Wednesday, March 15, 2006

The Constitutionality of 'Good Driver' Stops.

Professor Orin Kerr has branched out to start up his own blog, OrinKerr.com. No real welcome is probably necessary, since Kerr has long been blogging over at mega-blog Volokh Conspiracy, but I am going ahead and adding this new one to the blog-roll. As one of the most prolific posters at Volokh, Kerr's blog is sure to have consistently thought-provoking posts.

One such post is Kerr's post from earlier in the week asking the question, "Are 'Good Driver' Stops Constitutional?". Kerr raises some interesting questions about a relatively recent law enforcement practice, having "good driver" traffic stops where officers pull over a few good drivers who are obeying traffic laws, commend them, and offer token gifts. I've seen such a program where officers stop people and then give out drinking mugs if the driver is properly wearing his/her seatbelt.

The question Kerr raises is what happens if the officer stops somebody for obeying the law, but then through plain view or otherwise gains reasonable suspicion or probable cause to believe some violation of law is occurring. For example:

Imagine this hypo: A police officer sees a person driving in compliance with all traffic laws, and pulls over the car to reward the driver with a gift certificate. When the driver rolls down his window, however, the officer smells something funny; he looks in the car, and observes a lit marijuana cigarette sitting on the edge of the ash tray. The officer then searches the car on the ground that he has probable cause to believe it contains narcotics, and finds more drugs.

We know that the observation of the cigarette and search of the car are permitted, if the stop is lawful; but is the initial stop lawful?

The answer is not necessarily easy, but Kerr concludes that the stops probably aren't constitutional, at least to the extent they lead to incriminating evidence. The basic bottom line conclusion is probably best summed up in one of the comments to Kerr's post:

The real problem is that this creates absolutely unbounded discretion for police officers. There is nobody on the road who does not satisfy one of the following criteria: (1) in violation of some driving rule or (2) not in violation of any driving rule. If you can pull over either one, you are really asking for discretionary enforcement.

It's an interesting and thought-provoking post. We should expect no less of Kerr.

5 Comments:

Blogger bill said...

Very interesting and I'll head over and see what's being said.

My personal take is "good driver" stops are stupid and if I was pulled over for one I'd probably yell at the officer and file a complaint.

As it is, cops already pull people over for no reason - I've been pulled over twice because they claimed I was "weaving." One made a u-turn after I'd been sitting still at a red light. Right, and the claim as he was still 10 feet away from the car that he "smelled alcohol" was also a lie since I'd had no alcohol in a couple months. Never given a ticket, but made to feel I should've been grateful.

Buncha jerks - not meant as an inclusive statement, just directed towards all I've encountered.

asking why I was stopped? I'm guessing because I was in a university area late on a Friday night in a cheap car with university parking tags they figured I was leaving a party and probably drunk. Nevermind I was working late.

11:41 AM  
Blogger reader_iam said...

I would be really upset if I cop pulled me over to give me a coffee mug!

First off, presumably he or she would have turned his or her car lights on and wave me off. Being a law-abiding soul, this would likely be stressful for me, and upsetting. To then find out the stop was for a trivial reason would make me very angry, indeed.

Also, what if a cop does this while you're on your way to work or to your kid's school? If you end up late, is he or she going to write you a note?

This hits the nail on the head:

The real problem is that this creates absolutely unbounded discretion for police officers. There is nobody on the road who does not satisfy one of the following criteria: (1) in violation of some driving rule or (2) not in violation of any driving rule. If you can pull over either one, you are really asking for discretionary enforcement.

I think I should only have to worry about the former.

5:06 PM  
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