Police Stop Violation of the Fourth Amendment

In Alejandre v. State, 111 Nev. 1235, 1239-40, 903 P.2d 794, 796 (1995) we recognized that two competing tests had emerged to determine whether a stop by police which is alleged to be pretextual violates the Fourth Amendment: (1) the "would" test, under which a stop is impermissibly pretextual unless a reasonable officer would have made the stop absent the invalid purpose. (2) the "could" test, under which a stop is valid so long as the officer was legally authorized to make the stop, even if the officer would have ignored the underlying valid justification for the stop but for his other suspicions. We then adopted the "would" test, concluding that it was supported by persuasive reasoning. Alejandre, 111 Nev. at 1239-40, 903 P.2d at 796; see also Taylor, 111 Nev. at 1257, 903 P.2d at 807-08. In Gama v. State, 112 Nev. 833, 836-37, 920 P.2d 1010, 1012-13 (1996), this court recognized that the "would" test as applicable to claims of pretext was discredited by the Supreme Court's ruling in Whren v. United States, 517 U.S. 806, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996). Gama, 112 Nev. at 836, 920 P.2d at 1012-13. In Whren, the Court held that the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable searches and seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. Whren, 517 U.S. at 808-19. In so doing, the Court recognized that subjective intentions play no role in ordinary probable-cause Fourth Amendment analysis. Id. at 813. Based on Whren's holding, this court in Gama stated that it was constrained to overrule Alejandre and Taylor v. State, 111 Nev. 1253, 1255-57, 903 P.2d 805, 807-08 (1995) to the extent that each required application of the "would" test to pretext claims under the Fourth Amendment and the Nevada Constitution, article 1, section 18 (protecting against unreasonable seizures and searches). Gama, 112 Nev. at 836, 920 P.2d at 1013. We then determined that the "could" test was the proper test to apply where a claim of pretext is made. Id. at 836-37, 920 P.2d at 1013.