Tuesday, March 14, 2006

Cut Some Slack

Orin Kerr (over at his new blog! Check it out!) writes about so-called "good driver stops." Basically, if a cop sees you showing good driving ettiquite, they pull you over, but instead of giving you a ticket, they give you tickets...to a sports game. Or some other fabulous prize!

The tragedy is, according to Professor Kerr, that these stops may be unconstitutional. To be fair, there are good reasons to be wary. Kerr notes that:
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.

Once someone is pulled over in a traffic stop, if the police officer sees something that tips him off that another crime may have occurred (a marijuana joint on the passanger seat, for example), he can search the vehicle for that purpose too.

That concern troubles me too, but I'd like to think we can find a way out of it--if for no other reason than I like people being nice to each other, and giving me free baseball tickets is a nice thing to do.

It seems like we must be drawing this line in some contexts anyway with Terry stops though. The police can "stop and frisk" me if they have reasonable suscpicion I'm either committing or am about to commit a crime. Fine. And if I live in a small town, where I know the local beat cop, he might come up to me for no other reason than to say hi, chat about my family and school, etc.. If he sees a gun-like bulge in my jacket pocket, can he stop and frisk me just off that? I think probably--but I'm not sure I think that's a problem either. It seems weird to say the original conversation with the cop is a 4th amendment violation. And maybe my friendly neighborhood cop is a distinct situation from a traffic cop--its more of an imposition to be stopped while driving, for example. But at the same time, clearly we have to have mechanisms that let police officers be nice people and good community members without implicating the 4th amendment.

Kerr also does not believe that this program encourages good driving either, but I'm still undecided on the subject: presumably that depends on how many good driver awards are given out. Eventually you get a panoptican effect (but in the nice, fuzzy, Santa Claus way). But even if the odds are low, people might driver safer anyway. After all, people buy lottery tickets based on much lower odds (admittedly, a much higher payoff too). And even beyond that, just the news of the program and the stories might exert subtle pressure on people to drive more safely--benefits which might exceed marginal.

I'm not so invested in these programs that I want to preserve them at all costs. If "good driver stops" mean the 4th amendment becomes effectively meaningless on the highways, then I'll let it go. But I'd like to think that we can get around this. Can good cops be good neighbors too?


Anonymous said...

I don't like the policy for a completely different reason: someday someone is going to be late to something critical because they were stopped by a police officer who wanted to reward them for good driving.

Mark Fearing said...

Interesting point that I have considered in the past. Seems to me what we need is a case where a driver is pulled over for a 'good driver' award, and the cop makes an arrest based upon something he sees in the car or on the driver. No reasonable suspicion to pull the driver over would make it difficult to allow any evidence ceased in that case.

jack said...

A couple options:

What if instead of using a siren or bullhorn the cop used some other method to get the driver to move over. (A sign flashing YOU WIN!!!?) The driver would be able to choose to stop and get his prize or continue on if he needs to get somewhere in a hurry or is worried about the pot in his glove compartment.

Or maybe some sort of optional entrance into the program. Get a sticker for your car that gives permission for a cop to pull you over if you're driving well.

Heres an interesting thought though: What about racial profiling? Will black drivers be rewarded less? (or more? if the cop wants to take a better look). Its possible some sort of white cop guilt could kick in and the police would use this opportunity to reward black drivers any chance they get.

And what about "the driving stereotypes"? Will cops automatically assume the asian driver isn't very good and not reward her?

I doubt this will happen enough to allow for a statistical analysis but I think it'd be really interesting to see.

Stentor said...

For me, those would have to be some damn good tickets -- Superbowl, maybe -- to justify the inconvenience of being pulled over, and the anxiety that I'd have between seeing the flashing lights and being told the reason for the stop.

Why not have cops make a note of the license plate of the good driver, then go look up the owner of the car and mail the good driving award to them? That would cut out the problems of inconveniencing the driver or possibly catching them for a crime. And good driving, unlike bad driving, isn't something that the police have to address *right then* by stopping the person.

jack said...

This actually reminds me of a story. I was at a concert with some friends up and we were in the parking lot drinking out of our trunk (ok, so every other car was doing it). All of us were under 21 but I've never heard of any problems drinking at this particular venue so it was pretty relaxed. Along comes this young man wearing some sort of identification around his neck. We start freaking out and pushing the beer to the back of the trunk. He walks up to us and says, I'm sorry guy I'm gonna have to give you all a citation...


He then procedes to hand us a bunch of bumperstickers with funny phrases. He then asks for donations to help feed old people or something... I'm not sure but we gave him like 20 dollars out of our pockets because we so scared yet relieved at the same time.

I got a phone call from the Montgomery Law Enforcement somethings last week asking for money...maybe this is just a well thought out way to increase donations? "No, sir, I'm not going to arrest you for driving high. I'm awarding you for being a great driver!! Now how about a 100$ donation to help police fight crime?"