Solving the Pretext Puzzle: The Importance of Ulterior Motives and Fabrications in the Supreme Court\u27s Fourth Amendment Pretext Doctrine

This Article first analyzes the debate between Professors John M. Burkoff and James B. Haddad over the current state of Supreme Court jurisprudence on the pretext issue. It shows that the Supreme Court\u27s definition of pretext is broader than the definition of pretext used by these commentators. The Supreme Court\u27s definition includes both legal and fabricated pretexts. In a legal pretext, the government offers a justification that is not the true reason for the police activity, but that, if the motivation of the officer is not considered, legally justifies the activity. In a fabricated pretext, the government offers a justification that is not the true reason for the police activity and, in fact, is legally insufficient because it is not supported by the facts. This Article argues that although fabricated pretexts should be struck down on a case-by-case basis, a pretext doctrine that strikes down legal pretexts on a case-by-case basis based on the motivation of the officer is misguided. This Article demonstrates that the true evil of the pretext case is the virtually unlimited authority of police officers to arrest and search based on minor offenses. Thus, an approach that declares legal pretexts constitutional but re-examines the underlying authority of police officers to arrest and search based on a minor offense, offers the better solution to the pretext problem.\u27\u2