Rethinking Noncriminal Traffic Stops Under the Fourth Amendment
Jordan Blair Woods, Richard Taylor Law Teaching Fellow, The Williams Institute
March 12, 2014
UCLA School of Law
Abstract: In its groundbreaking 1968 decision Terry v. Ohio, the U.S. Supreme Court veered from the ordinarily required standard of probable cause to afford police officers greater discretion to conduct frisks for their personal safety when they have reasonable suspicion that a crime is in progress and that a criminal suspect is armed and dangerous. Since then, Terry has evolved into a broader framework that grants police officers increased discretion to initiate searches and seizures in different criminal contexts via the reasonable suspicion standard. This Article examines an aspect of Terry’s progression that is vastly underexplored in legal scholarship. Namely, it discusses how federal and state courts are mapping the Terry regime onto the civil realm in policing contexts, even though Terry and its progeny were intended to apply in criminal situations. Through this mapping, courts are granting police officers the same increased discretion to conduct Fourth Amendment searches and seizures against the backdrop of a civil or a decriminalized offense as the Terry regime affords officers against the backdrop of a criminal offense.
This Article focuses on one manifestation of this phenomenon—courts’ widespread extension of Terry’s reasonable suspicion standard to evaluate the constitutionality of traffic stops based on decriminalized traffic violations at their inception. Focusing on “noncriminal traffic stops” is a useful platform to investigate the immense sociological and criminal justice implications of this mapping of Terry because routine traffic stops are the most common way that civilians come into contact with U.S. law enforcement and the courts. Moreover, over twenty states have decriminalized minor traffic violations and more states are considering doing the same.
Through this lens, the Article advances two key points. First, it illustrates that the mapping of Terry onto the civil realm inhibits jurisdictions from reaping the enormous benefits of decriminalization. When courts extend Terry’s reasonable suspicion standard to the civil realm in policing contexts, they encourage the same costly and harmful pipeline to arrest and incarceration that decriminalization seeks to avoid. Second, it shows that this mapping inspires the same liberty, privacy, and dignitary harms arising from the abuse of police discretion that are rousing public outcry against the New York City Police Department’s “stop-question-and-frisk” program. Meaningful discussions of traffic stops, however, are missing from this outcry. Addressing this gap, this Article proposes that courts should require a more demanding showing of probable cause for police officers to initiate noncriminal traffic stops under the Fourth Amendment. To justify this doctrinal proposal, it takes a new turn in the contemporary conversation about police discretion by considering how noncriminal traffic stops at their inception are different from stop-and-frisks in criminal situations, and why those differences should matter for the development and application of Fourth Amendment law.
Bio: Jordan Blair Woods’ doctoral dissertation provides the first comprehensive critical analysis of sexual orientation and gender identity issues in criminological theory. His research examines the criminological and criminal justice implications of the liberty/equality constitutional frameworks for LGBT populations. His scholarship on hate crime, law enforcement, gang prosecutions, and gay-straight alliances has appeared in UCLA Law Review, Columbia Journal of Gender and Law, New York University Review of Law and Social Change, Michigan Journal of Race and Law, and Journal of Gender, Race, and Justice. He is currently a Gates Cambridge Scholar and Ph.D. Candidate (expected Dec. 2013) at the University of Cambridge. He completed his M.Phil. from the University of Cambridge, J.D. from UCLA School of Law, and A.B. from Harvard University.