St. Mary's Law Journal


This Article describes the present state of roadway police power and explores the vulnerability of drivers and occupants to police abuse, specifically using pretextual stops. Today, state and federal courts have made many police power accommodations to the constitutional reasonableness requirement. Current Fourth Amendment jurisprudence justifies almost all conceivable police seizures of people in vehicles. If the police officer can point out any traffic law violation, he can arrest. And if he can arrest under those circumstances, then the already blurred line between detentions and arrest becomes inconsequential, constitutionally speaking. This Article proposes that the Texas Court of Criminal Appeals extend its “reasonable officer” test—already employed by the analysis of arrests and searches—to traffic stops and detentions. In addition, this Article proposes that the Texas Legislature remove police authority to arrest for fine-only traffic offenses. The diminution of constitutional protections on the roadway is due in part to the reasonable suspicion standard under Terry v. Ohio of automobile stops. The reasonable suspicion standard accommodates police interests in enabling them to stop drivers even when the indications of criminal conduct are ambiguous. In Whren v. United States, the United States Supreme Court decided that bad faith seizures by police were beyond Fourth Amendment regulation so long as they could be objectively justified in some way. Then, in Atwater v. City of Lago Vista, the Court held police are free under the Fourth Amendment to arrest for such minor infractions as the failure to wear a safety belt. Together, these two decisions leave drivers open to the unchallengeable discretion of the police. As it stands now, Atwater and Whren together expanded the formerly regulated area of police detentions in an unprecedented fashion; a consequence, most directly and most often experienced by drivers.


St. Mary's University School of Law