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WHREN, AND JAMES L. BROWN, \par PETITIONERS \par \par v. \par \par UNITED STATES OF AMERICA \par \par ON WRIT OF CERTIORARI \par TO THE UNITED STATES COURT OF APPEALS \par FOR THE DISTRICT OF COLUMBIA CIRCUIT \par \par BRIEF FOR THE UNITED STATES \par \par DREW S. DAYS, III \par Solicitor General \par \par JOHN C. KEENEY \par Acting Assistant Attorney \par General \par \par MICHAEL R. DREEBEN \par Deputy Solicitor General \par \par PAUL A. ENGELMAYER \par Assistant to the Solicitor \par General \par \par THOMAS M. GANNON \par Attorney \par \par Department of Justice \par Washington, D.C. 20530 \par (202)514-2217 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par QUESTION PRESENTED \par \par Whether the stop of petitioners' vehicle after police \par officers observed the driver commit traffic violations \par violated the Fourth Amendment. \par \par (I) \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par TABLE OF CONTENTS \par \par Page \par \par Opinion below . . . . 1 \par Jurisdiction . . . . 1 \par Constitutional provision involved . . . . 2 \par Statement . . . . 2 \par Summary of argument . . . . 7 \par Argument: \par \par The Fourth Amendment permits a police officer \par who witnesses a traffic violation to stop the \par motorist's vehicle . . . . 10 \par \par A. The validity of a Fourth Amendment Intrusion \par is properly judged against an objective stan- \par dard of reasonableness, and where a search \par or seizure is supported by probable cause or \par reasonable suspicion, there is no basis for in- \par quiring whether the decision to undertake \par the search conformed to internal police \par practices . . . . 13 \par B. A traffic stop based on an observed violation \par need not conform to standard police practice \par to satisfy the Fourth Amendment . . . . 21 \par C. There is no need for a heightened Fourth \par Amendment standard of justification in cases \par involving traffic stops . . . . 25 \par D. A standard that turns on whether a reasonable \par officer "would have" made the traffic stop \par is not workable . . . . 29 \par E. The stop of petitioners' automobile was law- \par ful, and the search was reasonably limited \par in scope and manner . . . . 39 \par Conclusion . . . . 42 \par \par TABLE OF AUTHORITIES \par \par Cases: \par \par Abel v. United States, 362 U.S. 217 (1960) . . . . 19, 20 \par Berkemer v. McCarty, 468 U.S. 420 (1984) . . . . 27 \par \par (III) \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par IV \par \par Cases-Continued: \par \par Page \par \par Bordenkircher v. Hayes, 434 U.S. 357 (1978) . . . . 24 \par Brown v. Texas, 443 U.S. 47 (1979) . . . . 11, 17, 24 \par California v. Carney, 471 U.S. 386 (1985) . . . . 26 \par Colorado v. Bertine, 479 U.S. 367 (1987) . . . . 17 \par Coolidge v. New Hampshire, 403 U.S. 443 (1971) . . . . 15, 21 \par Delaware v. Prouse, 440 U.S. 648 (1979) . . . . 11, 17, \par 24, 26, 27, 40 \par Florida v. Jimeno, 500 U.S. 248 (1991) . . . . 14 \par Florida v. Royer, 460 U.S. 491 (1983) . . . . 11 \par Florida v. Wells, 495 U.S. 1 (1990) . . . . 16 \par Graham v. Connor, 490 U.S. 386 (1989) . . . . 14, 16, 38 \par Gustafson v. Florida, 414 U.S. 260 (1973) . . . . 19, 29 \par Horton v. California, 496 U.S. 128 (1990) . . . . 14, 15, 21 \par Jones v. United States, 357 U.S. 493 (1958) . . . . 21 \par Maryland v. Garrison, 480 U.S. 79 (1987) . . . . 11 \par Maryland v. Macon, 472 U.S. 463 (1985) . . . . 8, 14 \par Michigan v. Long, 463 U.S. 1032 (1983) . . . . 27 \par Michigan Dep't of State Police v. Sitz, 496 U.S. \par 444 (1990) . . . . 11 \par New York v. Belton, 453 U.S. 454 (1981) . . . . 27 \par New York v. Burger, 482 U.S. 691 (1987) . . . . 16 \par New York v. Class, 475 U.S. 106 (1986) . . . . 12, 26, 27 \par New York v. Quarles, 467 U.S. 649 (1984) . . . . 33 \par Ohio v. Robinette, cert. granted No., 95-891 (Mar. 4, \par 1996) . . . . 27 \par Payton v. New York, 445 U.S. 573 (1980) . . . . 40 \par Pennsylvania v. Mimms, 434 U.S. 106 (1977) . . . . 12, 26 \par Reid v. Georgia, 448 U.S. 438 (1980) . . . . 11 \par Scott v. United States, 436 U.S. 128 (1978) . . . . 14, 15, \par 19, 20, 38 \par South Dakota v. Opperman, 428 U.S. 364 (1976) . . . . 12, 26 \par State v. Lopez, 873 P.2d 1127 (Utah 1994) . . . . 13 \par Steagald v. United States, 451 U.S. 204 (1981) . . . . 21 \par Tennessee v. Garner, 471 U.S. 1 (1985) . . . . 11 \par Terry v. Ohio, 392 U.S. 1 (1968) . . . . 11, 24, 28, 41 \par Texas v. Brown, 460 U.S. 730 (1983) . . . . 20 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par V \par \par Cases-Continued: \par \par Page \par \par United States v. Botero-Ospina, 71 F.3d 783 (l0th \par Cir. 1995), petition for cert. pending No. 95-8121 . . . . 13, \par 23, 35 \par United States v. Brignoni-Ponce, 422 U.S. 873 \par (1975) . . . . 14, 24, 27, 40 \par United States v. Caceres, 440 U.S. 741 (1979) . . . . 32, 33 \par United States v. Cannon, 29 F.3d 472 (9th Cir. \par 1994) . . . . 13, 34 \par United States v. Causey, 834 F.2d 1179 (5th Cir. \par 1987) . . . . 13 \par United States v. Choate, 619 F.2d 21 (9th Cir. \par 1980) . . . . 24 \par United States v. Cortez, 449 U.S. 411 (1980) . . . . 11, 41 \par United States v. Cummins, 920 F.2d 498 (8th Cir. \par 1990), cert. denied, 502 U.S. 962 (1991) . . . . 25 \par United States v. Ferguson, 8 F.3d 385 (6th Cir. \par 1993), cert. denied, 115 S. Ct. 97 (1994) . . . . 13, 22, 29, 36 \par United States v. Fernandez, 18 F.3d 874 (l0th Cir. \par 1994) . . . . 35 \par United States v. Guzman, 864 F.2d 1512 (l0th Cir. \par 1988) . . . . 35 \par United States v. Harris, 995 F.2d 1004 (l0th Cir. \par 1993) . . . . 35 \par United States v. Hassan, El, 5 F.3d 726 (4th Cir. \par 1993) . . . . 41 \par United States v. Hensley, 469 U.S. 221 (1985) . . . . 11 \par United States v. Jeffus, 22 F.3d 554 (4th Cir. \par 1994) . . . . 13 \par United States v. Johnson, 63 F.3d 242 (3d Cir. \par 1995) petition for cert. pending No. 95-6724 . . . . 13, 22, 37 \par United States v. Martinez-Fuerte, 428 U.S. 543 \par (1976) . . . . 11 \par United States v. Meyers, 990 F.2d 1083 (8th Cir. \par 1993) . . . . 13 \par United States v. Mitchell, 951 F.2d 1291 (D.C. Cir. \par 1991), cert. denied, 504 U.S. 924 (1992) . . . . 12 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par VI \par \par Cases-Continued: \par \par Page \par \par United States v. Robinson, 414 U.S. 218 \par (1973) . . . . 18, 19, 29 \par United States v. Ross, 456 U.S. 798 (1982) . . . . 27 \par United States v. Scopo, 19 F.3d 777 (2d Cir.), cert. \par denied, 115 S. Ct. 207 (1994) . . . . 13, 22, 28, 37 \par United States v. Smith, 799 F.2d 704 (11th Cir. \par 1986) . . . . 13, 34 \par United States v. Sokolow, 490 U.S. 1 (1989) . . . . 11, 25 \par United States v. Travis, 62 F.3d 170 (6th Cir. \par 1995) . . . . 28 \par United States v. Trigg, 925 F.2d 1064 (7th Cir.), \par cert. denied, 502 U.S. 962 (1991) . . . . 13, 24 \par United States v. Valdez, 931 F.2d 1448 (11th Cir. \par 1991) . . . . 13, 34 \par United States v. Villamonte-Marquez, 462 U.S. 579 \par (1983) . . . . 14 \par Wayte v. United States, 470 U.S. 598 (1985) . . . . 24 \par Welsh v. Wisconsin, 466 U.S. 740 (1984) . . . . 18, 20 \par Wilson v. Arkansas, 115 S. Ct. 1914 (1995) . . . . 18, 40 \par Winston v. Lee, 470 U.S. 753 (1985) . . . . 18 \par Yick Wo v. Hopkins, 118 U.S. 356 (1886) . . . . 28 \par \par Constitution and statutes: \par \par U.S. Const. Amend. IV . . . . passim \par Equal Protection Clause . . . . 9, 28 \par Search and Seizure Clause . . . . 10 \par Warrant Clause . . . . 21 \par 21 U.S.C. 841(a)(1) . . . . 2, 6, 7 \par 21 U.S.C. 844(a) . . . . 2 \par 21 U.S.C. 860(a) . . . . 2, 6, 7 \par D.C. Code 23-581(a)(1)(B) (1981 & Supp. 1989) . . . . 37 \par D.C. Mun. Regs. tit. 18 (1970): \par 2200.3 . . . . 6 \par 2204.3 . . . . 6 \par 2213.4 . . . . 5 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par VII \par \par Miscellaneous: \par \par District of Columbia Metropolitan Police Department \par General Order: \par No. 303.1 (I)(A)(2)(a) (1986) . . . . 6, 36 \par No. 303.1 (I)(A)(2)(a) (1)-(3) (1992) . . . . 36 \par No. 303.1 (I)(A)(2)(a)(1) (1992) . . . . 38 \par No. 303.1 (I)(A)(2)(a)(4) (1992) . . . . 6, 36 \par No. 303.1 (III)(B)(1) (1992) . . . . 37 \par W. Lafave, Search and Seizure (3d ed. 1996) . . . . 17, 23, 31 \par Webster's Third New Int'l Dictionary (1971) . . . . 16 \par C. Whitebread & C. Slobogin, Criminal Procedure \par (3d ed. 1993) . . . . 29 \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par In the Supreme Court of the United States \par \par OCTOBER TERM, 1995 \par \par No. 94-5841 \par \par MICHAEL A. WHREN, AND JAMES L. BROWN, \par PETITIONERS \par \par v. \par \par UNITED STATES OF AMERICA \par \par ON WRIT OF CERTIORARI \par TO THE UNITED STATES COURT OF APPEALS \par FOR THE DISTRICT OF COLUMBIA CIRCUIT \par \par BRIEF FOR THE UNITED STATES \par \par OPINION BELOW \par \par The opinion of the court of appeals (J.A. 6-19) is \par reported at 53 F.3d 371. \par \par JURISDICTION \par \par The judgment of the court of appeals was entered on \par May 12, 1995. A petition for rehearing was denied on \par July 13, 1995. J.A. 20. The petition for a writ of \par certiorari was filed on August 31, 1995. The petition \par for a writ of certiorari was granted on January 5, \par 1996. The jurisdiction of this Court rests on 28 \par U.S.C. 1254 (1). \par \par (1) \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 2 \par \par CONSTITUTIONAL PROVISION INVOLVED \par \par The Fourth Amendment provides: \par \par The right of the people to be secure in their per- \par sons, houses, papers, and effects, against unrea- \par sonable searches and seizures, shall not be \par violated, and no Warrants shall issue, but upon \par probable cause, supported by Oath or affirmation, \par and particularly describing the place to be \par searched, and the persons or things to be seized. \par \par STATEMENT \par \par Following a jury trial in the United States District \par Court for the District of Columbia, petitioners were \par convicted of possessing crack cocaine with the intent \par to distribute it, in violation of 21 U.S.C. 841(a)(1); \par possessing crack cocaine with the intent to distribute \par it within 1,000 feet of a school, in violation of 21 \par U.S.C. 860(a); possessing marijuana, in violation of 21 \par U.S.C. 844(a); and possessing phencyclidine (PCP), in \par violation of 21 U.S.C. 844(a). The district court \par sentenced each petitioner to a total of 168 months' \par imprisonment, to be followed by a ten-year period of \par supervised release. Petitioner Whren was also freed \par $8,800. The court of appeals affirmed petitioners' \par convictions, but remanded for resentencing. J.A. 6-19. \par 1. On the evening of June 10, 1993, several District \par of Columbia plainclothes police officers were patrol- \par ling in unmarked cars for drug activity in southeast \par Washington. J.A. 8. As the officers made a left turn, \par Officer Soto noticed a Nissan Pathfinder with tempo- \par rary tags stopped at the intersection. He saw the \par driver, later identified as petitioner Brown, looking \par down into the lap of the passenger, petitioner Whren. \par Soto observed that the Pathfinder remained stopped \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 3 \par \par at the intersection for more than 20 seconds, ob- \par structing at least one car that was stopped behind it. \par The officers made a U-turn to follow the Pathfinder. \par As they did so, petitioners turned without signaling \par and "sped off quickly" at an "unreasonable speed." \par Ibid. \par The officers followed the Pathfinder until it stopped \par at another intersection, where "it was largely boxed in \par by other cars in front of and behind it and to its right. \par J.A. 9. The officers pulled up next to the Pathfinder \par on the driver's side. Officer Soto then approached the \par driver's side of the Pathfinder, identified himself as a \par police officer, and told petitioner Brown to put the \par Pathfinder in park. As Soto was speaking, he saw \par that Whren was holding two large clear plastic bags \par of what appeared to be crack cocaine. Soto yelled \par "C.S.A." to alert the other officers that he had \par observed a Controlled Substances Act violation. As \par Soto reached for the driver's side door, petitioner \par Whren yelled, "pull off, pull off." Whren also pulled \par the cover from a power window control panel in the \par passenger door and put one of the large bags into a \par hidden compartment there. Soto opened the Path- \par finder's door, dove across Brown, and grabbed the \par other bag from Whren's hand. Another officer pinned \par Brown to the back of the driver's seat. After arrest- \par ing petitioners, the officers searched the Pathfinder \par and recovered two tinfoils containing marijuana laced \par with PCP, a bag of chunky white rocks, and a large \par white rock of crack cocaine from the hidden com- \par partment in the car door, as well as numerous unused \par ziplock bags, a portable phone, and personal papers. \par Id. at 9-10. \par 2. Petitioners moved to suppress the evidence ob- \par tained from their car. J.A. 10. At the suppression \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 4 \par \par hearing, Officer Soto testified that he had stopped the \par Pathfinder because the driver was "not paying full \par time and attention to his driving." Soto testified that \par he had not intended to give the driver a ticket, but \par that he had wished to ask why the driver was \par obstructing traffic and why he had sped off, without \par signaling, in a school area. Soto testified that the \par decision to stop the Pathfinder was not based on \par petitioners' "racial profile,\rdblquote but on the driver's ac- \par tions. The second officer's testimony essentially con- \par firmed Soto's account. Petitioners argued that the \par officers' stated reasons for the stop were pretextual, \par and that the stop thus violated the Fourth Amend- \par ment because it was made without legally sufficient \par cause. Id. at 10-11. \par The district court denied petitioners' motions to \par suppress. See J.A. 4-5. Although the court noted \par some minor discrepancies between the testimony of \par the two arresting officers, it explained that "the facts \par of the stop were not controverted," and that "[t]here \par was nothing to really demonstrate that the actions of \par the officers were contrary to a normal traffic stop." \par Accepting Soto's testimony, the court concluded that \par "the government has demonstrated through the evi- \par dence presented that the police conduct was appro- \par priate and, therefore, there is no basis to suppress the \par evidence." Id. at 45,10-11. \par 3. The court of appeals affirmed. J.A. 6-19. Under \par the Fourth Amendment, the court noted, a traffic stop \par is a "limited seizure" that must be justified by a \par showing of probable cause "or, at least, reasonable \par suspicion based on specific and articulable facts." Id. \par at 14. The court rejected petitioners' argument that, \par where such a showing has been made, a stop to \par investigate routine traffic violations is constitution- \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 5 \par \par ally permissible only if a reasonable police officer \par would have made the same stop in the absence of any \par other, constitutionally invalid purpose. Id. at 14-16. \par Instead, the court explicitly adopted the rule followed \par by a majority of other courts of appeals and held that \par "regardless of whether a police officer subjectively \par believes that the occupants of an automobile may be \par engaging m some other illegal behavior, a traffic stop \par is permissible as long as a reasonable officer in the \par same circumstances could have stopped the car for \par the suspected traffic violation." Id. at 16. The court \par reasoned that' inquiring into whether an officer \par lawfully "could have" made the traffic stop provides "a \par more principled method of determining reason- \par ableness" than the "would have" test, because it \par eliminates any need for a court to inquire into an \par officer's subjective state of mind, ibid., while at the \par same time it "provides a principled limitation on \par abuse of power" by requiring that a stop be supported \par by "probable cause to believe a traffic violation has \par occurred or a reasonable suspicion of unlawful con- \par duct based upon articulable facts" (id. at 16-17). \par Applying that standard to the facts of this case, the \par court of appeals concluded (J.A. 17-18) that Brown's \par failure to give "full time and attention" to his driving, \par his turning without signaling, and his driving away \par at an unreasonable speed provided the police with "the \par articulable and specific facts necessary to establish \par probable cause to stop" petitioners. 1. The court held \par \par ___________________(footnotes) \par \par 1 Petitioners' driving violated three District of Columbia \par municipal traffic regulations. First, D.C. Mun. Regs. tit. 18, \par 2213.4 (1970), provides: \par \par An operator shall, when operating a vehicle, give full time \par and attention to the operation of the vehicle. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 6 \par \par that it was irrelevant that the officers involved were \par vice officers who were patrolling for drug offenses, \par rather than traffic police. 2. The court explained that \par "whether a stop can be made depends on whether the \par officers had an objective legal basis for it, not on \par whether the police department assigned the officer in \par question the duty of making the stop." Id. at 18. 3. \par \par ___________________(footnotes) \par \par Second, D.C. Mun. Regs. tit. 18, 2204.3 (1970), provides: \par \par No person shall turn any vehicle to enter a private road or \par driveway, or otherwise turn a vehicle from a direct course \par or move right or left upon a roadway without giving an \par appropriate signal in the manner provided in this chapter \par if any other traffic may be affected by the movement. \par \par Finally, D.C. Mun. Regs. tit. 18, 2200.3 provides: \par \par No person shall drive a vehicle on a street or highway at a \par speed greater than is reasonable and prudent under the \par conditions and having regard to the actual and potential \par hazards then existing. \par \par 2 On appeal, petitioners relied in part on a local police \par regulation that provided in pertinent part that non-uniformed \par officers and officers in unmarked cars should not take traffic \par enforcement action "except in the case of a violation that is so \par grave as to pose an immediate threat to the safety of others." \par See District of Columbia Metropolitan Police Department \par General order 303.1(I)(A)(2)(a) (1986). While that general \par order had been superseded by the time the instant stop oc- \par curred, the successor general order is not materially different. \par See General Order 303.1(I)(A)(2)(a)(4) (1992) (officers not in \par uniform or in unmarked vehicles "may take [traffic] enforce- \par ment action only in the case of a violation that is so grave as to \par pose an immediate threat to the safety of others"). Pet. Br. \par App. 4a. Petitioners did not rely on the regulation at the \par suppression hearing, but did question officers about the \par regulation at trial. See Gov't C.A. Br. 22-23 n.12. \par \par 3 The parties agreed below that 21 U.S.C. 841(a)(l), which \par proscribes possession of controlled substances with the intent to \par distribute, describes a lesser offense included within 21 U.S.C. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 7 \par \par SUMMARY OF ARGUMENT \par \par The essential command of the Fourth Amendment \par is that searches and seizures be reasonable. The \par reasonableness requirement ordinarily mandates that \par a search or seizure be based on either probable cause \par or, in the case of a "investigative stop" that is more \par limited in scope and duration, reasonable suspicion \par that an offense has occurred or is occurring. When a \par police officer has observed a motorist commit a traffic \par offense, the officer has probable cause to justify a \par stop. Thus, it is reasonable under the Fourth Amend- \par ment for an officer who has observed a traffic offense \par to stop the automobile, to question the motorist, and \par to take other action where justified. \par Petitioners argue that a traffic stop, even when \par supported by an observed violation, should neverthe- \par less be held to violate the Fourth Amendment if the \par officer made the stop as a pretext to investigate \par the motorist for an offense unrelated to the traffic \par offense. As the courts of appeals have overwhelm- \par ingly recognized, any argument that would evaluate \par police action based on an officer's subjective motive \par conflicts with this Court's teaching that the validity \par of a search or a seizure under the Fourth Amendment \par "turns on an objective assessment of the officer's \par \par ___________________(footnotes) \par \par 860(a), which prohibits the same act within 1,000 feet of a \par school. The court accordingly remanded the case for entry of \par an amended judgment vacating petitioners' convictions under \par Section 841(a)(1), and for resentencing on the remaining \par counts. J.A. 18-19. On remand, the district court vacated the \par convictions under Section 841(a)(1), and generally reimposed \par the original sentences on the remaining counts of conviction. \par The court, however, did not reimpose the $8,800 fine on \par petitioner Whren. Petitioners' appeals of their sentences on \par remand have been stayed pending the decision in this case. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 8 \par \par actions in light of the facts and circumstances \par confronting him at the time," not on the officer's \par state of mind at the time the challenged action was \par taken. Maryland v. Macon, 472 U.S. 463, 470-471 \par (1985). In light of that principle, this Court has held \par that an officer's motives or intent are irrelevant in a \par variety of Fourth Amendment contexts. And, while \par the Court has in some settings required police \par conduct to conform to internal standards or routines \par to satisfy the Fourth Amendment, the need to observe \par such internal standards has been required as an \par alternative to a showing of individualized suspicion; \par it has never been applied as an additional \par requirement when the police have met the standard of \par probable cause or reasonable suspicion. \par Petitioners accordingly disavow the suggestion \par that "pretext" stops should be evaluated by probing an \par officer's subjective intent. But the theoretically \par objective test of "pretext" they propose is equally \par flawed. Petitioners' test would invalidate a stop if a \par reasonable police officer "would not" have made it as a \par matter of departmental policy or practice. Such a \par supposed policy or practice, however, would often \par consist of nothing more than the amalgam of sub- \par jective views expressed by different police officers \par about what each regards as standard practice. And, \par since a "usual police practice" of not enforcing a \par particular violation does not alter the fact that the \par violation is illegal under the jurisdiction's traffic \par laws, it is difficult to see why an officer's departure \par from "usual practice" would be relevant to the legal- \par ity of a stop at all except as a means for ferreting out \par an improper pretextual motive. In any event, peti- \par tioners' test would not produce consistent results. \par Identical stops would still yield different results \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 9 \par \par under the Fourth Amendment if they were made by \par officers whose police departments had different en- \par forcement priorities. \par There is no sound reason for requiring more than \par the usual Fourth Amendment showing of reasonable \par suspicion or probable cause in the context of traffic \par stops. A motorist who commits a traffic offense can- \par not ordinarily expect that law enforcement officers \par will overlook the violation, and the prospect of a \par traffic stop poses only a modest intrusion on the \par motorist's privacy interests. The Fourth Amend- \par ment requirement of reasonableness further limits \par the scope of permissible activity once the officer has \par made the stop. And it is unnecessary to alter estab- \par lished Fourth Amendment principles to prevent \par officers from selectively targeting motorists on \par account of their race, ethnicity, or exercise of pro- \par tected rights, for such conduct is already unlawful \par under the Equal Protection Clause. As for peti- \par tioners' claim that the abundance of "technical" \par traffic regulations (Br. 13) affords too many oppor- \par tunities for officers to enforce the law, that claim is \par properly addressed to the political branches that have \par designated such conduct as a traffic infraction. \par Finally, petitioners' test of "pretext" is unwork- \par able. While police departments may for their own \par purposes establish general policies and enforcement \par priorities, they rarely would issue a clear mandate \par never to enforce a particular violation. Courts would \par thus be obliged to evaluate what "usual practices" \par were, an inquiry that would often entail taking \par testimony from multiple officers in the department \par and then extrapolating from their experience to \par derive a general policy. And officers in the field, who \par must often make split-second judgments as to what \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 10 \par \par action to take, would be left to conjecture, after \par observing a traffic offense or offenses, whether \par stopping the motorist would later be held by a court to \par have conformed to internal regulations setting en- \par forcement priorities or to "usual police practices." In \par light of those and other problems, the two circuit \par courts to apply petitioners' proposed test have, in \par practice, based their decisions on the state of mind of \par the individual officer who made the stop. Yet such an \par inquiry into an officer's state of mind is precisely \par what petitioners' "objective" test purports to avoid. \par Petitioners' reliance on an internal police regula- \par tion as a gauge of "usual police practices" is particu- \par larly inappropriate in this case, because the regula- \par tion they cite merely allocates enforcement duties \par among members of the department. The department \par has made clear that it enforces the three traffic \par offenses that petitioners committed; the officers who \par made the stop were statutorily authorized to do so; \par and the identity of the particular officer who made the \par stop has no relation to the issue of whether the stop \par was justified. The proper inquiry is therefore simply \par whether the officer who made the stop knew of \par articulable facts that justified a belief that an offense \par had been committed. That test was met in this case. \par \par ARGUMENT \par \par THE FOURTH AMENDMENT PERMITS A POLICE \par OFFICER WHO WITNESSES A TRAFFIC VIOLA- \par TION TO STOP THE MOTORIST'S VEHICLE \par \par The essential requirement of the Fourth Amend- \par ment is that searches and seizures be reasonable. \par The reasonableness requirement ordinarily demands \par that a search or seizure be justified at its inception by \par a showing of probable cause, or, in the case of a more \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 11 \par \par limited "investigative stop," by reasonable suspicion, \par based on specific and articulable facts, that unlawful \par conduct has occurred or is occurring. United States \par v. Sokolow, 490 U.S. 1, 7 (1989); Reid v. Georgia, 448 \par U.S. 438,440 (1980) (per curiam); Terry v. Ohio, 392 \par U.S. 1 (1968). The scope of a search or seizure and the \par manner in which it is conducted must also be rea- \par sonable. Terry, 392 U.S. at 19-20; Maryland v. Garri- \par son, 480 U.S. 79, 84 (1987); Tennessee v. Garner, 471 \par U.S. 1, 7-8 (1985); Florida v. Royer, 460 U.S. 491,500 \par (1983). \par As this Court has long held, those standards apply \par to a seizure that takes the form of a traffic stop of an \par automobile and the temporary detention of its occu- \par pants. Such a seizure may take the form of an \par investigative stop and thus may be initiated upon a \par showing of reasonable suspicion to believe that an \par offense has been committed. See, e.g., United States \par v. Hensley, 469 U.S. 221, 226 (1985); United States v. \par Cortez, 449 U.S. 411, 417-418 (1980); Delaware v. \par Prouse, 440 U.S. 648, 663-654, 663 (1979); United \par States v. Brignoni-Ponce, 422 U.S. 873, 880-884 \par (1975). 4. Where an officer has observed a traffic viola- \par \par ___________________(footnotes) \par \par 4 An automobile may also be stopped absent a showing of \par reasonable suspicion pursuant to a reasonable regulatory \par program under which the decision to make a stop is dictated by \par neutral criteria. Brown v. Texas, 443 U.S. 47, 51 (1979). See \par Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 454-455 \par (1990) (upholding use of sobriety checkpoints); United Mates v. \par Martinez-Fuerte, 428 U.S. 543, 556-558 (1976) (upholding check- \par point stops by Border Patrol to check for illegal aliens on roads \par leading from Mexican border] see also Prouse, 440 U.S. at 663 \par (invalidating discretionary stops of vehicles not based upon \par reasonable suspicion); Brignoni-Ponce, 422 U.S. at 882-884 \par (invalidating random stops near Mexican border not based on \par reasonable suspicion). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 12 \par \par tion, the standard of probable cause is met. See, e.g., \par New York v. Class, 475 U.S. 106, 117-118 (1986) (stop \par of car for speeding and cracked windshield); id. at 125 \par (opinion of Brennan, J.); Pennsylvania v. Mimms 434 \par U.S. 106, 109 (1977) (per curiam) (stop of car bearing \par expired license tags); see also Prouse, 440 U.S. at 659 \par South Dakota v. Opperman, 428 U.S. 364, 368 (1976). \par Petitioners ask this Court to adopt an additional \par standard of justification that, apparently, would be \par unique to traffic-stop cases. They propose that a \par traffic stop based upon an observed traffic violation, \par even if reasonably limited in scope and manner, should \par nonetheless be held unreasonable where the stop was \par "pretextual" (Br. 15)-that is, motivated not by a \par desire to enforce the traffic laws, but by a desire to \par investigate the motorist for some other offense. They \par assert that pretext should be measured in light of \par whether a reasonable officer would have made the \par traffic stop in question, in the absence of suspicions of \par other wrongdoing. The Fourth Amendment, however, \par does not require a showing above and beyond probable \par cause or reasonable. suspicion to justify a stop of a \par motorist for a traffic offense. Accordingly, and as a \par substantial majority of the courts of appeals have \par concluded, petitioners' proposed "pretext" rule should \par be rejected. 5. \par \par ___________________(footnotes) \par \par 5 Nine circuits have held that where an officer reasonably \par suspects or has probable cause to believe that a traffic offense \par has occurred or is occurring, the Fourth Amendment permits \par a traffic stop. See, e.g., United States v. Mitchell, 951 F.2d \par 1291, 1295 (D.C. Cir. 1991), cert. denied, 504 U.S. 924 (1992); \par United States v. Scopo, 19 F.3d 777, 782-784 (2d Cir.), cert. \par denied, 115 S. Ct. 207 (1994); United States v. Johnson, 63 F.3d \par 242, 245-247 (3d Cir. 1995), petition for cert. pending, No. 95- \par 6724 (filed Nov. 13, 1995); United States v. Jeffus, 22 F.3d 554, \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 13 \par \par A. The Validity Of A Fourth Amendment Intrusion \par Is Properly Judged Against An Objective \par Standard Of Reasonableness, And Where A \par Search Or Seizure Is Supported By Probable \par Cause Or Reasonable Suspicion, There Is No \par Basis For Inquiring Whether The Decision To \par Undertake The Search Conformed To Internal \par Police Practices \par \par 1. As this Court has consistently held, the validity \par of a search or a seizure under the Fourth Amendment \par "turns on an objective assessment of the officer's \par actions in light of the facts and circumstances \par confronting him at the time," not on the officer's \par state of mind at the time the challenged action was \par taken. Maryland v. Macon, 472 U.S. 463, 470-471 \par (1985) (quoting Scott v. United States, 436 U.S. 128, \par 136 (1978)). Based on that principle, the Court has \par held that an officer's motivation, intent, or under- \par \par ___________________(footnotes) \par \par 556-557 (4th Cir. 1994); United States v. Causey, 834 F.2d 1179, \par 1185 (5th Cir. 1987) (en banc); United States v. Ferguson, 8 \par F.3d 385,391 (6th Cir. 1993) (en banc), cert. denied, 115 S. Ct. \par 97 (1994) United States v. Trigg, 925 F.2d 1064, 1065 (7th Cir.), \par cert. denied, 502 U.S. 962 (1991); United States v. Meyers, 990 \par F.2d 1083, 1085 (8th Cir. 1993); United States v. Botero-Ospina, \par 71 F.3d 783, 787 (10th Cir. 1995) (en banc) (overruling Unlimited \par States v. Guzman, 864 F.2d 1512, 1517 (10th Cir. 1988)), peti- \par tion for cert. pending, No. 95-8121 (filed Mar. 1, 1996). The \par same approach has been taken by a number of state courts of \par last resort. See, e.g. State v. Lopez, 873 P.2d 1127, 1137 (Utah \par 1994) (collecting cases). The Ninth and Eleventh Circuits, \par however, have held that a stop is reasonable only where "under \par the same circumstances a reasonable officer would have made \par the stop in the absence of the invalid purpose.'" United States \par v. Valdez, 931 F.2d 1448, 1450 (11th Cir. 1991) (quoting United \par States v. Smith, 799 F.2d 704, 709 (11th Cir. 1986)); United \par States v. Cannon, 29 F.3d 472, 474-476 (9th Cir. 1994). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 14 \par \par standing of the law is irrelevant in a variety of \par Fourth Amendment contexts. Those include the \par scope of a defendant's consent to a search, Florida v. \par Jimeno, 500 U.S. 248,250-252 (1991); the scope of the \par "plain view" doctrine, Horton v. California, 496 U.S. \par 128, 138 (1990); the amount of force that may rea- \par sonably be used in making an arrest, Graham v. \par Connor, 490 U.S. 386,397-399 (1989); the existence of \par a Fourth Amendment "seizure: Macon, 472 U.S. at \par 470-471; and the reasonableness of an officer's deci- \par sion to board a vessel for document inspection, United \par States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 \par (1983). See Terry, 392 U.S. at 21 (in analyzing the \par reasonableness of a search or seizure, "it is impera- \par tive that the facts be judged against an objective \par standard"). \par Application of objective standards of conduct pro- \par motes the important interest in "evenhanded law en- \par forcement," Horton, 496 U.S. at 138. The rights of \par persons subjected to identical official conduct should \par not turn on the happenstance of the state of mind of \par the officer. Because the ultimate Fourth Amendment \par question is whether the law enforcement interests at \par stake justify the particular intrusion on privacy \par interests, the subjective good faith or bad faith of the \par particular searching officer is not the proper test. \par Accordingly, "the fact that the officer does not have \par the state of mind which is hypothecated by the \par reasons which provide the legal justification for the \par officer's action does not invalidate the action so long \par as the circumstances, viewed objectively, justify that \par action." Scott, 436 U.S. at 138. \par Measuring the validity of a search or seizure by an \par officer's subjective intent would lead to incongruous \par results. The traffic stop setting illustrates that \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 15 \par \par point. If two motorists are stopped in identical fash- \par ion for committing the same traffic offense, it would \par make little sense to judge the constitutionality of the \par stops differently because one officer's motives were \par proper and the other's were not. The objective \par approach that this Court has applied avoids such \par inconsistencies. 6. \par 2. There is no exception to the Fourth Amend- \par ment's focus exclusively on objective circumstances \par simply because a search or seizure is challenged as a \par "pretextual use of governmental authority." Pet. Br. \par 30. An inquiry into whether an officer's action was \par "pretextual" is inherently an inquiry into his sub- \par jective intent. See Webster's Third New Int'l Dic- \par \par ___________________(footnotes) \par \par 6 The Court explained that point in Horton v. California, \par supra, in rejecting the argument that the "plain view" doc- \par trine should apply only to items that the officer did not expect \par to discover at the time he applied for a search warrant: \par \par "Let us suppose officers secure a warrant to search a house \par for a rifle. While staying well within the range of a rifle \par search, they discover two photographs of the murder \par victim, both in plain sight in the bedroom. Assume also \par that the discovery of the one photograph was inadvertent \par but finding the other was anticipated. The [inadvertence \par inquiry] would permit the seizure of only one of the \par photographs. But in terms of the \lquote minor' peril to Fourth \par Amendment values there is surely no difference between \par these two photographs: the interference with possession is \par the same in each case and the officers' appraisal of the \par photograph they expected to see is no less reliable than \par their judgment about the other. And in both situations the \par actual inconvenience and danger to evidence remain \par identical if the officers must depart and secure a warrant." \par \par 496 U.S. at 139 (quoting Coolidge v. New Hampshire, 403 U.S. \par 443, 516 (1971) (White, J., concurring in part and dissenting in \par part)). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 16 \par \par tionary (1971) (defining "pretext" as "a purpose or \par motive alleged or an appearance assumed in order to \par cloak the real intention or state of affairs"). Basing \par Fourth Amendment analysis on the presence or ab- \par sence of an official motivation would interfere with \par the goal of evenhanded law enforcement, and it cannot \par be reconciled with this Court's cases. See Graham, \par 490 U.S. at 397 ("An officer's evil intentions will not \par make a Fourth Amendment violation out of an ob- \par jectively reasonable [action]; nor will an officer's good \par intentions make an objectively unreasonable [action] \par constitutional."). \par 3. There is also no requirement that an officer's \par actions must conform to internal police practices or \par protocols where the action is otherwise justified \par under normal Fourth Amendment principles. Peti- \par tioners assert (Br. 36) that "this Court's Fourth \par Amendment decisions have repeatedly turned on \par whether standard police procedures were followed." \par The decisions on which petitioners rely (Br. 30-36), \par however, principally involve administrative or regula- \par tory searches. Such searches, unlike traffic stops \par based on observed violations of law, are not justified \par by articulable facts pertaining to the individual who is \par subjected to the search. The Court has accordingly \par held that the initiation and the conduct of such \par administrative searches must be governed by an \par external source of standards. See Florida v. Wells, \par 495 U.S. 1, 4 (1990) (property inventory procedures); \par New York v. Burger, 482 U.S. 691 (1987) (admini- \par strative searches of automobile junkyards); Colorado \par v. Bertine, 479 U.S. 367, 372 (1987) (property inven- \par tory procedures); see also automobile-stop cases cited \par at note 4, supra. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 17 \par \par The application of standard procedures in the \par administrative-search setting avoids the risk of \par arbitrary police action, which is prevented in other \par Fourth Amendment contexts by the requirement of \par individualized suspicion before a search or. seizure \par may be conducted. As the Court has observed, "[i]n \par those situations in which the balance of interests \par precludes insistence upon some quantum of individu- \par alized suspicion, other safeguards are generally \par relied upon to assure that the individual's reasonable \par expectation of privacy is not subject to the discretion \par of the official in the field." Delaware v. Prouse, 440 \par U.S. 648,654-655 (1979) (per curiam) (internal quota- \par tion marks and footnote omitted). The Court has not, \par however, extended the requirement of internal \par standards to Fourth Amendment settings in which \par the decision whether to proceed with a search is \par supported by probable cause or reasonable suspicion. \par Rather, "the Fourth Amendment requires that a sei- \par zure must be based on specific objective facts \par indicating that society's legitimate interests require \par the seizure of a particular individual, or that the \par seizure must be carried out pursuant to a plan em- \par bodying explicit, neutral limitations upon the conduct \par of individual officers." Brown v. Texas, 443 U.S. 47, \par 51 (1979) (emphasis added). See 1 W. LaFave, Search \par and Seizure 1.4(e), at 123 (3d ed. 1996) (noting that, \par in administrative search cases, the Court's inquiry" \par into the use of standardized criteria was based upon \par "the fact that the enforcement activity in question \par was being permitted without probable cause focusing \par upon a particular individual or place," whereas in the \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 18 \par \par traffic stop situation, "the arrest or search is on pro- \par bable cause\rdblquote ). 7. \par Petitioners also rely (Br. 33-34) on United States v. \par Robinson, 414 U.S. 218 (1973), but Robinson does not \par support a requirement that police must conform to \par standard internal practices as well as to Fourth \par Amendment norms. In Robinson, the police stopped \par an automobile whose driver lacked a permit, placed \par the driver under custodial arrest, and searched the \par driver's person incident to his arrest. The Court \par upheld all three actions. While the Court made clear \par that it had no occasion in Robinson to address the \par situation in which the decision to place a suspect in \par post-arrest custody "depart[ed] from established \par police department practice" and was instead "a mere \par pretext" to permit a search for narcotics incident to \par arrest, id. at 221 n.1, the Court did categorically hold \par that "[a] custodial arrest of a suspect based on \par probable cause is a reasonable intrusion under the \par Fourth Amendment." Id. at 235. Significantly, the \par Court also held that a full search incident to a valid \par arrest is lawful per se, regardless of the subjective \par intent of the search officer. See id, at 236 ("it is of no \par moment that [the officer] did not indicate any sub- \par \par ___________________(footnotes) \par \par 7 In urging that "this Court has often looked beyond the \par mere existence of probable cause in evaluating the reason- \par ableness of searches and seizures" (Br. 16), petitioners rely on \par Wilson v. Arkansas, 115 S. Ct. 1914 (1995), Tennessee v. \par Garner, 471 U.S. 1 (1985), Winston v. Lee, 470 U.S. 753 (1985), \par and Welsh v. Wisconsin, 466 U.S. 740, 754 (1984). Those cases, \par however, examined the reasonableness of the manner in which \par a properly justified search or seizure was executed. They have \par no bearing on the distinct question, presented here, of whether \par a justification beyond individualized suspicion is required to \par initiate the search or seizure in the first place. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 19 \par \par jective fear of the respondent or that he did not \par himself suspect that respondent was armed''). 8. \par Gustafson v. Florida, 414 U.S. 260 (1973), the \par companion case to Robinson, further undermines the \par view that an officer's departure from departmental \par practice is relevant under the Fourth Amendment \par when a search is otherwise justified. The Court held \par that a search incident to a lawful arrest is valid even \par when the police department had "no police regulations \par which required the officer to take [the defendant] into \par custody [nor any] police department policies requir- \par ing full-scale body searches upon arrest in the field." \par Id. at 263. The existence of departmental policies and \par regulations, the Court stated, is not "determinative of \par the constitutional issue," because, under Robinson, \par "the arguable absence of `evidentiary' purpose for a \par search incident to a lawful arrest is not controlling." \par Id. at 265. 9. \par Finally, Abel v, United States, 362 U.S. 217 (1960), \par does not establish a general Fourth Amendment \par principle to require standard police practices. See \par Pet. Br. 33. In Abel, the Court held that evidence in- \par \par ___________________(footnotes) \par \par 8 That portion of Robinson was cited by this Court in Scott \par v. United States, as demonstrating that searches are to be \par examined "under a standard of objective reasonableness with- \par out regard to the underlying intent or motivation of the \par officers involved." Scott, 436 U.S. at 138. \par \par 9 Justice Powell's concurrence in Robinson and Gustafson \par noted that "Gustafson would have presented a different \par question if the `petitioner could have proved that he was taken \par into custody only to afford a pretext for a search undertaken \par for collateral objectives," Robinson, 414 U.S. at 438 n.2 (Powell, \par J.). No other Justice joined Justice Powell's opinion, however, \par and Gustafson's unqualified holding makes clear that standard \par police practices are not required to justify a custodial arrest. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 20 \par \par \par troduced at Abel's espionage trial had been lawfully \par obtained during a Search incident to his adminis- \par trative arrest. The arrest had been effected by the \par Immigration and Naturalization Service (INS) pur- \par suant to an "administrative warrant" grounded on \par Able's status as a reportable alien. The Court noted \par that the Federal Bureau of Investigation (FBI) had \par alerted the INS to Abel's deportable status after it \par failed to verify its suspicions that Abel was engaged \par in espionage. 362 U.S. at 220-225. In upholding the \par arrest over Abel's claim that the arrest had been a \par "subterfuge" to assist the FBI in its investigation, \par the Court did emphasize that it was usual practice for \par the INS both to receive referrals from the FBI and to \par issue administrative warrants to reportable aliens, \par and that the INS had therefore acted in. good faith, not \par for an "illegitimate purpose." Id. at 226-227. The \par Court's focus in Abel on the regularity of procedures \par attending the use of the administrative arrest \par warrant, however, is consistent with this Court's \par later decisions similarly requiring regularity of pro- \par cedures to justify other administrative intrusions, \par see pp. 16-18, supra. And to the extent to that Abel \par suggested that subjective "bad faith" or "motive" \par alone could result in an infringement of Fourth \par Amendment rights, 362 U.S. at 226, that suggestion \par has not survived Scott and later decisions. 10. \par \par ___________________(footnotes) \par \par 10 The eases cited by amicus American civil Liberties Union \par relies (Br. 7-8) are also inapposite. Texas v. Brown, 460 U.S. \par 730 (1983), upheld roadblock stops of cars not based on \par reasonable suspicion, despite the "generalized expectation" of \par officers that some cars would be found to contain narcotics and \par paraphernalia. Id. at 743 (plurality opinion). The plurality's \par statement about the absence of pretext (id. at 742) merely \par applied the then-extant "inadvertence" requirement of the \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 21 \par \par B. A Traffic Stop Based On An Observed Violation \par Need Not Conform To Standard Police Practice \par To Satisfy The Fourth Amendment \par \par Petitioners recognize (Br. 30) that an officer's \par subjective motivation cannot invalidate an otherwise \par objectively justified Fourth Amendment intrusion. \par As they concede, "[objectively justified seizures are \par permissible under the Fourth Amendment without \par regard to the subjective motivations of the police." \par Ibid. In order to avoid directly asking courts to \par \par ___________________(footnotes) \par \par plain view doctrine, see Coolidge v. New Hampshire, 403 U.S. \par 443 (1971), which was overruled by this Court in Horton, \par supra. See note 6, supra; Brown, 460 U.S. at 744 (opinion of \par White, J.). Steagald v. United States, 451 U.S. 204 (1981), held \par that officers may not use an arrest warrant to search the home \par of a third party without a search warrant for that home. While \par that rule was adopted in part to eliminate the possibility of \par pretextual use of an arrest warrant to enter homes that the \par officers lacked probable cause to search, Steagald did not \par countenance case-specific inquiries into police motivation nor \par require compliance with standard police procedures-other \par than the textual requirement of the Warrant Clause. See 451 \par U.S. at 215. Jones v. United States, 357 U.S. 493 (1958), held \par that a warrantless entry into a home to conduct a search is \par unlawful absent a recognized exception to the warrant re- \par quirement. The Court declined to consider the government's \par alternative theory on appeal, i.e., that the search was a lawful \par incident to the defendant's lawful warrantless arrest, ex- \par plaining that that theory was not supported by the testimony of \par the officers as to their purpose for entering the home. Id. at \par 499-500. The Court's statement is less an articulation of Fourth \par Amendment law than an explanation of why the Court declined \par to entertain the government's belated claim in Jones. Finally, \par none of these cases supports the ACLU's suggestion (Br. 18) \par that this Court should expressly permit an "inquiry into \par motive" in order to determine the "real reason officers act" in \par the course of a pretext inquiry. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 22 \par \par inquire into subjective motive, petitioners endorse a \par pretext test that asks whether an officer's decision to \par make a stop deviated from the action that a "rea- \par sonable" officer, committed solely to enforcing the \par traffic laws, "would have" taken. Br. 32. They argue \par that stops are unreasonable "if they deviate so far \par from standard police practice that a reasonable of officer \par in the same circumstances would not have made the \par intrusion on the basis asserted." Ibid. \par Although that inquiry is nominally stated in \par objective terms, in practice it often would duplicate an \par inquiry into subjective intent. The "usual practices" \par of the "reasonable officer" would generally be "simply \par * * * an aggregation of the subjective intentions of \par officers in the regions." United States v. Ferguson, 8 \par F.3d 385,391 (6th Cir. 1993), cert. denied, 115 S. Ct. 97 \par (1994). And pretextual motive would simply be in- \par ferred circumstantially from the fact that the officer \par departed from usual practices of other officers, See \par United States v. Johnson, 63 F.3d 242, 247 (3d Cir. \par 1995); United States v. Scopo, 19 F.3d 777, 782 (2d \par Cir.), cert. denied, 115 S. Ct. 207 (1994). Indeed, it is \par not clear what relevance a departure from standard \par practices would have except to establish circum- \par stantially the motives of the officer who initiated the \par search. An internal police policy to enforce a law only \par under certain circumstances does not modify a \par jurisdiction's traffic laws. Accordingly, an individual \par stopped for an infraction in derogation of "standard \par police practice" has still violated the. law. The only \par conceivable purpose of considering a departure from \par standard police practice would be to ferret out \par circumstantially an improper pretextual motive. \par In any event, to the extent that recourse to "usual \par practices" is designed to check arbitrary police ac- \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 23 \par \par tion, see, e.g., LaFave, supra, 1.4(e), at 124-125, the \par proposal is unsound. Inferring pretext from an \par officer's deviation from the traffic-enforcement pro- \par tocol of his particular department would not eliminate \par arbitrary disparities. Even setting aside the practi- \par cal obstacles that would generally attend an effort to \par establish "usual police practice," those practices \par would frequently differ precinct to precinct, depart- \par ment to department. Under a "usual practices" ap- \par proach, a stop for a particular violation would be \par constitutional when carried out by an officer in a \par police department whose regular procedure was to \par enforce all observed traffic violations, but unconstitu- \par tional if carried out in identical fashion by an officer \par in an adjoining jurisdiction whose police department \par had more specific enforcement priorities. The ex- \par posure of a driver to a permissible stop for the identi- \par cal infraction could change within seconds or minutes \par as the driver passed through different police jurisdic- \par tions. The constitutionality of a traffic stop, however, \par should not be "\lquote subject to the vagaries of police \par departments' policies and procedures concerning the \par kinds of traffic offenses of which they ordinarily do or \par do not take note.'" United States v. Botero-Ospina, \par 71 F.3d 783, 788 (10th Cir. 1995) (en banc) (quoting \par Ferguson, 8 F.3d at 392), petition for cert. pending, \par No. 95-8121 (filed Mar. 1, 1996); Scopo, 19 F.3d at 784. \par More fundamentally, it is not necessarily improper \par for officers, in deciding which traffic offenders to \par stop, to take into account "collateral" (Br. 38) law en- \par forcement objectives beyond the fact that an offense \par has been committed, This Court has never held that \par -within the universe of searches, seizures, and \par arrests for which probable cause or reasonable suspi- \par cion exists-the Fourth Amendment restricts the \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 24 \par \par allocation of law enforcement resources. On the \par contrary, in deciding which valid searches, seizures, \par or arrests to undertake and which to forgo, officers \par routinely consider such legitimate "collateral" fac- \par tors as: Is a suspect. regarded as a danger to society? \par Is there a reason to suspect him of engaging in other \par crimes? Would a search or arrest have special \par deterrent value? The discretion accorded law en- \par forcement officers among courses of action for which \par individualized justification exists reflects the fact \par that the Fourth Amendment's goal of protecting \par against arbitrary invasions of privacy is vindicated by \par the finding of probable cause or reasonable suspicion \par itself. See Brown, 443 U.S. at 51; Prouse, 440 U.S. at \par 661; Brignoni-Ponce, 422 U.S. at 883; Terry, 392 U.S. \par at 21; United States v. Trigg, 925 F.2d 1064, 1065 (7th \par Cir.), cert. denied, 502 U.S. 962 (1991). 11. \par \par ___________________(footnotes) \par \par 11 In the analogous setting of examining prosecutorial action, \par the Court has emphasized that law enforcement officials have \par "broad discretion," Wayte v. United States, 470 U.S. 598, 607 \par (1985), provided that charges are not brought on the basis of \par constitutionally impermissible factors such as race, religion, or \par the exercise of a legally protected right. Id. at 608. As the \par Cow-t has noted, "[s]o long as the prosecutor has probable cause \par to believe that the accused committed an offense defined by \par statute, the decision whether or not to prosecute, and what \par charge to file or bring before a grand jury, generally rests \par entirely in his discretion." Id. at 607 (quoting Bordenkircher \par v. Hayes, 434 U.S. 357, 364 (1978)); see 470 U.S. at 607 \par (prosecutorial charging decisions may be based, inter alia, on \par "the Government's enforcement priorities and the case's \par relationship to the Government's overall enforcement plan "); \par cf. United States v. Choate, 619 F.2d 21, 23 (9th Cir. 1980) ("It \par is not irrational in a world where resources do not permit \par prosecution of every suspected criminal that the government \par would give high priority to prosecuting those who, in addition \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 25 \par \par In this case, for example, petitioners surmise that \par the police officers who observed their three offenses \par were motivated by the belief that a glimpse into their \par car in the course of a stop might disclose proof of \par narcotics trafficking, as it in fact did, See Br. 4 \par (noting officer's testimony that officers were patrol- \par ling "a high drug area" with the objective of "find[ing] \par narcotics activity going on"). But, once reasonable \par suspicion of an offense existed, it would not have been \par unreasonable to act on that belief. On the contrary, it \par would be unreasonable to forbid a police department \par from focusing its finite resources disproportionately \par on those observed traffic offenders whom officers in \par the field suspect may also be engaged in more serious \par offenses. See United States v. Cummins, 920 F.2d \par 498, 501 (8th Cir. 1990), cert. denied, 502 U.S. 962 \par (1991). Indeed, it may well be that, like a pedestrian \par drug courier, a motorist engaged in narcotics dealing \par is more prone than an innocent traveler to engage in \par "evasive and erratic" behavior that manifests itself in \par traffic infractions. See Sokolow, 490 U.S. at 8 \par \par C. There Is No Need For A Heightened Fourth \par Amendment Standard Of Justification In Cases \par Involving Traffic Stops \par \par Petitioners argue that a heightened Fourth \par Amendment standard is needed in the traffic-stop con- \par text because, they assert, without such a standard, \par police officers would be free, "despotically and capri- \par ciously" (Br. 17), to violate motorists' privacy. Peti- \par tioners' proposed departure from usual Fourth \par Amendment standards is not justified in this setting. \par \par ___________________(footnotes) \par \par to being suspected of tax evasion, were also suspected of other \par serious offenses."). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 26 \par \par 1. As this Court has repeatedly recognized in \par finding the reasonable suspicion standard applicable \par to traffic stops, a properly conducted traffic stop \par represents a relatively limited intrusion into privacy. \par "[T]he physical characteristics of an automobile and \par its use result in a lessened expectation of privacy \par therein." New York v. Class, 475 U.S. at 112. More- \par over, because "automobiles are justifiably the subject \par of pervasive regulation by the State[,] [e]very opera- \par tor of a motor vehicle must expect that the State, in \par enforcing its regulations, will intrude to some extent \par upon that operator's privacy," Id. at 113; see \par California v. Carney, 471 U.S. 386, 392 (1985) ("the \par public is fully aware that it is accorded less privacy in \par its automobiles because of this compelling govern- \par mental need for regulation"). \par A motorist who commits a traffic infraction has \par even less of an expectation of privacy. See Class, 475 \par U.S. at 113. Motorists are aware that, "[a]s an every- \par day occurrence, police stop and examine vehicles \par when license plates or inspection stickers have \par expired, or if other violations, such as exhaust fumes \par or excessive noise, axe noted, or if headlights or other \par safety equipment are not in proper working order." \par Opperman, 428 U.S. at 368. "The foremost method of \par enforcing traffic and vehicle safety regulations * * * \par is acting upon observed violations. Vehicle stops for \par traffic violations occur countless times each day." \par Prouse, 440 U.S. at 659; id. at 658 (noting that States \par have a "vital interest" in enforcement of motor \par vehicle laws). \par In addition, the Fourth Amendment's reasonable- \par ness requirement limits the actions an officer may \par take upon making a traffic stop. The officer is per- \par mitted to direct the motorist to exit the car, Mimms, \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 27 \par \par 434 U.S. at 111 & n.6, to inspect the car's vehicle \par identification number, Class, 475 U.S. at 113-114, \par to inspect the motorist's license and registra- \par tion, Prouse, 440 U.S. at 659, and to question the mo- \par torist in moderation about his identity, his license \par and registration, and the violation. Berkemer v. \par McCarty, 468 U.S. 420, 437, 439 & n.29 (1984). The \par officer may also observe items in plain view, as oc- \par curred in this case. But "\lquote the stop and inquiry must \par be reasonably related in scope to the justification for \par their initiation,\rquote ". id. at 439 (quoting Brignoni-Ponce, \par 422 U.S. at 881), and further significant intrusions \par require additional justification. See, e.g., United \par States. v. Ross, 456 U.S. 798, 808-809 (1982) (search of \par automobile and containers within it requires a \par showing of probable cause to believe that contraband \par may be found); Michigan v. Long, 463 U.S. 1032, 1049 \par (1983) (protective-search of automobile for weapons \par requires a showing of reasonable suspicion); cf. New \par York v. Belton, 453 U.S. 454, 460-461 (1981) (search of \par passenger compartment for weapons may be made \par upon a probable-cause arrest of the occupants). 12. \par 2. Petitioners and their amici also assert (Br. 22- \par 27; ACLU Br. 3-4, 8-9) that allowing traffic stops to \par proceed upon a showing of reasonable suspicion or \par probable cause alone would give officers. "carte \par \par ___________________(footnotes) \par \par 12 This Court will examine one aspect of the Fourth Amend- \par ment's requirements in a traffic stop case next Term in Ohio v. \par Robinette, cert. granted, No. 95-891, (Mar. 4, 1996). The peti- \par tion in that case presents the question whether the Fourth \par Amendment requires an officer who has validly stopped a \par motorist for a traffic stop to inform the motorist that he is free \par to leave before questioning by the officer, unrelated to the \par original traffic stop, may be found to be consensual. 95-891 Pet. \par at i. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 28 \par \par blanche" (Br. 22) to detain and harass motorists on \par account of their race, ethnicity, or protected rights. \par Any decision to single out a suspect or suspects on \par the basis of such factors, however, would be unlawful \par under the Equal Protection Clause. See Yick Wo v. \par Hopkins, 118 U.S. 356, 373-374 (1886); United States v. \par Travis, 62 F.3d 170, 173 (6th Cir. 1995). As Chief \par Judge Newman of the Second Circuit has explained in \par holding that traffic stops based upon reasonable \par suspicion comport with the Fourth Amendment, "the \par Equal Protection Clause has sufficient vitality to \par curb most of the abuses that the [defendant] appre- \par hends. Police officers who misuse the authority we \par approve today may expect to be defendants in civil \par suits seeking substantial damages for discriminatory \par enforcement of the law." Scopo, 19 F.3d at 786. \par Indeed, this Court rejected a similar argument to \par petitioners' in Terry v. Ohio, supra. Terry recog- \par nized that minority groups had often claimed that \par some elements of the police harassed them during \par street stops. The Court held, however, that the \par existence of such abuses did not justify "a rigid and \par unthinking application of the exclusionary rule" to \par evidence obtained from such stops, for such a result \par "may exact a high toll in human injury and frustra- \par tion of attempts to prevent crime." 392 U.S. at 15. \par Instead, the legality of a stop under the Fourth \par Amendment turned upon "objective evidentiary justi- \par fication" for the particular stops. Ibid. The Court \par emphasized that its "approval of legitimate and \par restrained investigative conduct undertaken on the \par basis of ample factual justification should in no way \par discourage the employment of other remedies than \par the exclusionary rule to curtail abuses for which that \par sanction may prove inadequate." Ibid. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 29 \par \par 3. Finally, petitioners assert that an inquiry into \par pretext is needed to deny officers the discretion to \par stop motorists for "technical" (Br. 13) or "nitpicking" \par (Br. 20) traffic offenses. See Br. 13 ("a tire' touching \par the shoulder stripe, a lane change signal a moment \par too brief\rdblquote ). That argument, at bottom, contests the \par decision by States and localities to designate such \par conduct as an enforceable infraction. The same \par argument could be made by defendants stopped or \par arrested for non-traffic offenses that they regard as \par trifling, such as various misdemeanors. If petitioners \par believe that the traffic laws in a jurisdiction punish \par inconsequential lapses, or that such misconduct \par should be enforced in a manner other than through \par traffic stops, their recourse is through the political \par process. See Ferguson, 8 F.3d at 391. 13. \par \par D. A Standard That Turns On Whether A Rea- \par sonable Officer "Would Have" Made The Traffic \par Stop Is Not Workable \par \par A final flaw in petitioners' proposed test of pretext \par is that it is unworkable. Petitioners would inquire \par whether a reasonable officer motivated solely by a \par desire to enforce the traffic laws "would have" made \par the stop-in other words, whether it was "usual \par practice" to make such a traffic stop. Br. 32. "Usual \par practice" would be determined with reference to \par internal police regulations governing the traffic \par \par ___________________(footnotes) \par \par 13 Compare C. Whitebread & C. Slobogin, Criminal. Pro- \par cedure 6.02, at 168 & nn.8-9 (3d ed. 1993) (noting that, \par following the decisions in Robinson, supra, and Gustafson, \par supra, several state legislatures reduced certain violations of \par their traffic codes to infraction status, thus preventing opera- \par tion of the search incident to arrest doctrine, which requires a \par custodial arrest). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 30 \par \par offense, or, where no regulation existed, by determin- \par ing what action a reasonable police officer would have \par taken under the circumstances. Br. 32-33, 4142; \par ACLU Br. 15. As the courts of appeals have over- \par whelmingly concluded, see note 5, supra, that test is \par difficult to apply, produces inconsistent results, and \par provides uncertain guidance to officers in the field. \par 1. Petitioners' test of pretext would require, as a \par threshold inquiry, a determination of what "usual \par practices" were with regard to the traffic offense that \par supported the particular stop. That determination \par would presumably be made at the level of the police \par department (see Br. 4142), because inquiring \par whether the officer had deviated from his own "usual \par practices" would entail exploring the officer's own \par subjective intent in making and forgoing stops for the \par same offense in the past, and because inquiring into \par police practices on a larger scale would both be im- \par practical and at odds with the fact that traffic enforce- \par ment policies are generally set at the departmental \par level. \par There is, however, no reason to assume that police \par departments commonly maintain regulations that \par direct that particular traffic laws either not be \par enforced or be enforced only under certain circum- \par stances. 14. It is also unrealistic to assume, as peti- \par tioners appear to concede (Br. 24), that departments \par maintain records of how often the observation of a \par particular traffic offense results in a stop. Even if \par such records existed, it would be impossible to know \par what share of those stops had been influenced by \par \par ___________________(footnotes) \par \par 14 Nor does petitioners' reliance on an internal police re- \par gulation in this case provide a workable solution to that pro- \par blem. See pp. 36-38, infra. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 31 \par \par "pretextual" motivations. Thus, except where an \par internal regulation clearly directed that an infraction \par not be enforced, a court seeking to determine a \par department's "usual practices" with regard to -that \par infraction would either have to rely on the court's \par own notions of whether enforcement of a particular \par infraction would be- reasonable, or receive testimony \par from other officers as to their usual practices with \par regard to the offense. 15. \par Such an inquiry would not only be cumbersome, \par but, as an aggregation of the subjective intentions of \par multiple officers, it would be no more reliable than \par inquiring into the state of mind of a single officer. 16. \par Moreover, for such an exercise to have value, the \par court's inquiry would have to consider the circum- \par stances under which the traffic offense occurred: Did \par weather, lighting, traffic, or road conditions render \par the offense more worthy of enforcement than in the \par typical case? It is unrealistic to expect such an \par analysis to be developed at a suppression hearing. \par Even if it were feasible to ascertain how often a \par department had enforced a particular traffic offense \par \par ___________________(footnotes) \par \par 15 Even where a department had clearly directed officers \par not to enforce an offense, revelation of that enforcement policy \par could undermine police effectiveness in ensuring traffic safety. \par For example, disclosure of a policy of only stopping motorists \par who drive 10 miles per hour or more above the speed limit \par could undermine the speed limit's deterrent effect on motorists \par who exceed the speed limit by less than 10 miles per hour. \par \par 16 As petitioners acknowledge (Br. 31), "\lquote [s]ending state and \par federal courts on an expedition into the minds of police officers \par would produce a grave and fruitless misallocation of re- \par sources'" (citation omitted). See LaFave, supra, 1.4(e), at \par 124 ("there is no reason to believe that courts can with any \par degree of success determine in which instances the police had \par an ulterior motive"). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 32 \par \par under similar circumstances, there is no ready guide \par to determine at what point the enforcement of that \par offense departed from "usual police practice." sup- \par pose, for example, that a department stops motorists \par for a particular violation less than 50% of the time. \par Presumably, under petitioners' test, any stop for that \par offense is a deviation. from the norm, and thus uncon- \par stitutional. The same result would follow even if the \par Fourth Amendment standard for a "usual" police \par practice were drawn at, for example, a 10% enforce- \par ment rate any stop made by a police department that \par enforced a particular violation more rarely would be \par unlawful. Petitioners confine their discussion to the \par hypothetical situation in which an internal regulation \par categorically forbids enforcement (Br. 32, 41-42), and \par do not say, outside of that situation, what level of \par enforcement would make an otherwise lawful traffic \par stop "unusual." \par Adoption of petitioners' test would therefore result \par in arbitrary disparities among subjects of searches \par and seizures. A traffic stop that was unconstitutional \par if made by one police department would be lawful if \par conducted by another, depending on internal regula- \par tions or the relative incidence of stops for that offense \par by the two departments. And a department that \par wished to minimize the possibility of having its traffic \par stops invalidated would be well-advised to dispense \par with internal prohibitions on enforcement altogether. \par See United States v. Caceres, 440 U.S. 741, 755-756 \par (1979) (declining to apply exclusionary rule to "every \par regulatory violation" because of the possibility that \par that sanction would have "a serious deterrent impact \par on the formulation of additional standards to govern \par prosecutorial and police procedures"). \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 33 \par \par 2. For officers in the field, who must often make \par split-second decisions as to what course of action to \par undertake, such a regime would be both unpredictable \par and confusing. Except where departmental regula- \par tions unambiguously mandated or forbade stops for a \par given traffic offense, officers would not know, when \par they see a violation, whether a court would later hold \par that stopping the motorist conformed to internal \par regulations or "usual police practices." To make the \par constitutionality of a stop turn on whether an officer \par has correctly analyzed how a potentially vague or \par general internal regulation applies to the situation at \par hand would "complicate] the thought processes and \par the on-the-scene judgments of police officers," who \par instead should be "free to follow their legitimate \par instincts when confronting situations presenting a \par danger to the public safety." New York v. Quarks, \par 467 U.S. 649, 659 (1984). \par When an officer is free to initiate a traffic stop upon \par a showing of reasonable suspicion or probable cause, \par the officer is guided by a familiar standard that' is \par ultimately subject to testing in court under a well- \par developed body of law. The officer knows that he must \par articulate specific facts to justify the intrusion in \par question. While it maybe desirable for police depart- \par ments to adopt additional regulations, either to pro- \par mote regularity of action or to establish law enforce- \par ment priorities, such regulations, by themselves, \par normally afford no basis for the remedy of suppres- \par sion of evidence in a criminal case. See United States \par v. Caceres, supra (refusing to suppress evidence \par obtained from consensual electronic surveillance, \par despite acknowledged violation of administrative \par regulations that mandated prior authorization by \par senior officials). When an officer has a basis to be- \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 34 \par \par lieve that a motorist has violated the traffic laws, the \par officer's misapplication of an internal regulation \par provides no justification for immunizing the motorist \par from criminal liability. \par 3. The unworkability of petitioners' "would have" \par test is illustrated by the experiences of the Ninth and \par Eleventh Circuits, the two circuits that presently \par apply that test. In practice, both circuits have based \par their decisions not on departmental regulations or \par enforcement patterns, but on the state of mind of the \par officer who made the stop. See, e.g.; United States v. \par Cannon, 29 F.3d 472, 476 (9th Cir. 1994) (upholding \par stop based on the fact that officer had been told by \par colleagues that defendant did not have a driver's \par license; no inquiry made into whether officers gener- \par ally made stops for that offense); United States v. \par Valdez, 931 F.2d 1448, 1451 (11th Cir. 1991) (holding \par that stop was unreasonably pretextual based on testi- \par mony of patrol officer that he pulled over defendant \par for weaving into the emergency lane after being \par advised that narcotics unit wanted car stopped); \par United States v. Smith, 799 F.2d 704, 710 (11th Cir. \par 1986) (holding that stop was unreasonably pretextual \par based on evidence of officer's lack of interest in \par investigating drunk-driving charges). See Ferguson, \par 8 F.3d at 391. Yet consideration of a particular \par officer's subjective motivations is precisely what peti- \par tioners purport to avoid (Br. 32) by using an "objec- \par tive" measure of pretext. If the departments whose \par officers made the stops at issue in Valdez and Smith \par "usually" enforced the laws against interlane weav- \par ing and drunk-driving, respectively, then under peti- \par tioner's "would have" test, those stops should have \par been upheld. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 35 \par \par Based largely on such practical considerations, the \par en banc Tenth Circuit recently reconsidered the \par "would have" standard, which it had sought to apply in \par traffic stop cases between 1988 and 1995, and aban- \par doned that standard. See Botero-Ospina, 71 F.3d at \par 787 (overruling United States v. Guzman, 864 F.2d \par 1512, 1517 (10th Cir. 1988)). The court noted that its \par application of the "would have" test had been "incon- \par sistent and sporadic" and that that test had proven \par unworkable. 71 F.3d at 786. At times, the court \par observed, it had measured the stop against the prac- \par tices of an entire State's police force, see. Guzman, \par 864 F.2d at 1518) (New Mexico); at other times, \par against the practices of a particular unit within a \par state highway patrol, see United States v. Fer- \par nandez, 18 F.3d 874, 877 (lOth Cir. 1994) (part of Utah \par Highway Patrol); and at still others, against the \par practices of the individual officer, see, e.g., United \par States v. Harris, 995 F.2d 1004,1006 (10th Cir. 1993). \par Botero-Ospina, 71 F.3d at 786. Moreover, the court \par found, the "would have" test had not invalidated any \par traffic stop that would have been sustained under the \par traditional inquiry into whether the stop was \par supported by reasonable suspicion. Ibid. The court \par accordingly held that a traffic stop may be initiated \par whenever an officer has reasonable suspicion to \par believe that a traffic or equipment violation has \par occurred or is occurring, and that it is irrelevant \par what the motives of the officer making the stop were \par or whether the stop departed from the department's \par "general practice" or the officer's routine. Id. at 787. \par The court emphasized that it was not "abandoning the \par traveling public to \lquote the arbitrary exercise of discre- \par tionary police power,'" because the officer's actions \par after making the stop must be "related in scope to the \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 36 \par \par circumstances that justified the interference in the \par first place." Id. at 786,788 (citations omitted). 17. \par 4. Petitioners (Br. 41-42) and their amici (ACLU \par Br. 13-14) claim that "usual practices" would be deter- \par mined in this case by applying an internal police \par department regulation, Metropolitan Police Depart- \par ment (MPD) General Order 303.1(I)(A)(2)(a)(4) (1992) \par (reprinted at Pet. Br. Add. 4). The regulation \par provides that, while "traffic enforcement action" may \par be taken by other police officers under any \par circumstances, id. at 303.1(I)(A)(2)(a) (1)-(3), such \par action should be taken by plainclothes officers in \par unmarked cars "only in the case of a violation that is \par so grave as to pose an immediate threat to the safety \par of others." Id. at 303.1(I)(A)(2)(a) (4). \par As an initial matter, a general Fourth Amendment \par rule in this area should not turn on whether a \par particular police department has established writ ten \par procedures to govern particular stops. But as this \par case illustrates, even such written procedures do not \par eliminate the malleability of the "usual practices" \par inquiry. Petitioners offer no reason why "usual \par police practice" should be determined with reference \par only to "officers out of uniform in unmarked cars" \par (Br. 41), rather than the entire police force. The de- \par partment's regulation does not suggest, and peti- \par tioners do not assert, that the policy of the District of \par Columbia police department is not to enforce the \par \par ___________________(footnotes) \par \par 17 The en banc Sixth Circuit had earlier adopted the same \par standard. United States v. Ferguson, supra. In doing so, the \par court noted that, although its prior decisions had purported to \par apply the "would have" test endorsed by petitioner, in reality \par those decisions had inquired only into whether the stop was \par supported by probable cause or reasonable suspicion. 8 F.3d at \par 390-391. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 37 \par \par violations that petitioners committed. The regula- \par tions provide, in fact, to the contrary. See MPD \par General Order 303.1(III)(B)(1) ("District Comman- \par ders shall * * * enforce all traffic regulations."). \par Nor do petitioners dispute that the officers had \par statutory authority to make the stop. See D.C. Code \par Ann. 23-581(a)(1)(B) (1981 & Supp. 1989) ("A law \par enforcement officer may arrest, without a warrant \par having previously been issued therefore,] * * * a \par person who he has probable cause to believe has \par committed or is committing an offense in his \par presence."). \par The regulation on which petitioners rely merely \par allocates enforcement duties among different officers. \par It sensibly directs plainclothes officers like Officer \par Soto not to divert from their important investigative \par duties except to enforce sufficiently serious traffic \par offenses. There is no reason why the stop of peti- \par tioners' vehicle should be deemed unlawful (and its \par fruits suppressed) because the officer who was \par present to observe the offenses was assigned to other \par enforcement duties. Indeed, under petitioners' analy- \par sis, identical stops of motorists for identical offenses \par would yield different results under the Fourth \par Amendment if made by officers in the same depart- \par ment, simply as a result of the officers' internally \par assigned responsibilities. See Johnson, 63 F.3d at 247 \par ("It is not apparent why police officers should be \par precluded from making an otherwise valid traffic stop \par merely because by doing so they would be departing \par from some routine"); Scopo, 19 F.3d at 783. 18. \par \par ___________________(footnotes) \par \par 18 Moreover, although petitioners' "would have" test Pur- \par ports to be an objective gauge of "pretext," it would uphold a \par search by a District of Columbia traffic officer who freely \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 38 \par \par Furthermore, even if the regulation on which \par petitioners rely were dispositive of whether the stop \par conformed to "usual practices," use of that test would \par have forced Officer Soto to decide, on-the-spot, \par whether the violations that he had observed would \par later be held to have posed "an immediate threat \par to the safety of others," MPD General Order \par 303.1(I)(A)(2)(a)(4), knowing that a mistaken judgment \par on that issue would have led to the exclusion of \par evidence. We believe that an officer reasonably could \par have concluded that turning without signaling and \par driving at an unreasonable speed in a residential \par neighborhood at night, singly or together, constituted \par such a threat to safety. But whatever the proper \par application of that internal rule to the facts at hand, \par the risk of overdeterring officers from responding to \par observed offenses, and the cost of excluding probative \par evidence, far outweigh any benefit gained by using the \par Fourth Amendment to insist upon compliance with \par internal police protocol. \par \par ___________________(footnotes) \par \par admitted that he stopped a car out of a desire to search for \par narcotics, but it would invalidate an identical search by a \par undercover vice officer who was purely motivated by a desire \par to enforce the traffic laws. Compare Graham, 490 U.S. at 397 \par Scott, 436 U.S. at 138. Furthermore, it is clear that a District \par of Columbia narcotics officer could have stopped petitioners' \par car consistent with the internal regulations, provided that he \par was in uniform and in a marked police car. See MPD General \par Order 303.1(I)(A)(2)(a)(1) (1992) (Pet. Br. Add. 4). Thus, \par petitioners' approach of focusing their "usual practices" \par analysis on internal assignments within the department would \par fail to prevent "pretext" stops by some of the very officers \par whom petitioners would presumably surmise are most likely to \par be "pretextually" motivated. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 39 \par \par E. The Stop Of Petitioners' Automobile Was Law- \par ful, And The Search Was Reasonably Limited In \par Scope And Manner \par \par In light of the foregoing, the initiation of the traffic \par stop in this case was reasonable within the meaning \par of the Fourth Amendment, because the officers had \par probable cause, based on their own observations, to \par believe that the driver of the Pathfinder had com- \par mitted several traffic offenses. Petitioners appear to \par claim (Br. 44-46), however, that even if the stop itself \par was justified, it was carried out in an unreasonable \par manner because it was not conducted by traffic \par officers, but by plainclothes officers in an unmarked \par car. That claim lacks merit. 19. \par We know of no case to hold unreasonable a stop of a \par motorist (or a pedestrian) based on reasonable suspi- \par cion or probable cause because the officers did not \par wear clothing or drive in a vehicle that identified \par them as police. On the contrary, common sense dic- \par tates that officers whose identity is not immediately \par apparent will be more efficacious in observing un- \par lawful conduct in many situations, whether in patrol- \par \par ___________________(footnotes) \par \par 19 It also appears that petitioner's challenge to "how [the] sei- \par zure was made" (Br. 44) is not properly encompassed within \par the question presented by the petition for a writ of certiorari. \par That question is (Pet. i): "Whether a pretextual traffic stop \par undertaken by officers who were prohibited by police depart- \par ment regulations from making traffic stops was objectively \par unreasonable under the Fourth Amendment where no rea- \par sonable officer in those circumstances would have made such a \par stop (the test used by the Ninth, Tenth, and Eleventh Circuits) \par or whether such a stop was permissible as long as it could have \par been made because of a traffic violation (the test used by the \par D.C. Circuit in this case, and the Second, Third, Fourth, Fifth, \par Sixth, Seventh and Eighth Circuits)." \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 40 \par \par ling roadways or walking the streets. See, e.g., \par Terry, 392 U.S. at 5-7 (recounting how plainclothes \par officer observed suspects "case" store). Prouse, \par supra, and Brignoni-Ponce, supra, on which peti- \par tioners rely (Br. 44) are inapposite. Those cases \par invalidated random traffic stops that were not based \par on reasonable suspicion. While the Court noted that \par surprise traffic stops represent an intrusion on \par motorists' Fourth Amendment interests, see Prouse, \par 440 U.S. at 657, the Court emphasized that such \par traffic stops would have been lawful if made upon a \par showing of reason to believe "that a motorist is \par unlicensed * * * or that either the vehicle or an \par occupant is otherwise subject to seizure for violation \par of law." Prouse, 440" U.S. at 663; Brignoni-Ponce, 422 \par U.S. at 882-884; see also note supra. That showing \par was made in this case. \par Also misplaced is petitioners' reliance (Br. 46) on \par Wilson v. Arkansas, 115 S. Ct. 1914 (1995). In Wilson, \par this Court held that a police entry into a home to \par execute a search warrant may be unreasonable if not \par preceded by an announcement of police entry, based on \par the long common-law history of requiring police to \par "knock and announce" before entering a home. Id. at \par 1916. There is no common-law history requiring any \par form of pre-stop identification by police who stop \par automobiles, and as the Court has noted, the "physical \par entry of the home is the chief evil against which the \par wording of the Fourth Amendment was directed." \par Payton v. New York, 445 U.S. 573, 585 (1980) (war- \par rantless entries into the home are prohibited by the \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 41 \par \par Fourth Amendment absent probable cause and exi- \par gent circumstances). 20. \par Even if there were some requirement of pre-stop \par notification of the officers' status, it was established \par at the suppression hearing that Officer Soto was \par wearing an orange police armband and a badge, and \par that he identified himself as a police officer as he \par approached petitioners' car. Tr. 13-14. The intrusion \par on petitioners' privacy that followed "was limited and \par was `reasonably related in scope to the justification \par for [its] inception.'" Cortez, 449 U.S. at 421 (quoting \par Terry, 392 U.S. at 29)). Officer Soto remained outside \par the car until he observed cocaine in the front seat, \par compare Cortez, 449 U.S. at 421, and that observation \par fully justified his entry into the vehicle to retrieve \par the cocaine and to apprehend petitioners. Compare \par United States v. Hassan El, 5 F.3d 726, 731 (4th Cir. \par 1993). \par \par ___________________(footnotes) \par \par 20 For similar reasons, Welsh v. Wisconsin, 466 U.S. 740 \par (1984), on which petitioners also rely (Br. 16, 40), is inapposite. \par Welsh held that officers may not rely on the doctrine of \par exigent circumstances to enter a home at night without a war- \par rant to make an arrest for a minor traffic offense. As the \par Court emphasized in Welsh, its decision turned on the "special \par protection afforded the individual in his home under the \par Fourth Amendment: 466 U.S. at 754, a factor absent here. \par \par ---------------------------------------- Page Break ---------------------------------------- \par \par 42 \par \par CONCLUSION \par \par The judgment of the court of appeals should be \par affirmed. \par \par Respectfully submitted. \par \par DREW S. DAYS, III \par Solicitor General \par \par JOHN C. KEENEY \par Acting Assistant Attorney \par General \par \par MICHAEL R. DREEBEN \par Deputy Solicitor General \par \par PAUL A. ENGELMAYER \par Assistant to the Solicitor \par General \par \par THOMAS M. GANNON \par Attorney \par \par MARCH 1996 \par \par ---------------------------------------- Page Break ---------------------------------------- \par }}