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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES OF AMERICA v. DENNIS EGBERT BURKE, Defendant. : : : : : : : :

CRIMINAL NO. RWT-08-367

MEMORANDUM OPINION In United States v. Hassan El, the defendant sought to suppress evidence recovered during a valid traffic stop, arguing that the police "used the minor traffic violation (failing to stop at stop sign) . . . as a pretext to conduct a stop of the [car] and to search, without justification, for more serious criminal activity." 5 F.3d 726, 729 (4th Cir. 1993). He claimed that the "true motivation for stopping the car was [an] unsubstantiated hunch that the passengers were involved in some sort of criminal activity or that the car had been stolen." Id. The Fourth Circuit rejected Hassan El's claims, holding that when an officer observes a traffic offense and thus has probable cause to stop a vehicle, the seizure is reasonable regardless of whether the traffic violation is being used as a "pretext" to investigate "intuitive suspicions" of unrelated criminal activity. Id. at 730. Three years later, in United States v. Whren, the Supreme Court endorsed this result, holding that the reasonableness of a traffic stop does not depend on whether or not the stop is pretextual, because "subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." 517 U.S. 806, 813 (1996). This case presents a slight, but critical variation on the scenario in Hassan El and Whren. The issue before the Court today is whether a traffic stop that is clearly pretext for investigation

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of unrelated criminal activity may still be upheld as reasonable under the Fourth Amendment when the Government fails to meet its burden of demonstrating probable cause for the pretext. The Court concludes that it may not, and therefore will GRANT the Defendant's motions to suppress.

I. PROCEDURAL HISTORY The Defendant, a lawful permanent resident of the United States, has been charged by indictment with one count of making a false statement in an application for a passport in violation of 18 U.S.C.

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