Pretextual policing is the practice of stopping motorists or pedestrians for minor offenses like traffic infractions in hopes of learning that the person stopped has committed a more serious crime. Pretextual policing is also the main reason Black Americans are so much more likely than white Americans to be subjected to encounters with law enforcement. Shockingly, even in its most explicitly racist form, pretextual policing does not violate the Fourth Amendment’s proscription against unreasonable searches and seizures. In fact, police can pull a driver over merely because he is Black without violating the Fourth Amendment, so long as the officer points to one of the hundreds of traffic laws most drivers violate every day as the objective basis for initiating the encounter. According to the Supreme Court, the subjective motivations of a police officer for conducting a stop are entirely irrelevant.

During the 2020 special session of the Virginia General Assembly, the Commonwealth of Virginia passed landmark legislation eliminating many of the most commonly used pretexts, such as exhaust noise, objects hanging from the rearview mirror, tinted windows, jaywalking, and marijuana odor. Since doing so, many other states and localities have sought to pass similar reforms, recognizing the inordinate power police possess to do their jobs in a discriminatory manner without accountability. This article discusses the history of pretextual policing and urges policymakers and advocates to identify and pursue reforms to limit pretextual policing without jeopardizing true public safety.