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Are “Good Driver” Stops Constitutional?

A number of towns have started experimenting recently with “good driver” traffic stop programs as a way to encourage safe driving (and perhaps improve police/community relations). The basic idea is that during a particular week or other period, police officers pull over a few good drivers who are obeying all traffic laws, commend their driving, and offer them gifts such as gift certificates or tickets to local sporting events. You can read about one such program here.

Are such programs constitutional? In particular, does a traffic stop designed to reward good driving violate the driver’s Fourth Amendment rights? 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 isn’t really clear, but I think the stops probably aren’t constitutional. The most relevant cases are probably the check point cases and the traffic stop cases. In these cases, the police set up some kind of check point or roadblock to stop some or all drivers for various reasons. The cases are fact-specific, but the gist of the outcomes is that the police can set up roadblocks and auto check points to persue legitimate law enforcement or regulatory needs other than obtaining evidence against drivers so long as the program is reasonably taiored. So, for example, the Court held in Indianapolis v Edmond that it was unlawful for the police to set up a check point looking for drugs in cars stopped. In contrast, in Illnois v. Lidster, the Court upheld a narrowly-tailored checkpoint asking drivers to help them if they knew about a recent hit-and-run accident in the area.

How do these cases apply to “good driver” stops? On one hand, Justice Breyer’s opinion in Lidster suggests that check points that don’t target the driver aren’t a very big deal. But on the other hand, the police in Lidster had an important reason to make the stops: the time and place of the stops were chosen carefully, and the government interest in finding a hit-and-run driver was clear. “Good driver” stops are not so narrow, to put it mildly: as I understand the progams, the police can pull over any one who isn’t violating a traffic regulation. Further, it’s not clear to me how such stops encourage better driving. How likely is it that drivers will drive safely just so they might get pulled over and get free stuff? It doesn’t seem very likely to me. On balance, I tend to think that such progams don’t survive the Lidster reasonableness framework.

Another reason the programs run into constitutional difficulty is the juxtaposition of the programs with the permissive rule of Whren v. United States. Whren offered a bright line rule: Probable cause to believe that a person has violated a traffic regulation justifies a traffic stop, even if the stop is pretextual (that is, the officer really has no interest in enforcing the traffic laws). If “good driver” stops are constitutional and co-exist with Whren, you end up with what strikes me as a pretty remarkable result. Unless I’m missing something, the police would be able to pull over pretty much any one at any time. Any driver who is violating any traffic regulation could be pulled over under Whren, and any driver who is not violating a traffic regulation could be pulled over under the “good driver” program.