The Volokh Conspiracy

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Volokh Conspiracy

No, the police can't pull over drivers to give them gifts


Every so often, there are news stories about a police department that decided to pull drivers over to hand out gifts. The gifts have included Christmas presents, hundred-dollar bills and in the latest story, ice cream cones.

The media loves these stories. They show the police engaging in charity or community-building. The stops generate charming videos of drivers who were pulled over and expected to get a costly ticket but instead received a present. In the videos that are released, at least, the drivers are delighted. Here's a new video making the rounds from Halifax, Va.:

I don't doubt that these programs are well-intentioned, and I commend the police for their instincts to help. It's especially great when the police are handing out gifts that the drivers really need.

But here's the catch: A lot of these stops are unconstitutional. When the police pull over a car, that's a Fourth Amendment "seizure" of the driver, any passengers, and everything inside. To justify that seizure, the police need at least some cause either that a driver committed a traffic violation or that a person in the car is involved in a crime or wanted in connection with a serious crime. If the police have that cause, they can stop the car regardless of whether they want to write a ticket, investigate a crime or give the driver an ice cream cone. But the police can't pull over the car without any cause, even if they want to do something nice, such as give the driver a gift.

Maybe no one will complain about the illegal stops. Most people don't know the stops are illegal, and I gather a lot of people who are stopped and get a nice gift will feel grateful instead of angry. There may be also be some drivers who are pretty unhappy with the stops, but I gather the police don't publicize those videos. And if the police pull over a random driver to give him a gift, and it turns out he is drunk or has drugs in plain view, what happens then? I assume the police don't hand over the gift and send the driver on his way. Either way, the police aren't allowed to make traffic stops without cause, even just to do something nice.

It won't lead to as many viral videos, but police departments should probably find a way to give out gifts without making illegal traffic stops first.