Know Your Rights During a Traffic Stop
Searches and Seizures at Traffic Stops
When you are pulled over by a police officer what are your rights? What must you do? What can a police officer do and not do? These are hard questions and have complex answers.
Most peoples only interaction with a police officer will be a traffic stop. Most traffic stops are fairly routine as well. However, lots of things happen at traffic stops, and many people are arrested during a routine stop. When a police officer pulls you over 9.9 times out of ten they are not acting as your friend. They are seeking evidence of a crime even if it's just the traffic violation. Always be respectful but never consent to anything and don't answer any questions. You do have the right to remain silent. Let's talk about things everyone should be aware of at a traffic stop.
The first thing you should do when a police officer turns on his/her lights is pull over. Remain in the vehicle unless the officer instructs you to get out. An officer can instruct you to get out of your car. Politely ask the officer why they are making you get out of the car. They may not tell you but you are putting them on notice that you are not simply going to comply with every request. Remember, the police officer should be recording everything. You can record it too. Under, Pennsylvania v. Mimms, 434 U.S. 106 (1977), a U.S. Supreme Court case, a police officer is allowed to remove you from the car if he/she feels unsafe during a lawful traffic stop. The case makes it clear it must be a lawful traffic stop. It will be very hard for the common person to decide if the stop is lawful. You should assume the stop is lawful and get out of the car, only after asking why do I need to get out. If the stop was unlawful let the lawyer deal with it in court. When you get out of the car you can roll up the window and lock the car. This is not a sign that you are hiding anything and it does not give the officer the right to search your car. When the police officer approaches you don't answer any questions. “Do you know why I pulled you over?” is typically the first question an officer will ask you. Your answer should always be “I don't know why you pulled me over.” This answer doesn't incriminate you. Even if you know you were speeding don't tell the officer, it's an admission of guilt. Further, maybe they pulled you over for a reason you don't actually know. Maybe you have a light out but you admit to speeding, that's not smart. Next the officer may ask you what seems like friendly questions like : “Where are you going?” “Where are you coming from?” “What are you up to this evening?” These are not friendly questions. These are probing questions not friendly ones. You don't have to answer them. Never lie to the officer just politely say I am not answering your questions. Answering questions can lead to trouble. For example, “I'm coming from a restaurant.” “Have you been drinking?” “I had a glass of wine with dinner. “I smell alcohol please step out of the vehicle.” No alcohol was mentioned until you said you had a glass of wine at dinner. Now you are doing a field sobriety test. Some people say “oh that never happens” but it does all the time.
You should be aware that you have the right to say no to any search the officer request. Be careful of any suggestion that officer is going to search your car. What the officer says may sound like a command when in fact it's a request. “I'm going take a look in your car okay?” This sounds like a demand but it's a question. Always say no it is not ok. If the officer says anything like this then you should say “I do not consent to any search of me or my property.” The Fourth Amendment of the Constitution gives you the freedom from unnecessary searches and seizures. Lots of people will allow the search because “they have nothing to hide”, that is besides the point. You have a duty to invoke your rights, all of them. Many people will fight for their Second Amendment right to bare arms but will gladly waive their Fourth Amendment rights. It is your right and duty to not waive any rights you are given. The more we waive our rights the more they will be encroached upon.
Not giving consent to search does not give an officer probable cause to search your car. I'm going to say that again, not giving consent to search your car does not give an officer probable cause to search your car. If an officer has probable cause to search your car they would not be asking for consent. Being pulled over for a traffic violation is not enough to believe you have committed any other crime. The traffic stop alone is not a reason to search your car. If the officer sees something in plain site, it could give rise to probable cause to search your car. An officer does not need a warrant to search your car but they must have probable cause and the traffic stop alone is not probable cause. If on approach to the car the officer sees a zip lock bag of a green leafy substance and smells what they believe to be marijuana that gives them probable cause but the stop alone did not.
What if you refuse to allow a police officer to search your car and they say they will get a K-9 unit to walk your car? You should politely ask if you are under arrest or being detained. The officer will not likely answer but if you are being detained, they must tell you. The reason you should ask is because that puts the officer on notice that you know your rights. At that point they will more likely than not send you on your way or write you the ticket.
The officer is allowed to get a K-9 unit but only if it will not extend the traffic stop. A 2015 case called Rodriguez v. United States, 135 S. Ct 1609 (2015), says a routine traffic stop cannot be extend, no matter how brief, for a dog sniff, unless there is reasonable suspicion of a crime. The reasonable suspicion does not apply to the reason for the traffic stop. The court did not rule on how long a traffic stop should take; it merely stated the traffic stop could not be extended for a K-9 to walk the car. Politely tell the police officer that you know your rights and you are not consenting for him/her to get a K-9 unit to walk your car if the officer says they are getting one. Even if they have a K-9 unit they can't use the unit if it will extend the traffic stop, even if by a minute. If there are two officers and one is running your information and the other is walking a K-9 unit, it will be allowed. Under most other circumstances it will not be allowed. If the officer makes you wait for a K-9 unit don't fight with them. Simply say “I do not consent to this unlawful search of my property, please give me my ticket so I am be on my way”. A traffic stop for one ticket should not take more then 10-15 minutes at most. Under Rodriguez, an officer can't delay the routine process to get a K-9 unit.
Most people may not feel comfortable invoking their rights. I would tell you to always be polite but firm with a police officer. Understanding and knowing your rights is never a negative thing. Invoking your rights may upset the officer but they are your rights. Police should not bully you into feeling scared in order for your rights to be violated. If you feel uncomfortable at a traffic stop tell the officer and ask that a supervisor come to the stop. If the officer says he will not request one or he says no supervisor is available call 911 and tell them you are at a stop and the officer is making you feel scared or uncomfortable. No one should ever deny you your rights, and you should never voluntarily waive your rights.
If you have been arrested call the Law Office of Robert E. Luttrell III at 817-645-6600