Abstract
This note argues that through a series of Supreme Court holdings, culminating in Whren v. United States, that the current view on racially based profiling in traffic enforcement amounts to: “Don’t ask, don’t tell.” Twenty-two years after Whren, instead of reining in a police tactic that furthers feelings of resentment towards police by the African American community, the courts are expanding the pretextual stop doctrine. The latest evolution of the carte blanche approval of pretextual stops has been for courts to hold that Whren applies to non-moving, parking violations.
This note will question the wisdom of the hardline distinction between the home and the automobile, especially when an automobile is parked. As they are increasingly likely to contain private, personal information to which individuals have a reasonable expectation of privacy, automobiles are now, more than ever, deserving of robust Fourth Amendment protections. This note proposes a new legal test to determine when a pretextual stop violates the Fourth Amendment. This test is designed with a nonmoving vehicle in mind but could also be applied to moving vehicles.
This test also creates a middle ground for proponents of the old “pretext rule” approach (which stated that any seizure based on a pretext was unreasonable under the Fourth Amendment) and supporters of the current rule of Whren (which allows pretextual Fourth Amendment seizures). This approach also addresses those who have long argued for the need of flexibility in police tactics for enforcing laws, particularly when officers have developed suspicions based on their observations.
Recommended Citation
Stephen D. Hayden,
“Parking While Black”: Pretextual Stops, Racism, Parking, and an Alternative Approach,
44
S. Ill. U. L.J.
107
(2019).
Available at:
https://opensiuc.lib.siu.edu/siulj/vol44/iss1/6