CRIMINAL LAW—PRETEXTUAL ARRESTS AND ALTERNATIVES TO THE OBJECTIVE TEST

Western New England Law Review Volume 12 12 (1990) Issue 1 Article 3 1-1-1990 CRIMINAL LAW—PRETEXTUAL ARRESTS AND ALTERNATIVES TO THE OBJECTIVE TEST Robert D. Snook Follow this and additional works at: http://digitalcommons.law.wne.edu/lawreview Recommended Citation Robert D. Snook, CRIMINAL LAW—PRETEXTUAL ARRESTS AND ALTERNATIVES TO THE OBJECTIVE TEST, 12 W. New Eng. L. Rev. 105 (1990), http://digitalcommons.law.wne.edu/lawreview/vol12/iss1/3 This Note is brought to you for free and open access by the Law Review & Student Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Western New England Law Review by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact . NOTES CRIMINAL LAW - PRETEXTUAL ARRESTS AND ALTERNATIVES TO THE OBJECTIVE TEST INTRODUCTION Under the fourth amendment, I every citizen has the right to be free from unreasonable searches and seizures. This right is jeopard ized when law enforcement officers use a pretextual arrest as an excuse for carrying out a search that is otherwise illegal. For the purpose of this note, a pretextual arrest will be defined as a legal arrest carried out for an illegal purpose. 2 A "classic example ... occurs when an officer stops a driver for a minor traffic violation in order to investigate a hunch that the driver is engaged in illegal" activity.3 A pretextual arrest presents a unique threat to those rights guaranteed by the fourth amendment because, as one judge observed, pretextual arrests trans form a common traffic ticket into a "one-time pass" to violate the fourth amendment requirement of probable cause. 4 Traditionally, courts have responded to pretextual arrests by in voking the exclusionary rule. The exclusionary rule is designed to al low judges to suppress evidence from arrests that violate the 1. The fourth amendment of the Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no War rants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV. 2. See Burkhoff, Pretext Searches, 19 SEARCH AND SEIZURE L. REP. no.4 at 25 (1982); United States v. Guzman, 864 F.2d 1512, 1515 (10th Cir. 1988) ("A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place ... for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop."). 3. Guzman, 864 F.2d at 1515. 4. United States v. Causey, 834 F.2d 1179, 1186 (5th Cir. 1987) (Higginbotham, J., concurring). See also United States v. Trigg, 878 F.2d 1037, 1039 (7th Cir. 1989) (A pretextual arrest "serves as a means to circumvent the warrant requirement of the Fourth Amendment. "). 105 106 WESTERN NEW ENGLAND LAW REVIEW [Vol. 12:105 constitution. 5 In order to determine if a given arrest is unconstitu tional, the courts currently use an objective test that examines only the conduct of the arresting officers. 6 If the officers' actions, viewed with out regard for their sUbjective intent, are found to be unreasonable, the exclusionary rule may be applied to block admission of the evidence. Motive is not a factor in the objective test, for, as one court put it, "an objectively reasonable seizure does not violate the Constitution despite the officer's bad intent."7 The objective test provides an effective method of identifying non pretextual arrests that violate the fourth amendment. The test, how ever, fails to identify pretextual arrests because the test ignores the motives of the arresting officers, and, with pretextual arrests, it is the motives of the officers, not their conduct, which are illegal. 8 The pur pose of this note is to examine the weaknesses inherent in the objective test and to propose a modification of the test that addresses these weaknesses. This new test has two steps. The first preserves the cur rent objective standard in order to address non-pretextual arrests. The second step involves a separate balancing test which weighs the bene fits of admitting potentially important evidence against the costs to the integrity of the judicial system of tolerating improper law enforcement behavior.9 Part I of this note traces the development of the objective test, showing how the Supreme Court originally used a subjective test in United States v. Lefkowitz 10 and why this test was eventually replaced by the objective test in Scott v. United States. ll Part II focuses on a single case, United States v. Causey,12 which serves as an example of two different ways in which the objective test has been applied in the 5. Stone v. Powell, 428 U.S. 465, 482-83 (1976). 6. Scott v. United States, 436 U.S. 128, 136 (1978). 7. Lester v. City of Chicago, 830 F.2d 706, 712 (7th Cir. 1987). 8. The objective test upholds any arrest which has an objectively valid basis. By definition, a pretextual arrest is a valid arrest for an invalid reason. Therefore, by defini tion, all pretextual arrests will pass the objective test. See infra note 44 and accompanying text. 9. This second step is based on an alternative rationale for the exclusionary rule. The primary justification for the exclusionary rule is to deter police misconduct. Preserving the integrity of the judicial system is a secondary rationale. The first step of the proposed test is based on deterrence in order to discourage illegal conduct. The second step is based on the judicial integrity rationale and seeks to protect the legal system as a whole from the effects of police misconduct. See infra notes 177-191 and accompanying text. 10. 285 U.S. 452, 463-67 (1932). See infra notes 15-16 and accompanying text for a discussion of Lefkowitz. II. 436 U.S. 128, 136-37 (1978). See infra notes 28-39 and accompanying text for a discussion of Scott. 12. 818 F.2d 354 (5th Cir.), rev'd, 834 F.2d 1179 (5th Cir. 1987)·(en banc). 1990] PRETEXTUAL ARRESTS AND ALTERNATIVES 107 context of pretextual arrests. Part III analyzes alternative tests ad vanced by Professors Wayne LaFave and John Burkhotf. This note applies these alternative standards to the facts of Causey in order to measure their effectiveness in identifying pretextual arrests. Lastly, this note presents a new approach and explains why it offers an im proved standard by which to test pretextual arrests. I. DEVELOPMENT OF JUDICIAL STANDARDS FOR IDENTIFYING PRETEXTUAL ARRESTS A. The Subjective Standard Prior to 1978, courts generally used a subjective standard to iden tify pretextual arrests. 13 This standard focused on police intent. A court using the sUbjective standard would examine the factual circum stances of a case and attempt to determine the arresting office (...truncated)