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.

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