Originally published at Cato Unbound by Sarah A. Seo | April 8, 2019
Case: Whren v. US
United States began when a vice squad officer noticed a Pathfinder SUV with temporary license plates waiting at a stop sign for more than 20 seconds—an unusually long time to pause at an empty intersection—in what the officer considered a “high drug area” of Washington, D.C. Inside were two young black men. Suspicious, but without any specific reasons that the car’s occupants might be committing a crime, the officer stopped the car for making a right turn without signaling and driving at an “unreasonable” speed. When the officer stepped up to the driver-side window, he saw two plastic bags of crack cocaine in Michael Whren’s hands.
Whren and his friend in the passenger seat appealed their federal drug convictions to the Supreme Court. They argued that pretextual traffic stops violated the Fourth Amendment, which prohibits “unreasonable searches and seizures” and generally requires an articulable suspicion to stop—that is, to make a “seizure” of—an individual. Because the officer did not have legal cause to act on his mere hunch that criminal activity was afoot, he relied on minor traffic violations to investigate.
During oral argument, Justice Sandra Day O’Connor remarked, “I don’t know of any other area that works” like traffic laws, where “sooner or later most of us are going to commit some traffic violation for which we could get a ticket.” The petitioners’ lawyer finished the thought, arguing that laws that everyone violates—thereby making perfect enforcement impossible—gave the police unlimited discretion to enforce them in discriminatory ways.
Pretextual enforcement of the traffic code has been an official strategy in the war on drugs since at least the 1980s. The U.S. Drug Enforcement Agency trained state highway patrols to use such tactics, as did law-enforcement textbooks. Statistics show that police have disproportionately targeted minorities during what is known as “criminal patrol,” a term that reflects the merger of criminal investigations and traffic patrol duties.
The social and legal developments that have led to the systematic policing of minorities, however, did not begin with an intent to do so. The history of discretionary policing, which today enables racialized policing, actually begins with the mass production of the automobile and the practical need to regulate upstanding citizens.
Mass-produced cars rolled off assembly lines around 1910 and took over Main Streets that were originally intended for pedestrians and horse-drawn carriages. Police chiefs throughout the country soon pointed to vehicular traffic and accidents as the biggest problems they faced. To impose order and to ensure public safety, local governments passed long lists of traffic rules and regulations. In addition to speed limits and license requirements, new laws mandated safety equipment, like non-glaring headlights and rearview mirrors. They also coordinated driving norms, for example, by determining who among cars, horses, carriages, and pedestrians had the right of way; and by specifying the speed at which cars could overtake horse-drawn coaches and trolleys. Within a decade, the number of regulations grew exponentially and only continued to multiply.
Extensive traffic codes created an unprecedented enforcement challenge: everybody violated them. That included both drivers and non-drivers, as walking customs became subject to much more regulation when pedestrians had to share the streets with cars. Jaywalking, for instance, entered the lexicon after the mass production of cars. Particularly disturbing was the fact that early motor vehicle owners—traffic violators—were mostly well-to-do. By 1926, a majority of American families owned a car, and it was no less reassuring that this broader population also routinely engaged in law-breaking behavior while on the streets and highways. Officials, experts, and pundits were perturbed that decent Americans would obstinately refuse to follow the rules of the road.
Before cars, the police were few in number and dealt mainly with those on the margins of society, like vagrants and drunks. After cars, the police also had to discipline the respectable citizenry. For the first time, all “law-abiding citizens” (notwithstanding their traffic violations) were subject to policing. From today’s perspective, the democratization of policing may sound preposterous. But this was a consequence of mass automobility. In the American car-dominated society, the traffic stop soon became—and remains today—the “chief point of personal contact between the individual citizen and the law,” as one Yale Law professor put it.
Certainly, the police were also handling more criminal investigations than before, and much of their burgeoning caseload also arose from automobility. The getaway car aided the commission of crimes, especially since law officers could not follow suspects outside their jurisdiction. Until 1934, when the doctrine of hot pursuit entered the common law, fleeing fugitives took advantage of a multi-jurisdictional landscape. Cars also introduced a new crime, auto theft, which became one of the most common crimes in the twentieth century.
But in the federalist United States, where local governments typically handled issues of crime and punishment, criminal mobility did not necessarily lead to bigger police forces and greater police powers. A crime that unfolded over multiple jurisdictions rendered responsibility for the case uncertain, which not only hindered many local prosecutions but also deterred local officials from being more proactive. City or county governments were reluctant to spend money enlarging their police departments to go hunting for criminals who might not fall entirely within their purview.
It also did not make sense for municipalities to spend more money as long as the pursuit and prosecution of crime was largely a private matter. Until the early twentieth century, it was usually citizens themselves who brought charges against those who harmed them or stole from them. Wealthier folks and institutions like banks hired private patrols, detectives, and investigators. Indeed, it was insurance companies that were on the front lines of fighting auto theft.
What finally prompted local governments to invest in more police was traffic law enforcement. The policeman’s duties were to preserve the peace, maintain order, and protect life and property. Mass automobility disturbed peace and order, endangered life, and destroyed property. To manage the fast-growing numbers of “law-abiding” traffic violators, towns and cities throughout the country not only added more manpower, they also strengthened officers’ authority. For instance, in 1924, the National Conference of Street and Highway Safety recommended a new law that made the refusal or failure to comply with any order or direction from a traffic officer a misdemeanor.
These expansions in policing occurred at the state level as well. In 1905, only five states had some form of state police. They were unnecessary when criminal prosecution was a local and private matter, and the idea of centralized police was anathema in the United States. But by the end of the 1930s, almost every state established a police force for the primary purpose of enforcing traffic laws. Officials quickly discovered that while looking for safety violations, patrollers could also look for stolen vehicles and illicit liquor. Traffic and criminal law enforcement began to overlap.
The policing of cars created a conundrum both profound and practical. What did freedom mean in a modern, automotive society that policed all its citizens? And more delicately, how could the police discipline “law-abiding” drivers without antagonizing them? This was especially challenging when it was difficult to tell the difference between criminal suspects and ordinary traffic violators; after all, everybody drove standardized cars. Defendants who challenged police stops and searches of their cars often argued for greater constitutional constraints on police by invoking the interests of “Everyman,” a variant of “law-abiding citizen.” Those who used these seemingly generic labels meant to be all-embracing. But Everyman was hardly a class-, race-, or gender-neutral figure. The term held significance precisely because it conjured a white man from a respectable class who, before cars, had largely been shielded from policing.
The need to regulate drivers and to do so without giving offense necessitated changes to the police function. For one thing, courtesy became a hallmark of professionalized police. In the early years of the automobile, whenever the National Police Journal profiled the achievements of a progressive department, it invariably mentioned how the reforming police chief instilled courtesy in his force.
The mandate that officers act courteously arose most frequently in the context of traffic law enforcement. This association was most explicit in the name of South Dakota’s highway patrol, which was called the “Courtesy Patrol” until 1937, when it was rechristened the “Motor Patrol.” Colorado similarly had the “Highway Courtesy Patrol,” which did not change its name until 1945. Although courtesy emerged from the need to discipline the motoring population, it eventually became a general policy. Many municipal codes, like San Francisco’s, required officers to act “in a courteous manner.” Even if not legally obligated, the Law Enforcement Code of Ethics, published in 1956, obliged officers to “enforce the law courteously.”
It is unlikely that courtesy would have become a badge of police professionalism if respectable citizens were not policed. One indication of this counterfactual comes from the Los Angeles County grand jury in 1932. After receiving numerous complaints, this group of esteemed citizens issued a recommendation to the police department to “make it their business to see that the members of the police force are courteous in their dealings with the citizens”—presumably during a traffic stop, when most of these dealings occurred. But this courtesy, the grand jury report continued, ought not to be extended to “dangerous and known criminals,” but just to “the average citizen.” Implicit in the grand jury’s directive was an instruction to use good judgment, or discretion, to distinguish the respectable from the dangerous.
Scholars and activists today point to discretion as the source of discriminatory policing. That is true. But the early history of policing cars suggests that the initial reason for greater police discretion was to benefit the respectable citizenry.
In fact, white papers and officer training manuals all recommended that the police exercise discretion when directing traffic. One expert insisted that “all traffic violators cannot and should not be handled in exactly the same manner.” It was up to the individual officer to determine how best to proceed in each case, whether it was to ignore the infraction, give a warning, write a citation, or make an arrest. Police consultants advised officers to take the most lenient option or even to decide not to attempt enforcement at all for fear of alienating respectable members of society. If a belligerent traffic cop angered the citizen-driver and aggrieved his or hersense of dignity, that person might, at best, create a public relations headache; at worst, his or her disrespect for law enforcement would undermine the rule of law. Criminal elements did not present this problem; the upright did. Officers thus needed discretion to decide, in the moment, whether a given driver deserved courtesy or not.
Legal changes mirrored the new mandates of courtesy and good judgment. Discretionary policing certainly existed in practice before the advent of the modern motor car, but it did not receive much scrutiny. After cars, police discretion became a recurring constitutional issue under the Fourth Amendment. Because the first moment in a police encounter is a stop, or “seizure,” which could then be followed by a “search,” the guarantee against “unreasonable searches and seizures” has been the main provision governing the police, under both the U.S. Constitution and state constitutions.
Until the early twentieth century, searches and seizures of “persons, houses, papers, and effects,” as listed in the Fourth Amendment, required a warrant. There were well-established exceptions, but the warrant requirement was the general rule. Cars should have fallen under the category of “effects.” But state courts throughout the country, and the Supreme Court in the 1925 case Carroll v. United States, created what is now called the “automobile exception,” which permits officers to stop a car without a warrant if they have reasonable or probable cause to believe it was transporting contraband, which was liquor in most cases during the Prohibition era of the 1920s. Not requiring warrants but still requiring probable cause seemed like an appropriate compromise between the needs of law enforcement and the rights of citizen-drivers.
By setting aside the warrant requirement, however, courts sanctioned police discretion, for the individual officer, rather than a neutral magistrate, would decide in the first instance whether to search a car or to allow the driver to go on his or her way without further ado. As courts were wont to point out when reviewing police action, the Fourth Amendment did not prohibit warrantless searches and seizures, but only those that were “unreasonable.” Over the twentieth century, as the United States became an automotive society, Fourth Amendment jurisprudence shifted emphasis from a question of warrants to a question of reasonableness, which centered on the police’s exercise of discretion.
Was it reasonable for an officer to force a car into a roadside ditch based only on the driver’s reputation as a rum runner? Was it reasonable to arrest a suspected bootlegger for passing in a no-passing zone and then to search the trunk of his seized car? Was it reasonable to search inside the pockets of a jacket left on the backseat of a car? Was it reasonable to search containers found inside the pockets of an overcoat worn by a driver arrested for driving with a revoked license? Was it reasonable for an officer to ask drivers where they were coming from and where they were going for any reason or no reason at all?
As Fourth Amendment cases proliferated, reflecting the welter of life that confronted police officers, the rules of decision became increasingly fact-based, complex, and inconsistent. One law professor pointedly called this area of law an “embarrassment,” while another declared that it was “in tatters.” It was not easy for judges, including Supreme Court justices, to pin down a definition of reasonable policing, let alone to flesh out a coherent theory for determining reasonableness. It proved difficult for judges to second-guess the police’s exercise of discretion when it was the guilty, not the innocent, who raised Fourth Amendment challenges. All the more so when the nature of police work often involved split-second decisionmaking in uncertain circumstances.
This was especially true when patrolling the byways and highways. Law enforcement advocates argued that traffic stops were “one of the most dangerous aspects of police work” because officers, when approaching a car, exposed themselves to an unknown situation. Their argument carried the weight of experience that judges did not share. Law enforcement advocates soon learned to marshal the exigencies of traffic stops to justify greater police powers even when the legal question at issue did not pertain to cars. In the twentieth-century United States, policing the automobile had become synonymous with policing American society.
In case after case, courts concluded that the police had acted reasonably. As a leading Fourth Amendment scholar explained, the reasonableness standard essentially meant that “appellate courts defer to trial courts and trial courts defer to the police.” Every now and then, an individual defendant won. But more often, reasonableness functioned as a deferential standard, which then migrated to other areas of law as well. An early 1970s textbook explained that the “system of criminal justice abundantly provides for broad use of discretion by its law enforcement officers.” In support, it pointed to “specific sections of the criminal codes” that incorporated police discretion through the word “reasonable.”
This brings us back to Whren v. United States. It was reasonable, according to the Supreme Court, for the police to use a minor traffic violation as a way to look for drugs. According to the unanimous opinion, “the Fourth Amendment’s concern with ‘reasonableness’ allows certain actions to be taken in certain circumstances, whatever the subjective intent” of the officer. Those circumstances included a car stop for a traffic violation, which any officer with a modicum of patience will eventually observe of almost any driver. For all nine justices, it seemed untenable to hold that enforcement of a valid law could violate the Fourth Amendment, even if motivated by pretextual reasons.
Whren was just one of many cases that began with a minor traffic violation and ended with a drug conviction. “Criminal patrol” has indeed been an effective law-enforcement strategy in the war on drugs, which has been waged mostly against racial minorities. But what made “criminal patrol” possible is the combination of too many traffic laws and constitutional deference to police discretion. Both developments had their origins in the need to govern Americans on the road.
This history had far-reaching consequences on the meaning of freedom. When American society turned to the police to maintain highway safety and order, the defense of liberty was not simply about restraining the police’s power. The challenge, as Policing the Open Road makes clear, was to figure out how to incorporate policing within the meaning of freedom itself.