Should pretextual traffic stops be legal?

| Oct 5, 2020 | Traffic Offenses

It may not surprise you to learn that the police routinely pull people over for minor traffic or equipment violations only to use that traffic stop to investigate for other crime. In many cases, this is perfectly legal.

In fact, in 1996, the U.S. Supreme Court unanimously ruled that so-called “pretext stops,” where the officer’s main motivation was something other than the traffic violation, are constitutional as long as the traffic violation actually happened.

Yet police can almost always find some reason to pull you over, if they want to.

“If you’re driving, it’s impossible not to break a traffic law — there are so many of them,” says the executive director of the Policing Project at the New York University School of Law. “Police are always going to have a reason to pull you over.”

Law enforcement has enormous discretion over minor traffic stops, and that may not be a good thing. If they have the discretion to stop people on pretexts, they may use it to unfairly target people of color.

Do police target people of color for traffic stops?

That’s what researchers from NYU and Stanford University found when they analyzed nearly 100 million U.S. traffic stops that occurred over nearly a decade.

White drivers, the researchers found, are more likely to have contraband such as drugs or guns that the police discover during pretext stops. Nevertheless, they’re searched 1.5 to 2 times less often than African-American drivers.

Interestingly, the researchers also found that Black drivers are less likely to be pulled over after sunset, when it’s harder to see race. This suggests bias in the decision to pull someone over.

According to Stateline, an initiative of The Pew Charitable Trusts, traffic stops are the single most common interaction most people in the U.S. have with the police. Every day, police pull over more than 50,000 American drivers. That’s over 20 million traffic stops every year.

The problem is serious enough that a number of states have decided to try to reduce the number of minor traffic stops altogether.

For example, the Oregon Supreme Court ruled last year that police cannot pull someone over for a minor infraction and then ask unrelated questions or seek consent to search the car.

The Virginia legislature is considering banning pretext traffic stops. It has already passed a bill prohibiting citations for several small offenses:

  • Broken license plate lights
  • Objects hanging from the rearview mirror
  • Exhaust noise
  • Tinted windows

The bill would also prohibit searches based solely on the odor of marijuana.

These minor, often pretextual traffic stops are often referred to as “driving while Black” violations. Should New Jersey try to ban them?