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Open Season on Motorists?

The decision in Whren v. U.S., 95-5841 has given police virtually unlimited discretion to stop a suspicious driver. In Whren, the defendants were two young black men cruising in a drug riddled area in a new car with temporary tags. Although they committed no crimes, the police became suspicious because of their profile, and made a U-turn to follow them. The police stopped the vehicle and found cocaine. The police justified their stop by alleging the defendants made a right turn without signaling.

The Supreme Court in this case ruled that police may stop a motorist whenever there is probable cause to believe that traffic laws have been violated, even if traffic enforcement is only a pretext. In other words, as long as the police can use a traffic offense as a valid excuse for stopping a car, their stop is valid despite the fact that they were looking for a greater bust such as for narcotics, firearms, previous warrants, or other contraband. The Supreme Court reasoned that allowing police this unbridled discretion was necessary to remove any burden or higher standard for police and the courts. Basically, police can stop any car at any time because police know that they can find any infraction to justify a stop if they have a suspicion that would otherwise be unwarranted. Unfortunately, this open season on motorists may also have a adverse impact on persons of color.

In a survey, reporters in Florida reviewed videotape of 1,000 traffic stops and discovered that although black and hispanic drivers accounted for only 5 percent of the drivers, they accounted for more than 70 percent of those searched. Their stops were twice as long, and often more than once. (David A. Harris, National Law Journal, 7/1/96 pg. 18).

Some jurisdictions such as in Eagle County, Colorado have even used a race oriented "drug courier profile" to stop drivers with racially disparate outcomes. (Ibid.)

Because of this Supreme Court decision, motorists should beware that what may begin as just a routine traffic stop, could only be a pretext to escalate into a full traffic search, and perhaps arrest. Motorists beware - it is now open season!

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