« One easy fix in Artis | Main | JOTWELL: Bookman on Effron on privatized procedure »

Monday, January 22, 2018

A Crack in the Whren Wall?

Earlier today, the Supreme Court decided District of Columbia v. Wesby, a case about whether police had probable cause to arrest some D.C. partygoers who were in a vacant house without permission of the owner.  It was clear that the plaintiffs manifested the actus reus of the crime of trespassing and the case centered around whether police had probable cause to believe the partygoers knew or should have known that they did not have the owner’s consent to be there.  The case involves some, um, interesting facts.  The partygoers were invited to the house by a woman known only as “Peaches” or “Tasty,” and the police found in the house “a makeshift strip club” where “[s]everal women were wearing only bras and thongs, with cash tucked into their garter belts.”  (Well, make up your mind, Justice Thomas; were they “wearing only bras and thongs” or were they also wearing garter belts?)  I was not surprised, particularly after listening to the oral argument, that the Court held that the officers had probable cause and, separately, that they were protected by qualified immunity in believing that they had probable cause.

The surprise came at the end.  Justice Ginsburg wrote a two-page opinion concurring in the judgment in part.  She concluded that the officers were protected by qualified immunity, given that the arrests of the partygoers were supported by probable cause under current law.  However, Justice Ginsburg wrote separately to “to question whether th[e] Court, in assessing probable cause, should continue to ignore why police in fact acted.”  Those steeped in Criminal Procedure likely read this with a raised eyebrow, for Justice Ginsburg was referring to the Court’s unanimous 1996 opinion in Whren v. United StatesWhren rejected the argument that police officer motives were relevant to determining whether there was probable cause.  Instead, the Court held, probable cause is a wholly objective standard, and the motives of a police officer in acting upon probable cause are irrelevant.

Here is the relevant passage from Justice Ginsburg’s opinion today:

The Court’s jurisprudence, I am concerned, sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection. A number of commentators have criticized the path we charted in Whren v. United States, 517 U. S. 806 (1996), and follow-on opinions, holding that “an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause,” Devenpeck v. Alford, 543 U. S. 146, 153 (2004). See, e.g., 1 W. LaFave, Search and Seizure §1.4(f), p. 186 (5th ed. 2012) (“The apparent assumption of the Court in Whren, that no significant problem of police arbitrariness can exist as to actions taken with probable cause, blinks at reality.”). I would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.

Justice Ginsburg had joined the Whren opinion without comment so the fact that she is beginning to have qualms about it over twenty years later is big news.  And the fact that perhaps the biggest fan of Whren, its author Justice Scalia, is no longer on the Court might give the Justices more freedom to re-visit the issue.  On the other hand, no other Justice, not even the usual suspects, joined Justice Ginsburg’s opinion today.  Time will tell but Justice Ginsburg’s separate opinion today might be the first crack in the Whren wall.

Posted by Michael J.Z. Mannheimer on January 22, 2018 at 08:21 PM in Constitutional thoughts | Permalink


Why is it hard to come up with a "regime" to replace Whren? Washington State prohibited pretext stops under their state constitution years ago. Sky did not fall.

Posted by: Christy Lopez | Jan 23, 2018 4:30:33 PM

Thanks for that interesting post , it should be noted , that one can't separate between objective analysis of probable cause , and the motives of the police officer conducting the search etc…. This is because , we must assess it in light of the whole givens . Suppose that extreme malicious intent of a police officer is proven , surly , it shall project upon the objective analysis . It would suggest or rather support , the lack of probable cause , over existence of it . It must be integrated within the questions of fact and law . So at least , it would tip the balance , in hard cases . The appearance , of an alleged good evidence or cause for conducting a search , may be refuted , and completely so , if malicious intent , or gross negligence has been demonstrated .One can't not introduce it .

Posted by: El roam | Jan 23, 2018 3:42:41 PM

Lozman v. City of Riviera Beach, Florida is a interesting case because it raises serious separation of power issues. The underlying problem with Lozman's arrest was that it was done at the direction of a branch of government that doesn't actually have direct administrative authority over the police. This is to say that the police officer in Lozman did not arrive at an /independent/ decision to arrest, he did so in response to an order.

So I don't see the problem there as one of motive--at least motive in the psychological sense--but as an abuse of power.

Posted by: James | Jan 23, 2018 12:36:37 PM

It seems to me that Lozman v. City of Riviera Beach, Florida, provides a perfect vehicle for reconsideration of Whren. Lozman's entire argument seems that, while the police had probable cause to arrest Lozman at the meeting, it was done for the motives of the city council members in retaliation for his, shall we say, vociferous objections. While it isn't a perfect vehicle, (the polices' motives are less in question than the council members'), it does seem to bring the Whren doctrine into play.

Posted by: Nate Curtiss | Jan 23, 2018 8:25:46 AM


Yes, I was a little surprised that Justice Sotomayor did not join Justice Ginsburg's separate opinion, especially since Justice Sotomayor went out of her way to write her own separate opinion.

Posted by: Michael J.Z. Mannheimer | Jan 23, 2018 1:15:16 AM


I don't necessarily disagree with Whren. I have very mixed feelings. My post was meant to be descriptive rather than normative.

On the other hand, I do strongly believe that Whren has been over-read to mean that we should not look to subjective motivations at all, except in the special needs context. So I welcome Jardines's use of subjective motivations in determining what a search is, as opposed to whether police conduct based on probable cause is reasonable. Indeed, it seems almost inevitable that we look to subjective motivations in addressing the "what is a search" question. It makes some sense that a trespass to persons, houses, papers, or effects is not enough to constitute a search; there has to be a trespass for the purpose of obtaining information. Thus, we either have to look at actual motivations or look to the "objective purpose," as in the Confrontation Clause area, which is kind of a mess.

One problem with Jardines, though, is that it uses subjective motivations to determine not whether a trespass is also a search, as in Jones, but to determine whether the officers' actions there constituted a trespass at all!

Posted by: Michael J.Z. Mannheimer | Jan 23, 2018 1:13:48 AM

I think these qualms were signaled by Ginsburg's dissent from the otherwise unanimous opinion in Kentucky v. King six years ago, though I don't believe her proposed rule there was explicitly subjective. I also think that the fact both opinions were solo efforts suggests that this is going nowhere, though I'd be very unsurprised if Sotomayor starts raising similar concerns and even a little surprised if she doesn't get around to it one of these days. But I think that's where it stops.

Posted by: Asher Steinberg | Jan 23, 2018 12:49:59 AM

I wonder if another possible crack in Whren is Scalia's opinion in Jardines, in that it uses the subject intent of the officer with the drug-sniffing dog to determine if the entry into the curtilage was within the implied license into the curtilage. From Jardines:

The State points to our decisions holding that the subjective intent of the officer is irrelevant. See Ashcroft v. al-Kidd, 563 U. S. ___ (2011); Whren v. United States, 517 U. S. 806 (1996) . But those cases merely hold that a stop or search that is objectively reasonable is not vitiated by the fact that the officer’s real reason for making the stop or search has nothing to do with the validating reason. Thus, the defendant will not be heard to complain that although he was speeding the officer’s real reason for the stop was racial harassment. See id., at 810, 813. Here, however, the question before the court is precisely whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.

Of course, it's much easier to say there is a crack in Whren than it is to come up with a regime to replace it.

Posted by: Orin Kerr | Jan 23, 2018 12:07:09 AM

Those of you with inside gossip, is this concurrence Ginsberg's view or one of her law clerks?

Posted by: PaulB | Jan 22, 2018 9:50:55 PM

The comments to this entry are closed.