In 1996, Whren v. United States expanded the power of the police to conduct searches on the basis of a stop or arrest for a minor offense, such as a traffic offense. This expansion allows police to use their investigatory power as to the minor crime to search for evidence of a more serious crime for which probable cause or even reasonable suspicion does not exist.
This has pretty much given police the power to use minor offenses as a pretext. Professor Maclin, in Race and the Fourth Amendment, 51 Vand. L.Rev. 333, cites some statistics that might give some perspective to the impact of Whren on Fourth Amendment protections.
A count of the traffic indicated that 13.5% of the automobiles carried a black occupant. A count of the traffic surveyed for speeding indicated that 98.1% of the vehicles on the road exceeded the speed limit. Fifteen percent of the speeding vehicles had a black occupant. Fifteen percent of the automobiles that both violated the speed limit and committed some other moving violation also had a black occupant. While automobiles with black occupants represent 15% of the motorists who violated the speeding laws, 35.6% of the race identified stops involved with black occupants.
Despite these troubling statistics, many people reconciled themselves with the belief that even though the stops were pretextual, the person stopped had done something wrong.
In United States v. Miller (1998) the court held that a traffic stop can only be used as a pretext under Whren if the officer has reasonable cause to believe the motorist actually violated a traffic law. The police pulled over Miller after the motorist was seen driving with his left turn signal on for a period of time during which it went through an intersection but didn't turn left. The officer then proceeded to search the motor home for illegal contraband and found 80 kilos of marijuana. The reasoning for the holding was articulated as,
The rule articulated by the Supreme Court in Whren provides law enforcement officers broad leeway to conduct searches and seizures regardless of whether their subjective intent corresponds to the legal justifications for their actions. But the flip side of the leeway is that the legal justification must be objectively grounded. Here, given that having a turn signal on is not a violation of Texas law, no objective basis for probable cause justified the stop of Miller.
But would that holding stand up today? Probably not because the court has started to give officers broad power under the "community caretaker" role of police officers. One area where this is frequently seen is with surprise checkpoints set up by police officers. Every car that passes through is subjected to bright lights shining in the car where officers can see all that is in plain view. Their reason for these has been everything from wanting to see if you have a license and registration to wanting to make sure the lights on your car are working properly.
I won't be surprised when I hear that pulling someone over for having their turn signal on too long is a valid community caretaking role for police to pull you over, and then conduct a search of your vehicle.
