Police can stop motorists for a variety of reasons, including minor issues such as not using a turn signal, having a broken tail light, having window tinting on your windows or similar issues. These stops for minor crimes are considered “pretext” stops because police usually use these issues as a pretext to hopefully find evidence of some other crime. While most people take this fact for granted and consider it a minor frustration when it happens to them, many people of color find the simple prospect of getting pulled over to be intimidating and some even find the idea terrifying.
What’s the Problem with Pretext Stops?
After many Americans watched the chilling video of George Floyd, even those who have never seen these types of interactions awoke to the reality of why police interactions can be fear-inducing for people of color. The video has inspired many police reforms and one such issue is that of pretext stops.
Police pull over an average of 50,000 motorists per day and research shows that black drivers are stopped 20% more frequently than white drivers considering their relative population proportions. Once darkness falls, that number drops dramatically and black drivers are actually less likely to be pulled over once their race can’t be easily seen from outside the vehicle. Even more bothersome, black drivers are up to 2 times as likely to be searched than white drivers even though evidence indicates that they are actually less likely to have drugs, guns or other illegal materials on them than white drivers.
While it can be easy to assume this problem occurs in other parts of the country, but not at home, the trend is still absolutely true in San Diego, where blacks make up only around 6% of the population, but still make up 18% of all traffic stops. And police in our fair city do use pretextual stops quite often. In fact, research shows that only 1.3% of all traffic stops by police (not the Highway Patrol, who is actually tasked with enforcing traffic crimes) actually result in arrests.
The problem for black residents of San Diego isn’t just a matter of being inconvenienced by a traffic stop more frequently. They are also more than 6 times as likely to be charged with a minor drug offense in San Diego than whites. More disturbingly, SDPD officers are more than 8 times as likely to use force against black people
As Farhang Heydari, executive director of the Policing Project at the New York University School of Law, points out, “Police have enormous discretion in making traffic stops. If you’re driving, it’s impossible not to break a traffic law — there are so many of them. Police are always going to have a reason to pull you over.” And outlawing pretext stops for minor traffic infractions, particularly those that only result in fix-it tickets, is a great way to put an end to this practice.
Changes Are Being Made
Obviously police need to be able to stop vehicles when people are suspected of crimes. But more and more states and cities are increasing the thresholds for officers to stop vehicles, making these pretext stops for minor infractions against the law. Virginia recently prohibited police from stopping residents for driving with a broken license plate light, object dangling from a rearview mirror, tinted windows, loud exhaust pipes or for having the odor of marijuana around their vehicle, unless the officer had another valid reason to stop or arrest the driver. Officers are also outlawed for performing searches or seizures based only on the scent of marijuana.
The Oregon Supreme court has ruled that officers cannot pull someone over for a minor crime such as a broken tail light and then question the driver unrelated questions or ask for consent to search the vehicle.
In fact, in California, the Highway Patrol has been prohibited from using minor traffic violations as a pretext to search vehicles since 2003 and that includes asking drivers for permission to search their vehicle without the probable cause they need to search a vehicle without permission. But this doesn’t apply to local police agencies.
Not all changes are being made on a state level. In California, Oakland has stopped police from pulling over low-level offenders. And in Berkeley, the city council passed a measure to transfer traffic stops from the police to an unarmed civilian group employed by the yet-to-be-established BerkDOT transportation department.
While no statewide changes have been proposed in California, it is possible similar laws may be passed statewide in the future, allowing the Highway Patrol to continue to enforce low-level traffic crimes, while prohibiting local police from doing so.
The Arguments for Pretext Traffic Stops
Of course, few issues like this are one-sided matters. Police groups oppose these decisions as well as the notion that they are racially profiling drivers. They often point to cases where a dangerous criminal was stopped due to a traffic stop related to a minor offense. One of the most famous examples being when the Oklahoma City bomber Timothy McVeigh was stopped and caught after he was pulled over for not having a license plate.
But the frequency at which dangerous criminals are removed from the streets due to pretext-driven traffic stops is obviously infinitesimal compared to how often average people have their vehicles pulled over for minor infractions.
And while public safety groups like Mothers Against Drunk Driving don’t have a problem with some proposals (like those targeting drivers with broken tail or license plate lights), they are against those that make it more difficult for police to stop and arrest possible drunk drivers.
Fight for Your Rights
While no laws have been passed in California to stop these pretext-based traffic stops, it’s important to remember that police still must meet some minimum standards to stop, search and arrest a suspect. When you have been charged with a crime after being pulled over by the police, it’s important to give all the details of your encounter to your lawyer so he can evaluate the situation to determine if your rights may have been violated. When this happens, the evidence against you may be challenged and you may even be able to have the charges dropped all together.
If you have been arrested for any crime, please call (760) 643-4050 or (858) 486-3024 to schedule a free initial consultation where you can discuss your case with criminal attorney Peter M. Liss.
