clear from the [ongoing] investigation to protect [law enforcement’s] information and the data and identities of the sources of information.” 786 F.3d 779, 781 n.2 (9th Cir. 2015) (alterations omitted). In either instance, police officers are usually confident that they can “develop . . . probable cause” of a traffic violation. Id. at 781. The traffic laws are sufficiently comprehensive, as well as general, that almost all drivers violate at least one whenever they are on the road. See Whren, 517 U.S. at 810 (noting the defendants’ argument to this effect).
But what if the driver is very careful not to break any laws, as one might be if carrying a cargo of illegal drugs? And what if the police officers are intent nonetheless on catching their targets, without revealing that they are pretty sure what is in the car? Here, the law enforcement solution was to flat out lie. Not just about why the car was being stopped (as in Whren and its progeny), but also about what they had seen—the purported traffic violation.
As I read Whren, 517 U.S. 806, and Devenpeck v. Alford, 543 U.S. 146 (2004), there is no plausible argument for treating this sort of lie differently from the lie involved in Whren—as to why the officer is actually stopping the suspect—or the misstatment in Devenpeck—as to the offense as to which the officer had probable cause for an arrest. In both instances, the Supreme Court found no Fourth Amendment violation as long as there was indeed a proper basis for the stop or arrest on the facts known to the officers. As a result, the suspect in both instances had no useful opportunity verbally to explain why he should not be cited or arrested, as the purported basis for the police action was not binding on law enforcement anyway. That any such explanation would have been similarly futile here, this time
