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Traffic stops and the 4th Amendment

traffic stop.jpg

You're driving along in the right-hand lane, approaching an intersection where you want to make a left-hand turn.  Being the good driver you are, you put your turn signal on, move into the left lane, and complete the turn.  So you're non-plussed when you see a police cruiser make the turn behind you.  The officer puts on the lights and siren, and you immediately pull over.  You roll down the window and ask him what the problem is, and he tells you that the local ordinances require you to put your turn signal on one hundred feet before turning, and you put it on only seventy-five feet in advance, at best.

Now, here's the good news.  If you're white and live in at least a middle class suburb, pinch yourself, because that was just a dream.  

That's not intended as a comment about whatever degree of racism exists in the criminal justice system, it's intended as a simple statement of fact.  There is no one involved in law enforcement who would dispute that traffic laws are enforced much more vigorously in poor black neighborhoods.  Not as a method of making sure the traffic laws are obeyed, mind you, but as a means of enforcing the drug laws.  Because it doesn't end with a just a stop; as one commentator observed, once the officer stops you he can not only ask for various car papers, but can pull up your driving record, do a warrant check, run a criminal history, ask you questions about whether you've got a drugs or weapons and for consent to search your car, and if he gets the drug dog there quick enough, or develops some "reasonable basis" for prolonging the stop -- "furtive movements" will do nicely, and "seemed very nervous" will suffice in a pinch -- he can have Rover take a quick sniff around the car, and then search it if Rover alerts to drugs, and if the cops find no drugs but find a gun, well, too bad for you.

The commentator is quoted in Judge Sean Gallagher's concurring opinion last week in the 8th District's decision in State v. TravisTravis involved a traffic stop, and if the police officer's testimony was true (and why it often isn't was the subject of a recent op-ed piece in the Times), the search was indisputably legit, so Gallagher summarily recaps the facts and then goes into his main point:  that "this case is yet another small ripple in the incredible sea of change that has transformed traffic enforcement in Ohio."

Gallagher takes us down the legal road on that issue, and our first stop is Dayton v. Erickson, the 1996 Ohio Supreme Court decision which held that only the objective, not subjective, motivations of a police officer in making a traffic stop could be considered; in other words, as long as the officer had observed any illegal conduct, even the most trivial traffic violation, he could use that as a pretext to stop the car.  (The US Supreme Court had come to the exact same conclusion a month earlier in Whren v. US, but Erickson doesn't even mention that, instead using a 6th Circuit decision as primary precedent.)  Erickson required probable cause for a traffic stop, but 12 years later the Supreme Court held in State v. Mays that an officer needed only reasonable suspicion of a traffic violation to make a stop.  Mays dealt with a lanes violation, which requires a driver to stay within his lane "as nearly as practicable," and thus involves some measure of police discretion:  it's not a question of whether somebody used their turn signal or not.  But Mays didn't limit itself to "interpretative" statutes; it's now applied in virtually all cases.

Gallagher's legal analysis is a good one, and his concern welcome, but I think the problem goes beyond the logical shortcomings in Mays, which was basically that since probable cause would be sufficient to demonstrate reasonable suspicion, it works the other way, too.  Here's the thing:  we have established a policy which permits, and even encourages, selective law enforcement.  There is no question that the Fourth Amendment is applied differently to certain distinctive segments of the population.

The worst part about it, though, is that nobody ever discusses whether this is a good idea.  When the legislature passed HB 86, the latest sentencing reform package, they held innumerable hearings and took testimony from judges, prosecutors, defense attorneys, prison officials, and just about anyone else who had on opinion as to how the proposed changes would affect law enforcement, prisons, the state budget, and a variety of other factors.  When the Supreme Court decided Whren, it held no hearings, heard no testimony from anyone, as to how its decision would impact people.  The critical determination for a constitutional right is the proper balance between liberty and order.  If five people being briefly detained who otherwise wouldn't be results in one felony arrest, one might argue that the proper balance has been struck.  If it's fifteen or twenty people being detained, that might be another story.  The Whren Court had no idea what that number would be.  For that matter, it couldn't have cared less.  The policy decision that drove Whren was the legal one, that it's a lot easier for a judge to determine the objective information available to the police officer than to try to figure out what was in his head.

This isn't a call for the legislature to get into the area of defining the policy for traffic stops.  While that has worked in certain areas -- search and seizure law on wire intercepts is almost entirely defined by statute -- I think this area might be too multi-variegated for that.  Besides, it's not like there's a defined constituency pushing for this; I'd be hard-pressed to think of a campaign ad in which the candidate promised to crack down on illegal searches by the police.

But go back to what the commentator said about how traffic stops are done, and what I said about why:  it's almost entirely for enforcement of drug laws.  We may not have won the War on Drugs, but we sure opened a major can of whoop-ass on the 4th Amendment.

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