Excerpted From: Abby M. Fink, The Long Road to Justice: Why State Courts Should Lower the Evidentiary Burden for Proving Racialized Traffic Stops and Adopt the Exclusionary Rule as a Remedy for Equal Protection Violations, 13 Washington Journal of Social & Environmental Justice 1 (February, 2023) (245 Footnotes) (Full Document)


AbbyMFink“No justice, no peace. No justice, no peace.” Those words echoed throughout the streets of Brooklyn and the rest of the United States when protests erupted in June 2020. People were outraged by the police killing of George Floyd, and structural racism and police brutality became the focal point of daily protests across the nation that lasted for months. Today, racist police practices are not a mystery. Numerous studies reveal that our criminal justice and police systems are systematically racist. Traffic stops are especially dangerous and harmful for Black and brown drivers. A recent study analyzing over 100 million traffic stops across the nation found that racial bias regularly influenced a police officer's decision to initiate a traffic stop. However, drivers targeted for their race face insurmountable legal barriers when attempting to seek redress for racialized traffic stops while police officers and police departments shirk responsibility.

The Supreme Court legalized and sanctioned pretextual stops in 1996 when they decided Whren v. United States. Whren dictates that as long as a police officer has probable cause to believe that any civil traffic violation occurred, an officer's subjective and potentially racialized reason for the stop does not matter. A pretextual traffic stop occurs when the police use a civil traffic violation as an excuse to pull over a driver to then investigate more serious crimes. The police officers do not have probable cause or any other evidence to suspect criminal activity. However, once the valid traffic stop occurs, the legitimacy of the traffic violation justifies their further investigation of more serious criminality. These investigations then can lead to the discovery of illegal contraband such as drugs or the illegal possession of firearms.

Typically, a violation of the Fourth Amendment occurs if an officer stops and seizes a driver without probable cause to suspect criminality. However, under Whren, if there is probable cause for a civil traffic violation, a lack of probable cause for the later observed criminal activity does not violate the Fourth Amendment. As long as pretextual traffic stops are not in violation of the Fourth Amendment, drivers who fall victim to a racialized traffic stop cannot seek an important Fourth Amendment remedy: suppression of evidence. The basic tenet of the exclusionary rule is that a defendant can move to suppress evidence found as a direct result of a Fourth Amendment violation. When these police-sanctioned pretextual stops are racially motivated, biased, and deemed federally legal under the U.S. Constitution, it leads to the unfair and unjust application of the law against minorities.

While most states follow the standard set forth in Whren, a few states provide greater protections for drivers against pretextual traffic stops under their state constitutional equivalent of the Fourth Amendment. In Ladson, the Washington Supreme Court held pretextual traffic stops violate their state constitution, and the court provided suppression as a remedy. Similarly, in Ochoa, the New Mexico Court of Appeals held that pretextual traffic stops are per se unreasonable. As a result, the pretextual stops violate the search and seizure protections under their state constitution, allowing for suppression as a remedy. Greater state protections, however, do not provide greater protection for Black and brown drivers in Washington and New Mexico because the courts rarely find a stop to be pretextual unless an officer admits their pretextual motivations.

While Whren shut the door on a defendant's ability to use the Fourth Amendment to fight against a racially motivated traffic stop, the Court explicitly stated that the Equal Protection Clause is the appropriate legal avenue for drivers to fight a racially motivated pretextual traffic stop. However, history shows that “demonstrating a race-based equal protection violation ... can prove quite challenging.” Not only must a driver show that their racial group was disproportionally targeted by the police over the broader class of people, they must also show the discrimination was intentional. If an officer does not admit to profiling someone because of their race, drivers must utilize circumstantial or statistical evidence to show discriminatory intent. Although courts recognize aggregate population statistics as a legitimate way to show discriminatory impact, courts do not recognize those statistics as legitimate for proving intent, leaving drivers with the near-impossible task of showing discriminatory intent. Additionally, if a defendant does prove an Equal Protection violation occurred under the Constitution, they are left without suppression as a remedy in lower federal courts. Currently, federal and most state jurisprudence leads to dead-ends and near impossible barriers for Black and brown drivers who seek an adequate remedy against racialized traffic stops. The Massachusetts Supreme Court, in Commonwealth v. Long, may be providing an appropriate solution.

In Long, the Massachusetts Supreme Court combines a host of solutions used by other courts while establishing a new, easier-to-meet standard to show a traffic stop was pretextual by allowing circumstantial evidence of the stop to be sufficient to prove a claim. Additionally, Massachusetts recognizes the exclusionary rule as a remedy for violations of its state constitutional equivalent of the Equal Protection Clause. Massachusetts is of only two states in the country to recognize this remedy; other states are either undecided or outright refuse to recognize suppression as a remedy for racial profiling or equal protection violations. Long is doctrinal proof that courts can address the systemic problem of racist policing in the context of traffic stops by developing legal standards that recognize the unique burden of proving a traffic stop was racialized. The decision demonstrates that both state courts and the Supreme Court have a path to protecting Black and brown people from racialized pretextual traffic stops should they choose to take it. Frankly, justice requires that they do.

The judicial system currently turns a blind eye to the systemic problem of racialized police practices. Some states use the excuse that suppression is not a recognized remedy for equal protection violations. Other states refuse to address the problem when defendants cannot demonstrate a violation of equal protection occurred. Long is proof that social justice minded judicial reasoning is imperative to protecting Black and brown people from racialized police behavior.

This Note argues that an important way to protect citizens from racialized pretextual traffic stops lies in the hands of state courts. State courts must provide a holistic approach to fight against racialized pretextual traffic stops by recognizing suppression as a remedy for violations of their state equivalents of the Equal Protection Clause and lowering the evidentiary bar for showing a violation occurred to achieve that remedy. In addition to statistical evidence, the evidentiary bar should allow for nonstatistical, circumstantial evidence from the stop to be sufficient to show a stop was pretextual. Additionally, courts must lower the bar for showing discriminatory intent by making two important assumptions specific to traffic stops. First, the court should assume that a broader class of individuals violated the traffic laws and were not targeted by police because of how often drivers commit traffic violations. Second, courts should assume every traffic stop is a deliberate choice by the police officer, satisfying the specific intent requirement.

Part I of this Note provides a high-level overview of racialized police practices and demonstrates that racist policing is a systemic problem within our justice system to show why it is imperative the courts find a way to adjudicate racist pretextual traffic stops. Part II discusses Whren's legacy and the outlier states who distinguish themselves from Whren, and the legal difficulty of proving a pretextual traffic stop was racially motivated under search and seizure jurisprudence at the state level. Part III explores the dynamics surrounding the exclusionary rule and its application as a remedy to equal protection claims at both the state and federal level, and discusses the new standard established in Long. Part IV of this Note argues why the Long approach is the best legal solution for drivers who fall victim to racialized traffic stops, and why state courts should adopt the same solution.

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Racist policing is a problem that pervades many aspects of American life for Black and brown people. Pretextual traffic stops are just one way the police unfairly apply the law. So long as the Supreme Court sanctions racist police behavior, state courts must get creative in fighting against Whren by adopting the legal standard set for in Long and applying the exclusionary rule as a remedy for equal protection violations.


J.D. Candidate, Brooklyn Law School, 2023; B.A., Colorado College, 2013.