Democracy, at the very least, requires that the dangerous branches of government—like the executive and law enforcement—be accountable to the people or their representatives. Ignoring claims of police pretext, as our Fourth Amendment jurisprudence currently does, creates a barrier to that accountability because it shields bad police purposes from inquiry. We cannot with confidence grant limited powers to the police, or trust that they will not use their powers for totalitarian ends, if a police officer’s purpose, by rule, forms no part of any Fourth Amendment inquiry into his actions. Without a purposive inquiry, his ends need not be ours, though democracy would dictate that they should be. This is what it means to say that police pretext poses a democracy problem.

Indeed, it should be regarded as an embarrassment for our Fourth Amendment jurisprudence that, at least since Whren v. United States, police pretext has been flying below our constitutional radar. According to the Whren rule, if a search or seizure is “objectively” warranted by available facts, then courts are asked to ignore even the most obvious examples of ulterior motives behind police activity. This simplifies Fourth Amendment inquiries, but also unduly contracts their scope.

Consider some examples. The officer who pulls over a speeder simply because he regards members of the driver’s race as suspicious is unassailable if the searched driver was, in fact, even modestly speeding. The officer who claims a tinted-window violation only to peer through those panes at close range is similarly protected from a claim of harassment or warrantless snooping by our window-tint regulations. All an officer needs to do is state that a person they want to search really was speeding, or that the windows really did appear too tinted, and the Fourth Amendment inquiry is at an end. The result is that almost no citizen is beyond the gaze of an officer determined to cast the pervasive eyes of the regulatory state upon him. Unsurprisingly, claims of abuse by the disadvantaged—racially profiled minorities; parolees; vagrants; the urban poor—abound at the bar of justice. Yet the law turns a blind eye to these claims, allowing an ever more searching one to roam among the citizenry under cover of the regulatory law.

As I have tried to demonstrate in more detail in a Note recently published in this Journal, our failure to apprehend the problem with pretext stems from a Fourth Amendment jurisprudence too rooted in the language of individual privacy rights, and too detached from the crucial question of government responsibility. At their core, pretextual police actions pose a problem not only for those whose privacy is from time to time invaded by a pretextual seizure or search, but also for our democracy as a whole. Indeed, police pretext poses a democracy problem in two closely related ways. First, by detaching specific police powers from the purposes that we, the people, intended those powers to serve when they were granted, pretext decreases effective democratic control over the most dangerous arm of our government. This in turn increases the threat posed to our democratic lifestyle by totalitarianism, because without effective democratic control over the police force, the mere possibility of state panopticism erodes not only the security of our private life, but the quality of our public life as well.

Pretext and Public Control

If we begin from the premise that executive agents of democratic governments exercise only those powers granted to them by the people, then we quickly see the “democratic control” problem associated with ignoring claims of pretext. It is true that we have granted numerous and various powers—both explicitly and implicitly—to a host of different executive actors. The FDA investigates food and drug practices, OSHA investigates workplace safety, and the FBI investigates domestic criminality, each using a different set of powers allocated to them by legislative statutes and by the Constitution. Local police wear all these hats and more at the same time: they not only investigate wrongdoing and arrest perpetrators, but also direct traffic, enforce safety regulations, respond to emergencies, secure the roadways, and help citizens in distress. Yet they, too, no less than federal agents, are limited to those powers entrustedto them by the people. Both our laws and our Constitution constrain the powers that executive agents can bring to bear in pursuit of their multiple purposes.

Allowing pretextual searches and seizures to proceed effectively short-circuits both the statutory and constitutional checks on the police power. We, the people, justifiably grant the police wide latitude where the social benefits are high and the risk posed by invasive surveillance is relatively low—food storage inspection, say, or traffic regulation. If there is no constitutional problem with pretextual use of these powers—that is, no problem with initiating a food inspection or a traffic stop merely as a means of investigating other crimes—then we lose this ability to grant wide latitude to the regulatory state for restaurant or roadway safety without effectively surrendering all our freedom from prying eyes in these particular areas, whether the goal is safety or not.

Both statutes and constitutional doctrines recognize that the police should be allowed greater latitude in the service of certain purposes: officers responding to emergencies or performing regulatory inspections do not require warrants. Yet Whren’s rule against pretext claims makes a sham of this constitutional inquiry, because the latitude allowed to the police in service of certain purposes can be freely put to others. Despite the fact that we allow greater flexibility to the police precisely because we see the pursuit of certain purposes as less of a threat, Whren proceeds to put the purpose of the search or seizure outside the constitutional inquiry.

Thus it is clear that if we intentionally ignore claims of pretext, both constitutional and statutory law lose the ability to make exceptions for certain benign police ends without allowing those exceptions to swallow the rule. We began from the premise that in a democratic society, the police serve the people and their purposes using only the powers that we, the people, grant to them. If pretext is ignored, then the police are cut loose to use the powers delegated to them for their own purposes—which we can safely assume will tilt further toward those of the aggressive security state than the people might otherwise allow.

Pretext and Totalitarianism

The first democracy problem posed by police pretext entails the second: once effective democratic control over the police is lost, the tendency toward totalitarianism cannot be constrained by democratic accountability as reliably as it otherwise might be. Votes for warrantless roadway searches might not be expected in local legislatures—or on the Supreme Court—but pretext allows just this result to obtain under cover of more benign regulatory laws. Openness and accountability greatly retard the creeping influence of state surveillance, as the recent experience of the Bush Administration with its warrantless wiretapping program plainly demonstrates. Police pretext, however, is just a form of cover for the pursuit of ends that might enflame public passions just as the recent revelations about warrantless wiretapping did. Thus, Whren’s rule against pretext not only allows the police to escape democratic control by using their power for another, disconnected purpose, but it also prevents our democracy from identifying just how far those powers have already encroached on our privacy and attempting to rein them in.

And we must remember that it is not the actual encroachment, but the fear of that encroachment, that is such a powerful threat to democracy. Recall that what made Bentham’s famous Panopticon such an ideal structure for a prison—and such a threatening structure for society in the eyes of Foucault—was that the inmates knew it was always possible that they were being watched, but never knew if this was so. A police force free to deploy its powers pretextually poses just this kind of threat: we cannot count ourselves free from racial harassment, political persecution, or warrantless snooping because although the Constitution supposedly protects us from those things, we never know whether we are currently safe from a violation of our constitutional freedoms. In this world, one has good reason to avoid politically unpopular or powerfully dissident views. Because the special kind of panopticism authorized by the Whren rule only applies when the police have some reason to target a particular citizen, one has every reason to avoid doing anything that might make them a target.

A strong case can be made that the Fourth Amendment does not protect the individual and his special, private places as much as it protects the populace as a whole from the anti-democratic incursions of the police state. This view sees the Fourth Amendment as a bulwark of democracy against totalitarianism—a tool that prevents the police from persecuting some in the name of benign state interests, especially if they pursue those interests in name only. The war on terror presents a great enough threat to liberty without the prospect of pretextual searches. If—indeed, because—even the problematic PATRIOT Act powers can be deployed against dissidents and social out-groups under the pretext of more compelling state purposes, then we lose that much more ground in the continual struggle between a free populace and the security state.

Whren’s modern rule against pretext claims places a faith in the police state that history has proven unjustified. The Founders inserted their healthy skepticism of police power into the Constitution even before the supervisory powers of the security state became as robust and far-reaching as they now are. The burden is now on this generation to maintain that healthy skepticism; today, there is that much more need for state surveillance, and yet simultaneously that much more to fear from surveillance itself. The time has come for us to reaffirm the legitimate skepticism of police power that was written into our Constitution—to call for greater responsibility in the exercise of the police power, and to take heed, anew, of the obvious problem with pretext.

Eric F. Citron is a third-year student at Yale Law School, and the author of Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext, a Note on the wrongfulness of pretextual police behavior that appeared in Issue 5 of Volume 116 of The Yale Law Journal. His previous contribution to The Yale Law Journal Pocket Part addressed post-Booker appellate review of sentencing.

Preferred Citation: Eric Citron, Police Pretext as a Democracy Problem, 116 Yale L.J. Pocket Part 364 (2007), http://yalelawjournal.org/forum/police-pretext-as-a-democracy-problem.