By Kimberly A. Crawford, J.D., July 1995
Special Agent Crawford is a legal instructor at the FBI Academy.
The fourth amendment to the U.S. Constitution prohibits unreasonable
searches and seizures.1 Searches are presumed unreasonable if conducted
without search warrants and the burden of proof is on the government to
establish that a warrantless search was justified under an exception to
the warrant requirement.2
With respect to seizures, there is no presumption that the government
needs a warrant. To be reasonable under the fourth amendment, seizures
need only be based on governmental interests that outweigh the intrusions
upon an individual's privacy rights.3 In theory, the formula for
determining the reasonableness of a seizure is relatively simple: The
greater the intrusion on an individual's privacy interests, the more facts
and circumstances the government must have to support its claim of an
overriding interest. Thus, an arrest, which is the most significant form
of seizure, requires the government to establish its interests to the
level of probable cause.4
In contrast, an investigative detention, which is a much reduced
intrusion, requires only a showing of reasonable suspicion.5 In reality,
however, determining the reasonableness of a seizure can be an extremely
difficult task. No mathematical or scientific formula exists for
predicting when facts and circumstances rise to the level of reasonable
suspicion or probable cause; yet, law enforcement officers are required to
make such judgments on a daily basis and act on them. Once acted upon,
those judgments are subject to seemingly endless defense challenges.
Traditionally, defense challenges to seizures have centered around the
facts and circumstances used to justify the action or the amount of force
used to accomplish it. However, one defense challenge to seizures goes
beyond the traditional arguments and focuses on the law enforcement
officer's state of mind. This challenge alleges that a seizure is un-
constitutional if the seizing officer has an ulterior motive and uses the
seizure merely as a pretext to allow further investigation.
This article discusses the nature of pretext seizures and reviews the
courts' methods for determining their legality. Additionally, it suggests
a law enforcement practice to combat defense challenges alleging unlawful
One of the first cases of note to address the issue of pretext seizures
was State v. Blair.6 In Blair, police officers investigating a murder had
as their primary evidence a palm print on the door of the victim's van.
An anonymous tip indicated that a member of the Blair family was involved
in the crime.
Finding that three of four members of the local Blair family had major
case prints on file and that none of the prints matched the one on the
victim's van, the police focused their attention on Zola Blair, the fourth
member of the family. Although Zola had no prints on file, the police
discovered that there was an outstanding traffic warrant for her arrest.
After executing that warrant, the police obtained finger and palm prints
from Zola and questioned her about the murder before booking her on the
traffic warrant and allowing her to make bond. When fingerprint experts
made a match on the prints, the officers arrested Zola on a murder
warrant. She then made incriminating statements during interrogation.
Prior to trial, however, the defense moved to suppress both the
fingerprint evidence and the incriminating statements as being the
products of an unlawful pretext arrest. The prosecution, on the other
hand, argued that the original arrest of Zola Blair was pursuant to a
lawful traffic warrant and that any ulterior motive on the part of the law
enforcement officers was irrelevant.
Finding that the defendant had been treated as a murder suspect when
arrested and not as a minor traffic offender,7 the trial court concluded
without precedent that the arrest was unlawful because it was pretextual
and that the evidence obtained as a result of that arrest were fruits of
the poisonous tree. Following an appeal in which the State supreme court
upheld the trial court's order of suppression,8 the U.S. Supreme Court
granted certiorari.9 However, the Supreme Court subsequently dismissed
the writ of certiorari as being improvidently granted.10
Because the lawfulness of the arrest in Blair was the predominant issue
in dispute, a Supreme Court decision in the case undoubtedly would have
determined the legality of pretext seizures. Unfortunately, the Supreme
Court's refusal to hear the case left the legality of pretext seizures
unresolved and allowed State and lower Federal courts to reach their own
conclusions regarding the lawfulness of such seizures. As a result, the
courts' approach to pretext seizures has been inconsistent.
The subjective approach, which apparently was used by the State court in
Blair, focuses exclusively on the law enforcement officer's state of mind
at the time of the seizure. If a seizure on a relatively minor offense is
motivated by a law enforcement officer's desire to investigate a more
serious offense, the initial seizure is deemed to be a pretext and
Following Blair, the Circuit Court of Appeals for the Ninth Circuit was
the only court to adopt temporarily the subjective approach. In United
States v. Smith,11 the appellate court warned that "an arrest may not be
used as a pretext to search for evidence. Whether an arrest is a mere
pretext to search turns on the motivation or primary purpose of the
arresting officers."12 Thus, the court cautioned that an arrest for a
minor traffic offense that was motivated by the desire to search the
vehicle for evidence of some other unrelated offense for which the police
lacked probable cause would be unconstitutional.
Despite this admonition, the Ninth Circuit Court of Appeals subsequently
upheld a stop based on probable cause to believe that a driver was
operating a vehicle without a license, despite the fact that the police
admittedly had an ulterior motive to search the car for drugs. The court's
decision in United States v. Cannon13 marks a clear departure from its
earlier subjective approach to pretext seizures. The Ninth Circuit's
digression from the subjective approach virtually was mandated by a number
of Supreme Court decisions.14 Although repeatedly refusing to address the
issue of pretextual seizures specifically,15 the fourth amendment
interpretation espoused by the Supreme Court over the past decade
unquestionably demands an objective approach to search and seizure issues.
In Maryland v. Macon,16 for example, the Supreme Court emphasized that
"[w]hether a Fourth Amendment violation has occurred 'turns on an
objective assessment of the officer's actions in light of the facts and
circumstances confronting him at the time' and not on the officer's actual
state of mind at the time the challenged action was taken."17 In light of
such unequivocal language endorsing an objective standard for review of
fourth amendment issues, the subjective approach to pretext seizures is
With the demise of the subjective approach to pretext seizures, it would
seem that State and Federal courts would be consistent in adopting an
objective standard. To some extent, this is true. Currently, all appellate
courts confronted with defense claims of improper pretext seizures
purportedly evaluate the government's actions on the basis of objective
reasonableness. If the seizure is objectively reasonable, then it is
lawful, despite any ulterior motive on the part of the government.
Unfortunately, courts do not always agree on what makes a seizure
objectively reasonable. Some courts use a "could have" test, while others
use a "would have" test.
"Could Have" Test
When determining the lawfulness of an alleged pretext seizure, courts
that apply the "could have" test simply require the government to
establish that the seizure was authorized.18 Any law enforcement officer
"could have" made the seizure because there were sufficient facts,
amounting to either probable cause or reasonable suspicion, to justify the
In United States v. Scopo,19 the Court of Appeals for the Second Circuit
used the "could have" test to uphold a motor vehicle stop that
subsequently led to the seizure of an altered weapon and the prosecution
of an organized crime figure for the possession of that weapon. The
vehicle in question was being driven by defendant Ralph Scopo, a known
member of an organized crime family engaged in an internal "war."
Surveillance teams first observed the vehicle double parked on the wrong
side of the road and later make two unsignaled lane changes. After
following the vehicle for approximately 2 miles, officers seized the
vehicle as it paused for a red light. As the officers approached the
vehicle with weapons drawn, they observed the defendant throw something
into the back seat. After ordering the defendant out of the vehicle,
officers looked into the back seat and found a fully loaded revolver in
After being charged with the possession of an illegal weapon, defendant
successfully moved to have the evidence suppressed on the grounds that the
stop of his vehicle for traffic violations was a mere pretext to search
his car for weapons. The district court found that the pretext nature of
the seizure was evidenced by officers' testimony that traffic stops often
were used to confiscate weapons from organized crime figures and that the
stop was made more than 2 miles from the traffic violation. On review,
the Court of Appeals for the Second Circuit reversed the dismissal order.
In doing so, the court refused to look beyond whether the officers had
probable cause to arrest the defendant for the traffic violation. Instead,
the court held that "when an officer observes a traffic offense_however
minor_he has probable cause to stop the driver of the vehicle."20
Reviewing the facts before it, the court noted that the officers had
directly observed the defendant violating the traffic laws and,
consequently, had probable cause to arrest him. The "could have" test for
determining the legality of a seizure is straightforward and effectively
thwarts any defense claim of pretext. Because courts that use the "could
have" test focus their attention exclusively on factual justifications,
seizures based on probable cause or reasonable suspicion are lawful,
regardless of any alleged pretextual motivation.
"Would Have" Test
When confronted with a pretext challenge, courts that apply the "would
have" test go beyond the factual justifications for a seizure and
determine whether a reasonable law enforcement officer "would have" made
the seizure absent an ulterior motive. Accordingly, a seizure based on
probable cause or reasonable suspicion may be deemed unconstitutional if a
reviewing court determines that under the same circumstances, a reasonable
officer would not have made the seizure. In United States v. Smith,21 the
Court of Appeals for the 11th Circuit used the "would have" test to
conclude that the stop of a weaving vehicle was pretextual. The
subsequent search of the vehicle, although based on probable cause, was
considered tainted by the unlawful seizure.
A Florida Highway Patrol officer assigned to a special drug squad
observed the vehicle in Smith traveling north on Interstate 95 at 3:00
a.m. The officer testified that he followed the vehicle because he
suspected it might be carrying drugs but did not stop it until he observed
it weaving and crossing into the emergency lane. After stopping the
vehicle, the officer used a drug detection dog to locate 1 kilogram of
cocaine in the trunk. The driver was later charged with possession with
intent to distribute.
Following his conviction, defendant contested the admissibility of the
cocaine on the grounds that it was discovered as a result of a pretext
seizure. The government, on the other hand, argued that the weaving of
the vehicle gave the officer the reasonable suspicion necessary to
investigate the possibility of drunk driving and that any officer under
the circumstances could have made the seizure. Vacating defendant's
conviction, the Court of Appeals for the 11th Circuit rejected the "could
have" analysis championed by the government and opted to apply the "would
have" test. In doing so, the court considered whether a reasonable
officer would have stopped a vehicle weaving slightly and crossing the
line into the emergency lane without an ulterior motive. Concluding that
a reasonable officer would not have made such a stop, the court gave the
That an officer theoretically could validly have stopped the car for a
possible traffic infraction was not determinative. Similarly immaterial
was the actual subjective intent of the [officer]. The stop was
unreasonable not because the officer secretly hoped to find evidence of a
greater offense, but because it was clear that an officer would have been
uninterested in pursuing the lesser offense absent that hope.22 Although
courts that apply the "would have" test profess to be using a purely
objective approach, subjectivity inevitably creeps into the analysis.
Courts will not employ the "would have" test unless they believe an
officer had a subjective ulterior motive for making the seizure. The
ulterior motive does not necessarily invalidate the seizure, but it will
cause the courts using the "would have" test to consider what a reasonable
officer would have done under the circumstances absent an ulterior motive.
The "would have" test has a substantial disadvantage in that it requires
courts confronted with a pretext challenge to go beyond the particular
facts of a case and consider what has been done under similar
circumstances in other cases. Courts using this test cannot review the
facts of the case before them and simply decide whether the officer had
probable cause or reasonable suspicion to make the seizure. Rather, these
courts must consider whether and under what circumstances officers made
similar stops in the past.
For example, when confronted with a defense challenge that a traffic stop
for making an illegal turn was pretextual, a court using the "would have"
test cannot simply determine that the officer making the stop had reason
to believe the traffic laws were violated. Instead, if the court believes
the officer had an ulterior motive when making the stop, it must consider
how frequently officers stop drivers for illegal turns when no ulterior
COUNTERING THE "WOULD HAVE" TEST
Because a number of State and Federal courts23 use the "would have" test,
law enforcement agencies should be prepared to meet the pretext challenge.
They can do so by keeping accurate, detailed records regarding the number
and types of seizures made. For instance, when confronted with the
challenge that a traffic stop for an illegal U-turn or an unsignaled lane
change was pretextual, a law enforcement agency could refute that
challenge by establishing the consistency with which its officers make
such stops. In essence, the records serve as testimony that established
procedures, not ulterior motives, govern the actions of the officers.
Defense claims of pretext have found favor in some State and lower
Federal courts. Agencies can prepare to rebut such claims by maintaining
detailed records regarding all seizures, especially traffic stops. Unless
the Supreme Court resolves the issue of pretext seizures by adopting the
"could have" test, these accurate, detailed records may be the
governemnt's best defense to claims of pretext.
1 U.S. CONST. amend. IV.
2 Katz v. U.S., 389 U.S. 347 (1967).
3 Graham v. Conner, 490 U.S. 386, at 395 (1989).
4 Wong Sun v. U.S., 371 U.S. 471 (1963).
5 Terry v. Ohio, 392 U.S. 1 (1968).
6 691 S.W. 2d 259 (Mo. 1985)(en banc).
7 When they arrested her, officers read Blair her constitutional rights
before taking her to the homicide unit, where they booked her on homicide
charges. They then took major case prints. She was detained overnight
before being released. Id. at 262.
8 Id. The case resulted in a 4-3 decision with a very cogent dissent
filed by Judge Blackmar.
9 106 S.Ct. 787 (1986).
10 107 S.Ct. 1596 (1987).
11 802 F.2d 1119 (9th Cir. 1986).
12 Id. at 1124 (citations omitted).
13 29 F.3d 472 (9th Cir. 1994).
14 The Ninth Circuit cited Maryland v. Macon, 472 U.S. 463 (1985), and
Scott v. U.S., 436 U.S. 128 (1978).
15 In one term, the Supreme Court denied certiorari in five cases
involving pretext seizures. See, U.S. v. Trigg, U.S. v. Cummins, and U.S.
v. Enriquez-Navarez, 112 S.Ct. 428 (1991); Anderson v. Illinois, 112 S.Ct.
89 (1991); and Hope v. U.S., 111 S.Ct. 1640 (1991).
16 472 U.S. 463 (1985).
17 Id. at 470-71 (quoting Scott v. U.S., 436 U.S. 128 (1978).
18 See, U.S. v. Ferguson, 8 F.3d 385 (6th Cir. 1993) (en banc); U.S. v.
Hassan El, 5 F.3d 726 (4th Cir. 1993) (petition for cert. filed); United
State v. Cummins, 920 F.2d 498 (8th Cir. 1990) cert. denied, 112 S.Ct. 428
(1991); U.S. v. Trigg, 878 F.2d 1037 (7th Cir. 1989), appeal after remand,
925 F.2d 1064, cert. denied, 112 S.Ct. 428 (1991); U.S. v. Causey, 834
F.2d 1179 (5th Cir. 1987)(en banc); U.S. v. Scopo, 19 F.3d 777 (2d Cir.
1994); U.S. v. Hawkins, 811 F.2d 210, cert. denied, 108 S.Ct. 110 (1987);
People v. King, 36 Cal. Rptr. 2d 365 (Cal. App. 1995); State v. Lopez, 873
P.2d 1127 (Utah 1994); Randle v. State, (unpublished) 1994 WL75807
(Tex.App. 1st Dist.); State v. Bea, 864 P.2d 854 (Or. 1993); State v.
Swanson, 838 P.2d 1340 (Ariz. 1992); People v. Haney, 480 NW2d 322
(Mich.App. 1992); and State v. Law, 769 P.2d 1141 (Idaho Ct.App. 1989).
19 19 F.3d 777 (2d Cir. 1994).
20 Id. at 782 (quoting U.S. v. Cummins, 920 F.2d 498 (8th Cir. 1992)).
21 799 F.2d 704 (11th Cir. 1986).
22 Id. at 710 discussing U.S. v. Cruz, 581 F.2d 535 (5th Cir. 1978)(en
23 See, U.S. v. Guzman, 864 F.2d 1512 (10th Cir. 1988); U.S. v. Smith,
799 F.2d 704 (11th Cir. 1986); U.S. v. Cannon, 29 F.3d 472 (9th Cir.
1994); People v. Owens, ___ NYS 2d ___ (NY 1995); State v. Chapin, 879
P.2d 300 (Wash.App. 1994); State v. Turner, (unpublished) 1994 WL313053
(Ohio App. 2d Dist); State v. Izzo, 623 A.2d 1277 (Me. 1993); Robinson v.
State, 617 So. 412 (Fla.Ct.App. 1993); Townsel v. State, 763 P.2d 1353
(Alaska Ct. App. 1988).
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