Police Discretion and Street Policing

Question 1

Whren v. US

Answer 1

Plainclothes officer pulled over car for traffic violation, but prior to observing traffic violation officer observed men in car from a distance and became suspicious of a drug deal occurring. Whren was a passenger, police saw plastic bags of drugs in his hands. Whren and driver arrested. Def. argued pretextual stop.

REASONABLENESS BALANCING!!!

• The motives of officer or why a search or seizure was carried out do not affect its legality! –> this untethers motive and the justification; if sufficient justification for intervention exists (assessed objectively), the intrusion is reasonable.
• Police seeing traffic violation = probable cause to pull car over
  (This line of reasoning is applicable to stops and arrests)
• The objective basis of the officer’s actions is what matters, not the motives

Question 2

The Effects of Whren

Answer 2

• The motives of the officer or why a search or seizure was carried out do not affect its legality
• In effect, this untethered motive and the justification; if sufficient justification for intervention exists (assessed objectively), the intrusion is reasonable
• This line of reasoning is applicable to stops and arrests
• The objective basis of the officer’s actions is what matters, not the motives
• The 4A does not contemplate equal protection arguments, effectively foreclosing claims based on race, class, age, etc. (matter for the 14A)

Question 3

Atwater v. Lago Vista

Answer 3

Atwater pulled over for driving w/out seatbelt, and failing to secure her 2 children in front seat - arrested pursuant to TX law. Atwater sued claiming arrest was unreasonable seizure.

Does 4a forbids a warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine?

probable cause to arrest – regardless of how minor the offense, is VALID – regardless of ANY PRETEXTUAL motive by the police!
- SCOPE – but if arrest is made in an extraordinary manner, unusually harmful to her privacy or physical interest, it can be unreasonable

• But the mere embarrassment, anxiety, inconvenience, etc. of an arrest isn’t extraordinary; all arrests are that way
• Whren + Atwater  these cases permit a lot of policing that CAN have downstream negative effects, they give a lot of discretion to police to do their jobs

Question 4

Terry Wrap Up

Answer 4

• Terry establishes a framework for police encounters that do not require probable cause due to a “lesser intrusion.”
  o Does the level of intrusion require probable cause? Dunaway.
   Is it a formal arrest? Does the seizure or search go beyond a temporary encounter? Place.
  o If not, is there reasonable suspicion for the stop and frisk?
   Are there specific and articulable facts, together with rational inferences, possibly drawn from experience, that would suggest to the officer of reasonable caution that crime is afoot? Terry.
   Anonymous Tips: Is it reliable in its assertion of illegality, not merely descriptive of identity? J.L.; Navarette (rational inference).
   Officer Safety. Mimms; Johnson.
   Flight + other circumstances can be enough. Wardlaw.
  o Did the stop and frisk, in its scope, comport with the justification? Royer; Place.

Whren + Atwater = discretion to law enforcement – mark a shift by the court when it comes to certain types of policing on the ground
- Terry – standard – ample discretion to court
- Whren + Atwater – pretty clear rules to clarify boundaries of discretion provided by a case like Terry
o Authorized certain law enforcement activity that can have consequences and may in some ways permitting of abuse in policing that we would not want to tolerate under other constitutional principles
o But they are logical descendants of several decade long march of juris
 Not unpredictable based on prior case law
 Flesh out boundaries of something like terry std for policing on the ground

Terry + Whren + Atwater = what substantive criminal law looks like actually matters  boundaries of law enforcement
o Bigger boarders laws allow officers to justify the interventions / proactive policing, or other arrests which may be unwise are const permitted
o Allows them to do this even w ulterior motives (Whren)
o Relation between sub law and procedure is real and connected
o Help prop up different theories of policing

BOTTOM LINE: shift to reasonableness in context of street policing leaves a lot of discretion in hands of authorities – rules and stds are deferential to real time development as described by law enforcement