“Light Him Up”: Addressing the Dangerous
Intersection of Traffic Stops and Consent
GEOFFREY S. CORN*
ABSTRACT
The legitimacy of policing has and remains an important topic of public in-
terest, as well it should be. When members of a community lose trust in those
entrusted to enforce the law, it chips away at the very foundation of a rule of
law-based society. And, as the American public mood has confirmed, legitimacy
can often be as much about perception as it is about reality. While calls to
“abolish the police”are both misleading and unrealistic, the more salient
desire to enhance the actual and perceived legitimacy of policing and, in so
doing, enhance public trust and confidence in law enforcement and the broader
criminal justice system are goals worthy of effort. One aspect of this enhance-
ment process should focus on the ease by which Supreme Court jurisprudence
related to traffic stops and consent intersect to provide a fertile field to cultivate
pretextual and abusive police practices. This jurisprudence provides a prover-
bial “green light”for police to utilize traffic stops as pretexts to seek consent to
search individuals they have no good cause to otherwise search. And, when
coupled with the ease by which the validity of consent can be established, these
type of traffic stops subject too many individuals to consent-based “fishing
expeditions”by police. Because the jurisprudential foundation for this intersec-
tion of authorities is unlikely to be modified, lawmakers should consider other
mechanisms to strike a more “legitimate”balance between law enforcement
authority and the protection of individuals from pretextual use of that authority.
This article proposes such a mechanism, one drawn from the experience of mili-
tary search and seizure law: imposing a heightened burden on the State to
prove valid consent when that consent is the product of a traffic stop unrelated
to the request for the consent. Such a rule will mitigate the risk of pretextual
traffic stops by limiting the existing incentive to use them as the first step in con-
ducting consent searches. By doing so, this new practice will mitigate the conse-
quences of traffic stops and thus enhance the perceived legitimacy of the
exercise of this authority.
* The George R. Killam Jr. Chair of Criminal Law and Director of the Center for Military Law and
Policy, Texas Tech University School of Law; Lieutenant Colonel, U.S. Army (Retired), and formerly
Special Assistant for Law of War Matters and Chief of the Law of War Branch, Office of the Judge
Advocate General, United States Army; Chief of International Law for U.S. Army Europe; Professor of
International and National Security Law at the U.S. Army Judge Advocate General’s School. A special
note of thanks to my research assistants, Marco Nava (Lieutenant, Houston Police Department) and
Jonathan White, whose diligence and professionalism reflect great credit on South Texas College of
Law Houston. ©2022, Geoffrey S. Corn.
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TABLE OF CONTENTS
I. LET’SFACE IT........................................ 618
II. “LIGHT HIM UP ....”................................... 620
A. “Don’t Ask; Don’t Tell....”......................... 621
B. Well, if You Don’t Have Anything to Hide ................ 625
C. Was This What Voluntary Meant? . . . . . . . . . . . . . . . . . . . . . 628
III. HOW TO MANAGE THE DANGERS OF PRETEXT:ALESSON FROM
THE BARRACKS ....................................... 630
IV. CONSENT,PRESUMPTIONS,AND BURDENS.................... 635
V. CONCLUSION ......................................... 638
I. LET’SFACE IT
Let’s face it, no municipality is going to abolish the police. Frustration over
incidents of abusive or discriminatory treatment of citizens is justified, but con-
sidering the literal tens of thousands of police/citizen interactions every day,these
incidents cannot support such radical measures. Nonetheless, calls for abolishing
or the more limited proposals to defund police are ignored at the peril of law
enforcement legitimacy. Accordingly, what is justified is careful scrutiny of the
legal framework that has contributed to this perceptionof illegitimacy.
Legitimacy, after all, is central to mission effectiveness of any law enforce-
ment agency.
1
This is something the U.S. military has come to understand more
comprehensively than ever before.
2
Why? Because there is simply no escaping
the reality that the malicious or derelict actions of a few can nullify the positive
performance of the vast majority of a force struggling to accomplish a difficult
mission.
3
As a result, legitimacy has been elevated to a fundamental principle of
1. See Tom R. Tyler, Jeffrey Fagan & Amanda Geller, Street Stops and Police Legitimacy: Teachable
Moments in Young Urban Men’s Legal Socialization,11J.E
MPIRICAL LEGAL STUD. 751, 753 (2014)
(“Legitimacy has become a focus of concern in recent years because popular legitimacy increasingly has
been linked to citizen behaviors that are important to the success of policing.”) (citation omitted).
2. Major Adam Wolrich, Giving the Referee a Whistle: Increasing Military Justice Legitimacy by
Allowing Military Judges to Reject Plea Agreements with Plainly Unreasonable Sentences, 228 MIL.L.
REV. 124, 138 (2020) (“Legitimacy is especially important in military justice. The history of military
justice is, in fact, intertwined with its search for legitimacy—the military justice system has evolved
largely in reaction to concerns related to its perceived unfairness.”).
3. See Donald J. Guter, John D. Huston & Rachel VanLandingham, The American Way of War
Includes Fidelity to Law: Preemptive Pardons Break that Code,J
UST SEC. (May 24, 2019), https://www.
justsecurity.org/64260/the-american-way-of-war-includes-fidelity-to-law-preemptive-pardons-break-that-code
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