The Yale Law Journal


On Rights and Responsibilities: A Response to The Problem with Pretext

30 Apr 2007

Eric Citron’s piece, Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, gets some things quite wrong, but it gets one important thing right—that our Fourth Amendment law is all about what suspects do and very little about what police do.

Citron starts from the proposition that Whren v. United States makes impermissible any consideration of pretextual justifications for police conduct. Citron overstates the significance of Whren, arguing that “Whren and its progeny broadly condemn any subjective inquiry into the motivations of individual officers." Whren should more accurately be characterized as holding that, when police action is based on individualized suspicion, the existence of the appropriate level of individualized suspicion justifies the action, without inquiry into the officer’s subjective intent. This is why Justice Scalia stated in Whren that “subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis."

Where the Fourth Amendment invasion is not justified by individualized suspicion, there is still room for an inquiry into pretext. One example is the inventory search context, where the justification for the search is not based on individualized suspicion, but rather on the reasonableness of inventories as a categorical matter and the understanding that all similarly situated individuals will be subjected to standardized procedures. Pre-Whren cases indicated that pretext might be relevant in this context, and nothing in Whren undoes that conclusion. So it is an overstatement to suggest that Whren never permits any subjective inquiry into the intentions of individual police officers.

City of Indianapolis v. Edmond, which Citron views as inexplicably in conflict with Whren, provides another example of how pretext may be relevant when the justification for the privacy invasion is not based on particularized suspicion. In Edmond, the checkpoint stops used to detect narcotics were by definition suspicionless because they were imposed on individuals who happened to pass the checkpoint, without any requirement of particularized suspicion. Accordingly, the purpose inquiry—albeit an inquiry into departmental or institutional purpose, rather than the purpose of individual police actors—was not inconsistent with Whren. The requirement of particularized suspicion narrows somewhat the category of individuals eligible for police attention; in its absence, the possibility of inappropriate or discriminatory misuse of police power makes courts more willing to scrutinize police behavior for pretextual motivations.

Citron is therefore wrong about the breadth of Whren’s prohibition on considering pretext in assessing the constitutionality of police conduct. He is quite right, however, that we tend to describe Fourth Amendment violations in terms of the rights of the defendant, rather than the responsibilities of law enforcement. In doing so, we overstate the Fourth Amendment’s concern with the individual and understate its concern with police.

Fourth Amendment standards are often articulated in terms of suspect behavior rather than police behavior, enabling suppression courts to articulate the loss of Fourth Amendment protections as the suspect’s fault rather than the product of police conduct. Consider, for example, the standard that determines whether a police officer’s conduct towards an individual in an on-the-street interaction constitutes a Fourth Amendment event—a “seizure” of the person—or a constitutionally insignificant “consensual encounter.” This test is phrased in terms of the suspect: whether a reasonable innocent person in the position of the individual approached would “feel free to decline the officers’ request or otherwise terminate the encounter.” If a reasonable person would have felt free to decline the request (and the courts view expansively the reasonable person’s perception of his power to decline), the police conduct is not a “seizure,” regardless of how intrusive or directive it may have been. The standard does not ask whether the officer did something inappropriate. Instead, it asks how the reasonable citizen should have responded to what the officer did. These standards focus on suspect behavior, not police behavior, and make it the individual’s responsibility to guard his own rights. In Citron’s terms, this underemphasizes the “power-skeptical” component of the Fourth Amendment, focusing on suspects instead of police and making the critical question whether the citizen resisted rather than whether the police overreached.

Similarly, the standard that determines whether a Fourth Amendment “search” has occurred focuses very little on the behavior of the police. In confronting that threshold issue, the question is whether the police conduct invaded an actual, subjective expectation of privacy on the part of the defendant, and whether that expectation is one that society is prepared to recognize as reasonable. Once again, the legal test focuses on the suspect’s beliefs and whether they are reasonable, not on whether the officer’s behavior comported with our notions of the appropriate boundaries of police conduct.

While I think Citron does a good job of identifying this problem, I’m highly skeptical about his proposed solution. First, I think it leaves some issues unanswered. Second, I think it doesn’t address the important issue he raises as directly as it might.

The proposed solution is that a search or seizure is unconstitutional “if an inappropriate motive is a but-for cause” of the action, and “[a] motive is inappropriate if it is contrary to the Constitution.” The author defines “contrary to the Constitution” to mean that “the Constitution, fairly interpreted, would frown on the offering of that purpose as the justification for the search.” Leaving aside that the Constitution rarely displays any facial expression, what do we do with motivations as to which the Constitution displays no particular view? It is easy to understand how the test applies to motivations that violate an independent constitutional principle, such as race-based animus, for example. But if we are talking about the Fourth Amendment itself, the test doesn’t suggest to us a particularly effective basis for determining what kinds of conduct are “contrary to the Constitution.”

Suppose an officer stops a driver driving five miles an hour over the speed limit in order to meet a quota of stops for the day. Surely the stop is pretextual, in that the officer’s true motivation for the stop—the but-for cause, in Citron’s terms—is the need to meet his quota, not the desire to target a speeder. Evidence that the officer typically tickets only speeders driving ten miles an hour over the speed limit would bolster this conclusion. But is there anything about a quota stop that is “contrary to the Constitution”? It is not “motivated by the desire to avoid the hurdles of the warrant and probable cause requirements”—indeed, it has nothing to do with those things. The reason for the stop may make us uncomfortable, but it is not clear that it is “contrary to the Constitution.” One might imagine a range of such situations in which the justification, while discomfiting, doesn’t satisfy that test.

The fact that the Fourth Amendment itself uses the term “unreasonable” doesn’t require a different conclusion. “Unreasonable” searches are not those conducted for the wrong reason. An objective standard, premised on reasonableness, does not ordinarily look to reasons at all. For example, it is unreasonable for a homeowner not to clear ice off her sidewalk. This has nothing to do with the reasons the homeowner has not cleared ice off her sidewalk; it is a conclusion about the appropriateness of behavior, using as the touchstone what a person who is “reasonable” would have done under similar circumstances. In that regard, we mean reasonable as “something which a person of sound reason would do,” not “something which someone would do only for good reasons.”

Motive, unlike intent, is something into which the criminal law inquires only rarely, and for good reason. In the context of intent, we can benefit from the inference that a person ordinarily intends the natural consequences of his voluntary acts. If I hit you with a shovel, most people would say that the fact that I did so is good evidence that I intended to do so, and that I intended to inflict the degree of harm that was the foreseeable consequence of that violent act. But in this context, we are asking not about what the officer intended to do (stop a vehicle), but about why he did it. I think Citron underestimates the difficulty of this process and overestimates the value of adding a pretext claim to every Fourth Amendment case.

I would address the problem of police behavior head-on. If the Fourth Amendment is concerned with police conduct, the standards we apply to determine whether police have overstepped constitutional constraints should focus on police behavior, not citizen behavior. Instead of asking whether a reasonable person would feel free to decline the officer’s request and terminate the encounter, we should ask whether the officer acted appropriately under the circumstances. Instead of asking whether society is prepared to recognize the defendant’s expectation of privacy as reasonable, we should ask whether society is prepared to view the police officer’s encroachment on that privacy as acceptable. Articulating the standards governing Fourth Amendment issues in terms of police conduct rather than citizen behavior provides a more straightforward return to Citron’s “power-skeptical” vision of the Fourth Amendment.

Margaret Raymond is Professor of Law at the University of Iowa College of Law.

Preferred Citation: Margaret Raymond, On Rights and Responsibilities: A Response to The Problem with Pretext,116 Yale L.J. Pocket Part 369 (2007),