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.
Of course, in order to make sure that the person pulled over really is a “good driver” it would probably be important to make sure his paperwork is all in order, too. Someone driving without insurance, for instance, surely doesn’t deserve a gift certificate, does she?
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.
P.S. Congrats Orin on this new project.
I think the problem with your example is the “plain view” test. They have no expectation of privacy if any passerby could look in and see an illegal substance or activity. The officer is not conducting a search until after probable cause is established.
[OK comments: Yes, of course. But the traffic stop is a "seizure," and the subsequent search and seizure in the car are fruits of the stop.]
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Interesting article. These “good driver” stops seem different than vehicle checkpoint stops under Edmond and Lidster, however, in that they do not involve fixed-locale, uniform stops with advance notice to drivers that limit both individual officer discretion about whom to stop and driver anxiety. These stops instead sound much more like roving patrols, where officers out on the road choose whom to stop pursuant to some suspicionless criteria. Courts have proven far less receptive to these types stops, even when the underlying criteria for the stops might justify a traditional vehicle checkpoint. These “good driver” stops also seem a little different than a police officer approaching random citizens to advance a benevolent or community police function, since here the stop does target the stopped person – albeit it to “reward” the person, but I wonder how much difference that makes for Fourth Amendment purposes if the stopped person doesn’t know this fact until after the stop already has been effectuated.
I would think prosecutors would argue that the community caretaking exception applies, and that accordingly no cause is required for the stop. Cf. Opperman. I am troubled by the point that police would have total discretion, but if the police are not acting to enforce the law by catching law-breakers, I am not sure they would be constrained by the probable cause requirement.
Or, what if the driver decides not to stop? If a police officer approaches me on the steet and asks me to answer a few questions, I am of course free to decline and walk away. Would a “good driver” then be free to not pull over? Of course, the driver wouldn’t know the officer’s motives, but should that matter? Regardless, these programs seem ridiculous.
From the perspective of the driver, checkpoints are very different than traffic stops. When you pull up to a checkpoint, your first thought is, “I wonder what’s going on?” When you see blue, flashing lights in your rear view mirror, your first thought is, “Crap! What did I do?” This ought to weigh pretty heavily in the “severity of the interference with individual liberty” prong of Lidster.
Parenthetically, I note that these programs may not involve an actual seizure. From the article, “Most of the traffic officers ride motorcycles, so they throttle up beside worthy drivers at stoplights or wait until the drivers pull into shopping plazas, then hand them gift certificates . . . ” Under these circumstances, I don’t see any constitutional problems.
I agree with almost everything that has already been said questioning the constitutionality of these stops. I want to add that the stops strike me as particularly bizarre in that they may act to disincentivize good driving.
Like many people, I am often in a hurry when I drive. I may have left a little too late for an appointment. Or I may have been surprised by a sudden emergency. Or I may simply be overworked and eager to get home to my oft neglected girlfriend. Under such circumstances, I can imagine nothing more annoying than a cop pulling me over to offer a $25 gift certificate to Target, and I can’t imagine that I am alone in feeling this way.
Of course mere annoyance is rarely sufficient to render a law unconstitutional, but in this case it might. The Fourth Amendment’s reasonableness test requires the state’s interest in a stop to be weighed against the individual’s interest in not being stopped. Here, the state’s interest is in encouraging safe driving. But if this program actually discourages safe driving by foisting an annoyance upon good drivers, than the state’s interest in maintaining the program cannot weigh very heavily against the individual’s interest in making it to work on time.
On a final note, I want to add that this program is particularly odd in that it could be maintained without any Fourth Amendment concerns whatsoever. If the state really wants to distribute rewards to random good drivers, they can mail them.
The motorcycle angle made me think of the following: I used to commute on a motorcycle across the Bay Bridge from Berkeley to San Francisco every day. In California, it is legal for motorcyclists to ride between traffic lanes. This is a bit nervy, but darn useful in Bay Area traffic, since it allows you to cruise through traffic jams with ease. It also affords a nice glimpse into the interiors of the cars you pass, if you’re so inclined.
I wonder if there are reported cases involving “plain view” seizures in this context, since Ponch and John quite often ride the lines in the same way.
The program might survive a constitutional challenge if it were narrowly tailored. For example, if the “good driving” program was defined publicly, limited to only a few police cars (as opposed to any police officer who feels like “commending” someone for good driving), operated during limited (announced) hours of the day and the police cars doing the stops were marked in such a way that any driver would know that the stop was purely for a commendation (and that he was free to decline the stop), the program might survive a constitutional challenge. Of course, it would become so expensive and unwieldy to administer that I cannot imagine why any community would adopt it.
Another cheaper, less intrusive way of commending good drivers: encourage police officers to take down the license plate numbers of the cars that are exhibiting good driving and send the commendation, free stuff etc. to the registered owner of the car.
Why stop with ‘good drivers’? Wouldn’t the same reasoning allow the government to scrutinize the lives of law-abiding citizens in order to award a ‘good citizen’ prize?
Given how easy it is to catch someone breaking a traffic law by simply following them for an extended period of time, I don’t think “good driver” stops would seriously increase the types of pretextual stops we typically think of (e.g., [i]Whren[/i]).
I wouldn’t be at all surprised, however, if we saw a different sort of pretextual stop becoming more prevalent in jurisdictions that reward good driving. I imagine many officers would see it as a great chance to strike up conversations with attractive, young, female drivers. Even if the stops are constitutional (which I doubt for the reasons already expressed), subsidizing police flirtation hardly seems like a good use of taxpayer dollars.
It’s worth keeping in mind the economic reality of the transaction. The policeman is not simply giving the driver a $20 bill; by giving him a gift certificate or similar item, he is basically drumming up business for some local merchant.
For example, the article mentions minor-league baseball tickets. These are not, to say the least, highly-prized commodities; minor-league games are usually sparsely attended and the owners are constantly looking for creative ways to put more fans in the seats and hopefully keep them coming back for more.
So, adding to the fact that no one likes to be pulled over, and no one likes to have their time wasted, you have the additional factor that the cops are basically handing you an envelope full of Val*Pak coupons. I’d be shocked if this whole concept wasn’t the brainchild of some local merchant who was friends with the police chief.
It has always been my understanding that any police stop of a person must be based on some level of suspicion of criminality. It may be probable cause that a crime is being committed (as in Whren), or reasonable suspicion that a crime will be committed (as in Terry), but it has to be something.
Absent at least reasonable suspicion of criminality, I can’t see any legal basis for the police to seize someone.
In my opinion, good driver stops are not only silly and ineffective, but also unconstitutional.
[OK comments: If you check out the cases, it turns out that the picture is much more complicated. Stops without suspicion are permitted in a number of circumstances.]
I’m a cop – a colleague and I were discussing this story the other day. These things have gone on sporadically for years, and (so far) I haven’t seen any cases come out of it. Part of it, I think, is the way you handle the stop. If I had to do one, the first thing out of my mouth would be “look, you didn’t do anything wrong, and you’re free to go, but do you want a gift certificate?” Communications skills make a traffic stop succeed or fail.
That said, I’d hesitate to engage in this kind of stop unless ordered to. With my luck, the first time I tried to pull a car over either 1) it would refuse to yield, 2) the driver would have obvious evidence of a crime (Prof. Kerr’s marijuana hypo), or 3) the driver would have an outstanding arrest warrant.
In the case of a failure to yield, my department policy says no pursuit – I don’t have ANY charges, much less charges sufficient to justify a pursuit. So the “good driver” – by failing to stop for a patrol car – gets away. Irony much?
As to evidence lying on the back seat, that’s got potential for a real issue. I pull you over for no investigatory reason and see cocaine – was the stop an illegal seizure? I’m intrigued by the community caretaker argument but (initially, anyway)I’m unpersuaded. I’m more persuaded by M. Baer’s argument to narrowly tailor the program. Howver roadblocks and administrative stops can be justified on various legitimate governmental interests – but I’m not convinced detaining motorists for complying with the law is an interest sufficient to justify detaining somebody.
I wouldn’t stay up at night worrying about a driver pulled over for “good driving” who has an outstanding warrant. If I understand correctly most states recognize a warranted arrest as valid, even if the stop leading to the apprehension was not valid.
I support the whole “mail the owner the reward” concept, but pragmatically it won’t happen. These programs are done to gather publicity, and licking envelopes just doesn’t get on the news like a roadblock or pullover.
Thank you for the response, Professor Kerr.
Aside from the square pegs -those permissible searches that cannot justify discrete stops of individuals- which here I think are border searches, roadblocks, and administrative searches, I can’t think of a situation where police may accomplish seizures without RS, if not PC. At least not this kind of seizure, where an individual is singled out for detention.
I hope that you or a commenter will point me in the right direction. Thanks again, and I’m excited to keep up with this new blog.
I agree strongly with Ian’s comments above. I suspect these stops will prove unpopular with the public. In addition to the time consumed by being pulled over and awared your gift certificate, there is a good deal of stress associated with being stopped by the police, even if you have nothing in particular to hide. Most people feel some anxiety when they get pulled over, not knowing what they did or what kind of trouble they’re in, and I’m not sure a $25 gift certificate for Mindy’s House of Pedicures makes up for that.
And is this a town where no one has anywhere to be? No kids to pick up from soccer? No dental appointments for which one is already ten minutes late?
And I can’t see much of an argument against Sam’s point, about there being no one on the road who isn’t ripe for being pulled over.
I’m not even sure I like the idea of giving people goodies for following the law. The reward for following the law is supposed to be that you don’t get any tickets and, presumably, that you’re less likely to die in a car accident. Plus your insurance rates will be significantly lower. If people expect the government to reward them for following the law, what’s next? Cops in malls handing out “thank you for not shoplifting” cookies? A free mocha from Starbucks because I haven’t murdered anyone lately?
If this sort of thing really must be done, do it electronically. The technology exists. If, for example, you don’t pay your toll on the Golden Gate Bridge, it’s not that a police car zooms after you to pull you over; your license place is photographed and a ticket is generated and mailed to the owner associated with that license plate number. The same thing could be done with good drivers. Send them a gift certificate in the mail. Because, you know, we just don’t get enough coupons in the mail.
If I understand correctly most states recognize a warranted arrest as valid, even if the stop leading to the apprehension was not valid.
But Andy, how would you ever know if the driver had an outstanding arrest warrant? Would you still ask for his license and docs and run him through the system?
I agree that the police officer’s broad discretion is problematic, but I’m less troubled that these stops are not inspired by reasonable suspicion. I can easily imagine non-controversial “good Samaritan” reasons why a police officer might reasonably stop a motorist absent suspicion (e.g. to inform him of some non-sanctioned potential for loss (“that Ming vase in the back of your truck is about to tip over and break”), etc.)
When Barney Fife stops Goober to inform him that cousin Gomer just graduated boot camp, no reasonable suspicion is involved. Nonetheless it’s hard to imagine that the big spleef on Goober’s dashboard that Barney spots while he relates the good news will be excluded. In such a case it seems to me that Barney’s good faith and lack of an investigative purpose for the stop, coupled with the state’s vital interest in having its police officers “serve” as well as “protect” should bring such a case pretty squarely under Colorado v. Bertine, 479 U.S. 367 (1987).
I agree with Orin that such cases are apt to be fact specific, but assuming for the sake of argument that (a) the purpose of the stop really is to pass out coupons, (b) that purpose is not coupled with some general investigative intent and (c) the officer in question is acting in good faith, then I think the sort of good-driver stop described above might well pass Constitutional muster–and even if it didn’t I don’t think it would be nearly so easy a question as most of the commenters here would make it out to be.
That’s my two cents worth–publish as you see fit (and regardless of whether you publish, let me offer warm approval of your posting policy and hearty congrats on the new blog).
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So as I read Whren it is pretty specific to stops for actual violations of law. I simply don’t see any way to read the case that makes anything but the fact of a criminal violation the critical factor.
Thus, I think it is likely wrong to read Whren as you need for your worst case scenario to go through. Namely that Whren states a general principle authorizing police to make stops based on a pretext if they would otherwise have a valid reason for making the stop. In particular I think the understanding behind Whren is that once you violate a law, even a traffic violation, certain of your rights (not to be stopped randomly by police) are forfeit. I suspect that the supreme court would simply differentiate between violation stops and good driver stops and require good driver stops to be pretext free but not violation stops.
As a pragmatic question I think the danger from the good driver program is no more real than that from Whren itself. Near the end of Whren the opinion seems to be very critical of the idea that the court could throw out pretextual stops because virtually everyone was guaranteed to be violating some law. In particular the passage goes:
Now if we take this seriously it would allow municipalities to make stops for any law on the book, possibly even ones that haven’t been enforced for years (Interesting question: is the stop still reasonable if the underlying law turns out to be unconstitutional?). I imagine in practice the supreme court would come up with restrictions if either pretext violations or pretext good driver stops got really out of hand.
Besides, if a police officer is interested in pulling someone over they can just follow them for awhile and they will eventually violate a traffic law (say the tire brushes over a double yellow line making a turn). True this gives the driver time to hide/dispose of drugs but surely the 4th amendment interest is in not being stopped not getting to hide your drugs. Also cops who are slightly less than honest can easily just lie about a minor traffic violation (hence why I think cameras ought to be required to be present in police cars).
These good driver recognition programs are hardly new. I remember my high school classmates in the Fifties laughing at who the police were stopping for good driving–the kids who drove the dragsters and those who were considered hoods. That led us to believe the cops were up to something–in today’s lingo, that they were making pretext good driving stops. Pretext stops both for traffic violations and for good driving–that is, indeed, carte blanche for vehicle stops.
TS -
The simplest – and rarest- example of identifying the driver would be recognizing the driver from a wanted poster, or from a previous arrest, along with personal knowledge of the outstanding warrant. In that instance I think the arrest on the warrant wouldn’t even face a serious challenge.
Your point about the driver’s license is sound, and in my opinion a much more interesting area for argument. Georgia law requires that “Every licensee shall display his license upon the demand of a law enforcement officer…” but doesn’t qualify the duty as incident to a “valid stop.” O.C.G.A. 40-5-29(b)(2005). The cases may (and probably do) qualify the statute in such a manner but I don’t have any cites handy.
In my hypo I’m not charging the subject with failure to ID himself but rather for an outstanding warrant as a result of the ID. If I understand the Ker-Frisbie doctrine correctly it wouldn’t matter how I identified the suspect – the method and manner of arrest pursuant to a warrant wouldn’t invalidate the criminal case underlying the warrant (but could result in civil liability or criminal charges against the arresting officers).
Off the top of my head, I’m thinking an officer engaged in the “good behavior” program at the order of a superior who makes an arrest on an outstanding warrant (without any other issues, sch as excessive force, etc.) would enjoy qualified immunity from a section 1983 claim(?) I haven’t taken Con Torts yet but I can’t find any cases directly addressing “good driver” programs.
The one thing I am curious about in this debate is how States themselves will handle this in their own soverign capacities. Most of the discussion so far in the comments have concerned federal constitutional precedent, which while highly persuasive to many state high courts, have been rejected by many of these courts by grounding in their own state constitutions. Many state high courts have, in the name of protecting venerable search and seizure rights, have used this methodology to reject major Supreme Court Fourth Amendment precedent -examples are not limited to rejecting open fields exception, rejecting good faith exception to the exclusionary rule, rejecting one-party consent rule, and rejecting the the totality of the circumstances test for probable cause. In cases regarding an analogous topic to the good driver stop, the Terry stop, even where they are applying Supreme Court precedent, when reading the facts, these high courts err to the side of what they consider the liberty guaranteed under search and seizure protections. The Michigan Supreme Court’s decision in Michigan v. Long after the Supreme Court remanded the decision back to them is a prime example of this. While this good driver program might be on the line of constitutionalty for the Supreme Court within its Fourth Amendment doctrine as developed since the Burger Court, it would seem an easier call to say state constitutional jurisprudence of many states would flat out reject it.
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