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?

If one were to look to the countless cases where Maryland courts explain that Article 26 of the Maryland Declaration of Rights is generally construed in pari materia with the Fourth Amendment, the prospect of departing from Whren on state constitutional grounds here in Maryland may appear bleak. However, a closer look at Maryland’s case law reveals that the blueprint for departing from the Fourth Amendment on the basis that Article 26 provides more protection for its citizens has been written into Maryland’s case law for decades. One need only follow the trail.

In 2007, Judge Irma Raker wrote an article wherein she discussed the cases that “left open [the door] for the court to rely on Article 26 and to deviate from the United States Supreme Court’s Fourth Amendment interpretation.”[7] In the article, she first notes early cases that led the General Assembly to create a statutory exclusionary rule for misdemeanor offenses (before curiously repealing it), and then she discusses the more recent cases wherein petitioners urged the Court to depart from federal precedent.[8] Judge Raker’s discussion of Maryland’s Article 26 case law demonstrates that, while Article 26 and the Fourth Amendment are similar, Maryland courts are not bound to construe the constitutional provisions in lockstep.

More than two decades ago, Judge Charles E. Moylan, Jr. issued a warning to officers that abuse of the Whren stop may force a change in the law. In Charity v. State, 132 Md. App. 598, 601-02 (2000), where a Whren-style traffic stop was squarely at issue, he said:

If there is a lesson to be learned from this case, it is that when the police are permitted a very broad but persistently controversial investigative prerogative, they would be well advised, even when not literally required to do so, to exercise that prerogative with restraint and moderation, lest they lose it. In Whren . . . , the Supreme Court extended law enforcement officers a sweeping prerogative, permitting them to exploit the investigative opportunities presented to them by observing traffic infractions even when their primary, subjective intention is to look for narcotics violations.

The so-called “Whren stop” is a powerful law enforcement weapon. In utilizing it, however, officers should be careful not to attempt to “push out the envelope” too far, for if the perception should ever arise that “Whren stops” are being regularly and immoderately abused, courts may be sorely tempted to withdraw the weapon from the law enforcement arsenal. Even the most ardent champions of vigorous law enforcement, therefore, would urge the police not to risk “killing the goose that lays the golden egg.”

Pre- and post-Whren Maryland courts have demonstrated that pretextual traffic stops should have limits. In the pre-Whren decision, In re Albert S., 106 Md. App. 376 (1995), the Appellate Court of Maryland expressed discontent with how an officer gained access to a vehicle under the guise that he was enforcing the trespassing law. There, a police officer stopped a car because he believed the driver and passenger were trespassing in a neighborhood. After detaining the driver and teenage passenger, the officer believed the teenage passenger’s behavior warranted further investigation. In holding that the officer did not have a reasonable suspicion that the vehicle’s occupants were trespassing or otherwise involved in criminal activity, the court acknowledged that the facts that gave rise to any suspicion were obtained by first stopping the car and remarked that “[a]llowing police to detain a vehicle on the facts presented here would arbitrarily subject too many innocent visitors to an unwarranted invasion of their privacy.”

In the post-Whren decision, Rowe v. State, 363 Md. 424 (2001), the Supreme Court of Maryland declined to justify a traffic stop under Whren, where the circumstances demonstrated that the basis for the traffic stop was untenable. See also Whitehead v. State, 116 Md. App. 497 (1997) (holding that officer’s detention of a person after a pretextual traffic stop was unlawful in that the detention was for purpose of determining whether the officer could acquire sufficient probable cause that would permit him to search the vehicle).[9]

Even using just these cases, one can piece together a path to a departure from Whren. And when considering the Supreme Court of Maryland’s signal in Leidig v. State, 475 Md. 181 (2021), that it will depart from federal doctrine when the circumstances of the case and federal precedent compel such an outcome, a change seems likely. But, of course, change can come only if those who retain power develop an appetite for change.

It is no secret that the pretextual traffic stop issue provides a feast for such an appetite.

• Due to the myriad of traffic violations that exist in the Maryland Code, Whren gives police officers too much authority, as Judge Moylan cogently acknowledged.[10] And that authority comes at the expense of people’s privacy rights.
• Pretextual traffic stops disproportionately impact people of color, specifically Black and Brown people.[11] This was true in Maryland prior to Whren and it remains true today.[12] This reality leaves Black and Brown people with the feeling that they are less protected in the criminal legal system. Research demonstrates that, when police are permitted to engage in pretextual policing, drivers of color are stopped at higher rates than when they are not permitted to use pretexts to justify traffic stops.[13]
• Whren fails to acknowledge or deem legitimate the existence of racial profiling and the role that implicit bias plays in the criminal legal system, beginning with the police.[14]
• Traffic stops are some of the most dangerous police encounters and are one of the common ways that most citizens interact with the police.[15] As recent history has taught us, traffic stops for the low-level and non-safety-related traffic offenses (broken taillight, obstructed registration plates, expired registration, etc.) can often lead to violent and fatal encounters. Consider for example: Demonte Ward-Blake, who was brutally beaten and ultimately died after being pulled over by Prince George’s County police officers for driving with expired tags; Philando Castille, who was stopped for driving with a broken taillight and fatally shot 40 seconds into the traffic stop; Sandra Bland, who was stopped for failing to use a turn signal and later died in police custody; and Walter Scott, who was stopped for driving with a faulty brake light and later shot in his back after trying to free himself from police presence.

Certainly, Judge Friedman identified several of these problems in his Snyder concurrence.

To be sure, courts are not the only avenue to challenging Whren’s continued viability. I will be discussing strategies for challenging Whren at the National Association of Criminal Defense Lawyers’ 2024 Race Matters Seminar. As a note, change can be accomplished through legislative action, state’s attorneys’ policies and practices, and modification of police department policies, as other states and local jurisdictions throughout the country have demonstrated. What this represents is that the days of the pretextual traffic stop could be numbered, if Maryland’s leaders have a taste for change.

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[1] During a pretextual traffic stop, an officer uses a traffic code violation as a legal way to gain access to a vehicle and its passengers to investigate a “hunch” or confirm a suspicion that the officer otherwise lacks the authority to investigate.

[2] In Whren, the Court held that a police officer may stop a vehicle if the 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.

[3] “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.

[4] See, e.g., Darrell D. Jackson, Profiling the Police: Flipping 20 Years of Whren on Its Head, 85 UMKC L. Rev. 671, 680 (2017) (arguing the Court’s discussion of racial profiling under the Fourth Amendment “authorized the use of racial profiling for all criminal investigations,” put police on “notice that the use of race would not bar any evidence gathered,” and put the public on “notice that the use of racial analyses by law enforcement would be nearly impossible to combat”); Margaret M. Lawton, The Road to Whren and Beyond: Does the “Would Have” Test Work?, 57 DePaul L. Rev. 917, 928-32 (2008) (summarizing various critiques of Whren); Phyllis W. Beck & Patricia A. Daly, State Constitutional Analysis of Pretext Stops: Racial Profiling and Policy Concerns, 72 Temp. L. Rev. 597 (1999) (“The primary concern with pretext stops is that they facilitate racial profiling, the process of singling out drivers based on their race. . . . Scholars, journalists, and lawyers promptly and vociferously assailed the Whren decision as legally incorrect, technically flawed, and fundamentally unfair.”); see also Janet Koven Levit, Pretextual Traffic Stops: United States v. Whren and the Death of Terry v. Ohio, 28 Loy. U. Chi. L.J. 145 (1996); Diana Roberto Donahoe, “Could Have,” “Would Have:” What the Supreme Court Should Have Decided in Whren v. United States, 34 Am. Crim. L. Rev. 1193 (1997); David O. Markus, Whren v.United States: A Pretext to Subvert the Fourth Amendment, 14 Harv. BlackLetter L.J. 91, 96-109 (1998).

[5] See, e.g., State v. Brown, 930 N.W.2d 840, 863 (Iowa 2019) (Cady, C.J. dissenting) (“I respectfully dissent from the decision of the majority to continue to address claims of pretextual traffic stops without considering the subjective motives of the officer involved once probable cause is found. Our law must, instead, prohibit pretextual traffic stops motivated by race or any other classification, even when probable cause for a traffic violation exists. They are offensive to the values of our constitution and abhorrent to the concept of justice expected by our constitution. They are one of many reasons to explain why our criminal justice system has disproportionally affected African-Americans in our state and across the nation. In turn, they have helped create disproportionate paths and outcomes in life and continue to prolong inequality within a system of governing built on achieving equality. None of this will change, however, until our law governing this issue changes.”); id. at 871-928 (Appel, J., dissenting) (discussing the history of the Fourth Amendment, historical rejection of pretextual searches, and the problems with Whren from past to present).

[6] See State v. Ladson, 138 Wash.2d 343 (1999); State v. Ochoa, 146 N.M. 32 (2008).

[7] Irma S. Raker, Fourth Amendment and Independent State Grounds, 77 Miss. L.J. 401, 405 (2007).

[8] See id. at 403-13 (discussing Blum v. State, 51 A. 26 (Md. 1902), Lawrence v. State, 63 A. 96 (Md. 1906), Givner v. State, 124 A.2d 764 (Md. 1956), Meisinger v. State, 155 Md. 195 (1928), Gahan v. State, 430 A.2d 49, 55 (Md. 1981), Kostelec v. State, 703 A.2d 160 (Md. 1997), Sheetz v. Mayor and City Council of Baltimore, 553 A.2d 1281 (Md. 1989), Fitzgerald v. State, 864 A.2d 1006 (Md. 2004), and Parker v. State, 936 A.2d 862 (Md. 2007)).

[9] The Whitehead Court also acknowledged the problem that Whren created:

Since it appears that the use of the traffic laws as pretexts to make stops has become a standard law enforcement strategy with respect to narcotic laws, we think it appropriate to reinforce what we have said in two decisions about what is permissible and not permissible for automobile searches when the drivers have been stopped for traffic violations. Of course, such stops must comply with the Fourth Amendment of the Constitution of the United States, but it is important to note that cases interpreting the Fourth Amendment have held that a search incident to a stop for violation of the traffic laws has some limitations that do not govern a search incident to an arrest for a violation of the criminal laws of this State.

116 Md. App. at 500-01 (emphasis added).

[10] Whitehead, 116 Md. App. at 507 n.4 (“In light of the broad and extensive nature of state traffic codes, the police essentially have unlimited discretion to stop any driver, for any reason. Since every driver on the roadways will eventually violate some trivial regulation at the very least, police officers can theoretically stop any motorist they wish.”); see also Charity, 132 Md. App. at 602 n.2 (“Instead of appreciating that with the “Whren stop” the law enforcement prerogative may already be stretched to its outermost limit, police officers fall into the habit of accepting the “Whren stop” as an unremarkable norm and then try to stretch yet further what may already be right at the breaking point.”).

[11] Emma Pierson, et al., A large-scale analysis of racial disparities in police stops across the United States, 4 Nature Human Behavior 736 (July 2020).

[12] Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651, 660 (2002) (“The Maryland State Police did engage in racial profiling on I-95. They stopped and searched cars with black and Hispanic drivers much more often than cars with white drivers; it is hard to see how they could have produced these results without taking race into account in deciding who to stop and who to search. . . . There is a clear explanation for this practice: racial profiling seems to increase the probability of finding large hauls of drugs. These large hauls, however, are rare.”); see also Racial Equity Impact Note for House Bill 1071 – Criminal Procedure – Reasonable Suspicion and Probable Cause – Cannabis (2023 Session, Maryland General Assembly) (“Maryland traffic stop data since 2018 indicates that Black or African American drivers consistently constitute at least 60% of all vehicle traffic stops in the State despite comprising only 29% of the State’s population. They are also over four times as likely to be subject to a warrantless vehicle search than white drivers.”); Maryland Governor’s Office of Crime Prevention, Youth, and Victim Services, Race-Based Traffic Stop Data Dashboard (providing traffic stop data for the years 2016 through 2022, as of Feb. 20, 2024).

[13] Stephen Rushin & Griffin Edwards, An Empirical Assessment of Pretextual Stops and Racial Profiling, 73 Stan. L.Rev. 637 (2021).

[14] Lewis R. Katz, “Lonesome Road”: Driving Without the Fourth Amendment, 36 Seattle U. L. Rev. 1413, 1421-33 (2013) (noting that Whren “solidified a trend in United States jurisprudence toward ignoring police officers’ racial biases, admitted or otherwise” and concluding that, “if courts seek a solution, they will find it within the Fourth Amendment’s reasonableness command through reconsideration of Whren”).

[15] Jordan Blair Woods, Autonomous Vehicles and Police De-Escalation, 114 NW. U.L. Rev. Online 74, 98 (2019) (“In allowing officers to initiate pretextual traffic stops without adequate information about an unrelated crime, pretextual traffic stops distort and obfuscate the true dangers of vehicle stops in ways that undermine both officer and civilian safety.”); see also Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Calif. L. Rev. 125, 129 (2017) (“[T]he Court’s legalization of racial profiling exposes African Americans not only to the violence of ongoing police surveillance and contact but also to the violence of serious bodily injury and death.”).

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[*] Tia is an Assistant Public Defender in the Appellate Division of the Maryland Office of the Public Defender. The opinions expressed in this article are the author’s own and do not constitute a statement from the Maryland Office of the Public Defender.