Understanding Pretext Stops

May 06th, 2019 | by Scott C. Thomas, Orange County Criminal Law Attorney

Who has heard of a “pretext stop”?  What is it?  Ever watched an episode of Cops? Ever notice how officers will post up outside a house known for drug sales, wait for a customer to drive away then pull them over for a seemingly miniscule Vehicle Code violation? What’s the first question the cop ALWAYS asks? “Got any drugs in the car?”

This is what is known as a “pretext stop,” and according to the U.S. Supreme Court in Whren v. United States and Arkansas v. Sullivan, an officer’s subjective intentions are irrelevant so long as there is probable cause, independent of those suspicions, to believe a crime, no matter how minute, has been committed. Put another way, once lawfully pulled over, officers are free to investigate any potential unrelated criminal activity. This was not always the case. Until these relatively recent decisions came down, these types of tactics were deemed unconstitutional and viewed as a way for officers to circumvent the warrant requirement of the Fourth Amendment.

What is even more unsettling, even if an officer pulls you over for violating the “wrong” statute, the stop does not violate the Fourth Amendment, so long as there is a “right” statute that applies to your conduct. That is to say, if an officer pulls you over for speeding, but it turns out that you were not in fact speeding, the stop is still legal so long as there is another basis for the stop, such as having a broken tail lamp.

Pretext stops also go hand in hand with racial profiling. If an officer has a hunch someone is up to no good, even if it is because of the color of his or her skin, the officer is free to stop the person and question them about any and all criminal conduct, so long as there is a basis for the vehicle stop.

The lesson to take away from this is that you can be pulled over for the smallest of infractions as pretext for a collateral criminal investigation and that officers have a great deal of leeway in justifying such stops. You’ve been warned!

Scott C. Thomas

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