This Note argues that the "could have" standard makes a mockery of the probable cause protections provided by the Fourth Amendment and that the Washington courts should not adopt that standard. Instead, because Washington courts have traditionally held that Article 1, Section 7, of the Washington Constitution provides broader protection than the Fourth Amendment of the Federal Constitution, the Washington courts should continue to use the "would have" standard to determine whether a stop is pretextual under Article 1, Section 7.11. Part II of this Note briefly describes the applicable search and seizure doctrine and tracks the split in the federal circuits regarding which standard is appropriate for the courts to apply in determining whether a pretext stop has occurred. Specifically, this section will compare the strengths and flaws of three standards: (1) the subjective, (2) the "could have," and (3) the "would have." Part III of this Note introduces the Whren case and analyzes the unanimous opinion, authored by Justice Scalia. This section contrasts Justice Scalia's reasoning and conclusions with those of Washington State courts and various commentators. Part IV shifts focus and undertakes an independent state constitutional analysis by applying the six nonexclusive Gunwall factors. Application of the Gunwall factors indicates whether the Washington State Constitution provides broader protection than does the Fourth Amendment. Next, this section analyzes the facts of Whren under Washington State law to determine whether Washington courts would have decided Whren differently under Article 1, Section 7, of the State Constitution. This Note concludes that, while the Whren decision textually meets the Fourth Amendment requirements, it tramples on the spirit of the U.S. Constitution in two ways. First, the Whren decision makes a mockery of the probable cause protections of the Fourth Amendment. Second, it effectively discards any meaningful pretext stop doctrine, thus giving police officers nearly unbridled discretion to conduct pretext stops. As such, Washington courts should enforce a pretext doctrine with bite by continuing to apply the "would have" standard.
Kelly Montgomery, Leaving Well Enough Alone—Why the "Would Have" Standard Works Well for Determining Pretext Stops in Washington State: A Critical Analysis of the Whren Decision, 21 SEATTLE U. L. REV. 159 (1997).