The Court Case That Is Allowing ICE to Stop Just About Anyone It Wants
For 30 years, law-enforcement officers have been empowered to be “clever”—and that cleverness has today become the cover for abusive actions by ICE.
In 1996, the Supreme Court decided Whren v. United States, which came about when plainclothes vice officers patrolling in the District of Columbia passed a truck in a “high drug” area and “their suspicions were aroused.” They had a hunch that the truck was involved in a drug operation. They chose to wait until it had violated a traffic ordinance (turning without a signal) and then used that violation as an excuse to stop the truck. In the course of searching the truck, they found crack cocaine.
The Supreme Court said that the temporary detention of a motorist “upon probable cause to believe that he has violated the traffic laws” did not violate the Fourth Amendment’s prohibition against unreasonable seizures, even if the officer would not have stopped the motorist absent some additional law-enforcement purpose. The Court developed a rule of objective intent. Under this theory, if the officers had a valid reason for acting—an objectively reasonable intention, in the Court’s terminology—then their true motive and subjective intent was of no constitutional consequence. A pretextual traffic stop to search for drugs was just fine with the Court.
[Adam Serwer: Conservatives want the antebellum Constitution back]
That decision, though couched as an application of the Fourth Amendment’s “reasonableness” standard, was grounded on two premises that were plausible at the time. First, that the discretionary authority granted to the police would be used against genuine criminals such as drug dealers. Second, that the occasional misuses of that discretion would be few, far between, and manageable by the court system through robust testing and oversight. Any harm that could possibly occur was outweighed by the good that would be achieved.
Whren has long plagued minority communities, leading to countless incidents of racial profiling. The current use of Whren in the immigration context takes these abuses further yet, singling out people not on suspicion of criminal behavior but for noncriminal immigration enforcement. Both of the premises in Whren, if they ever were accurate, are now manifestly false. Officer discretion is not being deployed solely against possibly malevolent actors, and the misuse of that discretion is causing more harm than good, not only to those illegally present, but also to those here legally, including U.S. citizens.
The confluence of Whren and ICE is easily captured anecdotally. In Washington, D.C., for example, the U.S. Park Police (a federal police agency) is responsible for enforcing traffic laws on Rock Creek Parkway, a piece of federal land. Since the ICE crackdown began, the park police have begun pulling over commercial trucks for technical violations—say, obscured license plates or driving on the noncommercial parkway—and then allowing ICE to arrest those suspected of immigration violations. To the same effect in D.C., delivery drivers are at risk of being stopped for traffic violations and then being sucked into the immigration-enforcement machine. It’s not just D.C.; the crackdown is nationwide. ICE detentions start with minor traffic violations in Phoenix. In Florida, they begin at truck inspection checkpoints. Or, in Montana, with a broken taillight. Unsurprisingly, the traffic crackdown is not race-neutral. In South Florida, for example, ICE is targeting specific types of work trucks typically driven by people of color.
Even 30 years ago, the Court’s view rested on shaky empirical foundations. It adopted the rule of objective intent despite understanding that, at least sometimes, the subjective intent of the officer might be invidious. The Court recognized that instead of targeting suspicious vehicles in a high-crime area, an officer might have been the sort who targeted a car filled with Black Americans simply because of their skin color. But the Court had a general view that the police were typically trustworthy and honest, and it wrote a rule based on that assumption.
This rule was attractive to the Court because subjective intent is much more difficult to assess than objective factors. It is hard to know what someone else is really thinking, even if you know them quite well. Many judges know that they are particularly ill-suited to assess spur-of-the-moment motivation when sitting in the quiet of their chambers. Worse yet, adopting a rule that asks an officer to explain his motivation is just a formula to solicit perjury—a rule that relies on subjective intent would give any officer an incentive to shade the truth and embellish on his thought process.
But the incentives for officers to shade the truth are really no different under either the objective standard or the subjective one. Just as a law-enforcement officer may sometimes gild the lily in describing his thought process, he may also do so in describing the objective facts that he has observed. I had one case, many years ago, in which my client was suspected of engaging in a drug transaction. The police broadcast a lookout for his car, and he was pulled over for a traffic violation. His offense? Allegedly driving faster than 15 miles per hour in a mall parking lot. But given the configuration of the lot and the presence of other parked cars, the officer’s contention that the car was speeding was dubious at best. Still, he had offered an objectively valid ground for the stop, and my client was duly convicted based on the drugs found in his car.
Whren’s logic has always been a formula for abuse, but that abuse has come especially to the fore today, when acted on by ICE agents who, far from investigating federal crimes, are deploying their authority in the service of noncriminal immigration enforcement to satisfy Trump’s deportation quota. Without any actual knowledge that a crime may have been committed, ICE officers can convert an everyday occurrence that almost every person in America does routinely (rolling through a stop sign, say) into the pretext for arrest that can lead to banishment.
[Listen: Federal agents are violating the rights of Americans]
Whren’s most fundamental error was the Court’s implicit assumption that malicious intent by law-enforcement officers was a rare subset of justified traffic stops. Back then, the Court might plausibly have given law enforcement the benefit of the doubt. Today, the current conduct of federal law enforcement—and most particularly ICE investigations where criminal activity is not generally at issue—seems to be different both in degree and in kind from what the law might reasonably have anticipated decades ago.
It is, no doubt, too much to hope that the Court, as currently constituted, will revisit this unwise decision. But if there ever comes a time when reconsideration is possible, Whren should be scrapped, and a rule of subjective intent should be adopted that is more aligned with what we now know about the possibility of authoritarian abuse. ICE’s conduct, if it has taught us anything, has taught us not to blindly trust the good intentions of law enforcement.