Sarah A. Seo is an associate professor at the University of Iowa College of Law and the author of Policing the Open Road.
Officers have wide discretion when they pull over motorists. And the courts keep giving them more.
On Wednesday in Florida, Zachary Wester, a former sheriff’s deputy, was arrested and charged with fabricating evidence, racketeering, and other misconduct. He is accused of stopping dozens, if not hundreds, of motorists for supposed traffic offenses and then planting drugs while searching their cars. Back in the mid–20th century, civil-rights lawyers had a word for this kind of shenanigans: dropsy. Some of the motorists Wester arrested went to prison. One driver ended up losing custody of his daughter after being convicted of felony meth possession—essentially on the deputy’s word. Wester has been described as a “bad apple,” but his case is a symptom of the vast discretion individual officers wield over motorists every day.
Officers’ power is fundamentally at odds with the notion of freedom on the open road. In American culture, driving is an expression of personal liberty. But under the law, driving is a privilege, not a right, and drivers are subject to extensive police surveillance. For years, legal minds have tried to resolve this paradox, which often comes up in challenges to police action. Should police be allowed to search the entire car when, after pulling over a motorist for speeding, the officer suspects illegal drugs or evidence of crime? Should a minor traffic violation open the door to a broader investigation of unrelated criminal charges? If there are limits on police conduct while they enforce laws on the operation of motor vehicles, what should those limits be?
These questions have proved exceedingly difficult for courts to answer. So instead, jurists have usually punted on the question—as the Supreme Court did as recently as last month—and deferred to the judgment of the police. The consequences for our civil liberties have been serious. For example, nearly a century’s worth of punting gave rise to “driving while black,” the racial profiling of African American motorists for traffic stops. Even as Americans have built a society around cars, judges have abdicated their role of limiting law enforcement’s power over people’s daily lives.
From the automobile’s early years, Americans have viewed cars as their private spaces and as symbols of liberty. Unsurprisingly, manufacturers have capitalized on the ready symbolism. “To own a Ford car is to be free to venture into new and untried places,” a 1924 advertisement proclaimed. Almost a century later, a commercial reimagined a scene from the Revolutionary War with American soldiers charging British redcoats in Dodge Challengers. The tagline: “Here’re a couple things America got right: cars and freedom.”
But to exercise this freedom, people need permission from the government, granted in the form of a driver’s license. Ever since the mass production of cars began, states have regulated their use because too much individual freedom on the road wreaked havoc and threatened everybody else’s safety and freedom of movement. No one seriously advocates a rebellion against licensing requirements and traffic laws. Without state intervention, more lives would be lost to dangerous driving, and our highways even more clogged with traffic. Without the assurance of safety, driving to work, the grocery store, the gym, a place of worship, a friend’s home—basically any place in American societywhere a car is widely viewed as necessary to live fully and independently—would be perilous. For these reasons, the privilege of driving justifiably comes with many strings attached.
But how many strings is too many? The Supreme Court could have provided some clarification in its most recent term, but it didn’t. In Mitchell v. Wisconsin, the police found the defendant near his car and very drunk. Because he passed out before he could perform a breath test, the officer ordered a blood test without first obtaining a warrant. Wisconsin authorizes this warrantless action if a motorist is unconscious.
While more than half the states have similar laws on their books, every single state has a less intrusive version, which requires motorists suspected of drunk driving to perform a breath test. These laws are called “implied consent” laws, a term that reflects the fact that cooperation is necessary for either a breath or blood test. Subjects must breathe deeply and exhale for a minimum length of time, sometimes repeatedly, into a mouthpiece. They must sit still while blood is drawn. Anticipating that most drivers wouldn’t willingly participate in evidence-gathering against them, state laws have made consent to these tests a condition of driving. In other words, by receiving a license to drive, the motorist has, implicitly, given consent.
Reneging on this implicit agreement has consequences. The state can revoke a license, and it may use the refusal of consent as evidence against the motorist. When such laws were first enacted in the 1950s, drivers argued that they violated the right against self-incrimination. But courts didn’t consider this a constitutional problem and upheld the laws. Since states decided who could drive, the reasoning went, states could also subject the privilege of driving to reasonable conditions connected to maintaining highway safety. It was hard to quibble with the state’s responsibility to keep drunk drivers off the roads.
Under implied-consent laws, drivers must choose between losing their license or facing the consequences of a drunk-driving conviction. But what about unconscious drivers who, for obvious reasons, cannot make that choice? Can the state regard them as having consented to a blood test if they pass out? What are the limits on the state when dealing with serious problems like reckless driving?
The Supreme Court avoided answering these questions in Mitchell by deferring to the judgment of the police. Rather than explaining what the limits of implied-consent laws should be, the majority opinion rested its decision on the police’s discretion to act without warrants in exigent circumstances—the emergency situations when the law gives police the most leeway. The court could have reached the same result by ruling that the implied-consent provision is categorically constitutional. Either way, the police would be able to order a blood test without a warrant.
The reasoning matters. In a democracy governed by the rule of law, one of the most important roles of judges is to clarify the boundaries of the state’s power. But instead of deciding whether states can authorize their agents to draw blood from unconscious drivers, the Supreme Court expanded the police’s discretionary power to take action without getting a warrant—that is, without judicial oversight. Mitchell v. Wisconsin is the latest case of judicial punting on the question of how to balance individuals’ freedom behind the wheel with their freedom from danger.
Before the 20th century, the average American seldom came under police scrutiny. Ironically, the rise of the automobile—that embodiment of personal freedom—vastly expanded the police’s powers over everybody who drove or rode in a car, a category that has come to include nearly everybody. The Wester case from Florida, which is the product of this history, is deeply disturbing. Just as troubling is that courts have failed to place stricter limits on what the police can do while enforcing the rules of the road.
This article originally appeared in The Atlantic.