36 N. Ill. U. L. Rev. 1 (2015-2016)

handle is hein.journals/niulr36 and id is 1 raw text is: 









U Can't Touch This Fog Line: the Improper

   Use   of  a  Fog Line Violation as a Pretext for

   Initiating an Unlawful Fourth Amendment

                     Search and Seizure'

                           BY HARVEY   GEE2

     Fog  line litigation is happening all across the country. For years, law
enforcement officers across the country have been initiating traffic stops of
cars on our roadways, based on allegations that the drivers crossed onto a
fog line in violation of a state ordinance prohibiting such conduct. A fog
line is the white line that divides the shoulder from the road. While the leg-
islative history and language of these fog line statutes reflect their public
safety purpose, the police are relying on statutes as an excuse to pull over
cars which may  have only momentarily crossed the fog line and where the
drivers have done  nothing else unlawful. This common  practice affords
police tremendous leeway to conduct pretextual stops, unreasonably detain
suspects, and unlawfully search vehicles. More often than not, in fog line
cases, even if the court holds that the defendant did not violate a state traf-
fic law, the government will nevertheless argue that the traffic stop was
valid because the officer's mistake of law was reasonable, and there was
reasonable suspicion or probable cause to initiate the traffic stop. This Es-
say explores the mistakes of law committed by police officers during traffic
stops, and argues that the police should not be allowed to use alleged fog
line violations as a pretext for initiating a traffic stop if it cannot be sup-
ported by reasonable suspicion or probable cause. Such an unreasonable
stop violates the Fourth Amendment to the US. Constitution.

     I.      INTRODUCTION................................. 2
     II.     LEGAL BACKGROUND....          ..................  .........5
     III.    RECENT ACCOMPLISHMENTS....         .......................6
             A. HEIENV. NORTH  CAROLINA...........................6

      1.  MC Hammer, U Can't Touch This, on PLEASE HAMMER DON'T HURT EM (Capi-
tol/EDI Records 1990).
  The author previously served as an Attorney with the Office of the Federal Public Defender
in Las Vegas and Pittsburgh, the Federal Defenders of the Middle District of Georgia, and
the Office of the Colorado State Public Defender. In 2012, he served as a
Policy and Research Fellow with Obama for America-Virginia and was a U.S. Supreme
Court Fellows Program Finalist. LL.M., The George Washington Law School; J.D., St.
Mary's School of Law; B.A., Sonoma State University.


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