Whren, Whren, Go Away . . .
By Tia L. Holmes[*]
Early last month, the Appellate Court of Maryland issued its unreported opinion in Snyder v. State, App. Ct. of Md., Sept. Term 2021, No. 1127 (Feb. 3, 2023). Snyder involved a pretextual traffic stop that the Court concluded was authorized by Whren v. United States, 517 U.S. 806 (1996). During the traffic stop, Mr. Snyder’s vehicle was searched, and the fruit of that search led to his arrest and subsequent conviction. The Court reversed Mr. Snyder’s conviction because the evidence that was used to convict him had been seized in violation of the Fourth Amendment. Concurring with the Court’s decision, Judge Dan Friedman wrote separately to express his views regarding Whren and to urge the Supreme Court of Maryland to abandon the failed federal doctrine established in Whren.
In a previous post about the Snyder opinion, Maryland Appellate Blog editor Chris Mincher left an open invitation for a discussion about Judge Friedman’s concurrence. I accepted his invitation because, in my opinion, Judge Friedman’s concurrence is the most important part of the Court’s decision.
Judge Friedman’s Concurrence
Although the majority concluded that the initial traffic stop was constitutional under the governing framework established by Whren, Judge Friedman wrote separately because, in his view, “Whren was wrong when it was decided in 1996 and remains both wrong and dangerous today.” He offered four reasons why Whren is wrong and dangerous:
- “Whren makes us all less free[,]” because officers acting under its authority can stop us for any reason at all.
- Whren is not in accord with the text and history of the Fourth Amendment.
- “Whren leads, almost inexorably, to discriminatory policing” and “has directly led to disproportionate harms to drivers of color.”
- “Whren may create more and more adversarial interactions between law enforcement and the citizenry, which may in turn add to increased dangers to both groups.”
Judge Friedman clearly took issue with how the so-called constitutional stop came about in the first place. To be certain, neither trial nor appellate counsel challenged the constitutionality of the initial stop likely because of Whren. Even though the issue was neither raised nor preserved, Judge Friedman discussed the issue because: (1) at the root of Mr. Snyder’s case was the officer’s decision to follow Mr. Snyder because he found it suspicious that Mr. Snyder did not look over at him like all the other drivers; (2) even though this type of policing is constitutional, that does not make it “necessary, safe, appropriate, or consistent with our democratic values”; and (3) defense counsel should challenge a Whren-style stop in a future case.
For these various reasons, he issued a call to action for defense counsel and the Supreme Court of Maryland.
To defense counsel: “[P]reserve the issue in an appropriate, future case.”
To the Supreme Court of Maryland: “[A]dopt an independent interpretation of Article 26 of the Maryland Declaration of Rights, free from the malign influence of the Whren doctrine.”
For one to fully understand the importance of Judge Friedman’s opinion, one must understand Whren and the impact that it has on drivers and the officers and prosecutors who rely on it to justify predatory policing practices. I write here to discuss that impact and to illuminate the importance of his call to action.
Whren and Its Impact
Whren stands for the proposition that, whenever an officer observes a traffic violation, the officer has probable cause to make a traffic stop, notwithstanding the officer’s ulterior motive for enforcing the traffic law at that time. In Whren, two black men were arrested and convicted on federal drug charges, following a traffic stop that began with a traffic violation. They moved to suppress the evidence obtained during that traffic stop, arguing that the police officers used the traffic violation as a “pretext” for conducting the traffic stop. The Supreme Court rejected the pretext argument and unanimously held that a police officer may stop a vehicle if that officer has probable cause to believe that a traffic violation has occurred, and the reasonableness of that traffic stop does not depend on a police officer’s motivation for conducting the traffic stop.
Whren ushered in an era of unbridled policing on roads and highways and stymied challenges to racial profiling in traffic stops. To many critics, Whren opened the door for police to engage in racial profiling by conducting race-based traffic stops and using traffic violations as a pretext. In other words, officers are authorized to conduct race-based traffic stops as long as they cite a traffic infraction as the reason for the stop.
When Whren was decided in 1996, the racial profiling door was wide open in Maryland. With extensively documented evidence of a “pattern and practice of discrimination” in traffic stops along Interstate 95 in northeastern Maryland and a three-year Department of Justice investigation of the Montgomery County Police Department as a backdrop, the Maryland General Assembly passed legislation in an attempt to combat racial profiling in traffic stops.
In 2001, Chapters 342 and 343 were enacted under Section 25-113 of the Transportation Article. Section 25-113 requires the State’s law enforcement agencies to adopt a policy against race-based traffic stops as a management tool to promote nondiscriminatory law enforcement practices. The law also requires law enforcement agencies to compile data collected by each officer following each traffic stop and report the data to the Maryland Statistical Analysis Center (MSAC) annually. In turn, the MSAC must make those statistics available to the public.
So, what do current statistics tell us about traffic stops in Maryland? During the five-year period currently reported (2016 – 2021), the 135 reporting law enforcement agencies reported that 4,353,464 traffic stops were completed. The most cited reason for traffic stops during that period is a catchall category called “All other stops,” which comprises 849,460 or 21.94% of all stops. The “Equipment” category is a close second, comprising 784,784 or 20.27% of all reasons for traffic stops. Of the 4,353,464 traffic stops reported, 63.9% of drivers were male, 43.4% of all drivers were “white,” and 41.3% of all drivers were “black.” Searches were conducted during 3.28% of those stops and 1.12% resulted in an arrest.
These data tend to suggest that race-based stops are under control, considering more drivers who were identified as white comprised the majority of those stopped from 2016 to 2021. However, the data demonstrate that drivers who were identified as black and Hispanic were searched and arrested more often than white drivers. Compare black drivers (percent of stops resulting in a search = 4.24% and percent of stops resulting in an arrest = 1.23%) and Hispanic drivers (percent of stops resulting in a search = 2.94% and percent of stops resulting in an arrest = 1.44%), with white drivers (percent of stops resulting in a search = 2.75% and percent of stops resulting in an arrest = 1.07%). This suggests that post-stop investigations occur more often when a driver of color is involved.
Putting race and ethnicity aside, the data demonstrate that Whren-style policing may be the impetus for all stops. The most-cited reasons for the traffic stops are the catchall, “all other stops,” and “equipment,” which is likely to plague any oblivious driver who failed to ensure that every part on their car was operating properly before hitting the road that day. This suggests that more serious traffic infractions do not occur frequently, or they take a backseat while officers seek out minor infractions that may lead to fruitful searches and seizures.
In Mr. Snyder’s case, he was followed by an officer who thought he looked “suspicious” when he rode by. That officer, empowered by Whren, pursued Mr. Snyder in the hope that Mr. Snyder would violate some traffic law so that he would have a pretextual reason to stop Mr. Snyder and confirm his suspicion. The encounter continued with a K-9 sweep of Mr. Snyder’s vehicle and a positive alert that contraband was present in the vehicle. And it ended with Mr. Snyder’s arrest. Fortunately for Mr. Snyder, the Appellate Court rebuked the six reasons that the officer and the State proffered to justify his detention, arrest, and conviction.
But Mr. Snyder’s encounter is not the reality for many people of color, namely people who appear and/or identify as black, African American, Latino, or Hispanic. Whren increases the chances that, like Mr. Snyder, drivers of color may be pursued based on some suspicion and stopped once the officer finds a “lawful” justification for the stop. And a Whren-style stop is only the beginning of a life-ending or life-altering encounter for a driver of color. One need only look to Philando Castile, Sandra Bland, George Floyd, and countless others who lost their lives during police encounters. And, without statistics, I will surmise that, unlike Mr. Snyder, some people of color are serving prison sentences for convictions that arose from Whren-style stops because the facts borne out at their suppression hearings did not demonstrate, from the perspective of an appellate court, a Fourth Amendment violation.
The U.S. Constitution outlines the rights and liberties of the people. It also defines the scope and limitations placed on the government’s power. When it comes to police-citizen encounters, the Fourth Amendment is one of the chief protectors of the rights of the people during those encounters. It is rooted in American history as a rebellion against oppressive police practices that usurped judicial authority. Thus, its power is vested in its ability to protect citizens from arbitrary and unfettered governmental intrusions on their personal liberties.
On the other hand, Whren encourages arbitrary and unfettered governmental intrusions that continue to disparately impact people of color. It authorizes predatory policing of all Marylanders because it is an impetus for increased roadside police encounters that, as demonstrated by Snyder, can begin with some innocent yet “suspicious” behaviors exhibited by drivers. In effect, Whren eroded the protections guaranteed by the Fourth Amendment and enlarged the immunity of officers acting under the decision’s authority.
Indeed, Maryland officers feel empowered by Whren and the appellate courts to continue this style of policing. While the law requiring policies against race-based traffic stops and statistical reporting is well-intentioned, it has done little to curb the evils of racial profiling by establishing a minimum requirement that a policy “prohibit the practice of using an individual’s race or ethnicity as the sole justification to initiate a traffic stop.” As Whren makes clear, an officer may stop an individual for any reason as long as a traffic law of any sort was violated. The driver’s race may very well be a motivating factor, if not the sole factor, for pursuing a driver to find such a violation.
Like Judge Friedman, I believe that, for as long as Whren permits pretextual stops in Maryland, all Marylanders are less free. And much more is required to protect Marylanders from Whren-style policing. For these reasons, I believe that Judge Friedman’s concurrence is important.
 Anyone who is curious about how the Court may be persuaded to adopt an independent interpretation of Article 26 should take a look at Judge Friedman’s scholarship on the subject. He has researched and written extensively about interpreting state constitutions separately from the U.S. Constitution. See, e.g., Richard Boldt & Dan Friedman, Constitutional Incorporation: A Consideration of the Judicial Function in State and Federal Constitutional Interpretation, 76 Md. L. Rev. 309, 334-44 (2017) (discussing three approaches to interpreting provisions of state constitutions that have analogous provisions in the U.S. Constitution); Dan Friedman, The History, Development, and Interpretation of the Maryland Declaration of Rights, 71 Temp. L. Rev. 637, 645-46 (1998) (explaining how to craft arguments based on the Maryland Declaration of Rights); Dan Friedman, Does Article 17 of the Maryland Declaration of Rights Prevent the Maryland General Assembly from Enacting Retroactive Civil Laws?, 82 Md. L. Rev. 55, 61 n.25 (2022) (restating the “principled reasons” that a state court might depart from federal constitutional jurisprudence and adding the reason provided in Leidig v. State, 475 Md. 181, 209, 237-39 (2021)).
 “Racial profiling” in this context refers to police officers stopping motorists of color simply because they fit the “profile” of people who might carry contraband, drugs, or other illegal items.
 See, e.g., Tracey Maclin & Maria Savarese, Martin Luther King, Jr. and Pretext Stops (and Arrests): Reflections on How Far We Have Not Come Fifty Years Later, 49 U. Mem. L. Rev. 43, 66 (2018) (“In 2018, we continue to see the consequences of Whren. Studies from the Department of Justice, Stanford University, and civil rights organizations indicate that racial disparities in traffic stops remain rampant.”); Kevin R. Johnson, How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering, 98 Geo. L.J. 1005, 1070 (2010) (“In sum, the Supreme Court’s decision in Whren v. United States authorized and encouraged police to employ pretextual traffic stops as a tool in the ‘war on drugs.’ The Court’s refusal to consider the intent of police officers in its Fourth Amendment analysis created a safe haven for racial profiling by the police. Lower courts seized on the decision to justify pretextual traffic stops. And equal protection claims challenging racial profiling, the only legal avenue of relief that remained, have been notoriously difficult to prove.”); David A. Harris, “Driving While Black” and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. Crim. L. & Criminology 544, 560 (1997) (“[W]hile Whren certainly makes it possible for the police to stop anyone, the fact is that police will not stop just anyone. In fact, police will use the immense discretionary power Whren gives them mostly to stop African-Americans and Hispanics.”).
 I mean no disrespect to other races, ethnicities, and nationalities by reporting only “black,” “white,” and “Hispanic” statistics. I mean only to report the populations identified in the statistics that comprise the largest proportions of the data discussed herein.
 According to some, the data obscure the truth about current racial profiling because the data are unreliable. See Lindsay Huth, Unreliable police data obscures tracking of racial profiling: Do Maryland police target minorities? The data should tell us, but it can’t., Capital News Service (2019).
 See Henry v. United States, 361 U.S. 98, 100-02 (1959).
 See Neal Augenstein, Amid scrutiny, Montgomery Co. police explain why ‘pretext traffic stop’ is not racial profiling, WTOP.com (Oct. 29, 2020) (quoting a Montgomery County officer’s remarks to the Montgomery County Council’s Public Safety Committee: “Pretext traffic stops are not racial profiling,” and “Maryland’s appeals courts have issued several rulings supporting the legality of pretext stops.”).
 Md. Code Ann., Transp. § 25-113 (g)(2)(i) (emphasis added).
[*] Tia is an Assistant Public Defender in the Appellate Division of the Maryland Office of the Public Defender. The opinions expressed in the article are the author’s own and do not constitute a statement from the Maryland Office of the Public Defender.
Michelle Hall’s op-ed in the Baltimore Banner sheds more light on the Whren problem by focusing on the fact that officers can use the odor of cannabis as probable cause to search a vehicle.(https://www.thebaltimorebanner.com/opinion/community-voices/marijuana-odor-alone-shouldnt-be-pretext-for-police-stops-searches-65CCBRQPRFC5BJDN45Q4SW4DAA/).
With legalization of recreational use of cannabis approaching, lawmakers are considering changing the odor law to protect Marylanders from this type of overreach. If passed, Senate Bill 51 and House Bill 1071 will finally address this lingering issue.