In 1996, the Supreme Court ruled in Whren v. United States that police can stop and seize a motorist as long as they have probable cause to suspect a moving violation, even if the seizure is actually a pretext to search for evidence of other crimes. When the justices meet for their September 24 conference, one of the petitions for review that they will consider asks them to weigh in on whether the court’s decision in Whren applies to non-moving violations as well.
The case began when police officers in Milwaukee spotted a Toyota sport utility vehicle parked too close to an unmarked crosswalk – a “non-moving traffic violation” under state law, which carries a penalty of $20 to $40 for a first offense – in front of a store. The SUV’s engine was running and there were passengers in the car, but the driver’s seat was empty. Randy Johnson was one of those passengers, sitting behind the driver’s seat. The police officers ordered him to get out, handcuffed him, and found a gun under the driver’s seat.
Johnson was indicted on charges that he was a felon in possession of a gun. When he went to trial, Johnson argued that the gun should not be admitted as evidence against him: Because state law allowed the car to be near an intersection while passengers were loading and unloading, he contended, police officers could not have had probable cause or reasonable suspicion of a parking infraction.
After the district court rejected Johnson’s argument, he pleaded guilty and was sentenced to 46 months in prison. A divided U.S. Court of Appeals for the 7th Circuit affirmed, with the majority ruling that the Supreme Court’s decision in Whren applies to both moving traffic violations and non-moving parking violations. Three judges dissented, arguing that the majority’s decision in Johnson’s case gave police the power to stop and hold people for “parking while black.”
Johnson went to the Supreme Court last spring, asking the justices to take up his case. He argued that there is a “good reason” why the justices have never extended Whren to a parked car: “Moving violations have caused hundreds of thousands of death,” he explained, but “parked cars are generally no threat to public safety.” Moreover, he added, the lower courts are divided on the question presented by his petition. The Supreme Court of Minnesota and Maryland’s intermediate appellate court would have reached a different result from the 7th Circuit, even if other federal courts of appeals would have agreed with it.
