Whren v. United States

This unanimous decision holds that cops who don't deal with traffic enforcement are allowed to tail you until you commit a minor offense, and then literally dive head first into your car to nab you on an unrelated drug charge. It's just another case in a long line of Supreme Court jurisprudence that is preferential to the "I Do What I Want" brand of policing... and completely antithetical to the Fourth Amendment.

A podcast where we dissect and analyze the Supreme Court cases that have frozen our civil liberties, like my zoom freezes, every recording

0:00:00.3 S?: We will hear argument now on number 955841, Michael A. Whren and James L. Brown versus the United States. Client has a very strange name. Do you guys pronounce it as Whren?

0:00:14.7 S?: Whren.

0:00:15.0 S?: Whren.

0:00:15.7 S?: As if the H isn't there.

0:00:16.6 S?: Very well. You may proceed.

0:00:25.1 Leon Neyfakh: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Whren v. United States. In this case from 1996, plainclothes vice cops were patrolling an area in Washington DC that they believed had a high degree of drug activity. When an SUV they were watching made a turn without signaling, the officers pursued it, pulled over the driver, and found crack cocaine.

0:00:54.8 S?: If you have drugs and you're concerned the police might stop you, I think that you could be well a type to obey the traffic regulations.

0:01:00.7 S?: Except it can give rise to a suspicion, "This is a very unusual motorist."

0:01:04.7 S?: I don't believe that that... I guess, I'm not aware of that. At least under the regulations of the District of Columbia, that it would be a violation to obey all of the traffic regulations.

0:01:14.4 Leon Neyfakh: The petitioners in this case argued that the drugs were inadmissible as evidence because the stop had been a pretext for a search, but the Supreme Court disagreed, opening a now heavily trafficked route for police using a minor traffic violation to go fishing for other crimes. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:37.9 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have frozen our civil liberties, like my Zoom freezes every recording.

0:01:47.2 Michael: That's accurate.

0:01:49.1 Peter: I'm Peter.

0:01:49.9 Rhiannon: Never fails.

0:01:50.8 Peter: Never fails.


0:01:53.7 Peter: I'm using my worst laptop at all times, I'm in a closet, very far from the wireless receiver, the WiFi receiver thing. Yeah, I haven't... There's a lot of things I could do to improve this situation, and I refuse to do any of them, so I'm sorry, guys.

0:02:09.8 Rhiannon: Yeah, thank you for prioritizing us this way, yeah.

0:02:12.6 Peter: I'm here with Rhiannon.

0:02:13.9 Rhiannon: Hey.

0:02:15.2 Peter: And Michael.

0:02:15.9 Michael: Hey, everybody.

0:02:17.1 Peter: And today's case, Whren v. United States, much requested case.

0:02:22.8 Rhiannon: Yeah.

0:02:23.6 Peter: And it's another cop case added to the anthology. This is a case about cops pulling you over. Specifically, it is about pretextual stops where cops claim they are pulling you over for one thing, but their actual reason is something else. In this case, some cops were patrolling a high drug use area, a cool zone, if you will.


0:02:52.7 Peter: They saw a vehicle that they thought was perhaps engaging in some cool activities, and they monitored the vehicle for a bit, and then they waited until it drove off, committing some minor traffic infractions in the process. They pulled the vehicle over ostensibly for those traffic violations. They spotted some crack cocaine and they arrest the guys.

0:03:18.9 Rhiannon: Yeah.

0:03:19.4 Peter: The occupants of the car, including the passenger, Michael Whren, challenge the validity of the arrest. They argue that the officers' stated reason for pulling them over was actually pretextual. The cops say they were pulling them over for a traffic violation, but really, they were searching for drugs and perhaps being like a little bit racist in who they search for drugs.

0:03:45.2 Rhiannon: Yeah.

0:03:45.9 Peter: So they argue that those sorts of shenanigans should be unconstitutional, but the Supreme Court in a, drum roll, please, unanimous 9-0 decision written by Antonin Scalia, they say it doesn't matter if the cops were lying about their reasons for pulling the guys over. It's still okay under the Constitution. So Rhi, maybe give us some background here, some context?

0:04:16.7 Rhiannon: Yeah, let's set the stage, shall we? Let's tell a little story about June 1993 in the District of Columbia. Heard of it? Big city. This night in particular, in June 1993, three plainclothes vice officers were patrolling for drug activity in an unmarked car. The officers noticed two Black men sitting in a Nissan Pathfinder that was stopped at a stop sign. Now, the first thing that officers testify later is that the Pathfinder stayed too long at the stop sign, around 20 seconds, and a...

0:04:53.5 Peter: What the fuck?

0:04:54.7 Rhiannon: Right, right, yeah. So this supposedly sparks the cops' suspicion, and so as the cops turn around so that they could start following the car, the Pathfinder takes a turn at the stop sign without putting their turn signal on, and officers...

0:05:09.8 Peter: Oh, no. Are you kidding me?


0:05:13.6 Rhiannon: The officers say later that the Pathfinder then proceeded away from the stop sign at "an unreasonable speed." Basically, just took off too quickly from the stop sign.

0:05:24.8 Michael: I like that they say that not that they were speeding, but that it was an unreasonable speed, like...

0:05:31.6 Rhiannon: Yes, very good distinction here.

0:05:32.9 Michael: Did they speed up to the speed limit but really fast? Did they... You know?

0:05:37.9 Rhiannon: Right.

0:05:38.5 Peter: That's what cops say when they don't have their little radar gun. They're like, "Ooh!"

0:05:42.2 Michael: Yes, which they might not have because they're plainclothes vice police officers, not traffic cops.

0:05:47.9 Rhiannon: Yes, exactly. Exactly.

0:05:50.2 Peter: They were like, "Dude, that dude was fucking zipping past that stop sign. That felt illegal. Let's go get 'em."

0:05:56.9 Rhiannon: Yeah, they've just based on my vibes. Exactly. So the Pathfinder took a turn without signaling, left the stop sign at an unreasonable speed, whatever that means. And so the cops are now following this Pathfinder, they literally box it in with other stopped traffic on the street. And the police just get out of their car and go up to the Pathfinder without ever actually pulling them over. The officers immediately say that they see drugs inside the car, so they start literally diving in to pin the driver and the passenger down and seize the drugs, again, in the middle of the street, in the middle of traffic.

0:06:36.3 Rhiannon: And Lester Brown, the driver of the Pathfinder, and Michael Whren, the passenger, were both arrested for illegal drug activity. So those are the sort of basic facts of the arrest, two Black men are getting arrested for drug activity, and the initial stop is done without probable cause or reasonable suspicion of any drug activity, right?

0:06:58.3 Rhiannon: To stop a car, you need reasonable suspicion under the Fourth Amendment. To arrest someone, you need probable cause. So just backing up a little bit, zooming out, the cops do not have reasonable suspicion of illegal drug activity when they're watching the Pathfinder and decide to stop it. What the cops do have is reasonable suspicion or probable cause of a traffic infraction.

0:07:21.6 Rhiannon: So they might argue that they have reasonable suspicion of the Pathfinder breaking the traffic code when the Pathfinder is at the stop sign too long, but probably their clearest and best argument that they definitely have probable cause for a traffic infraction, reasonable suspicion to pull the car over, is when they see them turn without signaling. Obviously all across the US, that is probably a traffic infraction, not to turn with signaling your turn.

0:07:49.2 Michael: A very serious one, and I'm sure all our listeners turn on their signals before they get within 200 feet of an intersection. I'm sure they do.

0:07:58.0 Rhiannon: That's right. That's right. Because it's that important.

0:07:58.7 Peter: I know, when I'm in high drug areas, I'm using my signals.


0:08:03.2 Rhiannon: So, yeah, that's definitely breaking the traffic code, sure. But here's some more important context which the petitioners brought up when they were seeking suppression of the drug evidence against them, on the basis that the cops were profiling them, right. Because they're Black and they were only conducting an investigatory stop to try and find more serious illegal activity.

0:08:26.1 Rhiannon: So first of all, under normal circumstances, DC vice officers do not work traffic violations, they do not pull people over for making traffic infractions on the road. According to DC police regulations at the time, plainclothes officers were permitted to make traffic stops "only in the case of a violation that is so grave as to pose an immediate threat to the safety of others."

0:08:53.1 Michael: Like not using your turn signal...

0:08:55.3 Rhiannon: Right. Like not the circumstances here at all, right? And then for vice officers, their mandate under DC police policy was to "find narcotics activities going on." Again, vice officers, plainclothes officers, their duty and their mission and their activities are not doing traffic patrol.

0:09:17.9 Peter: Well, to be fair, though, that's just because they can't have a policy officially that says like, just be out there protecting hierarchies all day.

0:09:27.3 Rhiannon: Yes. Yeah, it can't quite be written like that. So even one of the officers testified later on that, "The only circumstance that I would issue tickets is just for reckless driving, something that in my view would somehow endanger the safety of anybody who's walking around on the street."

0:09:45.2 Rhiannon: They also say that they did not intend to give the driver a traffic citation, so after Brown and Whren take a turn without signaling, at that moment in time, not only do the officers not have reasonable suspicion or probable cause to believe that they had done anything other than commit a minor traffic infraction, it is also the case that these kinds of cops don't even do traffic enforcement and it isn't their job to pull people over for a traffic infraction.

0:10:13.7 Rhiannon: So after moving to suppress the evidence against them, going to trial and being convicted, these men appeal those convictions up to the Supreme Court.

0:10:23.1 Peter: Right. So let's talk about the law a little bit. So Whren is arguing that the cops here violated the Fourth Amendment, which of course protects against unreasonable searches and seizures. He says that although the cops claimed they were pulling them over for traffic violations, they actually had no intention of issuing a traffic citation, they admitted that they had no intention of issuing a traffic citation and they would have never pulled them over, except that they thought that maybe they could pin a drug charge on them.

0:10:51.8 Rhiannon: That's right. Yeah.

0:10:53.3 Peter: They also argue that this was racial profiling, as the cops had no reason other than their race and their basic location to suspect that they were in possession of drugs at all.

0:11:05.2 Rhiannon: Exactly.

0:11:05.4 Peter: So, of course, the Court rejects all of this, Scalia writes for the majority, and what he says is that pretext is irrelevant. In other words, the fact that the cops were not really pulling them over for a traffic violation is irrelevant. As long as there is probable cause to pull the vehicle over, it doesn't matter what the real reason for the stop is. Real quick legal nerd note up top, Scalia uses probable cause when he should be saying reasonable suspicion.

0:11:38.0 Rhiannon: Yes.

0:11:38.9 Peter: All throughout the opinion.

0:11:39.3 Rhiannon: Yes.

0:11:40.2 Peter: So I'm just going to start to use both. Real heads know the difference, but it doesn't really matter for our purposes, I just wanted to point out that one of the great legal minds just fucking up some the first year, first semester criminal law concepts.

0:11:55.8 Rhiannon: Very basic Fourth Amendment concept. Yeah.

0:11:57.3 Peter: So according to the Court, if a police officer thinks you're a drug dealer because like, let's say they think you dress like one, they're constitutionally allowed to follow you around, waiting until they get an excuse to pull you over.

0:12:16.3 Rhiannon: That's right.

0:12:16.9 Peter: So the Court justifies this by claiming that the Supreme Court's precedent focuses primarily on the objective reasonableness of the traffic stop rather than the subjective intent of the officer. In other words, if there was an objective reason for the stop, like speeding or not signaling, then it's fine, even if the officer's intent was like something nefarious.

0:12:41.7 Peter: The primary argument for this approach is that it dispenses with the problem of having to figure out the officer's thoughts, which obviously can be difficult. Now, these... These guys are making a couple of arguments, but sort of behind it is this idea that the cops are acting disingenuously, they're sort of lying about what their reason for pulling them over was. Now, what the Court has held, and what many courts have held as well, we never quite know what the cops are thinking, so why go down that road, right?

0:13:16.4 Peter: Now, the counter argument to that, and hear me out, is that what an officer is thinking is actually kind of important...

0:13:24.4 Rhiannon: Maybe, yeah.

0:13:25.1 Peter: It's sort of crucial to understanding what exactly an officer is trying to accomplish using the vast power of the state, and yet the Court is just sort of tossing that out. So when it comes to trying to figure out an officer's true intent, the Court has held that it's too messy, just too difficult to figure out what an officer was thinking, what his true intentions are, if he was acting in good faith or bad faith. But the irony is that all of criminal law is about trying to figure out the intent of the defendant, right?

0:14:00.3 Michael: That's right.

0:14:01.2 Peter: In order to commit a crime, you need to have a requisite level of intent. So you have to... To be convicted of murder you... It must be proven that you wanted to commit murder, that that was your intention. So you have a situation where the criminal defendant's mind state is central and paramount to a criminal case, but the mind state of the cop is considered irrelevant and out of bounds.

0:14:29.0 Rhiannon: Just totally upside down.

0:14:30.7 Peter: Yeah. I think the locus of my problem with this case is that the Fourth Amendment prohibits unreasonable searches and seizures. So what does it mean for a search to be unreasonable, right? That's always the question you should be asking yourself in these cases. I think the best definition is that what unreasonable really means is arbitrary. In order for a cop to mess with your shit, search through your stuff, pull you over, whatever. He needs to have a good enough reason. It cannot be arbitrary. What this decision allows is for officers to hide their arbitrary searches and seizures behind the veneer of a fake reason.

0:15:13.0 Rhiannon: Exactly.

0:15:13.7 Peter: And in my mind, that violates like the heart of the Fourth Amendment, its central reason for being.

0:15:19.8 Michael: Yeah, I wanted to build on that and maybe expand on it a little bit. The text of the Fourth Amendment is interesting because it says, "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated." And that's it. And then it says, "And no warrants shall issue but upon probable cause." So probable cause in the Fourth Amendment doesn't actually really have anything to do with reasonableness of searches and seizures, it's about supporting the warrant requirement, which is an entirely different clause of the Fourth Amendment.

0:15:57.5 Michael: The Supreme Court has sort of imported that over. They've said, well, a warrantless search is presumptively unreasonable, and there are some scenarios where there are exceptions to that, and the way we make the determination is by looking at probable cause and blah, blah, blah, but that is an entirely a creation of the Supreme Court. The Fourth Amendment doesn't say that. And Scalia here is essentially engaging in policy writing.

0:16:27.8 Rhiannon: Absolutely. Yeah.

0:16:29.4 Michael: And he's pointing to this line of cases and saying, well, look, we've always said, if you have probable cause that's a good stop, and blah, blah, blah, but he's sort of blurring the lines between necessity and sufficiency. We've talked about that a lot in philosophy, right?

0:16:45.7 Rhiannon: Yes, yes.

0:16:47.2 Michael: Where probable cause is necessary for a stop to be reasonable in the absence of a warrant, but that doesn't mean it's sufficient, that doesn't mean that's all you need, but that's the holding of this opinion, essentially, is that, actually, it is. Actually, that's it. And so it transforms what I understand the Fourth Amendment to be, which is what Peter was saying, the armed agents of the state need a good reason to be in your business.

0:17:16.3 Rhiannon: Yes.

0:17:17.2 Michael: And it transforms it into saying the armed agents of the state just need a reason, any reason whatsoever to be in your business.

0:17:26.8 Rhiannon: Total technicality.

0:17:28.1 Michael: Yeah, which is, I think, sort of inverting it. Like the concerns animating it were precisely the oppression of general warrants in the pre-colonial days and the ability of officers to just get in people's shit, like that's the opposite of the society that we were originally trying to build, but more importantly, it's the opposite of the society I think we want to be in today, right?

0:17:53.8 Rhiannon: Exactly.

0:17:55.1 Peter: Yeah.

0:17:56.6 Michael: But that's the one nine members of the Supreme Court agreed, we should be living in.

0:18:00.4 Peter: All nine.

0:18:01.0 Rhiannon: All nine.

0:18:01.6 Michael: All nine.

0:18:02.5 Peter: All nine.

0:18:02.6 Rhiannon: Including the liberals.

0:18:03.9 Michael: It's mid-90s. So it's got to be, what, Stevens, Souter, Breyer and Ginsburg, right?

0:18:10.0 Peter: And Ginsburg, yeah. This is one of those things where there's no equivalent on the right that I'm aware of, no area of the law where the bulk of activists have a concern about something and they're getting zero votes at the Supreme Court for it, right? The ACLU filed a brief in support of the petitioners here, the two dudes, and you get zero votes from the libs, what's the conservative equivalent of that? There isn't... There isn't. There is no area of the law where you have conservative activists advocating for it and they're just getting shut out, just like shut out at the Court, that just doesn't exist. It's fucking wild.

0:18:54.9 Rhiannon: Yeah, that brings us to the point that I was just about to make, which is how the Fourth Amendment is unique, I think, in its so-called color blindness in the jurisprudence, which is to say that I think Fourth Amendment jurisprudence should take into account racial justice. Now, I'm not saying or expecting somebody like Antonin Scalia to do that, but at the very least, contending with the racial hierarchy that is our reality, right?

0:19:22.8 Rhiannon: So we talk a lot on our podcast about the promise of the Constitution and how conservatives have arbitrarily read in their own standards into constitutional interpretation, standards that are of course purposefully limiting and narrow in terms of an expansion of rights and liberty. And one area where this couldn't be more clear is the Fourth Amendment. There is no reason that this so-called objective standard has to come out of this case, except that nine people have completely bought in to a completely artificial constitutional premise.

0:20:00.7 Rhiannon: They're the Supreme Court, they can literally say whatever they want, and all of the so-called liberals on the Court here who joined this opinion are at best completely asleep at the wheel of reality. They knew in 1993 that policing in this country was rife with racist profiling and abuse, and they could have said it is impermissible to make a stop even when you have evidence of a traffic violation, when other factors make clear that the traffic violation is a pretext for pulling over Black men to investigate for drugs, right?

0:20:32.1 Rhiannon: They could say that was the standard. They could have realized, they could have said, if evidence of a traffic violation always satisfies Fourth Amendment requirements with no consideration of the other factors that led to a stop, then cops would have a level of discretion that undoubtedly invites massive abuses, which is exactly what the Fourth Amendment is supposed to prevent, right?

0:20:53.4 Rhiannon: There's no rule that you have to whitewash reality or literally ignore reality when you're making decisions about what the Constitution means. Do something meaningful for once in your little worm lives. Instead of just rubber-stamping ever-increasing police power, say it, say racialized policing is state-sanctioned racism and the Constitution doesn't allow it. That's what we're asking for, right?

0:21:17.8 Rhiannon: That's what we're talking about when we talk about a progressive and left vision of what the Constitution says. But instead you're allowing racist whims and racist stereotyping to drive public policy, that's what Antonin Scalia, that's what the conservatives on the Supreme Court are doing and in this decision, that's what the liberals on the Supreme Court, were doing too.

0:21:40.2 Rhiannon: When police are allowed to use racist stereotypes to justify their investigation practices, that they're in high crime areas, when they're in communities of color, that Black and Brown people are suspicious walking down the street, so they need to be stopped and frisked. That Black and Brown people are suspicious when they're driving, so you need to pull them over for anything as long as you can get the stop.

0:22:00.3 Rhiannon: When police are allowed to use this kind of racist stereotyping to justify their practices, it reinforces the stereotypes and it reinforces the acceptability of their practice. Police patrol Black and Brown neighborhoods more than white neighborhoods, they therefore pull over Black and Brown drivers more than white drivers, they then arrest Black and Brown people more than white people, on and on and on and on through a punishment system in which Black and Brown people have worse outcomes than white people. So racial discrimination isn't reasonable just because a cop has probable cause for a traffic infraction.

0:22:34.6 Peter: Scalia sort of responds to the accusations of racial prejudice by basically saying, well, look, this is a Fourth Amendment case, right. If you think that the cops are being racist, you can sue under the Equal Protection Clause. I assume he was laughing when he wrote that.


0:22:56.9 Rhiannon: He doesn't even believe in the Fourteenth Amendment.

0:23:00.8 Peter: The Court with Scalia on it made Equal Protection claims against police nearly impossible to prove.

0:23:07.0 Rhiannon: That's right.

0:23:08.7 Peter: We covered McCleskey, which is maybe the best example of this basically holding that like statistics showing discrimination are not permissible as evidence of Equal Protection violations, so like what the fuck are we even talking about? They've basically cut off every avenue for someone to do that, and then saying, "Well, you can always try the Equal Protection Clause, LOL."

0:23:34.0 Rhiannon: Right.

0:23:35.0 Michael: Suing police departments and individual cops, there's a winning litigation strategy that has just... Batting a thousand in the courts.

0:23:44.0 Rhiannon: Well, and also, which is to say nothing of this sort of disjointed constitutional interpretation, where all of the amendments are not in the same fucking document talking to one another, like you're telling me that a stop might be unreasonable in terms of its racism under the Fourteenth Amendment, but it's reasonable under the Fourth Amendment? That doesn't make sense.

0:24:04.3 Peter: How can the definition of reasonable... Like what's a reasonable search and seizure? How can it be that a...

0:24:13.1 Michael: An Equal Protection violation...

0:24:15.0 Peter: Right, could violate the Equal Protection clause, but not be unreasonable?

0:24:16.6 Rhiannon: Right. But still be reasonable. It makes no sense.

0:24:19.1 Peter: It's such a lawyer-brain thing to be like, well, we don't need to figure out whether this is racist, because if you want to figure that out, sue under this other clause, sue under this other law. It's like, what the fuck are you talking about, man? Can you just figure it out? Can you just figure it out, please, you're the Supreme Court, do we have to do this?

0:24:40.1 Michael: Yeah, which by the way, this sort of logic we're describing is the logic underpinning Roe v. Wade that is [0:24:44.2] ____ in... This is technically a subversive counter-cultural way to think about the law that we're describing right now, which is pretty depressing.

0:24:57.5 Peter: Yeah, right. There's something so poisoned about the way we discuss these rights. You have the abortion right in Roe where people are like, well, sure, they struck down the substantive due process claim, but maybe an Equal Protection claim. And then you're doing the same thing here, where it's like, well, look, maybe, maybe if you tried another Amendment, maybe that would work, but...

0:25:19.9 Rhiannon: It's so patronizing.

0:25:22.2 Peter: It's so fucking patronizing, man, it's just like, you don't have to do this. You don't have to talk down to us like this, just tell us that you hate us and be done with it.

0:25:30.0 Rhiannon: Yeah.

0:25:30.1 Peter: And like, you know, put the racism aside for a second. This holding makes it essentially constitutional for a cop to harass someone because he doesn't like them for any reason. As long as he can come up with a pretextual reason for bothering them, right? It's something that could allow cops to harass any given neighbor they don't like, spouses...

0:25:51.6 Michael: Yeah. I was gonna say hang out in front of your ex-wife's house waiting to hear a loud noise to barge in and be like, "Well, I heard a noise. I thought you might be in danger." [chuckle] Right?

0:26:00.2 Peter: Right. It's a license to harass people. I mean, all you need to do is come up with a plausible reason that you were doing it, right, and that's it. The Supreme Court has said, "That's enough." Is just you saying, "Well, they were driving at an unreasonable speed," is apparently enough, right? Not even with a fucking clock on it, right. Not even being like they were going 35 in a 20. All you have to do is say it was unreasonable and you can pull them over. That's a fucking license to do whatever you want.

0:26:29.2 Michael: Yeah, and the Court is like, yeah, some like 25-year-old with a military haircut and sunglasses who wears his bulletproof vest over his shirt and tucks his pants into his like mid-shin boots. That guy is not gonna abuse this discretion at all. [laughter] That guy is gonna be very, very, by the book.

0:26:52.7 Rhiannon: Absolutely ethical, yeah.

0:26:54.6 Michael: Absolutely. Nothing to worry about there.

0:26:57.4 Peter: He's looking up from closing a 4chan window and seeing a car that looks like it might be going 25 in a 15...

0:27:05.7 Michael: Yeah. [laughter]

0:27:06.9 Rhiannon: You know, and... And we're joking about it, right? But like what I wanted to say after Peter's point about like this gives license to cops to harass whoever they want, is this is the reality of American policing on poor communities of color, right? My clients talk about, this cop followed me around forever and was just waiting for me to do something wrong, to mess up my turn or to mess up my speed, or he said I was swerving, but within my lane. I didn't even swerve over to another lane, right?

0:27:39.3 Rhiannon: This is the reality of policing because of this case. It gave the green light to officers using pretext as the basis of their investigations, right? It's even worse when people don't have transportation and are walking. A lot of my clients are arrested walking around the neighborhood, because they don't have access to safe accessible transportation. They don't have their own car or their own bike. I had a client maybe a month ago, who was stopped because he was walking down the street and he threw a cigarette butt, that was it, that was it. That's like against the littering code or whatever. And so then you have contact with a police officer, next thing you know...

0:28:27.6 Peter: That's why when I'm smoking a cigarette, I always gently moisten the burning end of it, place into a trash can, and I wait for 10 minutes to make sure that it's not on fire. I would never flick it into the street. That's straight criminal conduct.


0:28:35.6 Michael: Well... No. Forget about it. I was gonna say I see like the smoke from the fires from the mountains every morning. So I'm like, I'm for strict enforcement of cigarette butt littering.

0:28:53.3 Peter: Why do I feel like the people being harassed are not in the mountains of New Mexico?

0:28:58.2 Michael: That's a fair point. That's a fair point.

0:29:00.0 Rhiannon: That's right.

0:29:00.7 Peter: I think that a lot of what people perceive as like the excess of American policing stems from this case and this philosophy about what cops are allowed to do, right? The idea that an arrest or a stop is justified as long as they can come up with a plausible excuse, that has given cops so much power to harass people that they disagree with, that I think a lot of complaints about excessive use of force in this country are really at bottom complaints about this case and related cases.

0:29:38.9 Rhiannon: Yes.

0:29:39.3 Peter: If cops had their motives questioned in these situations, it would tie their hands way, way more than they are currently tied.

0:29:48.4 Rhiannon: Yeah, yeah, I think that's right. And you know, my experience with this with my own clients is so sort of daily and almost rote that I wanted to look up some statistics just to make sure that we were kind of backing up this episode with some data. And I found some interesting points. So in 2019, researchers from Stanford and NYU analyzed almost a 100 million traffic stops in the US over the course of a decade. And they found that white drivers were 20% less likely to be stopped than Black drivers as a share of the population. And white drivers were searched one-and-a-half to two times less often than Black drivers, but were more likely to have drugs, guns or other contraband in the car with them.

0:30:32.6 Rhiannon: A study by the Public Policy Institute of California analyzed four million stops by California's 15 largest law enforcement agencies back in 2019. And it found, this study found, that Black Californians are more than twice as likely to be searched as white Californians. That's 20% of Black Californians pulled over versus 8% of white Californians pulled over. It additionally found that Black people are over-represented in stops that are not leading to enforcement. So those are stops where an officer doesn't even issue a citation or a warning, but Black people are still over-represented in those stops. And they're over-represented in stops leading to an arrest, so both categories.

0:31:14.8 Rhiannon: And then finally, this study found in California that Black individuals are almost twice as likely to be booked into jail as white individuals, even though the study also showed that searches of Black people are somewhat less likely to yield contraband and evidence than searches of white people. Another interesting study I found, states can sometimes give smaller data sets or more limited circumstances in which to conduct a study. So there's an interesting one from the State of Washington that was discussed in a Stanford Law Review article last year that I saw.

0:31:46.6 Rhiannon: So in 1999, the State Supreme Court in Washington banned pretext traffic stops. They said according to the state constitution, pretext traffic stops are unconstitutional. But then, several years later in 2012, the State Supreme Court in Washington kind of eased that restriction and allowed pretext traffic stops again. So there, what researchers looked at were disparities in who was pulled over from the time when pretext stops were banned versus when they were more permitted in the State of Washington. They looked at more than eight million traffic stops between 2008 and 2015, and found that the decision to allow pretext stops is associated with a statistically significant increase in traffic stops of people of color relative to white drivers.

0:32:33.9 Rhiannon: And that traffic stops of drivers of color happens more during the day time, which suggests that that's when officers can more easily ascertain a driver's race through visual observation. So this is direct evidence that decisions like the State Supreme Court decision in Washington that allowed pretext stops, and then nationally, the US Supreme Court, their decision in Whren here, that it does, it directly leads to more people of color being profiled and pulled over in these pretext stops.

0:33:03.8 Michael: I do want to switch gears a little bit, just because I think we talk a lot about how these guys, these Supreme Court Justices, are sheltered morons who can't see outside the bounds of their own topiary walled garden. But I think even if you accept that and agree with that, it's tempting to think that they still maybe understand the law, even if they don't get the world or the lived realities of most people in it, that they get the law. But even then, they're pretty dumb. And I think this case is a good illustration of that, because this isn't written as a big case, it's not presented as a big case. It's unanimous, there are no concurrences, there are no dissents.

0:33:51.9 Michael: It's like a terse 13 pages or something like that. It's very short. The entire argument, Scalia is basically saying, look, this is just precedent, we're not breaking any new ground here, this is just what the precedents say. And at the end, he calls it a run of the mine case, which is just a stupid way of saying run of the mill or boring or ordinary.

0:34:14.9 Peter: It's a more blue collar way of saying run of the mill, 'cause if you're someone who does a run of the mine case, you're a man of the people, covered in coal dust. If you're one of those fancy boys over at the mill, that's a completely different story.

0:34:30.2 Rhiannon: That's what they teach you at the University of Chicago School of Law.

0:34:36.5 Michael: But none of that is correct. This is a foundational case that is taught to most law students in like con law or in your basic criminal procedure class. It's like a well-known case that most law students will know by name. It's cited all the time, it's shaped police practices in this country for decades, it's been studied a bunch. It was controversial, there have been decades of scholarship about... And these guys were like, "This is a nothing case, this is whatever." They don't know what the fuck they're talking about. They don't.

0:35:10.1 Michael: Even in this narrow sense of understanding the implications of their decision on the law and how judges will respond to it and how police offers will respond to it and its place in the jurisprudence, they don't even understand that. And this isn't the only case you can find that.

0:35:25.2 Rhiannon: Of course, yeah.

0:35:25.9 Michael: There are a lot of huge consequential cases that the Justices thought were nothing.

0:35:30.9 Peter: Right. Even when you had a bunch of amicus filings in this, like the ACLU is stepping in, filing briefs, highlighting that there might be sort of two paths in our Fourth Amendment jurisprudence ahead of us, and we need to go down the right one. And you have Ruth Bader Ginsburg looking at that and being like, "Man, why is everyone freaking out."


0:35:48.3 Michael: This is what a... This is just a run of the mine case.

0:35:55.6 Peter: Classic run of the mine case.

0:35:56.9 Michael: Classic, classic.

0:35:57.9 Peter: That normal expression, we all know. Last year, we covered a sort of similar case, Nieves v. Bartlett. That case was about situations where cops find an excuse to arrest someone in retaliation for their exercise of their free speech rights. It was a First Amendment case. And the Court okayed that, in part based on the precedent we see here. Saying that as long as the excuse that the cop finds is technically valid, it doesn't matter that their true intent was to suppress someone's speech.

0:36:31.7 Peter: So you're seeing this formulation of what cops are allowed to get away with spilling over into every aspect of the law. They can violate your Fourth Amendment rights as long as they have a pretend reason for doing so. They can do it to your First Amendment rights too. There aren't really any boundaries to what rights cops are allowed to violate as long as they can think of a fucking excuse. And there's this overarching problem here that we first talked about in Terry v. Ohio way back in the day, and have touched on many times since. T is an objective fact that you cannot trust police officers to be honest.

0:37:12.1 Rhiannon: That's right.

0:37:13.1 Peter: And that's not something that I'm saying to be edgy or controversial, it's just a measurable truth.

0:37:17.7 Rhiannon: That's right.

0:37:18.2 Peter: So if we want the Constitution to do its job of protecting against the excesses of the state, we need to be honest and account for that. Instead, the Court has taken essentially the opposite approach and in nearly every instance held that whether or not the police are honest is irrelevant to the constitutional inquiry. We see it here, we see it in Nieves, the Court has put itself in a position where it never has to contemplate police officers' motives. And that allows a host of injustices to go unaddressed because the Court has intentionally made the law blind to them. They've intentionally put the blinders on when it comes to what cops are really trying to do.

0:38:05.3 Peter: Do you guys remember, when we put Terry v. Ohio out, and then we got Apple Podcast reviews from people being like, They don't like cops?


0:38:14.0 Rhiannon: Yeah, wait a second...

0:38:15.6 Michael: Wait, wait one second.

0:38:17.2 Rhiannon: They're calling them pigs. [laughter]

0:38:20.4 Peter: If my cousin heard about this, [laughter] he'd be beside himself.

0:38:24.3 Michael: I can't believe Danny Stronkatoni went on their podcast. [laughter]

0:38:27.3 Peter: Danny Stronkatoni. You snitch motherfucker. [laughter]

0:38:35.0 Rhiannon: I want to go through a few reasons that I have seen in my own practice of clients getting pulled over, like this is the pretext reason, and then they're arrested for something else. All of these clients have been men of color. So definitely switching lanes too fast or too slow. You see that. Whatever that means, right?

0:38:54.1 Michael: Gotta be just right.

0:38:55.1 Rhiannon: Yeah, yeah exactly.

0:38:56.2 Peter: It's the Goldilocks problem. [laughter]

0:38:57.3 Rhiannon: Right. Slowing down too much to read a sign, I've seen that.

0:39:04.2 Peter: No, you've gotta speed read those motherfuckers. [laughter] When I'm on the interstate and I'm passing under one of those signs that has five different things on it, I'm like fucking Rain Man. It's all just floating down my mind's eye. [laughter]

0:39:13.6 Rhiannon: I think I mentioned this earlier. Swerving within the lane. Not even swerving over the line into another lane, but you're swerving within your lane, that has definitely been the basis of a pretext stop. Michael, you might have alluded to this, not signaling your turn 200 feet before the turn or whatever.

0:39:32.8 Michael: Right.

0:39:33.1 Rhiannon: So, if you did it 195 feet, sorry, brother, that's a pull-over. That is a good stop under the Fourth Amendment. Oh, and then braking too hard. Like if you were just going up to a stop sign and then at the very end, you stopped for the stop sign.

0:39:49.2 Michael: You did make a complete stop, but... [laughter]

0:39:51.6 Rhiannon: Right.

0:39:52.0 Michael: But it was real sketchy the way you did it. Yeah.

0:39:55.2 Rhiannon: Yeah, exactly, you broke hard, man. So yeah, just a whole host of ridiculous shit that ends up getting people arrested and in jail, just based on this bullshit green light that the Supreme Court just handed to cops.

0:40:14.0 Peter: Really don't enjoy a police officer. I'll say it, you know?

0:40:19.8 Rhiannon: Yeah. Yeah, no, don't date cops. Don't give them kisses. Don't hang out with them.

0:40:26.9 Peter: You can date a cop if it's an elaborate plot. [laughter]

0:40:38.7 Peter: Next week, premium episode. Years in the making: Originalism.

0:40:47.5 Rhiannon: Wow.

0:40:48.1 Peter: We're gonna be doing an episode on it. A lot of people have heard of it, a lot of people have said, "Hey, this seems stupid. Seems like a stupid thing."

0:40:54.6 Michael: You're right.

0:40:55.3 Peter: And we're here to tell you that, yeah, for sure, you're right.

0:40:58.9 Rhiannon: It sure is.

0:41:00.3 Peter: Spot on. Follow us on Twitter @fivefourpod. Subscribe to our Patreon, patreon.com/fivefourpod, all spelled out, for premium episodes, such as next week's, access to special events, our subscriber Slack and more.

0:41:21.5 Rhiannon: And visit our website. Check out fivefourpod.com, all spelled out. That's where you'll find links to not only transcripts of our episodes, but our merch shop. Go check out what we have to sell.

0:41:33.2 Peter: Yeah, yeah, I've heard new shit's dropping soon. I don't know if you guys have heard about that.

0:41:35.5 Rhiannon: That's right.

0:41:35.8 Peter: Alright, take care of yourselves. Donate to an abortion fund. And we'll see you next week.

0:41:41.9 Michael: Bye everybody.

0:41:42.8 Rhiannon: Bye.

0:41:44.3 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Percia Verlin and our assistant producer is Arlene Arevalo. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Special Relations.

0:42:14.0 Peter: One day I'm gonna have to stop saying, "Donate to an abortion fund," and it'll be weird. It'll like, "I guess I'll stop saying it now." It'll feel like, it will feel problematic.