America has long struggled with the dangerous problems of traffic law enforcement and criminal law enforcement. Lawmakers and law enforcement have a genuine interest in providing for the safety of the people, both by ensuring safety on the roadways and by disrupting the commission of crimes. While most of us consider simple traffic violations to be in an entirely different world from crimes such as drug smuggling and murder, law enforcement initiatives have often lumped these issues together. But can the goals of maintaining adherence to the rules of the road and detecting dangerous crimes be accomplished in one fell swoop?
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The Legal Background of Pretextual Stops:
For decades, these goals have been intertwined in the context of pretextual stops. A pretextual stop occurs when a police officer pulls over a motor vehicle operator in order to investigate speculative criminal activity unrelated to the motorist’s driving. There are legal rules in place that broadly permit pretextual stops, most relevantly that officers are permitted to stop virtually any car that they observe violating a traffic law. That is to say, officers must have reasonable suspicion that a traffic violation or crime has occurred before they can legally pull over a vehicle. This can be a moving violation, such as speeding, or – as is often the case in
pretextual stops – a non-moving violation, such as having an expired registration. Although officers do not uncover evidence of a crime during most traffic stops, there are plenty of pretextual stops that lead to arrest. For example, a defendant may be stopped for improperly changing lanes, then be subsequently arrested when an officer discovers there is marijuana in their car.
It may seem deceitful that officers can pull a car over with the intent to investigate something other than enforcement of traffic laws. However, pretextual stops have been held to be legal by both federal and state courts. In Whren v. United States (1996), the Supreme Court of the United States held that the constitutional reasonableness of a traffic stop does not depend on the actual motivations of the individual officers involved. Rather, officers are permitted to temporarily detain a motorist so long as there exists probable cause to believe the motorist has committed a violation of the law. This is considered to be consistent with the Fourth Amendment’s protections against unreasonable search and seizure, because the violation of traffic law creates a legal reason for police to seize the defendant and their vehicle, regardless of the officers’ subjective intentions. The Whren standard was reiterated in Georgia in the case Brantley v. State of Georgia (1997) and in Tennessee in the case State of Tennessee v. Vineyard (1998). Building off the legality of pretextual stops, the Supreme Court has even ruled that officers can legally use a drug detection dog to sniff around a motorist’s vehicle during a traffic stop. See our blog on the application of Stop and Sniff for more details on this!
At Best & Brock, as leaders of DUI defense in the greater Chattanooga area, we often see the use of pretextual stops in DUI detection and investigation. Most DUI stops are initiated due to suspicious or illegal driving behavior, such as speeding, failing to maintain one’s lane of travel, or an automobile accident. In these instances, the driving behavior is not only used as a reason to stop the vehicle, but also as evidence of the defendant’s impaired driving ability due to intoxicants. In some other DUI stops, non-moving violations are used by officers to initiate a stop that leads to a DUI investigation. Despite officers not witnessing these drivers commit any traffic infractions, they form the opinion that the driver is operating the vehicle under the influence of an intoxicant once they make contact with the driver.
How can I avoid a pretextual stop?
Technically, you can avoid a pretextual stop by not committing any traffic violations, including keeping your vehicle in working condition and maintaining up-to-date records on your vehicle and license. However, advising you to avoid pretextual stops entirely would be impractical. Oftentimes, the traffic law is so complex that even defense attorneys aren’t aware of all the little reasons officers may find to pull a motorist over. Besides, you aren’t likely to be aware your vehicle has a tail-light out until an officer pulls you over to let you know. Ultimately, officers’ application of pretextual stops can be difficult to predict. While officers are often
directed to target zones known to have high rates of traffic infractions and crime, officers may also initiate a pretextual stop on any vehicle they find suspicious, if they find the right reason.
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The real question then, is what to do if you happen to be pulled over for a pretextual stop.
What do I do if an officer pulls me over? How will I know it’s a pretextual stop?
A pretextual stop may very quickly be distinguishable from a regular traffic stop. In a normal traffic stop, an officer will typically collect your license, alongside the registration and insurance for your vehicle, and go back to their patrol car to write you a citation. Upon issuing the citation – and perhaps after giving you a stern talking-to about obeying traffic laws – the officer will let you go. Officers may ask some probing questions during this time, such as where you’ve been and where you’re headed. While these questions are unrelated to the traffic violation itself, they are the testing ground for a pretextual stop.
If an officer notices inconsistencies in a driver’s answers to their questions, if the driver seems unreasonably nervous, or the driver appears to be under the influence of an intoxicant, the officer may become suspicious and continue questioning. This questioning could very quickly lead to the officer asking the driver to step out of the vehicle. Depending on what crime the officer suspects is being investigated, the officer may ask the motorist to submit to field sobriety testing, or to a search of their person and vehicle.
Here’s some of the most important advice you might hear in your lifetime: do NOT consent! If an officer asks you to permit a search of your vehicle or person, or to submit to field sobriety testing, you have the right to refuse. Do yourself a favor and don’t hand officers the evidence they need to arrest you.
Additionally, you have the right to not answer the officer’s questions. While we DO NOT recommend lying to law enforcement, we DO recommend enforcing your Fifth Amendment right against self-incrimination. When officers begin asking questions such as “Are there any illegal drugs in your vehicle?”, you can and should inform them that you will not answer any questions without your lawyer present. By answering questions, you may accidentally give officers probable cause to search your vehicle without a search warrant.
Pretextual stops may be a different story when a vehicle clearly smells of marijuana or when an illegal substance is in plain view upon an officer making contact with a driver. In such situations, the officer has probable cause to search the vehicle – and arrest the motorist if necessary – upon witnessing the evidence of illegal activity. This so-called “plain view” exception to the Fourth Amendment allows officers to search and seize evidence without a warrant. However, the officer must have had the legal right to be in the position that enabled them to witness the crime in order for the plain view exception to apply (Collins v. Virginia, No.16-1027, 584 U.S. ___ (2018)). Therefore, the officer must still have a valid reason for the initial traffic stop in order to utilize the observed illicit activity or material as evidence of a crime.
Officers cannot legally search your car or personal property without your consent, a search warrant, or another exception to the warrant requirement. Don’t give officers permission to collect evidence against you – make them work for it.
Balancing Constitutional Rights with Cooperation
Best & Brock are staunch advocates for the preservation of your Constitutional rights, both in and out of the courtroom. However, it is important to balance those protections from government overreach with cooperation. Being uncooperative, combative, or even just rude during a traffic stop can become dangerous quickly. Pretextual stops can be especially tense situations for officers and motorists alike. The interaction is sometimes longer than a typical traffic stop, and motorists can feel targeted when officers begin questioning. Defensiveness on the part of the driver may be interpreted as aggression by the officer stopping them. Officers may feel particularly threatened if they already suspect that there may be weapons in a vehicle. In one way or another, these traffic stops can escalate into deadly encounters at the speed of light.
Do your best to keep your interaction with the police from escalating. Remain calm and be respectful. Additionally, comply when officers order you to provide your license and other documents, or to exit the car. Safety should be your number one priority when interacting with law enforcement.
Recent Policy Developments
Following the wrongful death of a young man during a traffic stop, the Memphis City Council passed a city ordinance that prohibited police stops for minor traffic infractions. This action would have significantly decreased the number of pretextual stops made in the city, for better or for worse. Soon after, however, a bill passed through the Tennessee General Assembly prohibiting “a local governmental entity or official from adopting or enacting a resolution, ordinance, or policy that prohibits or limits the ability of a law enforcement agency to conduct traffic stops based on observation of or reasonable suspicion that the operator or a passenger in a vehicle has violated a local ordinance or state or federal law” and nullifying any existing such ordinances. The bill was signed into law by Tennessee’s governor, Bill Lee, in March 2024.
While the new law was not statedly introduced in response to the Memphis city ordinance, the legislations’ interrelatedness is clear.
This dialogue between Tennessee lawmakers demonstrates the volatility of the conversation surrounding pretextual stops. While some maintain that pretextual stops are an indispensable tool for law enforcement, others assert that they are too dangerous, or simply aren’t an effective tool for keeping the public safe.
Thankfully, it is not only up to lawmakers and law enforcement to determine the future role of pretextual stops in traffic and law enforcement. It’s also up to you! Elected officials need to hear what the public thinks about policies that impact us. American democracy depends upon our participation!
Don’t Wait to Seek the Best Legal Support
Although pretextual stops may be unavoidable, you can avoid fighting your charges on your own. Let Best & Brock be your analysts and strategists. We will do everything within our power to protect your rights while advocating for an equitable resolution to your case. Reach out by calling (423) 829-1055 or by filling out our online contact form to set up a free consultation with one of our excellent defense attorneys.
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