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.

2019] Parking While Black 129

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.

2019] Parking While Black 133

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).

2019] Parking While Black 141

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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