Many American drivers have been pulled over by a police officer at some point in their lives. Police make approximately eighteen million traffic stops per year in the United States.[1] Twelve percent of drivers are stopped per year by the police.[2] For minorities, that rate is higher: twenty-four percent of non-white drivers every year by the police.[3]

Anyone with a driver’s license knows that it is impossible to obey every traffic rule at all times. How many of us pause at a stop sign for precisely the right amount of time, or turn on our turn signal at precisely the correct distance from an intersection? It is well established that police use these minor traffic violations as a pretext to stop drivers and search their cars for more serious legal violations.[4] When more African American drivers are pulled over than white drivers, and more frequently subject to these searches when the police do pull them over, it becomes clear that the way police conduct these investigatory stops perpetuates the racial divide in America.[5]

The Supreme Court has definitively permitted police officers to use minor traffic violations as a pretext to stop and search vehicles. In 1993, Michael Whren and James L. Brown, two African American men who were driving around a D.C. neighborhood, were stopped by plainclothes officers in an unmarked car.[6] The officers claimed that the driver failed to use a turn signal after stopping at a stop sign.[7] Under the pretext of this minor traffic violation, the police pulled Whren over and saw a bag of cocaine sitting in Whren’s lap.[8] The officers admitted they had no reasonable suspicion that either man was involved in a crime, but the police nevertheless pulled them over based on a traffic violation so that they would have an excuse to investigate drug activity.[9]

The Supreme Court ruled in Whren v. United States that it is constitutional for police officers to stop vehicles when the alleged traffic violation is only a pretext for the stop.[10] Under the Fourth Amendment protecting citizens against unreasonable searches and seizures, it does not matter if the police’s true motive was to search for drugs.[11] If there is any minor traffic violation, the police can pull over a driver, even when there is no evidence of illegal drug activity.

Most people who are stopped and searched by police are innocent.[12] But when police are trained to conduct “investigatory stops” based on a pretext, they necessarily act on the basis of implicit biases. These implicit biases lead to racial disparities.[13] In The New Jim Crow, Michelle Alexander writes that the Drug Enforcement Agency (DEA) trains police to conduct “utterly unreasonable and discriminatory stops throughout the United States.”[14] An example is Operation Pipeline, a program launched by the DEA in 1984, which trained police to use pretextual stops for drug searches. Alexander writes that officers learn “how to use a minor traffic violation as a pretext to stop someone, [and] how to lengthen a routine traffic stop and leverage it into a search for drugs.”[15] Because African Americans are stopped more often than other people, they learn to distrust the police for arbitrarily stopping them for no reason other than their race.

African American drivers who are subject to these investigatory stops based on traffic violations suffer more than a mere inconvenience. These experiences convey messages about who is an equal member of society and who is arbitrarily perceived as a criminal.[16] Charles R. Epp, in Pulled Over: How Police Stops Define Race and Citizenship, writes that African Americans subjected to these stops view them as deeply unfair.[17] He argues that many white people would rate their experience with a police officer based on how polite or respectful the police officer was to them.[18] If the police officer was respectful, a white driver may view the encounter as a legitimate one.[19] However, Epp points out that for many African Americans, police stops are fundamentally unjust no matter how polite or respectful the officer was to them.[20] Epp writes that “the claim that people will view police stops as legitimate if the officers are polite and respectful has allowed the widespread stopping of racial minorities to fester.”[21] For many African Americans, it does not matter how polite the police officer was during a police stop: “Politeness could not convert an otherwise offensive police stop into a legitimate one.”[22]

The Supreme Court has historically centered Fourth Amendment case law on individualized suspicion about the conduct of an individual person.[23] The person is effectively a stranger to police, and only appears on their radar by behaving in a way that looks suspicious to police. The Fourth Amendment doctrine centers on “actions, not individuals.”[24] However, when police start patrolling and surveilling urban areas and watch people of a certain race more closely than others, the Fourth Amendment becomes less about individualized suspicion, and more about making assumptions about certain demographics.[25] Acting on these assumptions has negative impacts on many innocent Americans.

Unfortunately, African Americans’ common experience of investigatory stops contributes to their perception that they are not regarded as full and equal members of society.[26] When police departments can and will use any excuse to investigate African Americans, they perpetuate a cycle of distrust of law enforcement in that community.

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[1] Charles R. Epp et al., Pulled Over: How Police Stops Define Race and Citizenship 2 (2014).

[2] Id.

[3] Id.

[4] Michelle Alexander, The New Jim Crow 68 (2012).

[5] See Epp, supra note 1, at 3.

[6] Whren v. United States, 517 U.S. 806, 808 (1996).

[7] Id. at 808.

[8] Id.

[9] Id. at 813.

[10] Whren v. United States, 517 U.S. 806 (1996).

[11] Id.

[12] See Alexander, supra note 4, at 70.

[13] See Epp, supra note 1, at 7.

[14]Alexander, supra note 4, at 70.

[15] Id. at 70.

[16] See Epp, supra note 1, at 2.

[17] Id. at 4.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

[22] Id. at 5.

[23] See Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. Pa. L. Rev. 327 (2015).

[24] Id. at 332.

[25] See generally id. at 395.

[26] Epp, supra note 1, at 2.