Whren, Whren, Go Away…: Could the Days of the “Pretextual Traffic Stop” Be Numbered?
By Tia L. Holmes[*]
The “pretextual traffic stop”[1] issue appears to be on the minds of more and more lawyers and judges these days. The issue stems from a policing practice that was approved by the United States Supreme Court in Whren v. United States, 517 U.S. 806 (1996).[2] For decades, critics have expressed concern that Whren distorted or largely ignored the Fourth Amendment jurisprudence that preceded it, gutted Fourth Amendment protections for drivers and passengers, and authorized racial profiling[3] on America’s roadways.[4] These days, it is common to find briefs, scholarly works, and dissenting opinions decrying the policing practice. Even during an oral argument, it is difficult to avoid a discussion about pretextual traffic stops when the circumstances of a traffic stop are at issue.
Last year, I authored a post discussing Judge Dan Friedman’s concurrence in Snyder v. State, 2023 WL 1497289 (Feb. 3, 2023), in which he expressed his view that “Whren was wrong when it was decided in 1996 and remains both wrong and dangerous today.” My dedication to this issue has revealed that Judge Friedman is not alone. He joins dissenting judges throughout the country who also are concerned about Whren’s ongoing effects.[5] But judges have not only dissented. At least two states have declared pretextual traffic stops unconstitutional and departed from Whren on state constitutional grounds.[6] So, what does this mean for Maryland?
Read More…Robert Badinter: Homage to a Visionary Advocate Across the Atlantic
Robert Badinter, a French lawyer, politician, and author, widely known across the Atlantic for his powerful advocacy and activism against the death penalty, died last week in France. Here in the United States, his death has largely gone unnoticed outside of the capital defense community. Still, there are few, if any, in France who do not recognize his name and mourn the loss of his voice. As the homages have poured in over the last several days, I wanted to share my thoughts as a French native and attorney about the legacy of a man whose accomplishments in the fields of human rights and civil liberties demonstrate the full potential of the art of advocacy.
Read More…February 2024 Maryland Certiorari Grants
On Friday, the Supreme Court of Maryland granted review in one criminal case and two civil cases.
Read More…Judge Stephen Kehoe Appointed to ACM
Governor Wes Moore’s first appellate appointment is Judge Stephen Kehoe, for the Eastern Shore seat on the Appellate Court of Maryland. Judge Kehoe replaces his older brother, Judge Christopher Kehoe, who has been a Senior Judge on the Court since August.
Because Governor Moore made this appointment during the General Assembly session, it will not take effect until confirmation by the Senate.
Below is the Governor’s February 8 press release:
Read More…When a Woman’s Questions About Her Right to Choose Is Proof of Intent to Kill at Birth
In Akers v. State (September Term 2022, No. 0925) (unreported), Moira Akers searched the Internet for information about aborting her pregnancy. Akers’ pregnancy was in the first trimester, and she was within her rights to investigate her options to end it. She chose to continue the pregnancy. Still, her cell phone kept a digital record of her search history. Following the death of her newborn—which she maintained was stillborn during a home birth—the police seized her phone and reviewed her search history. At her trial for the first-degree murder of her infant, the prosecutor offered Akers’ search history as proof of her intent to kill the newborn infant. Akers objected, arguing that her questions about her right to lawfully terminate the pregnancy did not generate an inference of an intent to kill a newborn child at birth. In a case of first impression, the Appellate Court of Maryland (ACM) held that Akers’ Internet searches for abortion information made it more likely that she intended to kill her newborn child. The ACM cautioned that its holding “should be read narrowly, and in strict accordance with the specific facts of this case.” Still, the ACM’s decision implicates important questions about a woman’s reproductive rights in the context of a criminal case after Dobbs v. Jackson Women’s Health Organization.
Read More…
Maryland Appellate Blog 