March 16, 2016 Articles

Are Courts Viewing Pretextual Searches and "Good-Faith" Exceptions More Skeptically?

Recent cases give reason for hope.

By David Schoen – March 16, 2016

For lawyers who have been concerned (read: depressed) over the years by what might seem to be no limit to the level or nature of pretext that a court would find acceptable for an ensuing search and seizure and no end in sight to the breadth with which courts would apply a good-faith exception to the exclusionary rule, some recent decisions might put a bit of wind in your sails.

In Whren v. United States, 517 U.S. 806 (1996), the U.S. Supreme Court formally licensed pretextual stops. In Whren, based on a number of general, profile-like factors, police officers believed a car passing through the neighborhood likely had illegal narcotics in it, and they wanted to stop it and conduct a search. They followed the car, and when it came to a stop after having failed earlier to use a turn signal, the officers approached the car on the pretext of giving the driver a warning regarding various possible traffic infractions. When an officer approached the car, he saw what he believed to be crack cocaine. The car and passengers were searched, illegal narcotics were seized, and the occupants were arrested. In affirming the defendants’ convictions and the denial of a suppression motion, the Court recognized that the officers approached the car based on their belief that the occupants were drug dealers and their desire to confirm this, but it held that the pretext of approaching the car to warn the driver about possible traffic code violations in order actually to get a look inside was permissible, notwithstanding the officers’ motivation or intention, as long as a reasonable officer could have stopped the driver for the traffic violations.

In the years that have followed Whren, court after court has given its imprimatur to the use of pretext by law enforcement officers to justify a search where probable cause to justify the officer’s real purpose in making the stop and search was lacking.

Some interesting recent decisions might indicate that there is a limit, after all, to the judiciary’s tolerance for such conduct.

In United States v. Robinson, No. 14-4902, 2016 WL 714968 (4th Cir. Feb. 23, 2016), police received an anonymous tip that a “black man had a loaded gun” that he concealed in his pocket before driving off in a car described by the tipster. A police officer soon spotted a car matching that description and noticed that the occupants were not wearing seatbelts. While, of course, his real agenda was to search the driver for the reported weapon, the officer stopped the car on the pretext of the seatbelt violation—a lawful stop under Whren. The officer ordered the driver, Mr. Robinson, the target of his quest to find the concealed gun, out of the car, conducted a Terry weapons frisk, and recovered the concealed gun. Robinson appealed the district court’s denial of his suppression motion on a conditional guilty plea.

In a fascinating opinion, the Fourth Circuit recognized the importance both of Whren stops and of Terry frisks and even agreed that, as a convicted felon, Robinson could not legally have possessed a gun. However, the court wrote, the mere fact that Whren allowed the intrusion of a pretextual stop did not then give license to the more intrusive Terry frisk, even with the tip concerning the gun that served as the true underlying reason for the stop. Even though a Terry frisk can be supported on reasonable suspicion alone, even though its rationale is to provide for the safety of the officer, who, here, lawfully stopped the car and its driver, and even though there was, indeed, reasonable suspicion to believe that Robinson was carrying a concealed weapon, the Terry frisk here was unlawful and the gun was suppressed.

As the court wrote, “times have changed” and these cases now have to be decided on a “different legal background,” which includes broader rights to carry concealed weapons. Where, in a different time or place, it might have been illegal for anyone to carry a concealed weapon, that is not so in this jurisdiction any longer. There was no reason to believe the driver of a car, believed to be carrying a concealed weapon, had committed a crime in doing so, and with these changes in the law, “Fourth Amendment and police practices must adapt.” The court pressed the need to deal with such issues in light of Whren to avoid permitting the lawful pretextual stop to automatically translate into a license to search without the independent presence of reasonable suspicion to frisk or probable cause to search.

In United States v. Paniagua-Garcia, No. 15-2540, 2016 WL 670162 (7th Cir. Feb. 18, 2016), Judge Posner added another dimension to the limitation on the pretextual stop itself.

An Indiana police officer stopped a driver after seeing him with his cellphone in his hand and his head bent toward the phone. The officer believed the driver was texting. Texting while driving is prohibited in Indiana. After pulling the driver over and questioning him at length, the officer received permission to search the car and found five pounds of heroin in the trunk. The defendant took a conditional guilty plea to the heroin possession, reserving the right to appeal the denial of his suppression motion.

In rejecting the claim that the officer had probable cause or reasonable suspicion to believe that the driver had committed a crime, Judge Posner focused on a whole host of activities the driver could have been doing with his phone other than texting. The fact that it was possible that he was texting was not sufficient, when it was just as possible that he doing one or more of other perfectly legal things with his phone. Judge Posner emphasized that there must be some limit placed on the concept of “reasonable suspicion,” writing that “[w]hat [the government] calls reasonable suspicion we call suspicion.”

The court emphasized that reasonable suspicion certainly is not to be equated with a mere possibility (that the driver was texting). As he wrote, on the government’s broad view, as applied to texting in this case, the search of a “random pedestrian for guns or narcotics” would always be licensed, even without a warrant or reasonable suspicion, for it is always “possible that the pedestrian was a bank robber, a hired killer on the loose, a drug lord or drug addict, or a pedophile with child pornography on his thumb drive . . . But our system must never permit governmental intrusion in the form of a stop or search based on that level of possibility.”

An important limitation on the use of the good-faith exception to attempt to justify the warrantless search of a home resulting in a conditional guilty plea to the possession of crack cocaine found during the search was established in United States v. Rush, 808 F.3d 1007 (4th Cir. 2015).

When a landlord shared with police her concern that an overnight guest was dealing drugs from her apartment, the police went to the apartment intent on searching it. Notwithstanding the owner’s consent to search, as a co-occupant, the overnight guest had a right to object to the search.

When the guest asked what was going on, the officer knowingly lied and told him that they had a search warrant for the apartment. The defendant then cooperated and admitted that the crack cocaine they found was his and that he had sold it from the apartment.

In finding the search unlawful and suppressing the cocaine and statements, the court rejected the attempt to expand the good-faith exception to include conduct that, while perhaps well-motivated (here, the intention purportedly was to protect the landlord, rather than violate the guest’s constitutional rights), is based on a knowing, intentional, and deliberate lie. The court held that the consent that follows such a lie cannot constitute valid consent and that no objectively reasonable officer could think that it would be lawful to search based on consent given on the false assurance that there was a search warrant.

The court emphasized the deterrent effect it should have on future Fourth Amendment violations to suppress evidence obtained “through a deliberate lie.”

These are just a couple of recent cases, but read together, perhaps with a bit of wishful thinking, they might be significant. They might reflect the view, at least in some judicial quarters, that it is time to establish some limits on conduct that tears at the integrity of a process that implicates fundamentally important constitutional rights. By definition, sanctioning the use of pretext by law enforcement officers to gain access where otherwise there would be none raises legitimate concerns on many levels. These cases set some outer limits.

Keywords: litigation, civil rights, criminal justice, search and seizure, Fourth Amendment


David Schoen practices law in Montgomery, Alabama.


Copyright © 2016, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).