Unconstitutional Gifts

Ken AshfordCrimeLeave a Comment

The AP reports:

Motorists may be in for a surprise if they spot flashing red lights in their rearview mirrors in this Sacramento suburb [Rancho Cordova] during the holiday season.

Police are stopping law-abiding motorists and rewarding their good driving with $5 Starbucks gift cards.

A traffic officer came up with the idea to "promote the holiday spirit and enhance goodwill between the traffic unit and the motoring public," police Sgt. Tim Curran said….

It’s a nice idea (well, not really — see below), but it’s unconstitutional.  When a police officer forces you to stop, that a "seizure", defined as a situation "when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen." Under the Fourth Amendment, such seizures must be reasonable.  There are two categories of "reasonable" seizures: (1) when the officers has a reasonable suspicion that the person he "seized" has commited a crime (including a traffic violation); and (2) an administrative need relating to security or crime prevention (such as airport screening). Neither is present here, so the stop violates the Fourth Amendment.

I also don’t think it’s very nice.  I’m sorry, but most people don’t enjoy the experience of those flashing red light behind them, and being pulled over by an officer.  And a Starbucks gift certificate ain’t going to make them feel better.

But here’s my question….

What if the driver refuses to stop and just keeps driving, albeit below the speed limit?  Can he be charged with a crime (i.e., "fleeing law enforcement")?