Volume 20

"Light Him Up": Addressing the Dangerous Intersection of Traffic Stops and Consent

by Geoffrey S. Corn

The legitimacy of policing has and remains an important topic of public interest, as well it should be. When members of a community lose trust in those entrusted to enforce the law, it chips away at the very foundation of a rule of law-based society. And, as the American public mood has confirmed, legitimacy can often be as much about perception as it is about reality. While calls to “abolish the police” are both misleading and unrealistic, the more salient desire to enhance the actual and perceived legitimacy of policing and, in so doing, enhance public trust and confidence in law enforcement and the broader criminal justice system are goals worthy of effort. One aspect of this enhancement process should focus on the ease by which Supreme Court jurisprudence related to traffic stops and consent intersect to provide a fertile field to cultivate pretextual and abusive police practices. This jurisprudence provides a proverbial “green light” for police to utilize traffic stops as pretexts to seek consent to search individuals they have no good cause to otherwise search. And, when coupled with the ease by which the validity of consent can be established, these type of traffic stops subject too many individuals to consent-based “fishing expeditions” by police. Because the jurisprudential foundation for this intersection of authorities is unlikely to be modified, lawmakers should consider other mechanisms to strike a more “legitimate” balance between law enforcement authority and the protection of individuals from pretextual use of that authority. This article proposes such a mechanism, one drawn from the experience of military search and seizure law: imposing a heightened burden on the State to prove valid consent when that consent is the product of a traffic stop unrelated to the request for the consent. Such a rule will mitigate the risk of pretextual traffic stops by limiting the existing incentive to use them as the first step in con-ducting consent searches. By doing so, this new practice will mitigate the consequences of traffic stops and thus enhance the perceived legitimacy of the exercise of this authority.

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