Pretextual stops — or — Why cops can use a minor traffic infraction as an excuse to stop you in hopes they can bust you for another more serious crime

The dictionary on my MacBook Pro defines pretext as “a reason given in justification of a course of action that is not the real reason.”

Consider the following scenario: If a cop thinks you have pot in your car and wants to stop you, can he use a minor traffic infraction to pull you over?

The Supreme Court, in Whren v. United States, says YES. So long as a cop has probable cause (about a > 50% chance) to believe he can issue a traffic citation, he can pull you over. The cop may then investigate his suspicion of pot being in your car. He has two options–both of which are not favorable to the driver.

  1. The cop can search the car if he (during his investigation while he is conducting the traffic stop) develops probable cause to believe there is pot in your car. OR
  2. The cop can then simply arrest you if he pulled you over for an offense for which you can be arrested or if he found something else during his investigation for which you could be arrested. The cop can then impound your car and conduct an “inventory” of your car. I put “inventory” in quotes because the vehicle “inventory” is typically a pretext (excuse) to allow them to search your car.

In Texas, a typical pretextual stop is based on a section of the transportation code that says that individuals must be walking on a sidewalk if there is a sidewalk available. So, what cops frequently do is cruise around minority neighborhoods with sidewalks and look for people not walking not the sidewalks. This gives the cops an excuse to shake them down. Another doozy is a statute defining the distance before a turn that a driver has to indicate. The cop follows the individual around until they indicate a foot or two less than the required distance. (Who can tell this distance when they’e driving, anyway?)

Thankfully, I have not found similar statutes here in Oklahoma. But there are others that apply just the same to pretextual stops. Speed limits, tail lamps, and signaling turns are just some of the areas the cops can look at if they intend to pull you over. Bottom line is the cops need few excuses to pull you over and have many ways to eventually search your car. However, they often are not familiar with the finer points of constitutional law. A defense attorney with keen attention to detail will be able to review your case to determine whether or not rules and your rights were violated.

If you have any questions or need a criminal defense attorney in Oklahoma, you can call me any time at (405) 633-3420.