CA10: No distinction between civil and criminal traffic infractions under the 4A

There is no distinction between civil and criminal traffic infractions under the Fourth Amendment under Whren and Arizona v. Johnson. Even a patdown can occur in a civil infraction stop. United States v. Meadows, 2020 U.S. App. LEXIS 26120 (10th Cir. Aug. 18, 2020):

Moreover, since Whren the Supreme Court has not suggested that there is any distinction between civil and criminal traffic infractions for Fourth Amendment purposes. In Arizona v. Johnson, the Supreme Court held that officers may pat down passengers during an otherwise lawful traffic stop, even if the stop is not based on any suspected wrongdoing by the passengers. Arizona, 555 U.S. 323, 331-32, 129 S. Ct. 781, 172 L. Ed. 2d 694 (2009). Although the lawfulness of the stop itself was not at issue, the opinion noted that the officers had stopped the driver for a “civil infraction warranting a citation.” Id. at 327. Likewise, in United States v. Winder, we cited Whren when we held that officers may stop a driver for any “observed traffic violation.” 557 F.3d 1129, 1135 (10th Cir. 2009). In that case, the officer observed the defendant speeding. Id. And in doing so, we explained that reasonable suspicion that a driver violated “any of the traffic or equipment regulations of the jurisdiction” can justify a traffic stop. Id. at 1134 (emphasis added). Thus, like the stop in Whren, the officer’s stop here was reasonable because it was based on a suspected traffic violation.

Nevertheless, Meadows attempts to distinguish Whren by arguing that “the driver was guilty of something at the time of the traffic stop,” regardless of whether the infraction was criminal. Rep. Br. 5. By contrast, she argues, § 53-8-209(3) operates so that an infraction requires both that an equipment violation has occurred and that 14 days have elapsed without inspection or repair. Thus, Meadows concludes, the stop was unreasonable because “[a]n equipment violation is not an infraction when it is discovered, and [it] will never become one if the problem is addressed in 14 days.” Aplt. Br. 18.

But Meadows overlooks the statute’s explicit language providing that an equipment violation “is an infraction.” § 41-6a-1601(7) (emphasis added). And Utah law permits a driver to avoid that infraction if he or she “obtains a safety inspection, emissions inspection, or proof of repair, as applicable,” within 14 days. § 53-8-209(3). In other words, it is not that a driver has not committed an infraction until the 14 days have passed; rather, the driver has committed an infraction unless he or she obtains inspection or repair. Thus, an officer can develop probable cause of the infraction before the 14-day period has elapsed.

Finally, Meadows urges us to “not extend the rule in Whren to civil offenses like those at issue here” because doing so will increase officers’ authority to make more stops and do so on pretextual, unconstitutional grounds. Rep. Br. 8. But as explained above, we have not extended Whren because it applies to traffic infractions like the one at issue here. Further, we note that the Supreme Court in Whren rejected a similar argument about officers using a traffic violation as a pretext to make a stop where, like here, the stop is justified by probable cause of a traffic violation. 517 U.S. at 811-13.