The Supreme Court recently examined the constitutionality of pretextual stops and searches where race may be involved in Whren v. United States. The Whren Court held that so long as the police have probable cause to stop a motorist (including police officers witnessing what they believe is a traffic violation), the stop is justified under the Fourth Amendment even if the officer considers the race of the driver in deciding whether to stop the vehicle. While the Supreme Court in Whren analyzed whether pretextual stops were improper under the Fourth Amendment, the Court has never addressed the practice of stopping motorists on the basis of race under the Equal Protection Clause of the Fourteenth Amendment.

In reality, the Equal Protection Clause offers little protection against such police activity since the Supreme Court requires claimants meet an onerous test for establishing an equal protection violation. In order to solve this problem, courts should abandon the traditional equal protection test with respect to pretextual traffic stops and should institute a less burdensome analysis. This Note argues that the Equal Protection Clause should prevent the police from considering the race of a motorist when deciding whom to detain for a traffic violation.