Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext.

Read Eric Citron's Pocket Part Commentary adapted from this Note.

Read Professor Margaret Raymond's Response, On Rights and Responsibilities: A Response to The Problem with Pretext.

Read Judge James Robertson's Response, How Whren Protects Pretext.