Document Category: Traffic Stops

This motion argues that Pennsylvania courts should recognize a state constitutional remedy for pretextual and racially discriminatory traffic stops under Article I, § 8 and Pennsylvania’s equal protection provisions. Drawing on empirical research, including a study linking Whren’s permissive pretext doctrine to increased racial profiling, and data showing Black drivers are stopped and searched at disproportionate rates, the motion explains how pretextual stops operate as systemic privacy and equality violations. It urges adoption of the burden-shifting frameworks used in Massachusetts and New Mexico, where litigants who make an initial showing of pretext receive an evidentiary hearing and the prosecution must prove a nondiscriminatory basis for the stop. Defenders can adapt this motion using their state constitutions to create a remedy for pretextual traffic stops that Whren foreclosed.

This motion relies on new social science research showing that there is no serious risk of violence to police who conduct routine traffic stops to argue that courts should revisit the holding in Pennsylvania v. Mimms, 434 U.S. 106 (1977) (permitting officers to automatically order drivers out of the car during traffic stops) both under federal and state constitutional law. Instead of permitting officers to automatically order drivers out of cars during traffic stops, the motion argues that police should only be permitted to order drivers out of cars when they have reasonable suspicion that the driver poses a danger or is engaged in independent criminal activity – a standard that Hawaii, Massachusetts, and Vermont already use.  This motion can also be adapted to address cases in which police order passengers out of cars under Maryland v. Wilson, 519 U.S. 408 (1997).

This draft motion should be used to combat a probable cause finding predicated on a dog sniff if there is any indication that the dog’s handler prompted the dog (intentionally or unintentionally) to alert through a head nod, verbal command, repeated searches, etc. The motion relies on social science research about how readily dogs respond to subtle handler prompts.

Based on six years of data of police stops in Philadelphia based on the smell of marijuana, this brief overviews how its use as a justification for a search has vastly increased the number of searches conducted, but less than 20% of the searches relying on the presence of marijuana actually discovered contraband. The brief argues that such discretionary opinions perpetuate implicit bias and result in racially biased outcomes.

p. 10-12 discuss a study that found that people with normal smell identification abilities could only smell a 5-pound bag of marijuana in a trunk 13% of the time, and that 10% of the time people thought they smelled marijuana when there was none. p. 12-13 argues that an officer can impermissibly taint a search by suggesting that he smells marijuana, similar to tainting a lineup by suggesting the suspect to the witness.