The Stubborness of Pretexts: An Essay on the Fourth Amendment

66 Pages Posted: 1 May 2002

Date Written: April 12, 2002


On May 29, 2001, the Supreme Court decided Arkansas v. Sullivan, a seemingly unremarkable per-curiam opinion that facilitated the conviction of a small-time meth-dealer whose trial was aborted by pre-trial rulings that were affirmed by his state's highest court. The Supreme Court reversed, ruling that in suppressing Sullivan's drugs, the state courts had ruled flatly contrary to this Court's controlling precedent, Whren v. United States. Five years earlier, Whren had confronted the very question before it in Sullivan: does the Fourth Amendment's injunction against unreasonable searches and seizures prevent the prosecution from using evidence that police discovered by way of a so-called 'pretext'? Whren held that it does not; Sullivan followed suit. The pretext problem had been percolating in the Supreme Court for at least four decades before its putative burial in 1996 by Whren. Indeed, it is one of those areas of criminal procedure where 'confused patchwork,' to lift a term of Justice White's, would be apt. 'Pretext' refers to an action that was done for fishy reasons. In other words, calling something a 'pretext' is not so much a criticism of the action as it is of its motive. And while in just six years Whren already has been cited over 1000 times in court opinions and has been the central subject of some 50 law-review articles, the criteria of pretexts seem to be taken as given; it is their consequences that get all the play. Because I am far from persuaded that we have reached agreement on what those criteria are, I hope to establish them here. In this Essay, therefore, I will reflect on 1) how Whren's failure to acknowledge what counts as a pretext accounts for the residual confusion as to whether or not Whren really has killed off the pretext argument in constitutional criminal procedure; and 2) the extent to which the Court in Sullivan compounded that failure, which I hope I can lightly correct here by distinguishing motives from intentions and then by elaborating the role that each plays, or at least should play, in Fourth Amendment jurisprudence.

Suggested Citation

Yeager, Daniel B., The Stubborness of Pretexts: An Essay on the Fourth Amendment (April 12, 2002). Available at SSRN: or

Daniel B. Yeager (Contact Author)

California Western School of Law ( email )

225 Cedar Street
San Diego, CA 92101
United States
619-525-1456 (Phone)
619-696-9999 (Fax)

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