretation as to whether the exception would apply to a driver inside of a
store.226 Instead, the court held that an officer with reasonable suspicion of
parking violation was allowed to approach that vehicle and did not need to
resolve any possible statutory exceptions.227 The court explained that police
officers with probable cause can issue parking tickets and make arrests, and
that it is the job of the judiciary to decide the merits of any affirmative
defenses or exceptions.228 The court noted that traffic enforcement officers
routinely exercise discretion in deciding whether to approach parked
vehicles.229 The court held that the Fourth Amendment only requires that a
seizure of a vehicle be reasonable—not that the seizing officer make
determinations as to whether statutory exceptions exist.230
2. Applying Whren to Parking Infractions
The District Court, in denying Johnson’s motion to suppress the firearm
as evidence, held that Whren made any ulterior motives by the NTF officers
irrelevant to a Fourth Amendment analysis of the reasonability of a seizure.231
Johnson argued that there is an inherent legal distinction between a “moving”
and “nonmoving” violation and that the holding in Whren should not apply
to nonmoving violations such as parking violations.232 Johnson also asserted
the NTF officers had very little interest in actually enforcing a parking
violation, but rather were using it as pretext to investigate an underlying
ulterior motive.233
Noting that under Whren, reasonable suspicion of even minor traffic
violations can justify a Fourth Amendment seizure and the reasonability
standard of a Fourth Amendment seizure is a purely objective one, the court
held the Whren standard was generally applicable to all traffic violations.234
The court also noted that the Seventh Circuit had already decided that Whren
224 Id. at 573. 225 Id. 226 See id. (finding, presumably, that it would be inappropriate to give construction to a state statute in
a case involving a violation of a federal firearm statute). 227 Id. 228 See id. 229 See id. 230 See id. 231 See id. 232 See id. 233 See id. 234 See id. at 573–74.
134 Southern Illinois University Law Journal [Vol. 44
applied to nonmoving traffic violations and that the Circuits are in agreement
on this issue.235 The court noted that if they were to accept Johnson’s
moving-nonmoving distinction, it would be easier to deem the NTF’s seizure
in Johnson’s case reasonable as the seizure of a moving vehicle is more
intrusive.236
C. Hamilton’s Dissent
Judge Hamilton noted the seizure of the vehicle Johnson was a
passenger in, and of Johnson’s person, was conducted using what seems to
be inherently unreasonable methods.237 Five NTF officers split between two
squad cars, with bright lights shining into the vehicle, suddenly pulled up
behind the parked SUV before any observation of Johnson’s furtive physical
movements238—this Fourth Amendment seizure of two passengers of an
idling vehicle outside of store was inherently unreasonable for several
reasons.239
1. The Inherent Unreasonableness of the Seizure
First, the court failed to balance the State’s interest in enforcing parking
violations against the character of the Fourth Amendment seizure.240 A
comparable balance between the right to privacy and effective police
enforcement was used in Terry.241 However, investigative Terry stops should
only be applied when the suspected offense is a serious one.242 The state
interest in enforcing a rule that prevents vehicles from parking too close to a
crosswalk would have far less weight when balanced against the seizure of
Johnson in this case.243
Judge Hamilton pointed to the circumstances that contributed to the
seizure’s inherently unreasonable nature.244 The NTF officers testified they
were essentially on a fishing trip for small infractions to establish probable
cause to perform investigatory searches in a crime stricken, low-income
235 See id. at 574 (“We assumed in United States v. Shields, 789 F.3d 733, 744–46 (7th Cir. 2015), that
Whren applies to parked as well as moving vehicles, and to parking violations as well as moving
violations. Every other circuit that has addressed the issue expressly has so held.”). 236 See id. 237 See Johnson, 874 F.3d 571, 575 (7th Cir. 2017) (Hamilton, J., dissenting). 238 See id. 239 See id. 240 See id. at 576 (Hamilton, J., dissenting). 241 See id. 242 See id. (citing Wayne R. LaFave’s seminal “Search and Seizure”). 243 See id. (explaining that the enforcement of parking violations pales in comparison to the intrusive
nature of the seizure in question). 244 See id.
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Milwaukee neighborhood.245 The scene was a dreary winter night in the
predominately African-American Arlington Heights neighborhood.246 The
temperature was subfreezing, eight inches of snow on the ground, the streets
were desolate.247 The five officers made a split-second decision to seize a
car that may or may not have been illegally parked.248 In Judge Hamilton’s
opinion, these facts show that the seizure was unreasonable.249
2. “Parking While Black”
Judge Hamilton argued there are two grounds for reversal of the District
Court’s denial of Johnson’s motion to suppress the firearm as evidence.250
The narrower ground is that the seizure in question was inherently
unreasonable.251 The broader doctrinal ground is that the combination of
Terry and Whren should not be applied to parking violations as it undermines
the core of Fourth Amendment seizures—reasonableness.252
Citing a string of Supreme Court cases, Judge Hamilton argued
precedent has facilitated the introduction of aggressive police tactics.253 This
precedential string has reduced the Fourth Amendment to offer virtually no
protection to drivers on public roadways.254 Police officers may pull drivers
over if they have probable cause for even the most minor of traffic
violations.255 After the officer has made the stop, they can order everyone
out of the vehicle,256 many times find justification to frisk them,257 ask
intimidating questions, look into the vehicles interior,258 rifle through certain
parts of the vehicle’s interior,259 and finally detain the driver and passengers
while a narcotics sniffing dog searches the vehicle.260
245 See id. 246 See id; see also Johnson, 874 F.3d 571, 575 (7th Cir. 2017), petition for cert. filed, 2018 WL
1505539 (U.S. Mar. 23, 2018) (No. 17-1349) (noting the population of the Milwaukee
neighborhood of Arlington Heights is 94.1% African-American). 247 See id. 248 In light of the fact that there was eight inches of snow on the ground and that it was past 7:30 p.m.
in January, one must wonder how a police officer could determine with such speed that a vehicle
was parked within fifteen feet of a crosswalk that was painted on the street corner in white paint.
See id. 249 See id. at 577. 250 See id. 251 See id. 252 See id. 253 Id. 254 See id. at 577-78. 255 Id. (citing Whren, 517 U.S. 806 (1996)). 256 Id. (citing Maryland v. Wilson, 519 U.S. 408 (1997)). 257 Id. (citing Arizona v. Johnson, 555 U.S. 323 (2009)). 258 Id. (citing Colorado v. Bannister, 449 U.S. 1 (1983)). 259 Id. (citing Arizona v. Gant, 556 U.S. 332 (2009); Michigan v. Long, 463 U.S. 1032 (1983)). 260 Id. (citing Illinois v. Caballes, 543 U.S. 405, 406-08 (2005)).
136 Southern Illinois University Law Journal [Vol. 44
According to Judge Hamilton, the tactics employed in this case would
not be seen as reasonable in a more affluent part of Milwaukee.261 This string
of constitutional precedent has been combined to expand the concept of
“driving while black” to include “parking while black.”262 Finally, extending
Whren to parking violations has the effect of it being next to impossible to
limit seizures based on racial profiling justified by reasonable suspicion of a
parking violation.263
3. How Johnson is Distinguished From United States v. Shields
The majority opinion declared their decision to extend Whren to
parking violations had already been decided in United States v. Shields.264 In
Shields, the defendant was illegally parked and ended up running away on
foot from the stopping officer.265 As Judge Hamilton pointed out, the panel
opinion held in that case a parking violation is sufficient for an investigatory
stop, but “the real action” in Shields was the defendant’s giving chase on
foot.266 Shields cited to cases that held Terry investigative stops were
allowable for parking violations, not pretextual stops under Whren.267
Finally, at least two state supreme courts have held that investigative stops
are not applicable to parking violations.268
V. ANALYSIS
The majority’s opinion in Johnson produces a result in which the Fourth
Amendment offers very little protection against an unreasonable search or
seizure in situations when citizens are most likely to have an encounter with
a suspicious police officer.269 The most common criticisms of the “would
have” test are that it is purely subjective or it is not effective at preventing
racial profiling. This note proposes a new legal test that attempts to remedy
these deficiencies and offer a more robust Fourth Amendment protection to
motorists than the objective legality test offers. It would have the additional
261 Id. at 576. 262 Id. at 575. 263 See id. (explaining that it is rare to be able to prove an officer’s racial motivation). 264 Id. at 574. 265 United States v. Shields, 789 F.3d 733, 738 (7th Cir. 2015). 266 Johnson, 874 F.3d 571, 579 (Hamilton, J., dissenting). 267 Id. 268 Id. 269 See PETROCELLI & PETROCELLI, supra note 16 (explaining that traffic violations are the most
common type of law enforcement).
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effect of offering the poor, who tend to share vehicles,270 greater Fourth
Amendment protections.
A. Proposal For A New Legal Test
This note proposes a new legal test to determine if a pretextual stop was
unreasonable in relation to a parking violation. This test recognizes there are
times when a police officer must investigate a suspiciously parked vehicle
with only bare suspicion.271 In some ways, this test is an amalgamation of
the various state approaches to determining the reasonability of pretextual
stops used prior to Whren. These state approaches arguably all have a
common ancestor in the “reasonable officer” test. This test has five parts,
explained below.
1. Reasonable Investigation of Statutory Exceptions
The first step is an inquiry into whether the stopping officer made a
reasonable inquiry into possible statutory exceptions. It does not require that
an officer exhaust all possible exceptions to a parking violation or consider
possible affirmative defenses. Rather, it requires an officer to spend more
than a split-second to determine that a parking violation has occurred. For
example, if an officer sees a vehicle parked in a handicap parking space but
cannot see if there is a valid permit hanging from the vehicles rear view
mirror, the court would inquire whether the officer made a reasonable effort
to see if there was a permit. Under the holding in Johnson, an officer could
pull up behind a car in a handicap parking space and seize the vehicle’s
occupants, even if the vehicle was legally parked in the handicap space. As
Judge Hamilton points out in his dissent, an investigative stop can be justified
by an officer’s mistake of fact or law.272
2. Would a Reasonable Officer Have Made the Seizure?
This step of the test essentially adopts the “reasonable officer” test. The
“reasonable officer” tests inclusion in this proposed test offers the benefit of
what its proponents always claimed: it’s a reasonable limit on discretionary
270 See Federal Highway Administration, Mobility Challenges for Households in Poverty,
https://nhts.ornl.gov/briefs/PovertyBrief.pdf (those stricken with poverty tend to have less vehicles
per household and high vehicle occupancy rates). 271 In Judge Hamilton’s dissent in United States v. Johnson, he offers the scenario of a suspicious van
parked in front of a federal building. This example is likely drawn upon past attempts of domestic
terrorism. This note’s proposed legal tests seeks to allow police a certain amount of discretion when
a exigent threat to public safety exists. 272 Johnson, 874 F.3d at 578 (Hamilton, J., dissenting).
138 Southern Illinois University Law Journal [Vol. 44
power of police officers.273 This step is limited and addresses criticism of the
“reasonable officer” test. This note does not intend for any of the factors of
the proposed test to be dispositive. The other factors in this test limit this
inquiry and do not give the “reasonable officer” inquiry as much weight as
when it was the sole inquiry used by some courts. The best critique of this
step of the test is that courts refuse to look into a police officer’s subjective
intention.274 This criticism is easily rebutted by pointing out that there are
circumstances when courts look to an officer’s subjective intent:
administrative inspections,275 checkpoints,276 and in the case of an unlawful
search and seizure.277 This would be another limited exception when
considering the officer’s subjective intentions.
3. More Than Bare Suspicion of a Class of Crimes
This step seeks to ask whether the officer had something more than bare
suspicion of a general class of criminal behavior, such as intoxicated driving
or narcotics possession. Of course, the stopping officer would still need
reasonable suspicion of a parking violation. This step allows the court
leeway to develop a standard that is somewhere between probable cause and
bare suspicion. Perhaps most courts would adopt the reasonable suspicion
standard.
4. Tangential Relation
The fourth step seeks to inquire whether the officer’s suspicion of the
underlying crime is at least tangentially related to the parking violation. This
inquiry is similar to the test found in State of Hawaii v. Bolosan.278 This step
serves the twin purposes of insuring necessary and important divisions of
police departments, such as the NTF in Johnson, are not using parking
273 PADULA, supra note 37, at 167. 274 See generally Whren, 517 U.S. 806 (1996). 275 See New York v. Burger, 482 U.S. 691, 725 (1987) (holding administrative searches cannot be a
pretext for a general search for incriminating evidence). 276 See City of Indianapolis v. Edmond, 531 U.S. 32 (2000) (holding motorist checkpoints cannot be
for the purpose of general crime investigation). 277 When determining if evidence connected to an unlawful search or seizure should be inadmissible,
courts look to the officer’s purpose in effectuating the unlawful conduct. See Utah v. Strieff, 136 S.
Ct. 2056, 2062 (2016). 278 State v. Bolosan, 890 P.2d 673, 681 (Ha. 1995) (“Therefore, we hold that an investigative stop can
be justified based on an objectively reasonable suspicion of any offense, provided that the offense
for which reasonable suspicion exists is related to the offense articulated by the officer involved.
Offenses are related when the conduct that gave rise to the suspicion that was not objectively
reasonable with respect to the articulated offense could, in the eyes of a similarly situated reasonable
officer, also have given rise to an objectively reasonable suspicion with respect to the justifiable
offense.”).
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violations as pretexts to investigate mere hunches that prove to be inaccurate
and offering more Fourth Amendment protection to persons in a parked
vehicle.
5. Aggravating Circumstances
This step of the test asks if there were aggravating circumstances that
would give the officer more than bare suspicion of a crime. As an example
of an aggravating circumstance: a vehicle is double parked outside of liquor
store late at night, with the driver door ajar. These circumstances would give
the officer more than bare suspicion that the driver committed the crime of
driving intoxicated.
B. The Test Applied
This test was designed with cases like Johnson in mind—that is, a
parking violation that triggers a pretextual investigative stop. However, each
inquiry is not intended to be dispositive, nor do all factors need to be proved
or disproved. Rather, the inquires serve as factors to consider in determining
if a pretextual stop is unreasonable. Perhaps some courts would give more
weight to one of the test’s inquiries, while other courts would take a more
holistic approach.
To better understand how the test this note proposes would work, it will
be applied to a factual scenario from a recent federal criminal case involving
a pretextual stop. This note concludes that the investigative stops from both
Whren and Johnson would be seen as unreasonable.
1. The Test Applied to Whren
In Whren there was no reasonable investigation of possible statutory
exceptions; what caught the officer’s attention in the first place was the
defendant’s sitting at a stop sign for more than twenty seconds.279 It is hard
to argue there is no legitimate reason for stopping at a stop sign for more than
twenty seconds. Perhaps an officer could reasonably exhaust all statutory
exceptions for failure to signal (as the defendant in Whren had failed to do)280
in a split second, but what drew the defendants to their attention in the first
place appears to be two black youths stopped at an intersection for what they
felt was an unreasonable amount of time.281 It appears the officers only had
a bare suspicion of some drug related activity due to the fact they were in an
279 Whren, 517 U.S. 806, 808 (1996). 280 Id. at 808-10. 281 Id. at 808.
140 Southern Illinois University Law Journal [Vol. 44
area known for drug crimes.282 The easiest step of the proposed test to satisfy
is the tangential relationship—in Whren the officers could have said they
believed the suspect was under the influence of narcotics, causing him to stop
for an extended length of time at the intersection. With a lack of any
aggravating circumstances,283 and several other factors met, the facts in
Whren would lead the court to determine that the seizure was unreasonable.
2. The Test Applied to Johnson
Johnson seems to be a much easier case to resolve under this note’s
proposed test. The officers seized a parked vehicle on first sight,284 leaving
no time to reasonably exhaust any statutory exceptions. It’s hard to see how
anyone could even notice that a vehicle is parked too close to a crosswalk
given the amount of snow that was on the ground.285 The officers’ actions
arguably fail the reasonable officer inquiry as well. A reasonable officer
would not seize a car parked outside of a store on a cold and dreary winter
night. It would be reasonable to assume the occupants were waiting in the
car while the driver was in the store. The officers only had bare suspicion of
some criminal activity. No facts can be reasonably articulated that show a
reasonable suspicion that the defendant was in possession of a weapon or
drugs before the initial seizure was made. Nor can it be said that possession
of a weapon or drugs is even remotely related to a minor parking violation.
Even if the defendant was in an illegally parked vehicle, that is not enough
of an aggravating circumstance that would show a reasonable suspicion of
criminal activity. Under the proposed test, it seems clear that the seizure in
Johnson was unreasonable.
Critics of this note’s proposed test would likely argue that the test would
allow “soft on crime judges” to find more Fourth Amendment violations by
police officers against obviously guilty defendants.286 There are three
responses to this argument. First, politicians would not allow such judicial
282 Id. 283 One could argue that the driver looking down into the lap of the other passenger could qualify as
an aggravating circumstance under the proposed test, but it seems there could be many more
legitimate reasons for looking down into the lap of a passenger than there are nefarious reasons. See
Whren, 517 U.S. 806, 808 (1996). 284 Johnson, 874 F.3d at 576 (Hamilton, J., dissenting). 285 See id. 286 In 1996 Federal District Judge Harold Baer, Jr. held a defendant’s Fourth Amendment rights were
violated and excluded thirty-six kilograms of narcotics as evidence. The political backlash was so
strong and from such high authorities as the President, that Judge Baer reopened the case and
reversed his ruling on the motion to suppress the evidence. See John B. Owens, Judge Baer and the
Politics of the Fourth Amendment: An Alternative to Bad Man Jurisprudence, 8 Stan. L. & POLICY
REV. 189 (1997).
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activism.287 Second, it has been argued that the second prong of the proposed
test, the reasonable officer inquiry, likely does not lead to courts finding more
Fourth Amendment violations.288 And finally, as cases like United States v.
Herrera show, careful police work and avoidance of split-second decisions
can lead to convictions of major drug distributors, even under the proposed
test.
3. The Test Applied to United States v. Herrera
The Drug Enforcement Agency (“the investigators”) had been
investigating a suspected drug distribution ring in the greater Boston area.289
The investigators observed the defendant leave a residence they had been
surveying as part of the overall investigation.290 The investigators then
radioed Massachusetts State Police Sergeant James Bazzinotti (“Sgt.
Bazzinotti”), instructing Sgt. Bazzinotti to conduct a traffic stop of the
vehicle. Sgt. Bazzinotti tailed the vehicle until witnessing the vehicle strike
a curb, giving Sgt. Bazzinotti reasonable suspicion to conduct a traffic
stop.291 The defendant was ultimately arrested for possession of heroin that
was discovered in the vehicle and was issued a written warning for the traffic
violation.292
The first step of this note’s proposed test is to inquire whether there was
a reasonable investigation of statutory exceptions. While this step is mostly
designed to be applied to parking violation scenarios, it could easily be
applied to moving violations as well. For example, if a car that is part of a
funeral procession ignores a traffic signal but is statutorily allowed to do so.
In the Herrera case, it is unlikely any statutory exception exists for striking
a curb. As such, Sgt. Bazzinotti could have exhausted all possible statutory
exceptions rather quickly.
The second, and perhaps most interesting, step is to ask if Sgt.
Bazzinotti’s traffic stop would have been conducted by a reasonable officer
in similar circumstances. It is unknown if Sgt. Bazzinotti is part of a drug
interdiction task force or if his regular duties are to enforce the state’s traffic
laws. This scenario presents an interesting question: would a reasonable
officer, on a routine traffic patrol, follow instructions handed down from a
federal agent via radio? It is safe to assume, however, because of the close
287 Judge Baer’s decision to exclude 36 kilograms of narcotics because of an unreasonable stop was
derided by members of both political parties and the President. See generally John B. Owens, Judge
Baer and the Politics of the Fourth Amendment: An Alternative to Bad Man Jurisprudence, 8 STAN.
L. & POL’Y REV. 189 (1997). 288 See Lawton, supra note 37, at 957. 289 United States v. Herrera, 17-CR-10112-ADB, 2018 WL 1020112, at *1 (D. Mass. Feb. 22, 2018). 290 Id. 291 Id. 292 Id. at *2.
142 Southern Illinois University Law Journal [Vol. 44
proximity of Sgt. Bazzinotti to the house being surveilled, that he was
working with the investigators.293 As such, a reasonable officer in Sgt.
Bazzinotti’s position would have conducted the stop.
The third step requires Sgt. Bizzanotti to have more than bare suspicion
that the defendant in the vehicle is involved in drug distribution. This third
step is easily satisfied, as Sgt. Bizzanotti could have easily met the first prong
of the Terry test by pointing to the fact that the investigators were surveilling
the house and gave him detailed instructions of which car to pull over.294
The fourth step could be easily satisfied by Sgt. Bizzanotti explaining
that the investigators told him to conduct a traffic stop of a person believed
to be involved in a dangerous drug ring. Once Sgt. Bizzanotti saw the
defendant strike the curb, it is reasonable to believe the driver either realized
he was being followed by Sgt. Bizzanotti or was attempting to conceal
narcotics or weapons, and then struck a curb as a result. The tangential
relationship inquiry would be satisfied.
Sgt. Bizzanotti could articulate that the defendant left a house which
federal agents suspected of being involved in a major drug distribution ring
as an aggravating circumstance, which would allow him to formulate a
reasonable suspicion of criminal activity.
United States v. Herrera proves that these factors are flexible enough
to provide sufficient Fourth Amendment protections to motorists from
clearly unreasonable seizures and allow police officers to perform their
duties.
C. A Reasonable Expectation of Privacy in Automobiles
Vehicles have never quite received the same protections against
unreasonable search and seizures as homes and domiciles have.295 This
distinction is partly attributable to the early republic viewing the domicile as
sacrosanct296 and partly because of the legitimate state interest in regulating
an inherently dangerous activity. Considering the continuous growth of the
automobile as the dominant form of transportation in the United States,297
and the fact that motorists can get arrested for even the most minor of traffic
293 See id. at *1. 294 See Terry, 392 U.S. at 19-22 (1967) (noting that for a seizure to be reasonable, the officer must
point to articulable facts that demonstrates a reasonable suspicion). 295 See Opperman, 428 U.S. at 367 (“[W]arrantless examinations of automobiles have been upheld in
circumstances in which a search of a home or office would not.”). 296 See Payton v. New York, 445 U.S. 573, 601 (1980). 297 See Federal Highway Administration, Summary of Travel Trends, 2017 National Household Travel
Survey, 11 https://nhts.ornl.gov/assets/2017_nhts_summary_travel_trends.pdf (showing a
continuous growth in not only the number of vehicles but also drivers).
2019] Parking While Black 143
violations,298 robust Fourth Amendment protections when behind the wheel
only seem logical.
The expanding prevalence of automobiles and the growth of aggressive
traffic enforcement tactics299 is starting to chip away at the justifications for
the hardline distinction between homes and automobiles—particularly when
the vehicle is parked. A result of the vehicle-domicile distinction is that the
poor spend more time in a circumstance in which the right to be free from
unreasonable searches and seizures is reduced.300 This also begs the question
of whether the vehicle-domicile distinction creates an Equal Protection
violation.301 As noted in Judge Hamilton’s Johnson dissent, the legitimate
state interest in enforcing parking violations seems to lose its importance
when weighed against the privacy invasions, the circumstances, and police
tactics exemplified in Johnson.302
The Supreme Court has recognized the common-sense notion that we
have a reasonable expectation of privacy in smart phones.303 Smart phones
can reveal so much about the most personal and intimate details of our
lives.304 With the number of connected cars (cars which are connected to the
internet and have built-in interfaces similar to smartphones) expected to
explode in the future,305 a level of privacy in our cars equal to the level of
298 See Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 SEATTLE U.L.
REV. 1413, 1414 (2013); see also Atwater v. Lago Vista, 532 U.S. 318 (2001) (petitioner was
arrested and booked for a seatbelt violation). 299 See Katz, supra note 298, at 1433 (“Thirty years ago, I laughed when young police officers
attending police training programs offered at our law school boasted to me that they could stop
every car legally for at least ten traffic violations. I am not laughing any longer.”). 300 In at least one American city, New York City, the poor have a larger radius of travel than highest
income earners. It is reasonable to infer that the poor spend more time in a situation in which the
Fourth Amendment offers less protections. See Federal Highway Administration, Mobility
Challenges for Households in Poverty, https://nhts.ornl.gov/briefs/PovertyBrief.pdf; see also supra
note 16 and accompanying text. 301 Courts have largely denied motions to suppress evidence when the defendant’s argument is based
on a violation of the Fourteenth Amendment’s Equal Protection Clause. See Katz, supra note 298,
at 1423–32. 302 This note concedes the enforcement of parking violations is a legitimate state interest. However,
the realization of the interest should come from police officers who have a mission to enforce more
serious crimes such as narcotics, weapon violations, and violent crime. As noted in an amicus brief
from Howard University School of Law, Civil and Human Rights Clinic, relatively little public
danger, if any, ever results from a parking violation. See Brief for Howard University School of
Law as Amici Curiae Supporting Petitioner, Johnson v. United States, 2018 WL 1910945 (Apr. 23,
2018) (No. 17-1349). 303 See generally Riley v. California, 573 U.S. 373 (2014). 304 See id. at 394. 305 See Niall McCarthy, Connected Cars By The Numbers, FORBES (Jan. 27, 2015, 9:43 AM),
https://www.forbes.com/sites/niallmccarthy/2015/01/27/connected-cars-by-the-numbers-info
graphic/#771e906d1028.
144 Southern Illinois University Law Journal [Vol. 44
privacy in smartphones would be more consistent with Fourth Amendment
jurisprudence.306
The majority in Johnson argued that if they accepted Johnson’s
argument that there is a distinction between moving and nonmoving vehicles,
it would have been easier to deem the NTF officer’s seizure reasonable.307
This argument is confusing at best. Because of the inherent danger involved
to public safety, there is a greater state interest in regulating moving vehicles
than regulating parked vehicles. Since parking enforcement is a lesser state
interest than moving traffic enforcement, the Fourth Amendment should
offer more robust protections against unreasonable search and seizures to
situations involving occupants of parked vehicles.
VI. CONCLUSION
The majority opinion in Johnson is yet another nail in the coffin of
protections against unreasonable search and seizures of vehicles. The
holding in Johnson has the effect of allowing police officers to seize any
person sitting in a parked car—whether the car is parked legally or not. As
noted by Judge Hamilton in his Johnson dissent, the Supreme Court has not
held the Whren rule applies to parked cars. On October 1, 2018, in perhaps
the one of the most devastating blows to Fourth Amendment protections for
motorists, the Supreme Court declined to grant Johnson’s certiorari
petition.308
Under Johnson, a motorist can pull into a metered parking space, begin
searching in their car for change to put into the meter, and end up being seized
by the police because the meter was expired and the act of looking for meter
change could be interpreted by the officer as furtive behavior.309 It is hard to
argue that this example (and the seizure in Johnson) would be seen as
reasonable under the Fourth Amendment if it happened regularly in more
affluent neighborhoods.
306 Even complex digital data only accessible by a third party has been held to have a higher expectation
of privacy than cars. See Carpenter v. United States, 138 S. Ct. 2206 (2018) (holding police
generally need a warrant backed by probable cause to access cell-site location information held by
cell phone carriers). 307 See Johnson, 874 F.3d at 574. 308 Johnson, 874 F.3d 571 (7th Cir. 2017), cert. denied, 139 S. Ct. 58 (mem.) (U.S. Oct. 1, 2018) (No.
17-1349). 309 This example was argued by an amicus curiae brief submitted to the Court by a group of Fourth
Amendment scholars. See Brief for Howard University School of Law as Amici Curiae Supporting
Petitioner, Johnson v. United States, 2018 WL 1910945 (Apr. 23, 2018) (No. 17-1349).
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