Texas Pretext Stops: Reform Legislation You Didn’t Know You Needed

Earlier this month, I asked my younger brother, “Could a policeman pull you over for not wearing your seatbelt and then decide to arrest you instead of just giving you a ticket?” Without hesitation, the kid replied, “I guess so, but it would be an illegal arrest or something.” — of course, he was absolutely wrong.

I’m confident that most Texans would agree with me that it simply does not make much sense to allow police officers to place drivers under arrests for minor traffic offenses like speeding or not wearing a seatbelt. Rather than spending too many words arguing the obvious and trying to convince any outliers to also agree with me, let me first explain how it even became possible for Texas police officers to wield such ridiculously extreme power.

Whren, Caballes, Atwater: A Toxic Concoction of U.S. Supreme Court Decisions

Texas law enforcement power was actually expanded by an interesting concoction of U.S. Supreme Court decisions. First, in 1996, Whren v. United States declared “that any traffic offense committed by a driver was a legitimate legal basis for a stop”. While this case involves your Fourth Amendment protection from unreasonable detainment, the outcome actually seems obviously reasonable. Of course, it has one interesting implication: the police can use a legally justified stop as an opportunity to get a better look at the driver and possibly observe any signs of additional illegal activity.

Considering this, you could argue that traffic law is so complex that the police could find an excuse to pull anybody over if they simply followed the driver long enough until they saw him or her commit a traffic offense — but that is an argument that deserves its own post. Regardless, things start becoming stickier when we consider Illinois v. Caballes, a 2005 decision in which the court decided the Fourth Amendment also does not protect you from a drug dog sniff conducted during a legally justified traffic stop.Combining the implications behind Whren and Caballes together, law enforcement officials are empowered to use traffic violations as pretexts to set drug dogs on any driver they suspect of concealing contraband. 

However, the right to privacy was truly eliminated for Texans since the Whren and Caballes could interact with a 2001 decision: in Atwater v. Lago Vista, the U.S. Supreme Court ruled that the Fourth Amendment does not protect you from warrantless arrests if you commit misdemeanor offenses. This means that even if driving without a seatbelt is only punishable by fine in Texas, police may arrest you for the offense. This is troubling not only because research has consistently found that pretextual stops disproportionately target minorities, but more importantly because Atwater opens the door for broad civil rights violations against all citizens.

How a Common Sense Texas Senate Bill Died in 2001

It’s not too difficult to imagine Texas police officers using this dangerous concoction to exert unfair authority over the drivers they stop. For example, if they suspect somebody is driving with drugs concealed in the car, they can tell the driver to wait until drug dogs arrive. Normally, Caballes would ensure that a prolonged traffic stop is illegal, but almost any driver will consent when the police informs him or her that, under Atwater, it is legal for the police to simply arrest traffic violators. Once the driver is arrested, it is completely legal for police to perform a full search of the impounded vehicle anyway.

Back in 2001, the arrest of a Texas soccer mom who forgot to wear her seatbelt entertained the nation as it played perfectly into stereotypes of Texas-style justice. Though the U.S. Supreme Court ruled that the arrest at the heart of Atwater v. Lago Vista had been Constitutional, it still pointed out that the arrest was nothing more than “gratuitous humiliations imposed by a police officer who was (at best) exercising extremely poor judgment” and explicitly invited the Texas Legislature to balance out the Court ruling with a state law that would address the obvious civil rights problem.

Within just a few weeks, Texas had responded appropriately to the invitation: Senate Bill 730, sponsored by Republican Senator Chris Harris, was passed by both chambers of the Texas legislature only about a month after the Atwater decision. The bill was simply meant to limit Texas police officers to writing a ticket rather than issuing an arrest in the case of misdemeanor traffic offenses. Nevertheless the bill met fierce opposition from law enforcement interest groups.

Obviously, these lobbyists were perfectly happy that Atwater had seriously expanded police powers by essentially enabling officers to issue an arrest whenever they felt annoyed by a traffic violator or felt like searching a car without meeting the legal standards of “reasonable suspicion” and “probable cause” that guarded Texans’ civil liberties. Ultimately, when the two-month anniversary of the Atwater decision came around, Rick Perry killed a bill that was simply meant to return basic civil rights to Texans — I can only hope that the future Governor of Texas will consider righting rather than repeating his predecessor’s wrongs.