When police have an ulterior motive for conducting a traffic stop, Iowa courts will not scrutinize it if police also have a legal, secondary reason that justifies the stop. Usually, these secondary reasons are minor traffic or equipment violations. This practice is called a "pretextual stop." Pretextual stops shake confidence in police and provide a justification for racial profiling. We should end them.
First, we have the technology. If you marry the technology of the stationary traffic light camera and in-dash Panasonic Arbitrator, you will have what amounts to the ability to cite motorists from inside a patrol car without even stopping the driver. There is no reason to stop a motorist if they have a license plate and they commit a minor traffic violation. They can get their speeding ticket, brake light violation, or other trivial citation in the mail. More serious offenses for which officers purport to have reasonable suspicion, like impaired driving, may require additional interaction. But that's not what we're talking about here.
Second, the police should want to end pretextual stops. Public affairs officers will admit at a minimum they have a public relations problem. Others cite to more endemic racial disparity and discriminatory concerns. In any case, while confidence in law enforcement among historically Caucusian neighborhoods remains high, and may have even edged up slightly higher since the early 2010s, confidence in the police among African Americans remains low. Only one-third of African Americans polled by Pew Research Center indicated confidence in law enforcement in their respective neighborhoods. See the study here. The Racial Confidence Gap in Police Performance Blacks by Rich Morin and Renee Stepler (last visited September 10, 2019). The converse-- that two-thirds of African Americans have no confidence in law enforcements should be shocking but isn't given historical and current events. Ending pretextual stops would go a long way toward boosting that confidence-- by ending the authority to conduct stops based on trivial equipment and traffic violations that are underpinned by unsupportable ulterior motives.
In 2014, the Iowa Supreme Court reviewed, and rejected, a defendant's claim that he was stopped for a minor traffic violation because the officer was fishing without reasonable suspicion for a more serious crime. A powerful dissent by Justice Appel indicated that some justices were bending toward the view that there were more exceptions to the warrant requirement than adherence.
"Sounds a bit like a general warrant, doesn't it?" wrote Justice Appel in that 2014 dissent, citing the Ochoa court's discussion of "the desire of the framers of the Fourth Amendment to reject the general warrants authorized by the British Crown."
As the Supreme Court has become more fractured, with newer members returning to a more traditional view of the Iowa Constitution, the Court continues to render legitimate such pretextual stops-- but goes further.
In 2019, just three Iowa justices called for an end to pretextual stops-- outnumbered by a new conservative majority. Justice Appel and Wiggins dissented in State v. Haas. Justice Appel wrote that, as he believed in the Brown case, that the Iowa constitution, Article I Sec. 8, required that law enforcement prove they would have conducted the stop even without their ulterior motive. Chief Justice Cady in the Brown opinion issued the same day, argued pretextual stops must be justified by stripping away the ulterior motive and determining if the officer would have conducted the stop anyway.
Two new justices went in the opposite direction, joined by the Court's more conservative members. Justice Christensen noted that a rule forcing police to excise their ulterior motives when deciding whether they would make a stop would be "difficult to administer." One criticism of a ban on pretextual stops is that it would be difficult to impose a single standard on law enforcement:
Wrote Justice Christensen in Brown, "[t]he usual practice of police officers in Polk County may not represent the usual practice of police officers in Shelby County, as the problems police officers must regularly confront in the course of their job duties quite possibly differ between rural and urban counties."
Moreover, Justice Christensen appealed to apparent, unspoken approval of current practice, stating that late night traffic stops that escalate from mere minor traffic violations to OWI investigations are common and appropriate.
"We think most Iowans favor this policy outcome and would not want reduced enforcement of the drunk driving laws."
Justice McDonald went further, outwardly stating that the protections the court has recently found in Article I Section 8 that are greater than the Fourth Amendment have assumed a "one way ratchet" that only allows the state constitution to afford more protection than its federal counterpart.
"The fundamental premise of our recent jurisprudence is not sound. This court is free to interpret our constitution to provide less or more protection than the Federal Constitution."
Justice Christensen did, however, acknowledge that it was possible for police to lie about their motives and that technology could serve a role in preventing it, but held a burden-shifting rule that forced police to justify stops by stripping away their ulterior motive and proving they would have stopped the car anyway wouldn't prevent racial profiling.
"An officer who engages in racial profiling is also likely to be willing to lie about it. We are hopeful, though, that the spread of technology such as body cams, dash cams, and cell phone videos taken by private citizens will enable our society to better monitor and reduce racial profiling in the future," wrote Justice Christensen.
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