Benjamin M. Onosko

Introduction

This article examines the modern police practice of conducting pretextual stops on the motoring public to initiate criminal investigations without reasonable suspicion or prior judicial approval; and its comparison to the British practice of using general writs of assistance in colonial times.  Perhaps the biggest impetus to this article was the author’s own experience with being profiled by police, and then being seized solely so officers could run their drug dog around my vehicle.

In 2013, I was driving home on Highway 95 when I was pulled over for speeding.  Throughout the course of the stop, the officer questioned and accused me of transporting drugs, and sought consent to search my vehicle or bring a drug dog to scene.  When I declined his invitations – realizing no K-9 officer was in the area – the officer was forced to let me go.  But that was not the end of his investigation.

As soon as I set out on my way again, the officer radioed to another officer several miles up the road.  The officer told him to be ready for me, and this time, to have a K-9 respond.  Sure enough, several minutes after my speeding stop, I was pulled over by a K-9 officer; this time for allegedly driving too slow.  After running his dog on my vehicle, I was eventually allowed to be on my way.  And while my ticket for driving too slow would eventually be dropped by the prosecutor without explanation, the indignity was done.  I, like many Idahoans before me, had my personal liberty and autonomy stepped on for no good reason.

The Founding and the Fourth Amendment

The Founders who ratified the Fourth Amendment most certainly had recent controversies on their minds at the time of its passage.  While delving into the history of each controversy of the time is not possible, the debate over Writs of Assistance in Paxton’s case is particularly significant in understanding the context in the minds of these Founders.  For example, the Supreme Court of the United States would later describe the debate in the case as “perhaps the most prominent event which inaugurated the resistance of the colonies.”[1]

Writs of Assistance were one type of general warrant issued by courts to customs officials.[ii]  General warrants had a long history in England and were often used as “little more than a ‘blank check’ to harass people who didn’t fit in.”[iii]  As used in the Colonies, these writs allowed customs officials to seize and search any ships or vessels for contraband goods.[iv]  These writs did not require any showing of particularized (or even unparticularized) suspicion, were good against any citizen, could be executed by any petty officer, and were valid for the life of the King under whose reign they were issued.[v]  The writs also allowed customs officials to share in any profits from the seized contraband.[vi]  The Crown found these writs to be a useful tool in enforcing its customs laws[vii] and customs officials themselves benefited financially.[viii]

King George II died in 1760, signaling the end of any writs issued during his reign.[ix]  When customs officials in Massachusetts sought a court order allowing for the renewal of these general writs, James Otis agreed to argue against their issuance on behalf of the merchants of Boston.[x]  Otis was so opposed to these writs that he resigned his position as deputy advocate general so that he could take the side of the Boston merchants and argue against the writs renewal pro bono.[xi]  In 1761, Otis delivered his famous argument in Paxton’s case.[xii]

A young John Adams was in the courtroom and would later recall that every person in the courtroom who heard Otis’ address went away “ready to take arms against Writs of Assistance.  Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain.”[xiii]

Otis decried the writs as “the worst instrument of arbitrary power” found in English law.[xiv]  While accepting the legality of “special writs” (what we would recognize today as a warrant complying with the Fourth Amendment), he argued against the legality of these general, suspicion-less writs which “place[d] the liberty of every man in the hands of every petty officer.”[xv]

Otis raised several specific objections to the writs.  First, that they were general, requiring no showing of suspicion prior to their execution – “bare suspicion without oath is sufficient.”[xvi]  In fact, Otis pointed out that the writs could be executed for “revenge, ill humor, or wantonness.”[xvii]  Otis decried the writ’s “universal” and “perpetual” nature, granting the power to seize and search to every official and allowing them to be “petty tyrants.”[xviii]  The writs were of unlimited geographical origin, were good for the life of the King, and no return on the writ was required.[xix]

To illustrate these problems, Otis cited the example of the case of Mr. Ware.  Mr. Ware was a customs official who was unhappy that a magistrate had hailed him into court to inquire about his violations of the law.[xx]  Upon conclusion of the inquiry, Mr. Ware told the magistrate, “I will show you a little of my power” and proceeded to execute a retaliatory writ upon the magistrate’s property.[xxi]  This case highlighted the colonists’ fears that these writs gave officials unbridled power to conduct discretionary searches and seizures.

Otis was also disturbed that custom officials were allowed to share in the gains from seizures of the contraband, asking, “what reason can there be, that a free people should be exposed to all the insult and abuse. . .which may arise from the execution of a writ of assistance, only to put fortunes into private pockets.”[xxii]  Otis asked the colonists, “Can a community be safe with an uncontroul’d power lodg’d in the hands of such officers, some of whom have given abundant proof of the danger there is in trusting them with any?”[xxiii]

Otis’ argument was not limited to the specifics of Mr. Paxton’s case; his point was much loftier.  These writs “destroyed all our security of property, liberty, and life.”[xxiv]  Otis’ solution to this problem will no doubt be familiar to anyone who has read the Fourth Amendment: “that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places.”[xxv]

Otis lost the case and the general writs were renewed by the court.[xxvi]  But despite losing the battle, Otis ultimately won the war when America gained its independence and the Fourth Amendment was adopted, all but extinguishing the general writ of assistance. With such a strong historical basis for our objections to general warrants and writs, a reader might be lulled into a sense of security that no modern court would permit such a power to ever again be given to any officer.

However, the very evils the Fourth Amendment was designed to guard against has not disappeared, it has only changed form.  Now, modern police officers, may seize and search anyone they suspect of any crime so long as they can find one violation of the traffic code.

Pretextual Traffic Stops as Modern Writs

Pretextual traffic stops have many similarities with the general writs of assistance.  While pretextual stops come in many flavors, when I use the term I will be referring to traffic stops initiated by officers for the purpose of investigating the vehicle’s occupants for evidence of some criminal offense, aside from the traffic code violation.[xxvii]  In a pretextual stop, the traffic code violation is not the reason for the stop, it is merely the justification for the seizure of the vehicle.

The true reason for the stop is often the officer’s hunch that a violation of some other law may be uncovered during the seizure.[xxviii]  As any defense attorney could tell you, pretextual stops are most commonly associated with traffic stops made for the purpose of discovering contraband; precisely what impermissible writs of assistance were designed to find. This practice usually plays out in the following way, using an example from one of my cases.

The Probable Cause Affidavit described the stop as follows: “I observed a white Chevrolet with a windshield crack which clearly obscured the driver’s view and made it unsafe to operate the vehicle.  Based on the condition of the windshield I turned around and caught up to the vehicle to initiate a traffic stop for the violation.”  This description would not raise any real concerns, but here is additional detail of what happened in the case.

Two police officers were driving down the road and saw a truck driven by someone they deemed suspicious looking.  The officers made a U-turn and began following the truck.  The following conversation between the officers was then surreptitiously captured on video:

Officer 1:  “Dude with no plate on this truck up here.  And has an interesting looking dude.”
The officers then caught up to the truck:
Officer 1:  “Aw, maybe he has a plate, yeah, Montana.”
Then, after a pregnant pause:
Officer 2:  “Got a crack in the windshield.  I would say it’s obscuring his vision if you want to go that route.”
Officer 1:  “Yeah, why not.  I just got to figure out where I want to stop him.”

Officer 1 then radioed to another officer with a drug detection dog and told that officer where to meet them for the stop.

In that case, as in most pretextual stop cases, the traffic code violation is not what caused the citizen to be stopped, it was his mere “interesting” (read “suspicious”) look.

In this modern version of a writ of assistance, an officer needs only two things before a person is subjected to a seizure and search.  First, a general suspicion of any type of criminal conduct, however strong or weak.  Second, a violation of the traffic code.  Neither of these requirements place any serious restraint on an officer’s unfettered power to seize citizens; just as the requirement that a customs official first obtain a writ of assistance placed no serious restraint on officials.

To begin, the first requirement – a suspicion of some crime – sets no burden at all.  Under current precedent, an officer need not justify or support his suspicion. In fact, this underlying suspicion is not subject to judicial review, having been declared irrelevant by the Supreme Court.[xxix]

While modern supporters of pretextual stops argue that the second requirement – a traffic violation – is what makes this practice “reasonable” under the Fourth Amendment, that argument lacks substance.[xxx]  The requirement that an officer observe a traffic violation prior to conducting a pretext stop is barely a requirement at all given the breadth and scope of traffic regulation laws.

For example, in Idaho there are over 163 statutes regulating driving, equipment, and registration for motor vehicles.  On top of this, there are at least 179 additional ways to violate different subparts of these statutes.  Thus, at any given time you are driving a motor vehicle, there will be around 342 different traffic violations an officer could point to in justifying a stop. ^[xxxi]   And this does not even include city ordinances which give additional justifications for traffic stops.

While supporters of pretextual stops might argue “just don’t break the law while you’re driving,” this is much easier said than done.  On top of these 342 plus traffic violations that allow officers to initiate stops, some of these statutes give officers almost complete discretion to decide what conduct violates the law.  For example, Idaho prohibits drivers from driving in an “inattentive, careless, or imprudent” manner, with the decision of whether conduct is “imprudent” left up to the officer to decide.[xxxii]  To make matters all the more difficult for drivers, courts have been willing to defer to an officer’s subjective belief that a violation may have occurred, without requiring the officer to possess objective facts to support that belief.[xxxiii]

The sheer volume of regulations also makes it essentially impossible for trained attorneys to know what conduct is prohibited, much less laypeople.  For example, did you know that it is illegal in Idaho to shift gears while crossing a railroad track?[xxxiv]  While researching for this article, the author learned that his factory stock Toyota 4Runner is technically in violation of Idaho law because my running-board has two small lamps on it rather than just one.[xxxv]

Upon learning this, I had considered simply disconnecting one of those stock lamps; however, doing so would have automatically put me in violation of a separate traffic code provision.[xxxvi]  Our own Supreme Court and one Deputy Attorney General even poked fun at themselves for not knowing what the traffic code prohibits.[xxxvii]

This demonstrates that it is impossible for any driver to travel any appreciable distance without violating at least one traffic law.[xxxviii]  This has caused some scholars and courts to note, “virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter.”[xxxix]  When traffic laws have become so pervasive that every one of us violates them every day and so voluminous that even our Supreme Court makes jokes about trying to keep track of them all, surely James Otis’ fear that “the liberty of every man” has been placed “in the hands of every petty officer” has again become a reality.[xl]

Given all of this, it becomes plain that this second requirement for pretextual stops is no real requirement at all.  When properly understood this way, the similarities between pretextual traffic stops and the dreaded general writs come into focus.  Both were or are conducted on persons and vessels in transit, with the usual object of the seizure being the discovery of contraband.  Both involved unlimited duration[xli] and geographic scope.  Neither the writs nor pretextual stops require officers to justify or support their suspicion of criminal activity.  Neither required any specific prior judicial approval.  Both gave officials complete discretion to determine the target and object of the seizure and search.  And just as the writs gave officials a share in the bounty of any contraband found, pretextual stops allow police departments to share in the spoils of any asset forfeiture.

Courts Asleep at the Wheel

The practice of pretextual stops took off in the mid-eighties with the creation of Operation Pipeline by the DEA.  According to the DEA, the program was started after noticing that police officers in several states who were using pretextual stops saw “[t]heir drug and money seizures gr[o]w immediately.”^[xlii]

The program is used to train officers across the nation how to conduct pretextual stops and how to “lengthen a routine traffic stop and leverage it into a search…by extorting consent or manufacturing probable cause.”^[xliii]  The program has been quite lucrative for local law enforcement, who are given an 80-20 split of all seized property.^[xliv]

However, the success of the program necessarily depends upon the violation of a huge number of citizens’ Fourth Amendment rights.  As one California patrol officer put it, “It’s sheer numbers.  You kiss a lot of frogs before you find a prince.”^[xlv]  Of course in this context, the “prince” is a criminal, the “frogs” are every single law-abiding citizen of this State, and “kissing” refers to making a traffic stop to interrogate and search a citizen.

Given our Founders’ distain for the use of general writs, one might assume that any practice by officers which even begins to tread in the same realm as these writs would receive a swift and premature death at the hands of the judiciary.^[xlvi]  Yet that has not happened to these modern-day equivalents.  Pretextual stops have not only not been prohibited by most courts, the Supreme Court has actually embraced the practice with open arms; although often with closed eyes.^[xlvii]

The Court accomplished this feat by simply declaring that an officer’s subjective beliefs are irrelevant when determining the Fourth Amendment validity of a traffic stop.  Not only does this statement contradict prior case law in numerous areas of the Fourth Amendment,[xlviii] the Court would go on to directly contradict itself 18 years later when its goal was to uphold a traffic stop based upon an officer’s subjective beliefs.[xlix]

I imagine Mr. Otis would have something to say in response to the Court’s claim that an officer’s subjective intent is irrelevant to this issue, given that he specifically decried seizures that were “arbitrary,” carried out for “revenge,” “ill humor,” and “wantonness.”[l]  Sadly, it appears the Supreme Court today would give Mr. Ware’s search the thumbs up since his subjective motivation for the search (revenge against the magistrate) is apparently of no concern to the Courts’ interpretation of the Fourth Amendment.

The current arguments in support of pretextual stops ring similar to the arguments made by the Crown in support of its writs of assistance.  British attorney general William DeGrey argued that if not for the writs, colonists could evade their obligations to the Crown without detection because obtaining a specific warrant against citizens would take too much time.[li]

In Paxton’s case, the government argued that allowing these writs was “no greater infringement of our liberty than the method of collecting taxes in this Providence.”[lii]  While these arguments were certainly repulsive to the colonists, the Supreme Court seems to have now fully embraced them.[liii]  And while it is true now, just as it was in 1761, that these practices generate huge slush funds for officials,[liv] that fact should not justify a program that so clearly subjects all of us to unwarranted invasions of our liberty and privacy.

Hope for the Future

Despite the sorry state of the federal judiciary’s view on pretextual stops, hope remains for the citizens of Idaho.  Several states have held that pretextual stops violate their own State Constitutional protections against unreasonable searches and seizures.[lv]

While Idaho Courts have recognized and followed Whren’s command in the Fourth Amendment context, they have not yet squarely addressed the issue of whether our own Constitutional prohibition on unreasonable searches and seizures[lvi] protects us from pretextual traffic stops.

Whether our Courts heed James Otis’ warnings remains to be seen, but for the time being, some hope remains that all Idahoans may be protected against this modern writ of assistance.  Until that time, in the words of Mr. Otis, “I take this opportunity to declare, that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose with all the powers and faculties God has given me, all such instruments of slavery on the one hand, and villainy on the other, as this writ of assistance is.”[lvii]

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[1] Boyd v. U.S., 116 U.S. 616, 625 (1886).

[ii] Scott Lewis, An Historical Review of the Fourth Amendment, Wis. B. Bull., August 1987, at 15, 15.

[iii] Id.

[iv] Id. 

[v] The Honorable M. Blane Michael, Reading the Fourth Amendment: Guidance from the Mischief That Gave It Birth, 85 N.Y.U. L. Rev. 905, 907-908 (2010).

[vi] Thomas K. Clancy, The Role of Individualized Suspicion in Assessing the Reasonableness of Searches and Seizures, 25 U. Mem. L. Rev. 483, 501 (1995)

[vii] Michael, supra note 5, at 908.

[viii] Clancy, supra note 6, at 501.

[ix] Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181, 1248 (2016).

[x] Id. at 1249.

[xi] Id.

[xii] Otis, James. Collected Political Writings of James Otis. Liberty Fund, 2015. https://oll.libertyfund.org/title/collected-political-writings.

[xiii] Id.

[xiv] Id.

[xv] Id. 

[xvi] Id.

[xvii] Id.

[xviii] Id.

[xix] Michael, supra note 5, at 907-908.

[xx] Otis, supra note 12.

[xxi] Id.

[xxii] Id. 

[xxiii] Id.

[xxiv] Id.

[xxv] Id.

[xxvi] Id.

[xxvii] This is not to suggest that violations of the traffic code are always criminal offenses.  Most are only civil offenses.

[xxviii] Although there are also numerous examples of these stops being used simply in a racist fashion against minorities.  See Ricardo Bascuas, Fourth Amendment Lessons from the Highway and the Subway: A Principled Approach to Suspicionless Searches, 38 Rutgers L.J. 719, 761-762 (2007) (Black people being twice as likely as white people to be stopped for traffic offenses, while Hispanic individuals are three times as likely).

[xxix] Whren v. U.S., 517 U.S. 806 (1996).

[xxx] See id. at 811-813 (holding that as long as an officer has observed a traffic violation, no ulterior motive—not even a racist ulterior motive—can make the stop unreasonable under the Fourth Amendment).

[xxxi] See Idaho Code Title 49.

[xxxii] Idaho Code § 49-1401(3).

[xxxiii] See e.g. State v. Kinser, 141 Idaho 557, 112 P.3d 845 (Ct. App. 2005) (upholding a stop for a cracked windshield, despite no statute prohibiting cracks in windshields, based upon an officer’s belief that a windshield crack could potentially inhibit a driver’s vision and potentially cause an unsafe driving condition); State v. Meyer, 158 Idaho 953, 354 P.3d 515 (Ct. App. 2015) (holding that an officer need not show a muffler’s noise actually exceeded the statutory 92 decibel maximum and finding a stop to be reasonable when the officer testified that in his opinion the muffler sounded “louder-than-normal”).

[xxxiv] Idaho Code § 49-649.

[xxxv] See Idaho Code § 49-920.

[xxxvi] Idaho Code § 49-902 (prohibiting equipment not in proper working order); See also State v. Evans, 134 Idaho 560, 6 P.3d 416 (Ct. App. 2000) (allowing for the stop of a vehicle that had one non-working headlight, even though the vehicle was being driven during the day when headlights were not required to be on).

[xxxvii] State v. Randall, Supreme Court Oral Argument, June 17, 2021, available at: https://isc.idaho.gov/appeals-court/archive.

[xxxviii] Although as has already been pointed out, a driver need not even violate a law, an officer’s unsubstantiated claim that a violation occurred is all that is truly required.

[xxxix] Peter Shakow, Let He Who Never Has Turned Without Signaling Cast the First Stone: An Analysis of Whren v. United States, 24 Am. J. Crim. L. 627, 633 (1997).

[xl] Otis, supra note 12.

[xli] Duration, as used here, is in reference to when the seizure may be made, not the length of the seizure itself which still finds some protection under the Fourth Amendment.

[xlii] Operations Pipeline and Convoy, available at: https://web.archive.org/web/20040301202815/http://www.usdoj.gov/dea/programs/pipecon.htm

[xliii] Bascuas, supra note 28, at 761.                        

[xliv] Id. at 762.

[xlv] Id. 

[xlvi] Boyd, 116 U.S. at 635 (“It is the duty of courts to be watchful for the constitutional rights of the citizen, and against stealthy encroachments thereon.  Their motto should be obsta principiis.”).

[xlvii] Bascuas, supra note 28, at 764-765 (observing that no member of the Whren or Robinette Court appeared even aware of the existence of Operation Pipeline).

[xlviii] See e.g. Brower v. County of Inyo, 489 U.S. 593 (1989); Florida v. Wells, 495 U.S. 1 (1990); Michigan Department of State Police v. Sitz, 496 U.S. 444 (1990); Minnesota v. Dickerson, 508 U.S. 366 (1993).

[xlix] Compare Whren, 517 U.S. at 813, with Heien v. North Carolina, 574 U.S. 54, 60 (2014)(holding that an officer’s subjective understanding of what the law is plays a critical role in a Fourth Amendment analysis of whether a traffic stop is reasonable).

[l] Otis, supra note 12.

[li] Neal Nusholtz, The Prompt and Certain Collection of Delinquent Taxes, 95-Sep Mich. B.J. 20, 22 (2016).

[lii] Otis, supra note 12.

[liii] See Carroll v. U.S., 267 U.S. 132, 153 (1925) (accepting argument that not allowing police to act without a warrant would allow criminals to avoid their obligations to the government); and Whren, 517 U.S. at 813 (not finding a pretext stop to be any greater infringement on the Fourth Amendment than a legitimate traffic stop).

[liv] Bascuas, supra note 28 at 762 (noting that police in a town of 2,600 residents seized over $2 million in cash and cars in a two-year period).

[lv] See e.g. Minnesota v. Varnado, 582 N.W.2d 886 (Minn. 1998); New Mexico v. Ochoa, 206 P.3d 143 (N. M. Ct. App. 2008); New York v. Dickson, 690 N.Y.S.2d 390 (N.Y. App. Div. 1998); Washington v. Ladson, 979 P.2d 833 (Wa. 1999). See also State v. Arreola-Botello, 451 P.3d 939 (Or. 2019) (solving some of the problems related to pretext stops by recognizing both a temporal and a scope limitation on officers’ actions during traffic stops).

[lvi] Idaho Const. art. I, § 17.

[lvii] Otis, supra note 12.