What is a Pretext Stop?
The line between a legal stop and an illegal stop is a fine one. Police must have either witnessed a violation of the law or have probable cause to stop a vehicle in order to do so.
Sometimes police officers aren’t really that interested in the traffic violation. They may suspect a drug violation, for example. They’re after the drugs, not a traffic ticket. If, after making the stop, they can make a case for a DUI or DWI they will happily do so.
In theory a pretext stop should not be legal, but they happen in practice all the time. It is unlikely that the notion of a pretext stop will be part of your criminal defense strategy.
All the police need to pull you over is a single traffic violation.
In the 1996 Supreme Court case Whren v. United States, the Supreme Court ruled”
“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, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective…Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.”
The 2015 case Heien v. North Carolina stated that the officer can even make a mistake in their interpretation of the law when deciding whether the stop was reasonable. The Supreme Court ruled “the Fourth Amendment requires government officials to act reasonably, not perfectly, and gives those officials ‘fair leeway for enforcing the law.’ The limiting factor is that ‘the mistakes must be those of reasonable men.'”
This has led to some fairly absurd results, such as an officer in Wisconsin pulling a motorist over for hanging an air freshener from a rearview mirror, a stop which led to a marijuana charge.
You do not have to consent to a search.
Police must have probable cause, a warrant, or your permission to search your car. Probable cause could be the smell of marijuana, or drug paraphernalia in plain view.
All you ever have to say is, “I do not consent to a search.” If the police proceed anyway and cannot demonstrate probable cause any evidence they acquire during such a search may be suppressed.
Probable cause violations can be used to suppress enough evidence the state’s case can fall apart.
Sometimes this can even include the outcome of field sobriety tests.
It’s just important to focus on the issue of probable cause, rather than the issue of the officer’s motives, and to be aware that at times proving a lack of probable job is an uphill battle. You and your attorney may have to work together to find a better defense for your case.