Grits for Breakfast has a great post outing a question from a Texas prosecutor forum about agents removing the license plate from a car provided by a snitch so that they would have probable cause to stop the car later, and still keep the snitch out of the case.  No need to rehash the discussion, as Grits has already done the work.  One aside, though, about this line from the AUSA:

AUSA is also concerned that he may have to “reveal” that this PC was pre-orchestrated to the defense and that an informant was really involved.

Isn’t it nice to know that AUSA is actually thinking about Brady/Giglio, even though he has somehow managed to take this absolute mandate and turn it into some sort of fuzzy little “maybe” thing.

This post got me thinking about Whren v. United States, one of those cases that has done monumental damage to the integrity of the law and respect for justice.  Justice Antonin Scalia, writing for the Court, held that a police officer’s subjective motives do not invalidate a vehicle stop and search when there is a credible objective basis.

Whren was all about pretext stops.  There are stops where the cops wanted to stop a car because they suspected there were drugs inside (for good, solid reasons like there was a black man driving), but have no reasonable suspicion to do so.  So instead, the cops would look for a justification to stop the car, ranging from the concrete (broken tail light) to flights of fancy (lane change without signaling) as an excuse, and then bootstrapping the stop into a quasi or full blown search.  More often than not, the cops would play the “do you have something to hide) card and get a consent search born of fear and submission to the shield.

Before Whren, it was unconstitutional to use a pretext to stop a car.  Post Whren, it was good, solid police work.  Whenever these police hunches brought a bag of crack to court, the merits of pretext searches were widely applauded.  Of course, nobody knows how many law-abiding citizens were stopped and searched and released for every drug courier who was caught.  But hey, there are trade-offs in life, right?  And it’s not like they would stop you or me, so what’s the big deal?

It’s not that Justice Scalia’s logic is flawed.  It’s that his cynicism toward defendants, and his blind faith in police, are the foundation of this horrible decision.  This all starts with the dreaded “automobile exception” to the Fourth Amendment, itself one of the least understood and most abused exceptions ever employed to eviscerate freedom from unreasonable searches.  Courts have turned this exception into a mantra: Whenever a car is involved, the warrant clause magically disappears. Poof!  Search at will.

The last protection standing was the pretext stop.  Frankly, what is most amazing about Whren was the honesty of the cops and prosecutor in admitting that it was a pretext stop.  Before Whren, the simple solution was for the cop to put on a puppy dog face and testify, “I never dreamed there were drugs in the car.  I was just stopping them for an unsafe lane change.”  That said, all was forgiven and the case went on.

So in a very real sense, Whren took the lying cop out of the closet and allowed him to tell the truth.  His stop was a scam.  He couldn’t have cared less about the broken tail light.  He had a hunch and he was going to find an excuse to stop the car no matter what.  On a practical note, if a cop follows a car, any car, long enough, he’s going to find a basis for a stop.  Did you touch the center line going around a curve?  Did you not signal early enough?  Did you go 1 mile above the speed limit?  The possibilities are endless, sine we’ve criminalize everything except breathing while driving.   And even if you drove perfectly, do you think the officer might “objectively” observe you doing something wrong if he really wants to?

So there you have it.  The final nail in the coffin of search and seizure law when it comes to automobiles.  And of course, once the car is stopped, the search (including the search of all sealed containers) is just a moment away.  We could get into the “furtive movement” rationale, one of my personal favorites, for justifying a full blown search when nothing else comes to mind, but this is all just legal rhetoric since most courts abandon all analysis as soon as the equation is car + stop = search.

Getting back to the Grits issue, so the police manufacture the post Whren pretextual justification for a stop in advance so that they don’t have to waste time waiting for an objective reason to come along, or have to make up some amorphous and vacuous reason that lacks hard proof.  It’s just the next baby step to speed up the process.  And after all, it’s not like there wasn’t dope in the car, right?  But I still think it’s wonderful that the AUSA is “concerned” that he might have to disclose this scheme to the defense.  Now what can we do about that?

Update:  Found this.  Thought it was worth your time: