Pretext traffic stops under fire

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“It’s about saving lives,” said Minnesota Rep. Cedrick Frazier (DFL- 45A) calling for limitations on pretext police stops. “I think of whether Daunte [Wright] could still be here if the cops hadn’t engaged him on that day initially for an expired tab.”

In a pretext traffic stop, a police officer stops someone for a minor traffic offense so that they can investigate them for a worse offense that they don’t yet have evidence for. These stops allow police officers to conduct criminal investigations under the guise of low-level traffic code violations.

With Rep. Kelly Moller (DFL-42A) and Rep Jamie Becker-Finn (DFL- 42B), Rep. Frazier created a proposal inside a now-approved public safety bill calling for limiting pretext stops among several other policing changes in response to the death of 20-year-old Daunte Wright. The bill allows law enforcement to continue to pull people over for speeding or equipment violations that create dangerous driving conditions. However, it would limit pretext stops and the further investigation of a serious crime. The bill has received bipartisan support.

Traffic stops are the most frequent interactions between police and citizens. In 2020, 120 people in the U.S. were killed during a routine traffic stop, according to Mapping Police Violence.

In 1996, the United States Supreme Court unanimously decided that pretext stops were constitutional in Whren v. United States. The driver, James L. Brown, and the passenger, Michael Whren, were driving in a “high drug area” of Washington, D.C. After sitting at a stop sign for about 20 seconds, they sped off without signaling. The prolonged stop and speedy turn caught the attention of two plain-clothed police officers in an unmarked car, causing them to stop the vehicle.

Once the officers approached the vehicle, they noticed two bags of crack cocaine in Whren’s hands, and there was also marijuana laced with PCP in plain sight. Whren and Brown were charged with intent to distribute 50 grams of crack cocaine, and because they were pulled over in a school zone, the federal charges were much harsher. 

This case went to the Supreme Court because the Fourth Amendment, which protects citizens against unreasonable and unusually harmful search and seizures, was in question. The unanimous decision concluded that the subsequent investigation was reasonable even if the officers had other motivations for pulling the vehicle over because a traffic violation had occurred.

“The temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment’s prohibition against unreasonable seizures,” ruled Justice Anton Scalia.

Scalia in his decision noted that because there was a traffic violation, the search and seizure did not violate constitutional rights: “Such stops could be made regardless of an officer’s true intentions.”

A study conducted by the Hennepin County Public Defender’s office last year found that from June 2019 to May 2020, 78% of traffic stops were Black and East African drivers. With Black people making up only 19% of the Minneapolis population, this data speaks to the immense racial disparity of these stops. 

Pretext stops are the basis for police offers to investigate and search for contraband, yet less than half of one percent of the time is illegal contraband found in Minneapolis. White drivers are more likely to have contraband, according to the Public Defender’s study. New York University research found “Black drivers were searched [after being stopped] about 1.5 to 2 times as often as White drivers, while they were less likely to be carrying drugs, guns, or other illegal contraband compared to their White peer.”

Other states have taken similar actions to eliminate pretext stops and reduce the likelihood of them resulting in unnecessary confrontations. Virginia passed a similar law intending to curb pretext stops in November 2020. This law downgraded to secondary offenses minor traffic violations including loud exhaust systems, tinted windows, and objects hanging from the rearview mirror. It also prohibits police officers from initiating searches based on the smell of marijuana.

According to a USA Today report, in Fayetteville, North Carolina, now-retired police chief Harold Medlock shifted traffic stops to focus on speeding, stop sign/light violations, DWI, and reckless driving. These issues pose an imminent danger to the public and other drivers.

Medlock wanted nonmoving violations like expired license tabs and equipment failures to be minimized and avoided if possible. From 2013 to 2016, the investigative traffic stops decreased to zero, Black driver searches were reduced by 50%, and traffic fatalities declined, according to North Carolina State data.

 “I think consent searches need to be banned,” stated Mary Moriarty, former Hennepin County chief public defender. “Many times in these cases, the cops don’t have a legal right to search. If they do have a legal right to search, that’s fine. But if they don’t, they’ll ask a driver can we search your car or your person. Many people don’t know they have a right to say no.

“There are some people who know they have a right to say no, but they’re intimidated because a cop is asking them. A police officer asking for consent to search is inherently coercive, so I think that needs to stop,” said Moriarty.

These stops are also a poor use of resources and time by police officers. “We’re way down on officers in Minneapolis,” Moriarty said. “We’re told they’re running from one call to another. Why are we allowing them to engage in criminal investigations on traffic violations when they’re not finding guns or drugs that often? It’s creating these huge racial disparities and a lot of anger in the community and trauma from just being pulled over.”

While license tabs and vehicles should be kept up-to-date, there seems no need for armed police officers to handle such minor moving and equipment violations. Minneapolis implemented a program called Lights On Minnesota that handed out vouchers for free repairs for broken headlights, taillights, or brake lights. Unfortunately, according to data, these vouchers were being handed out disproportionately to White drivers, and this program was suspended due to COVID-19. 

With the bill’s passing, it is essential to recognize that police officers’ conduct is not the only issue. “There’s a movement around the country to kind of find ways to scale back on what we’re asking our police officers to do. That’s one of the most important things,” said Rep. Frazier.

“The way we should look at this is that this is something we can remove from putting our officers in situations that will escalate to another killing or some other bad interaction with community members.”

Last week, Hennepin County public defenders rallied along with several dozen others in front of the Hennepin County Government Center to protest pretext stops. The public defenders told the crowd that they see the result of the traffic stops and want to stand in solidarity with the community.

“These people are being harassed, and they are being put through search and seizures,” said Hennepin County Public Defender Tonya Bishop. Bishop, who is White, told the audience that she has never been stopped by police though her official work badge hangs from her rearview mirror. She added, however, that when her husband, who is Black, borrowed her car he was pulled over for having a windshield obstruction.

“Black people are being disproportionately targeted and policed,” Bishop said. “Living, breathing, and being Black is not a crime.”

Hennepin County Public Defender Jesse Dong explained that this isn’t just a police problem. “This is a system being upheld by prosecutors and judges.”

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