Cato: Pretextual Stops and the General Warrant: Stopping the March of the Whren Doctrine by Jay Schweikert:
The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Such broad discretion enabled abusive, selective enforcement, and the colonists’ contempt for those arbitrary practices was a major cause for the Revolutionary War itself.
But 227 years after ratification of the Fourth Amendment, we are tragically approaching a stealth resurrection of the general warrant, in the form of pretextual stops. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that the actual intent of law enforcement officers in making a stop—even unlawful intent, like racial discrimination—is irrelevant to the legality of a traffic stop under the Fourth Amendment, so long as there is probable cause to believe that some traffic violation occurred. The practical effect of this decision has been to give police officers nearly unfettered discretion to stop any person they choose at any time. After all, no one can actually operate a motor vehicle for an extended period of time without running afoul of some traffic law. Especially when combined with other areas of Fourth Amendment law that create expansive exceptions to the warrant requirement, Whren itself has already been described as the “twentieth-century version of the general warrant.”