A few months back, I was pulled over by a Massachusetts state trooper on a Saturday night as I turned off the highway to get gas. It was around 10 pm and dark, and the stop was off an exit in a remote area, about 30 minutes outside Boston. The trooper approached the car cautiously, as if he assumed I might be dangerous. He took my license and registration and asked where I was coming from and headed to.
I told the trooper that I had just left Yale University, where I’m finishing my PhD, and was headed to Boston to visit friends. His energy seemed anxious. He asked if my car was a rental, as I noticed him shining a flashlight into the back seat.
He ran my documents, came back, and said that he didn’t want to “make this into something it’s not or get my mind turning.” But, he added, because of the way I switched lanes and got off the highway and since I-84 in Massachusetts is a drug trafficking route, he believed that I could have drugs in the car and asked to search it.
Bewildered, I asked him how he had arrived at the conclusion that I was trafficking drugs after I said I had just left school to go to Boston and had merely pulled over to get gas. He responded that he didn’t think I had actually exited to get gas, since my phone’s GPS—which he looked at through the window—didn’t seem to show a destination on it, and added, “I just hate being lied to.” So I asked if I could reach for my wallet and show him my Yale ID to verify my story.
The trooper seemed unmoved. He said my profession had nothing to do with his suspicion and asked, again, if he could search my car. I tried to control my response, but feeling confused, angry, and knowing he had no right to search the car without my consent, I said indignantly, “No, you can’t search my car.”
Without offering much of a response, he went back to his car, still holding my license and registration. I recorded a video explaining the situation to my mom and sisters and sent it to them. I let them know that, if anything happened, I loved them and that I was trying my best to navigate the situation. I was afraid for my life. Was he going to let me go, or would he make the situation worse?
My mother and two sisters texted me back after seeing the video, afraid that if they called and I reached for my phone when it rang, it might cost me my life. They asked if I could share my location and told me to breathe. They were as worried as I was that the situation might escalate and that the video would be the last they would see of me.
After some minutes, the officer came back with a written warning for speeding and an improper lane change. He told me to drive safely and sidestepped my question about what had led him to believe I had drugs in the car. After I asked him again, he haltingly said that there were many reasons for his suspicion and added, preemptively, that it wasn’t a result of racial profiling, despite data showing the Massachusetts State Police troopers routinely do so. He left, and I drove off, shaken. I called my family to tell them I was OK.
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The “Harvard Law Review” Refused to Run This Piece About Genocide in Gaza
The “Harvard Law Review” Refused to Run This Piece About Genocide in Gaza
In the months since my encounter with the trooper—months during which we witnessed the murders of George Floyd and Breonna Taylor as well as the resurgent movement challenging police violence—the memory of the experience has continued to shake and unnerve me, especially since I know it could happen again. In fact, I’ve been pulled over twice since then. One stop was for allegedly parking too far from the curb; as the officer explained it, he ran my plates, saw I wasn’t from the area, and pulled me over as I drove off to see “what was going on.” He proceeded to ask me questions that were almost as intrusive as the state trooper’s.
Far from being unusual, these experiences are typical for many Black drivers in this country. All across the United States, Black people are pulled over at higher rates than other drivers—a phenomenon so pervasive, it has earned its own catch phrase: driving while Black. According to one recent study of 14 years of traffic stops in North Carolina, Black drivers were 95 percent more likely to be pulled over than white drivers. Another study, published this year by Stanford’s Open Policing Project, found that Black drivers were about 20 percent more likely to be pulled over and that, once stopped, they were one and a half to two times as likely to be searched. Police frequently justify these searches by claiming they suspect the driver possesses drugs or weapons.
Like many Black drivers, I experience a hollowing fear anytime I’m stopped by police. My body tenses, it’s hard to breathe, and I genuinely wonder if I’ll make it through the situation. When police approach slowly and cautiously, as if they think I’m a potential threat, and ask for consent to search my car for drugs or weapons, those feelings intensify.
The fact that these invasive stops and searches are even possible is the result of a special automobile exception to the Fourth Amendment. The amendment guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” which is another way of saying it protects our right to privacy against the unchecked power of the police. But under the automobile exception, first codified in 1925 and then expanded over the decades by successive Supreme Court rulings, drivers are considered to have a reduced expectation of privacy; the full protections of the amendment are weakened.
The implications of this reduced expectation are many. But among the most far-reaching is the practice, affirmed by the Supreme Court in 1996 in Whren v. United States, by which drivers can be temporarily detained—that is, stopped—by officers on the basis of a flimsy pretext, like a broken taillight, even if the officer’s real purpose is to look for evidence of criminal activity. The problem is these pretexts are an easy cover for rank bias and routine racism. They’re a green light for racial profiling. And while some protections are supposed to remain in place to prevent the police from escalating these stops into fully arbitrary searches (officers, for instance, must obtain consent from a driver before searching a car, unless evidence is in plain view), it’s easy for the police to sidestep those protections.
Consider how the process often unfolds, quickly transforming from simple traffic stops into investigatory stops and searches. When police officers pull over a car, they are supposed to allow the driver to go on their way as soon as they are able to verify that the driver can operate the vehicle (and, all too often, as soon as the police give a ticket). But police are also allowed to ask off-topic questions to probe for potential criminal activity or ask the driver to get out of their car and wait in the patrol car while they run criminal records, all in the context of a simple traffic violation. If additional information arises that leads police to have reasonable suspicion of criminal activity—a vague concept that is, once again, easily manipulated by bias and racism—an officer can extend the stop and request consent to search for evidence. In some states, if officers smell marijuana, they can bypass asking for consent altogether, a potential problem since police have been known to lie about smelling marijuana in order to execute a search without a warrant or consent.
The request for consent, which is supposed to be a safeguard against invasive or abusive searches, is another weak spot in the process. For consent searches to pass constitutional muster, they must be free of coercion. But police power, particularly in the context of the long legacy of police violence and corruption, is inherently coercive, especially for Black drivers. From Philando Castile, Sandra Bland, and Maurice Gordon to countless unknown Black drivers, routine traffic stops have too often turned into instances of police violence. This reality can make people consent, out of pure terror, to a search they would rather decline, if only to avoid further suspicion and escalation.
In my case, that fear made me contemplate letting the officer search my car, even though I knew it would lead me to feel more violated and traumatized than I already was.
The story of pretextual stops and consent searches is similar, in many ways, to the story of stop-and-frisk. In both instances, officers need to have only reasonable suspicion of criminal activity to begin an investigatory stop. And because of the vagueness of that reasonable suspicion standard, both practices have a racially disproportionate impact on Black and Latinx communities.
Moreover, as with stop-and-frisk, the solution to the problem of consent searches is often framed as a simple matter of instituting reforms like community policing and procedural justice: If police can just be trained to behave in ways that are professional, neutral, and fair, people will feel better about police interactions, and encounters with them will be less likely to go awry. The limits of these efforts are perhaps best illustrated by Minneapolis, a city that implemented all the often touted progressive reforms, yet the police still murdered George Floyd.
But there are solutions that are at once direct and powerful and are being embraced by a growing number of organizers and activists around the country.
The first and perhaps most obvious of these is a judicial one and involves nothing less than challenging everything from the legality of the way stops and searches are conducted to the legal foundations on which they stand. Such cases can be brought in federal or state courts. What is essential is that they “should challenge existing precedent at every turn,” as Matthew Segal, legal director of the ACLU of Massachusetts, wrote in The Guardian several years back.
One precedent that must be challenged is the one that allows for pretextual stops in the first place. There are various ways to argue against them, but one critical tool is the equal protection clause of the 14th Amendment. This clause prohibits discrimination on the basis of race and other categories. In the case of consent searches, there is clear evidence in cities and states throughout the country that Black drivers are targeted for stops and searches at disproportionate rates. A strong case can be made that pretextual stops are being carried out in an unconstitutional manner and that this way of conducting them, if not the fact of the stops themselves, must be addressed.
Next, consent searches must be challenged. An argument can be made that, in the context of police violence and alongside the fact that police are not always required to let individuals know they have the right to refuse a search, many consent searches are not truly free of coercion and thus are not constitutional. The dream in bringing such a case is that a judge would rule against the use of consent searches altogether. But a more realistic outcome might be that officers would be required to state that individuals are free to refuse the search, similar to the way police are required to read people their Miranda rights before interrogating them while in custody.
Versions of both of these approaches were used successfully in New York City in Floyd et al. v. City of New York, which famously forced the city to rein in its stop-and-frisk program. In that case, the Center for Constitutional Rights argued that the New York Police Department violated the Fourth and 14th Amendment rights of thousands of Black and Latinx New Yorkers through a pattern and practice of racial profiling and unconstitutional stops. Judge Shira Scheindlin agreed, concluding in a 2013 decision, “The City’s highest officials have turned a blind eye to the evidence that officers are conducting stops in a racially discriminatory manner. In their zeal to defend a policy that they believe to be effective, they have willfully ignored overwhelming proof that the policy of targeting ‘the right people’ is racially discriminatory and therefore violates the United States Constitution.”
Scheindlin’s decision was a landmark legal victory for Black and Latinx New Yorkers, but it was also limited. While her ruling forced New York to reform how it approached stop-and-frisk, dramatically reducing its use across the city, it nonetheless allowed the practice to continue under the pretext that it could be done in a constitutional way. To this day, racial disparities persist, highlighting one of the challenges of relying on legal solutions: Although essential, they can also be slow-moving and onerous. And at a time when so many of our courts, including the nation’s highest, have been stacked with conservative appointees, the judicial system seems an increasingly unfriendly place to seek redress.
These are among the reasons that activists and advocates have begun to explore a range of city- and state-level policy changes to mitigate and occasionally even end the scourge of pretextual stops and consent searches. In Texas, for example, Democratic legislators are planning to introduce a package of criminal justice measures that includes banning pretextual stops. Virginia recently passed legislation prohibiting police from stopping drivers for such minor infractions as broken taillights or brake lights, tinted windows, and loud exhaust systems. Meanwhile, some localities, such as Durham, N.C., have shifted from allowing verbal consent for searches to requiring written consent as a way to try to curb manipulation and coercion.
But even with these necessary interventions, organizers—particularly those working toward police abolition and a complete reimagining of public safety—have begun to argue that there is a need to go further, to experiment with alternatives to the way we deal with traffic concerns. They have begun pressing for police to be removed from the area of traffic safety altogether.
Today one of the most reliable functions of traffic stops is to provide revenue for cities and states. Another is to serve as a basis for fishing for more serious crimes. But imagine if alternatives were created to address concerns about traffic safety (which remains an undeniable problem) through a public health framework centered on safe driving education and outreach, as opposed to police stops and tickets?
This vision might have appeared implausible just a few months ago, but it has been gaining momentum in both New York City and Los Angeles, where activists have begun waging campaigns to remove police officers from traffic oversight and replace them with Department of Transportation workers, among others. In Berkeley, Calif., in July the City Council approved a plan to remove police from traffic stops and instead use unarmed city workers to respond to traffic safety matters.
We now know that the only way to ensure police violence doesn’t occur is to avert encounters of drivers with officers. If someone does need to be stopped for a matter related to traffic safety, that stop can be made by someone who handles the situation with a public health approach, not by someone with a gun and the license to kill with impunity. The roads might be a lot safer, and many fewer people would have to experience the fear or reality of police violence. People shouldn’t have to fear that they will lose their life over a taillight.