“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
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 legislative 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 traffic 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 Essay 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 supported by reasonable suspicion or probable cause. Such an unreasonable stop violates the Fourth Amendment to the U.S. Constitution.