Probable Cause, Pretext and the Proliferation of Crimes

I concluded last week’s post on District of Columbia v. Wesby, ___ U.S. ___ (2018), with a promise to return to Justice Ginsburg’s suggestion in her concurring opinion that it might be time for the Court to re-think Whren v. United States, 517 U.S. 806 (1996). So let’s take a closer look. What RBG said. As I noted last week, Wesby involved an evaluation of whether police officers had probable cause to arrest partygoers discovered inside a vacant house without the permission of its owner. The majority held that they did and, moreover, that they were entitled to qualified immunity for their actions. Justice Ginsburg concurred in the judgment in part, agreeing that the officers were entitled to qualified immunity. Justice Ginsburg nevertheless expressed concern that the Court’s jurisprudence “sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.” Ginsburg, J., concurring, slip op. at 2. She stated that she “would leave open, for reexamination in a future case, whether a police officer’s reason for acting, in at least some circumstances, should factor into the Fourth Amendment inquiry.” Id. She noted that commentators had criticized the court’s decision in Whren v. United States, 517 U.S. 806 (1996), and its progeny, which establish that “‘an arresting officer’s state of mind . . . is irrelevant to the existence of probable cause.’” Ginsburg, J., concurring, slip op. at 2 (quoting Devenpeck v. Alford, 543 U.S. 146, 153 (2004)). Justice Ginsburg quoted Professor Wayne LaFave’s statement that the Whren [...]