You Scream, I Scream, We All Scream for the Fourth Amendment

Tensions between U.S. law enforcement and the public have been running high for some time, culminating recently with several high-profile shootings by police officers and the recent deadly attacks against police in Dallas and Baton Rouge, Louisiana. Some police departments have responded by implementing novel programs aimed at helping bridge their gap with communities, including a recent videotaped exchange between a driver and an officer in Halifax, Virginia, that has gone viral.

In the video, the officer and the local police chief are approaching a woman who has been pulled over in her car with her young son in the front seat. Likely expecting a ticket, the woman is told that she has violated a fake local ordinance that says it is illegal to drive on a hot day without an ice cream cone. The officer then hands both the woman and her son ice cream cones while she laughs in obvious relief.  

A nice gesture, of course, but perhaps unnecessarily stressing people out is not the best way to improve relations between police and the public.  And probably not legal, either.  

According to a Washington Post article by George Washington University Law School Professor Orin Kerr, a lot of these feel-good moments are actually illegal because police must have a justification before enacting a Fourth Amendment “seizure” of a vehicle and its occupants via a traffic stop. Stopping a motorist to give her a gift is clearly unconstitutional.  

As Professor Kerr rightly observes, what happens when an officer makes one of these “ice cream stops” but discovers a bank robber with a visible pile of stolen cash in the back seat? Does anyone believe that person wouldn’t be arrested? But evidence from traffic stop without legal justification usually ends up being suppressed due to the unconstitutional traffic stop.  

Professor Kerr correctly notes that some motorists are probably annoyed or angry, but we never see these videos.  Ice cream or not, an illegal stop is an illegal stop.  And sometimes it takes a lawyer to remind everyone of that fact.  

Posted: 8/29/2016 12:44:55 PM by Global Administrator | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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