Anytime a Utah resident is pulled over for a minor traffic violation, that incident has the potential to become a pretextual stop, or an opportunity for police to find probable cause to search a vehicle.
There are times when law enforcement sees a vehicle that they would like to search but they have no probable cause to allow them access to it. The vehicle may be “suspicious” by fitting a certain profile that would allude to possible criminal behavior by the vehicle’s occupants or officers may want to search a car to help an unrelated investigation. Instead of waiting for a crime to be committed by the driver or getting a warrant to search the car, the vehicle may be followed until it makes a minor traffic violation instead.
Broken taillight = probable cause for a search
Speeding, switching lanes without signaling, no seatbelt, and even a broken taillight are all reasons that police can use to pull a car over and issue a citation. These simple traffic stops can also give law enforcement the opportunity to find probable cause to search a vehicle. A planned traffic stop with a hidden agenda is referred to as a pretextual stop, or an opportunity for law enforcement to search a vehicle for a reason that is actually unrelated to the traffic violation.
Whren v. United States
In 1995, Whren- a driver of Mexican descent- was traveling along a stretch of road known as being a major drug trafficking corridor. Officers spotted Whren and proceeded to follow him for over 20 miles. Eventually a couple minor traffic violations such as failure to use a turn signal at a stop sign and speeding were made. This gave officers the opportunity to pull the vehicle over where they noticed narcotics in Whren’s hand. In court Whren attempted to have the evidence surpressed due to the pretextual stop violating his Fourth Amendment rights, however that motion was denied and he was ultimately convicted.
Pretextual stop not unconstitutional
The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures that are conducted without probable cause. Unfortunately, the United States Court of Appeals stated in Whren’s case that a pretextual stop did not violate Whren’s Fourth Amendment Rights. They explained: “the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.” They went on the further clarify that “Detention of a motorist is reasonable where probable cause exists to believe that a traffic violation has occurred.”
Limits to a pretextual stop
Although the U.S. Court of Appeals determined a pretextual stop to be constitutional, there are limits to what officers are allowed to do once a vehicle is stopped. A pretextual stop allows an officer to pull over a vehicle for a traffic violation but not necessarily to search the vehicle. In order to conduct a search, officers would have to have a warrant or probable cause to do a search. Probable cause might include:
• Seeing contraband in plain view;
• Smelling of illegal drugs by an officer or K9; or
• Observing activity that gives officers reasonable suspicion of a crime such as reckless driving that could indicate alcohol consumption or drug abuse.
If an officer cannot find probable cause to search a vehicle during their pretextual stop, they may ask the driver for permission to search. In an effort to cooperate with law enforcement, many individuals wouldn’t dare saying “no” when asked if officers can look in their vehicle. This is often a major loophole that police use to search a car without probable cause. While being respectful, it is perfectly acceptable to refuse officers to do a vehicle search. If they search a vehicle without probable cause, a warrant, or permission and find evidence of a crime, drivers are encouraged to wait politely but silently and have legal counsel discuss the unreasonable search during court. The evidence collected would likely be dismissed along with related charges. With all cases regarding a pretextual stop or illegal searches and seizures, it is recommended to obtain the aid of a criminal defense attorney. An experienced attorney will help ensure that no constitutional rights have been violated and that all searches were made lawfully.