What is a pre-textual stop in the State of Washington?
A brief guide to pre-text stops.
State v. LadsonArticle 1, Section 7 of the Washington Constitution states that "[N]o person shall be disturbed in his private affairs, or his home invaded, without authority of law."
Because the language of this constitutional provision is different from the Fourth Amendment of the United State's Constitution, it is more protective of an individual's privacy interests.
A pre-textual stop occurs where a traffic stop is made, not to enforce the traffic code, but to conduct a criminal investigation. Normally the level of suspicion required to made a traffic stop is a reasonable and articulable suspicion that a traffic infraction occurred. Thus, it is relatively easy to conduct a traffic stop. The problem occurs where the police suspect another crime, but are using a traffic infraction as a reason to stop the person and conduct a criminal investigation.
In State v. Ladson, 138 Wn.2d 343, (1999), the Washington Supreme Court wrote that allowing pretext stops to continue would be a "triumph of form over substance." It would be a "triumph of expediency at the expense of reason." It ruled that pre-textual stops were illegal in Washington.
State v. ArreolaIn a subsequent decision in 2012, State v. Arreola, 176 Wn.2d 284 (2012), the Washington Supreme Court re-addressed the issue of pre-text stops where an officer got a report of a DUI, located the vehicle suspected of DUI, followed it, noticed it had a muffler violation, and pulled it over for the muffler violation. The officer testified that he was primarily motivated in stopping the vehicle because of the DUI call but also that the muffler violation was an "actual reason for the stop." Well, that sure sounded like a pre-text. At least that is what the Court of Appeals thought.
Astoundingly, six Justices found that this was not a pre-textual stop, but was actually a "mixed-motive stop." One justice concurred in the result only. Two Justices dissented.
The most interesting part was that Arreola did not overrule Ladson. In fact, the Court expressly held that Ladson was still the law and the pre-textual stops were illegal. The Court devoted a significant potion of its decision to point out that the traffic code is extensive and complicated, and *virtually the entire driving population is in violation of some regulation as soon as they get in their cars, or shortly thereafter" citing Ladson and an article that Ladson quoted by Peter Shakow. The Arreola court also noted that "there are concerns that some officers will simply misrepresent their reasons and motives for conducting traffic stops" citing Samuel Walker's "Taming the System".
Despite all this, the Court held that if a legitimate reason for a traffic stop was secondary and the officer was primarily motivated by a hunch or illegitimate reason to conduct a stop, that the stop was now a "mixed-motive" stop and was justified.
Only two Justices pointed out the obvious that the reasoning applied by the majority "is for all practical purposes indistinguishable from the reasoning [the] court rejected in Ladson."
ConclusionWhat is pre-textual and what is not is still an open question in Washington State. Ladson is still alive, but Arreola has muddied the waters. You should discuss this issue with your attorney.