Right and Responsibility in Fourth Amendment Jurisprudence: The Problem with Pretext

Since Whren v. United States, Fourth Amendment analysis has failed to appreciate the serious wrongfulness of pretextual police behavior—especially searches and seizures. This is not because a pretext test is impractical or philosophically unsound. Rather, the problem lies in the current focus of our Fourth Amendment analysis, which puts undue emphasis on the individual’s “right to privacy” and insufficient emphasis on responsible police behavior. The state’s investigatory power is held in trust by the police for the people. If we refocus our attention on the idea that the police power must be deployed in a responsible manner in keeping with that trust, we can see clearly what is problematic about pretext. author. Yale Law School, J.D. expected 2007; Harvard College, A.B. 2003. Thanks to my many friends and my many editors on The Yale Law Journal—a group of perfect overlap—who contributed so much to whatever merit this piece may possess. And thanks especially to my family and my soon-to-be-wife Jamie, who daily give me the courage and conviction to risk failure in writing from the heart. CITRON FORMATTED FOR SC2_1-29-06 3/14/2007 4:33:46 PM right and responsibility in fourth amendment jurisprudence