Can a Tennessee city like Memphis ban its police officers from making traffic stops for minor equipment violations when they suspect a driver of a more serious crime?

Subject

Validity of Police Department Policy Prohibiting Pretextual Traffic Stops

Plain-English summary

After Tyre Nichols was killed during a traffic stop, the Memphis Police Department adopted a written rule (Section 2.3.1 of the "Arrests General" Policy) telling officers not to use minor vehicle equipment violations like a broken taillight as the basis for a stop when the officer's actual purpose was to investigate a different, more serious crime. The Tennessee General Assembly had already enacted § 7-63-301, which forbids local governments from adopting any "resolution, ordinance, or policy" that prohibits or limits an officer's ability to make traffic stops based on observed or reasonably suspected legal violations. The AG concludes that the Memphis policy is squarely within what the statute forbids and is therefore null and void by operation of state law. The opinion also notes in a footnote that pretextual stops do not violate the Fourth Amendment or the Tennessee Constitution as long as the officer has reasonable suspicion that a traffic violation occurred. The subjective motive does not matter.

What this means for you

For Tennessee municipalities and police departments

If your department has any written policy, training bulletin, or general order that tells officers they may not stop a vehicle for an observed traffic or equipment violation when their underlying interest is a different investigation, that policy is exposed to invalidation under § 7-63-301. The AG's reading is mechanical: any policy that "prohibits or limits" stops based on observed or reasonably suspected violations falls. Review your policy manual for language that turns on officer "purpose," "actual suspicion," or "intent" before authorizing the stop. A neutral policy emphasizing officer discretion or community-trust principles without prohibiting otherwise lawful stops is a different question.

For city councils and mayors weighing reform

Anti-pretext rules cannot be imposed by ordinance, resolution, or department policy under current state law. If your council wants to limit pretextual policing, the practical levers left are: collecting and publishing stop data, civilian oversight, training requirements that are not framed as bans, and lobbying the General Assembly to amend or repeal § 7-63-301. A unilateral local rule will not survive challenge.

For drivers

A Tennessee officer who pulls you over for a minor equipment violation, an expired tag, or a brief lane drift has acted within the law as long as the officer can articulate the violation. The officer's hidden reason for picking your car is not, by itself, a basis to suppress evidence or sue. Document the stop. If you believe the stop was racially motivated or otherwise discriminatory, equal-protection and § 1983 claims remain available, but a "pretext" challenge alone is unlikely to win.

For civil rights advocates and journalists

This opinion is the formal answer to local efforts (Memphis, in particular) to write anti-pretext rules into department policy after high-profile incidents. The path to limiting pretextual stops in Tennessee runs through Nashville, not through the city council. The opinion frames § 7-63-301 as a complete preemption of local rule-making in this area.

Common questions

What was the Memphis policy that got struck down?

Section 2.3.1 of the Memphis Police Department's "Arrests General" Policy provided that "minor vehicle equipment violations will not be used to stop or detain a suspect because the officer actually suspects the persons [sic] involvement in another more significant crime." It was effective August 23, 2023.

Did the Memphis Police Department vote on this policy or was it imposed by a court?

The policy was adopted internally by the department and codified in its Policy and Procedures Manual. It was not a city ordinance and not a court order. The AG opinion treats internal department policy as a "policy" for purposes of § 7-63-301.

What is a pretextual stop?

A pretextual stop is a traffic stop where the officer has legal grounds (a real traffic violation), but the officer's actual interest is investigating something else, like drug possession or a fugitive. The U.S. Supreme Court held in Whren v. United States (1996) that the officer's hidden motive does not make the stop unconstitutional, as long as the underlying violation was real.

Are pretextual stops constitutional?

Under Whren v. United States and the Tennessee Supreme Court's decision in State v. Donaldson, yes. The constitutional question is whether the officer had reasonable suspicion that some traffic law was broken. The officer's reason for caring about that particular vehicle is not part of the constitutional test.

Can a Tennessee city ever restrict pretextual stops?

Not under current state law. § 7-63-301 expressly nullifies any local policy that "prohibits or limits" an officer's ability to make stops based on observed or reasonably suspected legal violations. Only the General Assembly can change that.

What if the equipment violation is extremely minor?

The statute does not distinguish between trivial and serious violations. A non-functioning taillight, an expired registration sticker, a tinted-window violation, or a license-plate frame that obscures lettering are all observed violations of state or local law and are valid stop bases.

Does this opinion bind a court?

No. AG opinions are persuasive authority. A Tennessee court would have the final word, but the analysis here closely tracks the statutory text and would likely be followed unless the General Assembly amends the law.

Background and statutory framework

Article 11, Section 68 of the Charter of the City of Memphis authorizes the Memphis Police Department, which was established by the Board of City Commissioners (the predecessor to the current Council). Tennessee Code Annotated § 7-63-101 makes Memphis officers subject to state traffic-enforcement duties.

The key statute is Tenn. Code Ann. § 7-63-301, enacted to prevent localities from carving out enforcement-free zones. It provides that a "local governmental entity or official shall not adopt or enact a resolution, ordinance, or policy that prohibits or limits the ability of a law enforcement agency to conduct traffic stops based on observation of or reasonable suspicion that the operator or a passenger in a vehicle has violated a local ordinance or state or federal law." Any policy adopted in violation "is null and void."

Title 55 of the Tennessee Code governs vehicle equipment. § 55-9-402, for example, forbids operating a vehicle with a non-functioning tail lamp. The City of Memphis incorporated all state misdemeanors into local law via § 10-4-1 of its Code of Ordinances. So a busted taillight is both a state-law violation and a Memphis ordinance violation.

The AG also relies on the long-standing rule that municipal policies conflicting with state law are "universally held to be invalid." Crawley v. Hamilton County, 193 S.W.3d 453, 456 (Tenn. 2006), quoting Southern Ry. Co. v. City of Knoxville, 442 S.W.2d 619, 621 (Tenn. 1968).

On the constitutional question, the opinion's footnote 1 collects the controlling authority: Navarette v. California, Whren v. United States, State v. Day, and State v. Donaldson. The shared rule is that reasonable suspicion of a traffic violation makes the stop reasonable under both the Fourth Amendment and Article I, Section 7 of the Tennessee Constitution, and the officer's "actual motivations" do not matter.

Citations

• Tenn. Code Ann. § 7-63-301 (preemption of local restrictions on traffic stops)
• Tenn. Code Ann. § 7-63-101 (municipal police enforcement of traffic laws)
• Tenn. Code Ann. § 55-9-402 (tail lamp requirement)
• Memphis, Tenn., Code § 10-4-1 (incorporation of state misdemeanors)
• Crawley v. Hamilton County, 193 S.W.3d 453 (Tenn. 2006)
• Southern Ry. Co. v. City of Knoxville, 442 S.W.2d 619 (Tenn. 1968)
• Whren v. United States, 517 U.S. 806 (1996)
• Navarette v. California, 572 U.S. 393 (2014)
• State v. Day, 263 S.W.3d 891 (Tenn. 2008)
• State v. Donaldson, 380 S.W.3d 86 (Tenn. 2012)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2024/op24-011.pdf

Original opinion text

STATE OF TENNESSEE
OFFICE OF THE ATTORNEY GENERAL
July 17, 2024
Opinion No. 24-011

Validity of Police Department Policy Prohibiting Pretextual Traffic Stops

Question
Does Section 2.3.1 of the Memphis Police Department's "Arrests General" Policy violate Tenn. Code Ann. § 7-63-301?

Opinion
Yes.

ANALYSIS

Tenn. Code. Ann. § 7-63-301 provides:

A local governmental entity or official shall not adopt or enact a resolution, ordinance, or policy that prohibits or limits the ability of a law enforcement agency to conduct traffic stops based on observation of or reasonable suspicion that the operator or a passenger in a vehicle has violated a local ordinance or state or federal law. A resolution, ordinance, or policy that is adopted in violation of this section is null and void.

The plain text of this provision invalidates any police department policy that "prohibits or limits" law enforcement officers from "conduct[ing] traffic stops based on observation of or reasonable suspicion that the operator or a passenger in a vehicle has violated [the law]." Tenn. Code. Ann. § 7-63-301.

That statutory text applies to the Memphis Police Department's policies. The Memphis Police Department is an entity authorized by Article 11, section 68 of the Charter of the City of Memphis and established by the Board of City Commissioners of the City of Memphis, the antecedent legislative body to the current Council of the City of Memphis. The Memphis Police Department has codified the policies it has adopted into a manual, its Policy and Procedures Manual. Section 2.3.1 of the Memphis Police Department's "Arrests General" Policy states that "[m]inor vehicle equipment violations will not be used to stop or detain a suspect because the officer actually suspects the persons [sic] involvement in another more significant crime." Memphis Police Department Policy Manual, MPD P&P.03-030 Arrests General, § 2.3.1 (effective Aug. 23, 2023).

Memphis police officers enforce traffic laws. See Tenn. Code Ann. § 7-63-101. Tennessee law governing vehicle equipment requirements can be found in Title 55 of the Tennessee Code. See, e.g., Tenn. Code Ann. § 55-9-402 (prohibiting the operation of a vehicle with a non-functioning tail lamp). And the City of Memphis has adopted and incorporated "[a]ny offense made a misdemeanor under the laws of the state" in § 10-4-1 of its Code of Ordinances. MEMPHIS, TN., CODE § 10-4-1 (2023).

It follows that Section 2.3.1 of the Memphis Police Department's "Arrests General" Policy conflicts with Tenn. Code Ann. § 7-63-301. Memphis's policy prohibits traffic stops when an officer observes "[m]inor vehicle equipment violations"—i.e. violations of state and local law. Memphis Police Department Policy Manual, MPD P&P.03-030 Arrests General, § 2.3.1 (effective Aug. 23, 2023). And Tenn. Code. Ann. § 7-63-301 says that localities cannot "prohibit[] or limit[] the ability of a law enforcement agency to conduct traffic stops" when an officer "observ[es]" the "violat[ion of] a local ordinance or state . . . law." Accordingly, under § 7-63-301's plain text, Section 2.3.1 "is null and void." Tenn. Code Ann. § 7-63-301; see also Crawley v. Hamilton County, 193 S.W.3d 453, 456 (Tenn. 2006) (Birch, J.) (noting that municipal policies or ordinances that conflict with a state law are "'universally held to be invalid'" (quoting Southern Ry. Co. v. City of Knoxville, 442 S.W.2d 619, 621 (Tenn. 1968))).

That Section 2.3.1 only applies to stops made "because the officer actually suspects the persons [sic] involvement in another more significant crime" changes nothing. Tenn. Code. Ann. § 7-63-301 bars any attempt to "limit the ability of a law enforcement agency to conduct traffic stops" when they have reasonable suspicion to do so—whatever the subjective reason for the stop.

In short, Tenn. Code. Ann. § 7-63-301 nullifies and voids Section 2.3.1 of the Memphis Police Department's "Arrest General" Policy because that section prohibits Memphis police officers from conducting traffic stops "based on observation of or reasonable suspicion that the operator or a passenger in a vehicle has violated" the law. Tenn. Code. Ann. § 7-63-301.

JONATHAN SKRMETTI
Attorney General and Reporter

J. MATTHEW RICE
Solicitor General

LAURA T. KIDWELL
Assistant Solicitor General

Footnote 1: Nor would a "pretextual stop" violate either the Fourth Amendment to the United States Constitution or Article I, Section 7 of the Tennessee Constitution. As a general rule, the stop of an automobile is constitutionally reasonable, under both the state and federal constitutions, if the police have reasonable suspicion to believe that a traffic violation has occurred. See Navarette v. California, 572 U.S. 393, 396-97 (2014); State v. Day, 263 S.W.3d 891, 902 (Tenn. 2008). And the "constitutional reasonableness of traffic stops" does not depend "on the actual motivations of the individual officers involved." Whren v. United States, 517 U.S. 806, 813 (1996); see also State v. Donaldson, 380 S.W.3d 86, 92 (Tenn. 2012) ("[T]here is no absolute prohibition against a pretextual stop so long as the stop has legitimate underpinnings.").

Requested by:
The Honorable John Gillespie
State Representative
425 Rep. John Lewis Way N.
Suite 590 Cordell Hull Building
Nashville, Tennessee 37243