(a) Officers engage in pretextual policing when they take action for which they lack authority or justification by relying instead on another reason for which they do have authority or justification, even though they would not have taken the action but for the primary motivation.
(b) Agencies and officers should not use pretextual policing as a general strategy to address unlawful or undesirable conduct.
(c) Officers should not engage in pretextual policing except when they are investigating a specific serious offense, and even then only when they are able to articulate specific facts to support the belief that the target of the pretextual action may have been involved in such offense.
a. Pretext defined. Under the definition in § 2.04(a), an officer acts pretextually when the officer would not have conducted the stop or search in question for the stated reason (which was legally justified) were it not for the actual reason (for which the officer lacked legal justification). For example, an officer might stop an individual for a low-level traffic violation, such as failing to signal a turn, in order to create an opportunity to ask the driver about more serious criminal activity or search the car for narcotics. But for this other purpose, the officer would not have made the stop. And importantly, the officer could not have stopped the car solely to look for drugs or other criminal activity because the officer lacked the requisite cause to do so. If the officer had sufficient cause, the officer would not have had to act pretextually.
b. Need for addressing pretext. Given the breadth of misdemeanor and municipal codes, particularly around the regulation of automobiles, police officers have enormous discretion to stop individuals and to engage in other activities such as removing them from cars, conducting questioning, conducting limited or full searches of people and their effects, and even arresting them. Although such intrusions are constitutionally permissible, they raise a number of serious concerns. The requirements of reasonable suspicion or probable cause are designed precisely to justify intrusions on individual liberty, thereby ensuring that a significant percentage of intrusions will yield some evidence of criminal activity. When officers act pretextually, they typically act on hunches that fall short of these cause thresholds. Evidence suggests that pretextual stops and searches are much less likely to uncover evidence of unlawful conduct. In addition, adhering to constitutional standards helps guard against discriminatory policing by requiring that officers have some articulable, factual basis for singling a person out. There is all-too-plentiful evidence that pretextual enforcement efforts can lead to substantial racial disparities, which can in turn have degraded trust between communities and police. Much is gained and little lost by prohibiting pretextual policing in most circumstances.
c. Pretextual policing as a general strategy to address crime or undesirable conduct disallowed. Many agencies, and the officers they employ, have utilized pretextual policing as a strategy of proactive policing designed to address crime. For example, police officers may stop drivers for minor traffic offenses in the hope of interdicting drugs or simply to ask their consent to search vehicles to uncover some evidence of wrongdoing. See § 4.06 (documenting concerns raised by consensual searches). This sort of pretextual activity is what gives rise to many of the harms identified in Comment b and that should be minimized pursuant to § 1.04 (Reducing Harm). As a general rule, pretextual reasons should play no role in a decision to stop an individual, except in the limited situations outlined in Comment d. That is, pretextual policing never should be used as a strategy to further a generalized interest in crime detection or as a broader tool to maintain social order.
d. Permissible uses of pretextual policing. This Principle is intended to curtail the current widespread use of pretextual policing given its many harms. Nonetheless, it recognizes that there may be rare instances in which pretextual policing is acceptable. Police, for example, may have clear evidence that an automobile of a certain description was involved in a string of major robberies and so decide that when they see a driver of a car of that type commit a traffic offense they will stop the driver and investigate the car for evidence of its involvement in those robberies. Or officers may receive a report of uncertain reliability about someone forcibly being placed in a van and so might follow the van and stop it if a traffic offense provides an opportunity to investigate further. What distinguishes these cases from the systemic use of pretextual policing is that the pretextual activity is being conducted in furtherance of an investigation into a specific serious crime. Agencies and the communities they serve should determine in advance what crimes are sufficiently serious so as to justify the use of pretext, thereby providing guidance to individual officers. See § 1.06 (recommending agencies adopt written rules, policies, and procedures). Pretextual policing never should occur in the absence of articulable facts pointing to a specific serious offense that is being investigated.
Were it not for history and practice, a principle limiting the use of pretext in policing might seem an odd thing indeed. People act pretextually for many reasons in life, and the police are not an exception. People are not always conscious of their precise motives, and again police are no different. What is a pretextual action and what is the primary motivator for an action often can be difficult to disentangle.
But here, history and practice play a large role. To be sure, there are instances in which police acting on pretext might make sense, for example, an officer stopping a motorist for an evident traffic violation to investigate a specific serious or dire crime for which the requisite cause for a stop is lacking, but for which there is some reason to believe the motorist was involved in that specific crime. However, many departments, and many officers, have made a regular practice of pretextual policing simply to further a generalized interest in crime detection, regularly taking minor enforcement actions that they would not otherwise take in furtherance of the vague possibility of uncovering wrongdoing of an entirely different sort, for which they do not have anything approaching a sufficient justification (i.e., level of cause). The primary, though not sole, motivators of pretextual policing are the hope of interdicting drugs and weapons. See Jonathan Blanks, Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy, 66 Case W. Res. L. Rev. 931, 942 (2016) (“[W]hatever putative utility investigatory stops provide is concentrated heavily [around] fighting the War on Drugs.”); Deborah Ramirez, et al., Dep’t of Justice, A Resource Guide on Racial Profiling Data Collection Systems 9 (2000) (police “often use traffic-stops as a means of ferreting out illicit drugs and weapons”). To that end, countless intrusions into personal liberty have occurred, often with deeply disparate impacts on people of color and people living in poverty.
The problem with pretext arises out of the enormous discretion officers possess, which permits them, with very little factual basis or supervision, to require compliance from individuals. Officers can make traffic stops or pedestrian stops on the basis of one of countless state or municipal code provisions. See Samuel R. Gross and Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651, 670 (2002) (“The laws regulating driving are so elaborate, so detailed, and so unrealistic that virtually every driver violates one or another almost all the time—or at least there is probable cause to believe she might be, which is all that’s required to justify a stop.”); Dept. of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 25 (2015) (detailing pedestrian stops for conduct such as “walking unsafely in the street”). Officers can make traffic stops for actions they believe are illegal, even if they turn out to be mistaken about the law. See Heien v. North Carolina, 574 U.S. 54 (2014). After conducting a traffic stop, officers may order the driver and the passengers out of the car. See Pennsylvania v. Mimms, 434 U.S. 106 (1977); Maryland v. Wilson, 519 U.S. 408 (1997). And they may question the driver about conduct that is unrelated to the ostensible reason for the stop, or request consent to search. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); but see Oregon v. Arreola-Botello, 365 Or. 695 (2019) (holding that, under the state constitution, “an officer is limited to investigatory inquiries that are reasonably related to the purpose of the traffic stop or that have an independent constitutional justification.”). In many instances the officers even may arrest the driver for low-level traffic offenses. See Atwater v. Lago Vista, 532 U.S. 318 (2001). Once arrested, the individual may be searched incident to arrest. United States v. Robinson, 414 U.S. 218 (1973). And so on.
Although this sort of policing may happen at the discretion of individual officers, it often has been driven by agency policy. See Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Marker, Beyond Profiling: The Institutional Sources of Racial Disparities in Policing, 77 Pub. Admin. Rev. 168, 171 (2016) (describing institutional drivers of “investigatory” traffic stops and detailing extensive evidence of their use). Indeed, the U.S. Department of Justice encouraged the use of pretextual traffic stops as part of both Operation Pipeline and Data-Driven Approaches to Crime and Traffic Safety. See Gross & Barnes at 671; Epp, et al. Institutional Sources, at 171. These sorts of programs have encouraged officers and departments to make enormous numbers of traffic stops and to seek consent to search from countless people.
Two problems permeate this sort of pretextual policing. First, it imposes notable costs on individual liberty, racial justice, and the legitimacy of law enforcement in the eyes of the community. Scholars have criticized the courts for upholding pretextual stops as constitutional, with some characterizing it as an “effective legitimation of racial profiling in the United States.” Gabriel J. Chin & Charles J. Vernon, Reasonable but Unconstitutional: Racial Profiling and the Radical Objectivity of Whren v. United States, 83 Geo. Wash. L. Rev. 882, 884 (2015). Research indicates that when police are permitted to use pretext to justify a stop, minority drivers are stopped at higher rates relative to when police are not allowed to act pretextually. See Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling (Sept. 2019 Draft).For example, at least one police department “routinely targeted Latino drivers and passengers for pretextual traffic stops aimed at detecting violations of federal immigration law.” United States v. Cnty. of Maricopa, 889 F.3d 648, 649 (9th Cir. 2018). And studies show that Black drivers are “far more likely to be stopped for investigatory stops or given no reason at all for being pulled over.” Blanks at 934 (citing Charles R. Epp, et al., Pulled Over: How Police Stops Define Race and Citizenship 143 (2014)); Epp, et al., Institutional Sources at 173-174 (Blacks far more likely to be pulled over for “de minimis” reasons or given no reason at all). Once stopped, members of racial minorities are searched at a higher rate than Whites. See Chris L. Gibson, Samuel Walker, Wesley G. Jennings, J. Mitchell Miller, The Impact of Traffic Stops on Calling the Police for Help, 21 Crim. Just. Pol’y Rev. 139, 142 (2010) (citing multiple studies showing that “Blacks are often more likely to be searched than Whites”). Yet, data repeatedly show that following such stops, minority drivers are far less likely to be found in possession of contraband. Epp, et al., Pulled Over at 105; Police Accountability Task Force at 9 (“black and Hispanic drivers were searched approximately four times as often as white drivers” yet contraband was found on white drivers “twice as often”). Understandably then, communities of color may view traffic stops “very differently than those in white communities due to disparities in the basis for police stops in those communities,” especially when a stop for a minor infraction leads to police requesting authority to search the vehicle or asking invasive questions. IACP National Policy Summit on Community–Police Relations: Advancing a Culture of Cohesion and Community Trust at 6 (2015) (citing Epp, et al., Pulled Over); Blanks at 934 (citing the same). Recognizing the racial disparities and attendant social harms in the use of pretextual policing, the district attorney of one jurisdiction has recently directed prosecutors to no longer file possession-of-contraband charges when contraband is found in a pretextual stop. San Francisco District Attorney, District Attorney Boudin Pioneers First in the Nation Policy Directives (Feb. 28, 2020).
Second, pretextual policing has not proven itself a particularly effective strategy. The same difficulties that persist in classifying whether a particular stop is pretextual in the first instance make it inherently challenging to collect data on the effectiveness of such a strategy, particularly when police are not required to document the reasons for their stops or even their stops at all. Epp, et al., Institutional Sources at 169; accord Dept. of Justice, Investigation of the Baltimore City Police Department 26-27 (2016) (explaining difficulties with investigatory stops conducted without adequate recordkeeping). The data that do exist, however, indicate that both traffic stops and stops made without the requisite suspicion of criminal wrongdoing are particularly ineffective. See Epp, et al., Institutional Sources at 175 (“The evidence that investigatory stops help fight crime is surprisingly weak”; citing sources); Alex Chohlas-Wood, Sharad Goel, Amy Shoemaker, and Ravi Shroff, An Analysis of the Metropolitan Nashville Police Department’s Traffic Stop Practices, Stanford Computational Pol’y Lab (Nov. 19, 2018) (“[T]raffic stops—including stops for non-moving violations—had no discernible effect on serious crime rates, and only infrequently resulted in the recovery of contraband or a custodial arrest”). At the same time, they undermine effective policing by discouraging people from contacting the police for assistance. See Gibson et al. at 147 (finding that “citizens experiencing one or more than one motor vehicle traffic stop in the past 12 months were less likely to ask for assistance/information from the police than those who did not experience a traffic stop or more than one stop.”).
In Whren v. United States, 517 U.S. 806 (1996), the U.S. Supreme Court declined to impose any limits on pretextual policing under the Fourth Amendment. But Whren itself offers no judgment about whether pretextual policing is good or bad. Whren was predicated substantially upon the difficulty the justices saw in identifying a workable test that would separate out policing that was pretextual from policing that was not. Commentators themselves have struggled with this puzzle and with how to circumscribe pretextual policing in this framework. See, e.g., Eric F. Citron, Note, Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, 116 Yale L.J. 1072, 1080 (2007) (offering alternative test to confront the practicality rationale of the Whren rule); Chin & Vernon at 917-918 (criticizing the objective approach of Whren as unprotective of certain constitutional rights). Moreover, the Court in Whren was addressing the question of pretext surrounding one individual enforcement action as opposed to its programmatic use.
Agencies, however, do not face the same difficulty of fashioning a workable test for individual stops. Rather, consistent with this Principle, agencies simply should refrain from using pretextual policing as a general crime-control strategy. And they should make clear in policy and practice that pretextual stops should be used sparingly, and only for the most serious of offenses. Agencies can and should promote compliance with this policy through training and supervision. And they can collect data on traffic stops, including both demographic information and the justification of the stop, in order to identify patterns of inappropriate or ineffective use of pretext. See § 14.10 (discussing collection of data on police stops).