Home > Journals > WMLR > Vol. 65 (2023-2024) > Iss. 6 (2024)
William & Mary Law Review
Abstract
In 1996, the Supreme Court announced in Whren v. United States that a traffic stop is constitutional if there is probable cause to believe a traffic infraction has occurred. So long as the officers who stop an individual can point—even after the fact—to any violation of the traffic laws, their actual, subjective motivations for initiating a stop are legally irrelevant. Case-by-case determination of reasonableness is unnecessary in the traffic stop context, the Court concluded, because the balancing of interests has already been done. Unlike warrantless entries into homes, the use of deadly force, or unannounced warranted entries, a traffic stop is not an “extreme practice,” and therefore the existence of probable cause invariably outweighs an individual’s interest in avoiding police contact.
In this Article, I argue that the Court was half right in Whren: there is little need for case-by-case adjudication of the reasonableness of traffic stops. Given that the government interest in these stops is relatively low, that such stops can result in harm to both the officer and those stopped, and that other, less intrusive means are nearly always available to serve the government’s stated interest in traffic enforcement, courts should presume that the use of sworn officers to conduct traffic stops is unreasonable. While there may be some situations in which the use of armed police officers to make traffic stops is reasonable, the government should bear the burden of demonstrating that fact in each individual case. This straightforward legal change would significantly reduce needless police stops, thereby increasing overall safety for both officers and the public.