CA7 en banc: Conviction affirmed for gun seen while allegedly “parking while black”

Stopping a car 7′-8′ from crosswalk for illegal stopping was reasonable under the all the facts. It necessitated a brief stop to issue a ticket, and officers saw a gun. Whren doesn’t apply just to moving offenses and not fine-only offenses. The dissent calls this “parking while black,” while the majority says that the defense never raised a racial issue for the stop. United States v. Johnson, 2017 U.S. App. LEXIS 21340 (7th Cir. Oct. 27, 2017) (en banc, 5-3):

When denying Johnson’s motion to suppress, the district court relied on Whren v. United States, 517 U.S. 806 (1996), which holds that probable cause to believe that a car’s driver is engaged in speeding or another motor-vehicle violation supports a stop and arrest–and that the possibility of an ulterior motive, such as a desire to investigate drugs, does not matter, because analysis under the Fourth Amendment is objective. Johnson, who believes that the police had an ulterior motive for approaching his car, contends that Whren does not apply to infractions by stopped cars, which he labels parking violations rather than moving violations.

Yet Whren did not create a special rule for moving offenses. The two doctrines that underlie Whren’s holding–(1) that probable cause justifies stops and arrests, even for fine-only offenses, and (2) that analysis of search-and-seizure issues disregards the officers’ thoughts–are of general application. See, e.g., Los Angeles v. Mendez, 137 S. Ct. 1539, 1546- 47 (2017) (collecting cases); Arkansas v. Sullivan, 532 U.S. 769, 771 (2001); Atwater v. Lago Vista, 532 U.S. 318 (2001).

See Courthouse News Service: Seventh Circuit OKs Police Search in ‘Parking While Black’ Case