Whren v. United States – Oral Argument – April 17, 1996

Media for Whren v. United States

Audio Transcription for Opinion Announcement – June 10, 1996 in Whren v. United States

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Well now, you’re not bound by his answer at a suppression hearing, are you?

I did here.

Can’t you interrogate other officers?

The officer I thought was candid about, he would not have done this if he didn’t suspect… without probable cause that there were drugs in that car.

Maybe this guy is wrong as to whether there is a practice.

James A. Feldman:

I don’t think he ever… he never said that, actually.

Lisa Burget Wright:

–I think that if we could make a proffer, that we could establish that his practice was not representative, or that there was a practice, a judge would let us do it.

James A. Feldman:

What the officer said was, I don’t usually do traffic stops.

Lisa Burget Wright:

I don’t think that’s going to be happening in most of the cases.

James A. Feldman:

He also said, I do carry a book of traffic tickets with me.

Lisa Burget Wright:

It would only happen if the officer happens to be one of those officers who is not doing what everyone else is doing.

James A. Feldman:

He said, I didn’t intend to give this driver–

But of course, you don’t know that when he’s on the stand.

Did he explain why they were following this car in the first place?

You’re naturally going to want to prove that he’s not doing what everybody else is doing.

James A. Feldman:

–Yes.

Lisa Burget Wright:

We’re going to want to try, but I think that this Court can be sure that judges aren’t going to permit fishing expeditions any more than they do in any other area, that the judge will use good judgment in deciding what’s needed to get to the bottom of the issue and figure out what is the department policy?

James A. Feldman:

He said he was initially… initially, he saw that car stopped at a stop sign for an inordinate length of time with another car behind this car, and thought this is a driver who’s not paying attention to what he’s doing.

Lisa Burget Wright:

Was this a deviation so gross as to make the stop objectively unreasonable, and to make–

James A. Feldman:

As they followed him, as it… there were two other violations that were committed.

Well, you know, it’s not just any deviation in your view, but a gross deviation?

James A. Feldman:

He failed to–

Lisa Burget Wright:

–I think that’s right, because police have to have discretion to work within a range of conduct.

At what point did the officer say, I followed that car because I suspected–

Lisa Burget Wright:

We’re talking about a threshold that’s just really just a little above probable cause.

James A. Feldman:

–The initial… initially he did it because he was stopped at a stop sign for too long a time.

Lisa Burget Wright:

It’s not probable cause of anything, it’s probable cause of something that they’re actually authorized to enforce and do in fact enforce in the circumstances, and it would depend–

James A. Feldman:

That’s the only reason the officer gave for why he stopped the car, and–

It seems to me that it–

–At what point did the officer say, it was before… it was certainly before the car was stopped, and the car inspected, that the car was being followed because there was a suspicion that it contained drugs?

–Why do you make the assumption that anything that is a deviation from the norm is unreasonable?

James A. Feldman:

–There were two officers in this case.

I mean, there are reasonable things that are not the things that the majority does.

James A. Feldman:

There’s Officer Soto, and I don’t recall at the moment the other officer’s name.

I mean, it may well be reasonable not to stop cars that just have broken taillights, and that may be the general practice in the particular police department, but that does not automatically make it unreasonable to stop a car that has a broken taillight, and other departments may make that their practice, so why does it become unreasonable within the meaning of the Constitution simply by being atypical?

James A. Feldman:

Officer Soto, my recollection of the record is, he never said that.

Lisa Burget Wright:

–Well, I think what we’re saying is unreasonable is deviating from the policies that govern your conduct.

James A. Feldman:

The other officer, when he was called by one of the defendants as a witness, said… when he was asked, why did you stop the car, he did say reasonable suspicion, but if you look at his testimony, I find it completely ambiguous as to whether he had reasonable suspicion of a traffic violation or reasonable suspicion of something else and that the traffic violation–

Lisa Burget Wright:

I mean, in some jurisdictions–

Is there anything else to explain why Officer Soto, who said, I don’t ordinarily do this, would have done it in this case when the traffic violations were not particularly egregious?

Well, you’re not saying policies that govern.

James A. Feldman:

–There… I’m not sure how egregious they were.

You’re just saying policy… by a policy that governs, you say you don’t mean a directive.

James A. Feldman:

Driving at an unreasonable speed in particular can be thought to be a serious offense.

You mean, what is generally done.

Of course, you really don’t care, Mr. Feldman, do you?

Lisa Burget Wright:

–It could be–

James A. Feldman:

No.

You just mean a practice.

James A. Feldman:

In our–

You don’t mean a command.

Let’s be honest.

Lisa Burget Wright:

–Well, there are standard practices.

[Laughter]

Lisa Burget Wright:

I mean, I guess what I’m saying is that a department does not have the ability under the Fourth Amendment to simply say, we are not going to act in any rational fashion, we’re not going to constrain our discretion, we want to be, arbitrarily want to take every smidgeon of discretion that’s given to us by the probable cause standard.

James A. Feldman:

–In our view of… I mean, these are the facts–

Lisa Burget Wright:

We refuse to be limited.

You said you will allow pretextual stops.

No, they can’t do that, but they… and they can develop a practice of not stopping cars with broken taillights, and that would be reasonable.

James A. Feldman:

–In our–

But had they developed a practice of stopping cars, all cars with broken taillights, that would also be reasonable.

So long as he has a proper reason to stop, pretextual or not, you’re don’t care.

Lisa Burget Wright:

That’s our position.

James A. Feldman:

–That’s correct.

So why is stopping a car with a broken taillight unreasonable?

You’re just being nice to Justice Ginsburg in trying to give her some reasons why–

Lisa Burget Wright:

I–

[Laughter]

Just because this department as a general practice, though it’s not a command, it has chosen the other reasonable thing it doesn’t render the other one any less reasonable, does it?

–if you don’t like pretextual stops, this might have been okay, but your basic… the Government’s basic position is a pretextual stop is okay.

Lisa Burget Wright:

–Well, for the same reason in Wells a container opening can vary, and even taking it back farther from the policy, in some jurisdictions it’s legal to turn right on red, in other jurisdictions it’s not.

Go back… could you go back for a second to the other question Justice Scalia asked.

Lisa Burget Wright:

Stopping someone in one jurisdiction is reasonable under the Fourth Amendment.

Assume pretextual stops are fine.

Lisa Burget Wright:

Stopping them in another is not.

What about a stop that violates the law?

Yes, but in the one instance the conduct is criminal, in the other instance it’s not.

I mean, that’s what’s worrying me about this is.

I mean, that’s your distinction.

As I went back and looked at the reg, and the predecessor reg, it does seem not just to say, you may arrest someone, plainclothes officer, when you see a special risk.

What if you had a department in which the practice was that if they were busy or worried about other things they didn’t worry… they didn’t stop people for broken taillights, but if they weren’t busy, they did stop people for broken taillights.

It seems to say, you may not arrest someone, plainclothes officer, in the absence of a special risk, at least when you read it in light of the predecessor statute.

Usually, they’re busy.

So if that’s the case, it isn’t… this whole issue’s nothing to do with pretextual stops.

Sometimes late at night they’re not.

This is a case in which you have illegal stops.

So at 11:00 somebody gets stopped for a broken taillight.

James A. Feldman:

I think that… I don’t think that it’s illegal.

What’s the practice?

James A. Feldman:

It’s a violation of an internal police department order.

How do you deal with that under your standard?

James A. Feldman:

But let me… there’s… I really have two answers to that question.

Lisa Burget Wright:

Well, I think you do have to put the reasonable officer in the shoes of the officer who’s actually making the stop.

James A. Feldman:

The first is, as they… somebody has already referred to the case of United States v. Caceres, and in that context the Court specifically noted that there are serious costs that are imposed–

Well, that’s fine.

But it didn’t–

What does he do?

James A. Feldman:

–when you make every–

Was it reasonable for my officer to stop at 11:00 because he wasn’t busy?

–Let me ask about that case specifically.

Lisa Burget Wright:

I think so.

Let me… because I… and I may not remember it correctly, but there might be a difference, judging from that case, between the exclusionary rule and the underlying constitutional violation.

Lisa Burget Wright:

If that’s the practice at that time and under those conditions, then I think that would be–

James A. Feldman:

–I don’t think that… that case, in fact, involved no constitutional violation–

Then every police department in the United States is going to have a policy that says, when we’re not busy, we’re going to enforce the traffic laws, and your rule isn’t going to catch anybody, is it?

No, it didn’t, perhaps not.

Lisa Burget Wright:

–Well, that’s where the standard practice I think comes in as sort of a backup.

James A. Feldman:

–at all, but–

Lisa Burget Wright:

I mean, you can’t have–

It was simply whether they were going to exclude violations of a reg.

Well, that’s what the standard practice is going to be.

James A. Feldman:

–But the… yes, that’s right, but the rationale of that case–

Every police department is going to say, don’t waste time on trivia if you’re busy.

Yes.

If you’re not busy, go ahead and enforce the minutiae, and that’s going to be the end of your rule, isn’t it?

James A. Feldman:

–was that if you make every internal order of a Government agency regarding how its people should act for every reason at all, if you make every one of those subject to the exclusionary rule, you’re going to severely discourage the agency from making any rules at all.

Lisa Burget Wright:

–Well, if they really had the time and resources to actually enforce these trivial violations and actually–

James A. Feldman:

And I would add that in this case, what petitioners… we mentioned that possibility, that that would be one consequence or one way of looking at petitioner’s view in this case, and the answer seems to be that no, there’s a whole Fourth Amendment law also of what kinds of rules a police department has to have, and those rules have to be specific, have to be specific enough to guide the discretion of the officers in making traffic stops with respect to each kind of traffic offense, and I would also think the same rules would have to apply in all other areas where police exercise discretion.

Sure.

James A. Feldman:

If a police goes to an open air drug market and is trying to do something about it, and sees a number of people dealing drugs, and picks one of them, I think the defendant under their rule… I don’t see why the defendant couldn’t say, well, why did you pick this person and not somebody else, and you have to have a rule to guide that.

It’s 11:00, the streets are empty, one car goes by with a broken taillight.

James A. Feldman:

I think the answer to the problem is that the question of when to enforce a law is not a Fourth Amendment issue.

You’re going to lose that case if the department has my policy.

James A. Feldman:

The question is whether you are enforcing a law.

The policeman has just finished his donut.

Well, supposing, Mr. Feldman, that the defendant in this case, they had found no drugs at all, and he simply came into the court and said, I… you can’t pin this traffic offense on me because I was illegally stopped.

He’s just finished his donut.

It was a violation of the department regulation.

He’s not even–

What should be the result there?

[Laughter]

James A. Feldman:

I… in that… where he would go would be to the Bureau of Traffic Adjudication.

You lose, don’t you, on my hypothetical?

Yes.

Lisa Burget Wright:

–I think you cannot have a token… a token enforcement policy.

James A. Feldman:

And as far as I know they would… the stop would still be valid.

No, but I’m not talking about a token… the policy is, if you’re not busy, it’s entirely proper for you to enforce this stuff, and the officer does.

James A. Feldman:

His remedy for violating–

You lose in that case.

They’d say, what Fourth Amendment.

Lisa Burget Wright:

If they in fact do do it when they’re not busy, yes, we do.

[Laughter]

Okay.

James A. Feldman:

–His remedy would be with the police.

That’s not going to give you much protection, is it?

James A. Feldman:

But let me make… I had one other point I did want to raise with respect to Justice Breyer’s question, and that is, there are numerous cases where, for instance, State constitutions have been interpreted to extend greater protections than the Federal Fourth Amendment, and therefore, where a police officer’s action under State law was illegal, even though under the Federal Constitution it met the standards.

Lisa Burget Wright:

Well, I don’t… I think so, because as a practical matter the kind of violations we’re talking about are so… so petty, and they’re seized upon in such unusual circumstances that it’s going to be clear to a judge that this is not… this is outside the–

James A. Feldman:

Well, this Court’s never suggested that all of those cases now are also violations of the Fourth Amendment because they’re violations of State law.

Is there any experience, though, it’s not just your guess, Ms. Wright?

James A. Feldman:

There’s a… the role, the primary role of State law, and perhaps not the exclusive one, but the primary role of State law is in defining what the offenses are.

Are there any States that for their State system have adopted this reasonable officer would have, instead of an officer could have?

James A. Feldman:

It’s basically Federal standards under the Fourth Amendment that determine whether… that determine what actions are reasonable, and it’s our submission that it is always reasonable to enforce the law… to enforce the law when you have probable cause to do so.

Are there any States that have it… the Tenth Circuit divided into… one said it’s unworkable, and the other says it is workable.

Well, you really don’t go that far, because you wouldn’t say selective enforcement based on race or religion would be permissible.

Do we know what’s done in the States?

James A. Feldman:

Our view would be that those would be unconstitutional–

Lisa Burget Wright:

–There is a split in the States as well.

For a different reason.

Lisa Burget Wright:

I think the NACDL brief gives a pretty good breakdown of the split.

James A. Feldman:

–but they would be unconstitutional under the Equal Protection Clause–

Lisa Burget Wright:

There are several supreme courts of States, three or four, I think, that have adopted the would-have, and the many intermediate appellate States and it’s not in my understanding that there have been… and the Government in fact argued in opposition to cert that most stops are upheld.

Right.

Lisa Burget Wright:

Under the would-have test you’re only catching the most egregious situations.

James A. Feldman:

–and there would be different standards applied to them.

Well, you… I think you said that, too.

James A. Feldman:

I think again this case is instructive.

Lisa Burget Wright:

Uh-huh.

James A. Feldman:

In the suppression hearing in this case the officers were asked questions about whether they made the stop because the defendants were black.

Lisa Burget Wright:

That’s correct.

James A. Feldman:

The officers denied that they had, and I read the judge agreed that those denials were credible.

That this is just some check, because otherwise probable cause is virtually nonexistent.

James A. Feldman:

So this is a case where they can’t meet the applicable equal protection standard, which is was this action taken because of the race of the defendants, but they want to say, well, no, we can’t meet that standard, but the Fourth Amendment imposes more stringent standards.

Lisa Burget Wright:

Right.

James A. Feldman:

I think our answer to that is that the Fourth Amendment is related to the individual’s expectation of privacy, and society’s interest in enforcing the law, and it’s not a Fourth Amendment defense to say, because society hasn’t… well, I violated the law, or there was probable cause to believe that I did, but because somebody else also violated the law, and it wasn’t enforced against that person, then therefore the evidence has to be suppressed and it’s an unreasonable search and seizure.

Lisa Burget Wright:

We’re just catching… we’re just catching those situations where, in effect, because the regulation is either not enforced or is essentially unenforced under the circumstances, that the discretion is really the same as in Prouse.

James A. Feldman:

I… the test that’s proposed by petitioners would result in very arbitrary results, since police department rules, like the one on which petitioners rely–

It seems to me that the difficulties of enforcing your rule are sufficiently great that it would almost be as easy for you to argue that we should turn to the subjective test, which requires overruling many of our decisions, but it seems to me that’s almost more workable.

But Mr. Feldman, does it?

Lisa Burget Wright:

Well–

I mean, you said that, and the would-have… this is not a huge requirement, just a difference between could an officer and would a reasonable person, and there are jurisdictions where this would have apprehended is enforced.

If we think there’s a horrible problem here, we have to do something… do any States use the subjective test?

I haven’t… didn’t see in any of the briefs that there’s this disarray, this chaos in States that have the would-have standard.

Lisa Burget Wright:

–Not that I know of.

I thought it turns out that in most situations would-have would yield the same thing as could-have.

Lisa Burget Wright:

The Ninth Circuit a few years ago I think was still using some subjective language, but no.

James A. Feldman:

–Well, I would point Your Honor’s attention to the Tenth Circuit’s decision, for instance, when it originally had adopted a, quote would-have test and moved to a could-have test.

Lisa Burget Wright:

But I think Your Honor has picked up on exactly the situation that the Government’s test is unacceptable.

James A. Feldman:

And one of the reasons it did was, it reviewed its cases and found that they were all over the lot when courts tried to figure out whose practice is it who we’re supposed to look at when we look at standard police practices?

Lisa Burget Wright:

We either need a subjective test or an objective reasonableness test.

James A. Feldman:

Is it this officer, is it the department as a whole, is it the State as a whole, is it the narcotics unit, or the traffic enforcement unit, or who?

Lisa Burget Wright:

You know, we understood the subjective test to be foreclosed by the Court’s precedents, but I also think our test is far more workable than a subjective… because it’s objective.

James A. Feldman:

And then think of all the… then there are all the different circumstances under which laws could be imposed.

Lisa Burget Wright:

It’s like any other objective reasonableness test.

James A. Feldman:

After all, a police officer I think reasonably might try to enforce a traffic… a minor traffic offense when he has nothing else to do, but if there are other demands on his time and attention, he might well choose not to.

I looked for the words of the reg, and neither you nor the Government quote the operative word.

James A. Feldman:

It just raises all of those problems, and I think it’s partly because of… and inevitably what has happened, and I think you’ll find this in the State cases as well as the cases in the Federal courts that have adopted that test, the judge starts looking into just the subjective motivation of the officer… why did you make the stop?

You both say that the reg says that a plainclothes officer should, but that’s not in quotes, should, I guess, arrest somebody only in the case of an immediate threat to safety, but if that’s really the word of the reg, should, I didn’t know what it meant.

James A. Feldman:

Would you usually have made the stop?

That is, does it mean that if the officer does happen to stop a person for a taillight, and doesn’t think it’s an immediate threat, that they throw out the ticket, or they throw out the case, or that the officer is punished, or… I mean, you might interpret it to say, officer, if you see an immediate threat, go arrest the person.

James A. Feldman:

I think that’s what it generally degenerates into, and, indeed, if you look at the formulation of the would-have test, it’s whether the reasonable officer would have committed the traffic stop if he had been motivated… really, it’s if he had been motivated by a desire just to enforce the traffic laws.

Officer, if you don’t see an immediate threat, it’s up to you, really.

James A. Feldman:

And really, what it is is, it’s just a not very precise way of trying to get a subjective motivation.

No need to do it.

James A. Feldman:

A long line of this Court’s cases have held that subjective motivation is not the touchstone in Fourth Amendment cases in contexts similar to this, and so you can’t go look directly at it, but by using things like the rules in this case as a proxy for that, you’re both way overinclusive and way underinclusive.

It doesn’t say you should not.

James A. Feldman:

One problem is that the disobedience of a rule of the sort that’s involved here doesn’t necessarily show that the officer was operating under any kind of pretext at all.

Lisa Burget Wright:

Well–

James A. Feldman:

There may be all kinds of reasons why a rule… for instance, a jurisdiction may have a rule that officers from one precinct can’t stop cars in another precinct.

It says when you should, and I think most officers would, in fact, believe they have authority to arrest somebody if they see a crime, so… I’m pointing this out because I don’t know what the reg says precisely.

James A. Feldman:

There may be all kinds of reasons why an officer would violate that rule that have nothing to do with whether it might be a pretext or not.

I’d like to know.

James A. Feldman:

On the other hand, it’s also dramatically underinclusive, because there may be all kinds of cases where officers don’t violate rules, but where they decide to enforce the law in a discretionary situation in one case rather than another because of a hunch, or because of a belief that by doing so they may deter some… or enforce, or find evidence of some–

Lisa Burget Wright:

–Well, I’m… the reg about the unmarked car?

Mr. Feldman, are you saying… going back to my really basic question, if one has the notion that probable cause doesn’t act as the barrier in this area, that it does in others.

Lisa Burget Wright:

I’m–

Your view is, well, that’s what we have, and you can’t have any probable cause plus, is that–

Yes.

James A. Feldman:

–I would… that is our view.

Lisa Burget Wright:

–On pages 1 and 2 of our brief we quote–

James A. Feldman:

I think that if the real objection here is that the traffic laws are too hard for people to enforce, and therefore people violate them and subject themselves to traffic stops on a regular basis, then the remedy is with the legislature, which has obviously not passed an appropriate set of traffic laws if that were true.

It’s actually there?

James A. Feldman:

I don’t think that–

Oh, great.

–It’s not with the laws, it’s with the discretion of the police officer.

Sorry.

James A. Feldman:

–But I think that the problem is not the discretion of the police officer.

Lisa Burget Wright:

–the relevant section, and it says, under policies, traffic enforcement action may be taken under the following circumstances, and it lists three, and then the fourth section says, on page 2, members who are not in uniform or are in unmarked vehicles may take enforcement action only in the case of a violation that is so grave as to pose an immediate threat, to the safety of others, so we read that as–

James A. Feldman:

There are many laws that are not enforced 100 percent.

So they interpret that to mean, and they throw out the arrest, or what do they do?

James A. Feldman:

There are many laws that are only rarely enforced.

Lisa Burget Wright:

–Well, don’t throw out an arrest.

James A. Feldman:

But in fact, the traffic laws are a good example of where selective enforcement, where enforcing them occasionally, can have a great deterrent value.

Lisa Burget Wright:

I mean, a person couldn’t necessarily suppress their presence… they couldn’t beat a ticket under this.

James A. Feldman:

If you are out on a highway and thinking of violating the speed limit, you can know for a certainty that the police officers don’t have the manpower to stop every one of the cars in the heavy traffic around you for that violation, but what you don’t know is whether they’ll stop you, and that possibility of exactly that kind of occasional enforcement is in fact what the traffic laws depend on.

Why not?

James A. Feldman:

In short, I think that petitioners’ arguments are primarily directed towards interests that are not protected by the Fourth Amendment.

Lisa Burget Wright:

Because they can’t suppress their presence, I guess–

James A. Feldman:

Insofar as there’s an equal protection claim, that claim should be made under the Equal Protection Clause.

It’s not a suppression of the evidence.

James A. Feldman:

It didn’t succeed in this case, and there’s no reason to adopt a more lenient standard under the Fourth Amendment.

Lisa Burget Wright:

–Right.

James A. Feldman:

And insofar as their claim is that the law is just too difficult to obey and subjects too many people to being stopped for traffic violations, that really is a problem with the traffic laws and not… because perhaps, if that’s so, they erect too high a standard for people to obey.

Lisa Burget Wright:

It would have to be some evidence that had been seized in order to raise any suppression issue, any issue in a criminal case.

James A. Feldman:

But under the Fourth Amendment, where someone is… where someone… where the police have probable cause to believe that a statute is violated, or a regulation is violated, then that is all that the Fourth Amendment reasonableness inquiry requires.

Well then, you really don’t have… to win your case you don’t have to go so far as to say that the practice also would suffice.

James A. Feldman:

Thank you.

Lisa Burget Wright:

That’s correct.

Thank you, Mr. Feldman.

And, indeed, you don’t even have to adopt a would-have test.

Ms. Wright, you have a minute remaining.

You could say your case comes under the could-have test.

Lisa Burget Wright:

If the Court has no other questions, I think we’ll rest on our briefs.

Our case does come under the could-have test as interpreted by some of the courts, which do incorporate an authorization-type requirement–

Thank you very much.

Would… this officer would be violating department policy, and I suppose would be subject to discipline for having done this, is that right?

William H. Rehnquist:

Thank you, Ms. Wright.

Lisa Burget Wright:

–He would be subject to discipline.

William H. Rehnquist:

The case is submitted.

So really, this is a totally… I mean, I haven’t focused on it in this way, but the question you’re presenting is whether or not you suppress evidence when seized by an officer in violation of a regulation of a department.

Lisa Burget Wright:

I think certainly that’s all the Court has to answer in this case, and what we have here is an administrative scheme, and the police have set up certain policies and procedures of how the administrative scheme is going to be executed, and we can tell objectively from looking at this stop this was not a stop pursuant to that objective–

Well, why on earth should the Fourth Amendment incorporate the department policy?

Lisa Burget Wright:

–Well, again, I… we say in our brief, I don’t think there would necessarily in every case… the reg would not be determinative, and let me give this example where there could be reasonable violation of a regulation.

If, for example, the regulation did not contain the exception for immediate threats to safety, and my clients had been weaving all over the place and appeared to be drunk or reckless driving, I don’t think that we could argue that that could be unreasonable–

So there are administrative law cases, Caceres, and so forth, which say certain violations of regs are not bases for throwing out evidence, or suppressing evidence.

I’m suddenly seeing the case in that light as a–

Lisa Burget Wright:

–Well, I think this case is easy for the reason Your Honor is saying, is that–

–But Ms. Wright, does the United States v. Caceres… I think that’s the name of the case… did that speak to this problem?

Lisa Burget Wright:

–No, it did not, because in Caceres the Court was very clear that there was no reasonable expectation of privacy, and in fact, no constitutional right implicated at all, so I want to make clear I’m not saying that any regulation that the police happen to have is going to automatically result in suppression, only those that bear on the reasonableness of the officer’s conduct.

Well, what would be the significance of this case, just taking your narrow view, if the chief of the department comes in and says… testifies well, yes, it’s true they violated that prohibition on plainclothes officers doing that, but the only reason we have that prohibition there is that when plainclothes officers start making arrests, people may not know that they’re police officers, and then they fight back, and it gets into a lot of trouble.

There certainly was no intent behind the regulation to prevent an arrest being made simply for the sake of preventing an arrest being made.

Is that the end of your case, if that’s the testimony and it’s accepted?

Lisa Burget Wright:

I don’t think so, because I think that that is saying we enacted this reg to protect the personal security of motorists, which is at the heart of the Fourth Amendment.

Well, no, they said we enacted the regulation among other things to protect the personal security of the officer–

Lisa Burget Wright:

I think it–

–and perhaps to prevent placing motorists in positions in which they might be inclined to fight, but there was no fight here, and the officer didn’t get hurt, and you know, we’re still going to dock his pay a couple of hours for doing what he did, because we… you know, we don’t want to run these risks, but it has absolutely nothing to do with our view of when it is or is not appropriate to arrest for offenses as offenses.

Isn’t that the end of your case if that position is accepted?

Lisa Burget Wright:

–Well, I don’t think so, because the degree of intrusion is… the manner it’s made in is relevant to what the degree of intrusion is and what the citizen’s privacy interest is, so you would still have an enhanced citizen privacy interest in a case where an unmarked car was used.

Well, if… that may be, but then you’re going beyond that very narrow view in which you say the touchstone would simply be the departmental prohibition.

Lisa Burget Wright:

Well, I think the department… the judge will have to take into account the violation of the regulation and the entire totality of the circumstances, and I would like to reserve–

So there isn’t really that narrow a view.

It’s always going to be ultimately a totality test, even when there is a regulation, and the regulation at least ostensibly prohibits the conduct.

Lisa Burget Wright:

–There could–

It’s still a totality test.

Lisa Burget Wright:

–I think there could theoretically be a case where the regulation was violated, but the… but it was… but if a reasonable officer would have violated the regulation because of the circumstances, then that would pass our test.

It all comes down to a basic reasonableness inquiry, and I just… you know, on a balancing I would just again point out that the kind of cases we’re talking about are the marginal cases, where the Government can’t really claim much interest, because this is action it has decided not to take.

William H. Rehnquist:

We’ll hear argument now in Number 95-5841, Michael A. Whren and James L. Brown v. the United States.

Lisa Burget Wright:

I’d like to reserve the balance of my time.

William H. Rehnquist:

Your client has a very strange name.

Lisa Burget Wright:

Thank you.

William H. Rehnquist:

Do you know how it’s pronounced?

Very well, Ms. Wright.

William H. Rehnquist:

Is it Whren?

Mr. Feldman, we’ll hear from you.

Lisa Burget Wright:

It’s Whren.

James A. Feldman:

Mr. Chief Justice, and may it please the Court:

William H. Rehnquist:

Whren.

James A. Feldman:

It’s our position that the traffic stop of petitioners in this case was valid, and that the judgment of the court of appeals should be affirmed.

Lisa Burget Wright:

As if the H isn’t there.

James A. Feldman:

Under the Fourth Amendment, a traffic stop that is supported by probable cause, as it was in this case, and that was undertaken in a reasonable manner and scope, as it also was in this case, is valid.

William H. Rehnquist:

Very well.

James A. Feldman:

In our view, that conclusion follows regardless of the subjective motivations of the officers who made the stop, the internal regulations of the department that divide up duties among different police officers, or the standard police practices that the officers in a given jurisdiction may happen to follow.

William H. Rehnquist:

You may proceed.

Mr. Feldman, is there any other area where there is essentially no control over the officers operation for an improper motive?

Lisa Burget Wright:

Thank you, Mr. Chief Justice, and may it please the Court:

I mean, probable cause really doesn’t serve as a meaningful check when probable cause is, I stood too long at a stop light.

Lisa Burget Wright:

This case presents a question about when seizures of motorists are unreasonable within the meaning of the Fourth Amendment.

James A. Feldman:

I… well, I would… I disagree with you about that.

Lisa Burget Wright:

In the Government’s view, probable cause of any traffic infraction is a floor above which it is per se reasonable to stop any motorist, but the ultimate test under the Fourth Amendment is reasonableness, not probable cause, and given the potential for abuse of a mere probable cause standard in the traffic enforcement context, we believe that the probable cause standard does not automatically strike the appropriate balance in each and every case.

James A. Feldman:

I think the question, the historic role of the Fourth Amendment has been not to stand in the way of society enforcing laws that are on the books and are perfectly valid laws.

Lisa Burget Wright:

To contrast our position in concrete terms, if the floor represents probable cause, or the string hanging from the motorist’s rear view mirror, or probable cause that the motorist glanced at his watch or changed the radio station, or probable cause that the motorist signaled for only 2-1/2 seconds rather than 3 seconds before changing lanes, and the ceiling is probable cause is the most serious traffic infraction we can imagine, then under the Government’s view, the police have complete discretion anywhere between the floor and the ceiling to make a stop.

But laws… usually when you go to a magistrate, you’ve got a good reason to go after that person.

Let me ask you this, if I may, Ms. Wright.

The problem of no control over the discretion of the police officer, the reality that sooner or later most of us are going to commit some traffic violation for which we could get a ticket, I don’t know of any other area that works that way, other than–

Does the fact that the arresting officer is in plain clothes and in an unmarked vehicle and that the officer’s observations are for a supposedly minor traffic offense, do those factors all go into the pot in determining under the Fourth Amendment whether the traffic stop is reasonable?

James A. Feldman:

I–

Lisa Burget Wright:

If–

–traffic violations.

Is there… is that part of the mix or not, or do we only consider what it is the officer observed without considering the fact that it is an unmarked vehicle and a nonuniformed officer?

James A. Feldman:

–I can’t say that I can think of another area, but what we’re really talking about is the whole of police work.

Lisa Burget Wright:

–I think that if there is a policy that takes in… that incorporates those sorts of concerns, what car the officer is in, or how the officer’s dressed, then I think they are relevant, because the officer, under our view, would have to comply with the departmental policies.

James A. Feldman:

Police officers are always faced with a choice of what laws they should enforce and what actions they should take–

You mean a departmental policy?

Well then, are you saying that–

Lisa Burget Wright:

Departmental, or possibly even within their district.

James A. Feldman:

–to enforce those laws.

The officer was supposed to be in uniform and in fact he was in plain clothes, then that could be a factor in saying that the stop was not proper?

–That there’s no such thing as a pretextual stop that’s offensive to the Fourth Amendment?

Lisa Burget Wright:

If there was a policy that said that traffic stops were not ever to be made by plainclothes officers, yes, we think that would–

James A. Feldman:

I… yes, I think I am saying that, so long as there’s probable cause, and so long as the actions that the police officer take are only those that are authorized by the probable cause that he has.

It has to be a policy that is set forth explicitly.

James A. Feldman:

The officer in this case did not have probable cause to search the car initially when he first saw it on the street and therefore couldn’t have stopped it and gone through the car to see if he could find any drugs.

It isn’t just the common practice.

But Justice Ginsburg’s–

I thought your argument was more than just an explicit policy.

James A. Feldman:

He did have–

I thought that even though the officers were neither prohibited by the letter of the law, nor even by any explicit mandate of their department from making a stop for a technical violation, if, indeed, it was the practice that all of the officers of the department used not to stop for technical violation, that would be enough to render it violative.

–concern is a very real one.

Isn’t that what you were arguing, or is it?

Since I read the brief, every time I drive my car I think maybe I can be stopped, and I–

Lisa Burget Wright:

–Well, I think that if there is a standard practice, in essence the department has a policy of following that practice.

[Laughter]

Okay.

It seems to me that the situation is a little bit out of control.

That’s what you mean by a policy, then.

I don’t know if there’s an answer for it.

You just mean the standard practice.

James A. Feldman:

–I–

Lisa Burget Wright:

Practice, correct, in the first–

He could fix his taillight.

Now, what troubles me about your argument is, it, you know, the woulda-coulda-shoulda argument.

I mean, that might–

I mean, whether it should be… you know, whether he could have stopped, or would have stopped.

[Laughter]

To draw the line at would have stopped, that is, to require the officer to be following the standard practice, seems to make a lot of sense if you only apply it in these evidentiary exclusionary cases, where, you know, they stop a car and find drugs, as here, and then try to introduce the drugs.

James A. Feldman:

–I… first of all, I think it’s an exaggeration to say that everybody at every minute while they’re driving are subject to being stopped for a traffic offense.

But you can’t limit that policy to that.

James A. Feldman:

People… I don’t think it’s that difficult to generally obey the traffic laws, and I think most people do almost all the time.

The result of that policy would be that any officer in the whole department who follows the letter of the law but does not follow the general practice of the department stops an innocent motorist, does not find drugs, but the motorist gets mad and says, what do you mean, stopping me for a broken taillight, and then sues the officer under 1983, or the department under 1983, and you are guilty of a violation of the Fourth Amendment, isn’t that right?

James A. Feldman:

I think–

Lisa Burget Wright:

–That would–

I think you get the impression from the briefs that the probable cause to stop would exist if a person obeyed the traffic laws for a sufficient period of time.

There’s no officer in the department can act technically under the law if the rest of the department is being more liberal, and he violates the fourth Amendment if he does that.

[Laughter]

Lisa Burget Wright:

–That is correct, theoretically a citizen would have–

James A. Feldman:

–Yes, I don’t think that that’s true, I think… but I do think that that really presents the key question in this case.

Yes.

James A. Feldman:

The balance in the Fourth Amendment, and it’s struck in the text of the Fourth Amendment, which, by the way, petitioners don’t print in their brief the relevant text, which is the part that says, no warrant shall issue except upon probable cause.

Lisa Burget Wright:

–a civil suit, but I think we’re talking about an extremely small number of cases where this is going to happen, because the sort of discretion that’s granted even under the would-have test is quite large.

James A. Feldman:

The point of the Fourth Amendment is to say, there is a society’s interest in enforcing the law, and there is individual expectations of privacy, and at the point where there’s probable cause to believe that a law has been violated, then taking the appropriate investigative or enforcement stop that’s predicated by that probable cause is reasonable under the Fourth Amendment.

Lisa Burget Wright:

We just set the threshold at the level at which there’s probable cause of a violation that is… that the police are authorized to and do, in fact, enforce.

Well, I take you would add that it is not unreasonable to say that a traffic… a police officer can distinguish between traffic violations which do not appear to suggest any other type of offense and traffic violations which might give evidence of other offense.

But violation of the Fourth Amendment is, you know, to my mind a big deal, and I don’t go, you know, tossing it around arbitrarily, and to say that every time a policeman, although he’s technically correct in making a stop, is not as liberal as the rest of his colleagues in the department, he thereby violates the Fourth Amendment, does not strike me as true.

James A. Feldman:

I think that there’s a… I agree with that.

Lisa Burget Wright:

Well, I think an analogy might be inventory cases, or drug-testing cases where the Court has relied on standard practice and policy in order to control the discretion if in Brignoni there was supposed to be a random drawing every week to determine which students would be tested, and if it turned out that that’s not what they were doing, and they were selecting students contrary to that policy, I think those students, whether anything… evidence was turned up or not might–

James A. Feldman:

I think there’s a myriad of different circumstances that a police officer may take into account in deciding which traffic laws, which violations of a particular traffic law to enforce, which traffic laws to enforce, or whether–

Well, I think your answer to Justice Scalia was candid, and I think is consistent with your position, but I think it exposes some real difficulties.

And one of those circumstances, I suppose, is a hunch that this fellow may be a drug dealer.

In addition to the ones that the Justice mentioned, it seems to me that this makes certain traffic laws simply a dead letter at the option of the police department.

James A. Feldman:

–Well, I actually think… I think that’s right.

Lisa Burget Wright:

–Well, I think that’s already what in effect is happening.

James A. Feldman:

I think that if you’re a drug dealer and you’re concerned that a police… if you have drugs and you’re concerned the police might stop you, I think that it’s… you’d be well advised to obey the traffic regulations.

Lisa Burget Wright:

It’s just recognizing the reality that if this is the practice, then this is the standard practice and the police need to stick within that standard practice in order to have their–

James A. Feldman:

If you don’t, you’re subject–

But the police don’t have the authority to tell the legislature which traffic laws are to be repealed.

If it’s a straight car, yes.

Lisa Burget Wright:

–Well, it’s not that it’s repealed, of course, and they can change their policy or practice any time, but there’s no… the notion of full enforcement is really… there is no… it’s not even a myth any more.

No, except that then you’d give rise to a suspicion.

Lisa Burget Wright:

Nobody believes that there’s such a thing as full enforcement.

This is a very unusual motorist.

Lisa Burget Wright:

The legislature doesn’t fund the police department to do full enforcement, so it’s understood by the legislature that there will be some selectivity in policy, and the notion that… all we’re saying as far as the civil remedy… I don’t think there’s anything unusual about the idea that when police act unreasonably, which by definition they are in our situation, that they–

James A. Feldman:

–I don’t believe that that–

You say police are acting unreasonably in your situation.

James A. Feldman:

[Laughter]

Now, was… I take it from what you say there’s a departure from established department policy in this case.

James A. Feldman:

I guess… I’m not aware that at least under the regulations of the District of Columbia that it would be a violation of obey all of the traffic regulations.

Lisa Burget Wright:

–Correct.

Mr. Feldman, though, one problem I have, I find… I’m having a little trouble believing that it is reasonable for a policeman to violate the regulations of his own department.

What was that departure?

Why doesn’t that make his action unreasonable?

Lisa Burget Wright:

Well, the department has mandated that traffic enforcement shall not be undertaken by officers in unmarked cars or in plain clothes unless there’s an immediate threat to the public safety posed by the violation, essentially one that would outweigh the danger that’s being posed by a stop by an unmarked car.

James A. Feldman:

I think because the reasonableness inquiry under the Fourth Amendment turns on… as I said, on the balance between society’s interest in enforcing the laws and the individual’s… an individual’s expectation of privacy.

And so in this case it was a plainclothesman who made the traffic stop.

James A. Feldman:

It doesn’t turn on the particular practices of a police department, or it doesn’t turn on the subjective motivations of a particular policeman.

Lisa Burget Wright:

Correct.

James A. Feldman:

Where a law is violated, society, per se, has an interest in taking the appropriate enforcement action.

Why on earth should that be a violation of the Fourth Amendment, simply to depart from department policy?

So I suppose you would say that if it was not a policeman who made this stop but one of the municipality’s garbage men who walked over to the car and made this bust, that would be okay, because after all, it’s just a local law that has assigned these duties to policemen and other duties to garbage men.

Lisa Burget Wright:

Well, if the police are not required to constrain their own discretion by maintaining adherence to their own policies, then because of the unique nature of civil traffic enforcement, and traffic enforcement in general, they will have the same amount of discretion as a practical matter as this Court found improper in Prouse and unconstitutional in Prouse, and that’s why there has to–

James A. Feldman:

I think that in that case there would certainly first be a question of whether… if somebody who happens to work for the Government and purports to make a traffic stop does so whether–

Well, that was total discretion in Prouse.

It would be unreasonable for the garbage man to do that.

Lisa Burget Wright:

–Well, it’s our position that as a practical matter the police really have the same discretion in the civil traffic area, and I don’t read the–

It’s not his job.

Well, but can you general… I mean, we’re talking about a holding that would presumably bind courts all over the country.

James A. Feldman:

–There may not be a Fourth… well, I would start off by saying there may not be a Fourth Amendment incident at all in that case, because if he’s just acting… he happens to be employed by the Government, but happens to pretend that he’s a policeman, he’s really just a private individual out there… out there.

Can you be that sure of what the various police departments all over the country prescribe?

But he could have been a policeman.

Lisa Burget Wright:

–Well, it would… obviously, the conduct would be judged by whichever policies govern the particular officer, whatever department he was in, and so just as in Florida v. Wells, you know, opening a particular container might be permissible–

I mean, he could have been a policeman.

So if a police department then said that plainclothesmen as well as uniformed police can make traffic stops, then this would have been perfectly all right in that kind of a department.

I mean, as far as the Fourth Amendment goes, you say a policeman could have done it.

Lisa Burget Wright:

–I think that’s correct, assuming there were not other policies that prohibited this particular kind of stop.

It’s just a matter of internal division of authority.

So a violation of the Fourth Amendment is dependent on what kind of a policy that the particular police department has.

It’s just the internal regulation.

Lisa Burget Wright:

Well, I think that’s exactly what this Court said in Florida v. Wells, that a container can be opened in one jurisdiction if there are policies governing that, but not in another.

This man could have been a cop.

Well, that was an inventory search, which we’ve always said had to be personal to some sort of a policy, and you say we should carry over that rule here.

He happens not to be.

Wouldn’t it in fact, if your view is adopted, wouldn’t that lead to pretty elaborate testimony at, say, a suppression hearing as to what the department policy was?

James A. Feldman:

Well, I do think that–

Supposing there wasn’t any written policy, but I take it your argument isn’t limited to that.

What difference does it make as far as the Fourth Amendment is concerned?

You could interrogate officers about what was the practice.

James A. Feldman:

–I do think as a general matter, as far as the Fourth Amendment it doesn’t make a difference, and let me say that this Court has repeatedly said, in a number of cases, that the fact that a given enforcement practice does or does not violate State or local law, or a State constitution for that matter, is not itself reason to say that it violates or doesn’t violate the Fourth Amendment.

Would that be permissible?

Have we upheld under the Fourth Amendment searches conducted by persons not authorized by law to make an arrest or conduct a search?

Lisa Burget Wright:

Yes, it would, but I don’t think it would be very difficult.

James A. Feldman:

No, and I’m not aware that those sorts of cases have arisen.

It might not be difficult, but it would be time-consuming.

James A. Feldman:

I’m not aware of any such case that’s arisen, in point of fact.

Lisa Burget Wright:

Not necessarily.

James A. Feldman:

In this case, there wasn’t any doubt about the authority of the policeman both under statute and under regulation to enforce the District of Columbia traffic laws.

Lisa Burget Wright:

I mean, I think that in most cases the issue will be resolved with the officer who made the stop on the stand.

Would it be appropriate for a police department to have a list of rules, a manual, part A and part B.

As it was in this case.

Part A says what all the traffic officers are to do, and they’re not to waste their time with people having strings hanging from their mirrors and putting their tire on the line or off the pavement.

Soto said, I don’t do this.

Then part B says that for the assistance of our drug enforcement officers, all of these things are grounds for stops.

Lisa Burget Wright:

Correct.

Would there be anything constitutionally objectionable in that, in your view?

But suppose instead of having… the plainclothes people who are supposed to spend their time pursuing big crime and not traffic violations had said, well, we know what we’re supposed to do, so they radioed the regular patrol cops, and the same thing happened, is that the whole of your position?

James A. Feldman:

I think that that… I think such a regulation probably would be enforceable.

It’s only that the plainclothes people… they suspect that there’s some drug trafficking but they haven’t got probable cause, and they see that this person is not the best driver in the world.

James A. Feldman:

It’s not what we have here, but it probably would be… excuse me, not enforceable, but probably wouldn’t provide an independent ground to hold a stop illegal so long as there was probable cause to believe that the violation.

They radio the regular cops on the beat, and the regular cops can stop that car.

James A. Feldman:

Now… that the violation had occurred.

Lisa Burget Wright:

Well, it would depend on what the policy was as to uniformed, marked patrol cars.

James A. Feldman:

Now, if the whole nature of a given offense, and this is a kind of a–

Lisa Burget Wright:

There would be a possibility that for the particular violations, or in the particular circumstances, that would also be a deviation from policy.

No, but you see nothing constitutionally objectionable in the practice that I’ve hypothesized?

Lisa Burget Wright:

If the violation was a string–

James A. Feldman:

–No, because I think… well, with one caveat that I’ll get to.

Well, if the patrol police that I have in mind, their job is to patrol traffic violations, and that’s all they do, so they stop pepple who are speeding, who go through a red light, don’t signal, that’s what they do all day, every day.

James A. Feldman:

In general, enforcing the law under the Fourth Amendment, giving a traffic ticket to somebody who’s violated the law is reasonable under the Fourth Amendment.

If the plainclothes people simply radio such a car to do the work for them, then your Fourth Amendment claim evaporates?

James A. Feldman:

It’s a nonarbitrary action.

Lisa Burget Wright:

–Well, not if there is a policy that would prohibit or would… would prohibit the marked car from making a stop, if, for example, the violation was a string hanging from the rear view mirror and the police department had a policy that said, you shall enforce the regulation about objects hanging from the mirror only if it is obstructing the view of the driver.

James A. Feldman:

There’s a reason for it, which is, the person violated the traffic stop.

But in your case I take it your answer is that you would lose if what had happened here is Soto radioed a regular patrol car and the regular patrol car said, you weren’t paying full attention to your driving, you turned without signaling.

James A. Feldman:

Now, if there’s a… if the system of laws in a given jurisdiction shows there’s some offense that’s defined in such an odd way that it really is just a way to let the officers in that jurisdiction get around… circumvent the requirements of the fourth Amendment and get a drug dealer on less than probable cause, there might be some kind of problem with a statute like that, where the whole thing was just a sham.

Lisa Burget Wright:

I think… we don’t have a record on that.

James A. Feldman:

But short of that, I would not say that… I don’t think there is a problem, and if you start saying that State and local regulations–

Lisa Burget Wright:

There’s a possibility that if we were to look into the practice with respect to marked cars in the District, that this would violate that policy, but you know, we just don’t know the answer to that.

Well, in my hypothetical, there’s a police department regulation, and the statutes are on the books, but it’s a sham.

Lisa Burget Wright:

But certainly we’re talking about situations that are the most egregious laws that are virtually never enforced, or are unenforced, or the officers aren’t authorized, so–

It’s designed just to help the drug people.

Supposing you get an officer, the arresting officer on the stand, and you ask him, did the department have a written policy respecting what you did here?

James A. Feldman:

–Well, it… that says that in the view of that police department they’re going to try to put their enforcement resources in places where they think that they’re most warranted, and I don’t think there’s actually anything wrong with that practice.

The officer says no, the department does not have a written policy.

James A. Feldman:

In this case, the police officer saw… was in a high drug area, the police officer saw this car driving erratically, and the police officer perfectly reasonably felt that that was a time when he ought to see what’s going on and make sure that the traffic laws are being obeyed, and that’s what he did.

Then you say, does the department have any practice, even though it’s not in written form.

But Mr. Feldman, I thought that wasn’t the case.

The officer says no.

I thought this officer said, I don’t do traffic stops.