Car Stops

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Car Stops

A person in an automobile has a lower expectation of privacy than a home. United States v. Mosley, 454 F.3d 249, 259–60 (3d Cir. 2006) (noting that “the Fourth Amendment has been repeatedly characterized by the Supreme Court as affording enhanced protection to the home, and diminished protection to vehicles,…”).

Basics

  • A Car Stop is a Seizure. Delaware v. Prouse, 440 U.S. 648, 653 (1979), Brendlin v. California, 551 U.S. 249 (U.S. 2007). A seizure is when given the totality of the circumstances a person is not free to leave a situation with law enforcement. Any passengers are also seized, for Fourth Amendment purposes, during traffic stops, and thus also have standing to raise Fourth Amendment claims based on the illegality of the stop. Brendlin v. California, 551 U.S. 249, 251 (2007).
  • Any evidence discarded before the stop, i.e., during a chase are considered not subject to 4th amendment protections. Hester v. United States, 265 U.S. 57, 58–59 (1924) (prohibition-era version of Hodari D. with moonshine whiskey rather than crack but the same result: ditch the evidence, lose the suppression claim). California v. Hodari D., 499 U.S. 621, 629 (1991) (holding that evidence abandoned during flight from attempted seizure is not suppressible even if the officer lacked reasonable suspicion for the attempted seizure).

Car Stop FAQ

Must i get out of the vehicle if asked?

YES. Unfortunately for drivers, the answer here is an unequivocal “yes,” straight from the Supreme Court: “[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” So the order to step out of the car is per se lawful; the lack of suspicion of anything beyond the traffic offense is irrelevant. Indeed, in Mimms, the case just quoted, the government conceded that there was no suspicion of any kind other than the traffic violation, and that it was simply the officer’s “practice” to order the driver out of the car whenever he made a traffic stop. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977).

In short, an officer who stops you for an alleged traffic violation has the right to insist that you and your passengers get out of your car. You should do so if asked. Also, getting out of your car may make it easier for you to check road conditions, the weather, and the place the violation supposedly occurred.

If you are asked to get out of the car. It is generally wise to do so slowly and with your hands in clear view of the police.

Should I just get out of the car as soon as I am pulled over?

If you get out of the car against the officer's orders, don't be surprised to see a gun pointing at you.

Car Stop best practices

  • Stop the car in a safe place as quickly as possible. Turn off the car, turn on the internal light, open the window part way and place your hands on the wheel.
  • Upon request, you are required to show your driver’s license, registration, and proof of insurance.
  • Both driver and passenger have a right to remain silent.
  • If you are a passenger, you can ask if you are free to leave. If the officer say yes, sit silently or calmly leave. Even if the officer says no, you have the right to remain silent.

Stops and Racial Profiling

Racial profiling does not give rise to a Fourth Amendment suppression claim if there was objective probable cause for the stop. If there is objective probable cause for a stop, the courts won't inquire into the officer's subjective motivation as a basis for a Fourth Amendment suppression. Whren v. United States, 517 U.S. 806 (1996).

Rules for Passengers

  • If a police officer finds contraband in a car and no one takes ownership then the police may arrest everyone in the car under the common enterprise theory. (Maryland v. Pringle).
  • When driving on a public road courts have found that all passengers can be assumed to be engaging in a common enterprise and so probable cause can extend to all passengers.
    • Example: Police stop a car because of a broken brake light. The police see a syringe in guy’s pocket and under plain view doctrine can seize it without a warrant. The driver admits it is his. The Court held that this gave the police probable cause to search passengers bag for drugs. They held that when driving a car on a public road police can assume that all passengers are engaged in a common enterprise and thus probable cause extends to all passengers.
    • Limit: the authority to search the containers of a passenger does NOT include clothing; however, after Houghton, it does include purses. It might depend on how one is wearing the purse. {Houghton}
    • Once there is Probable Cause to search a car then all passenger containers are free game. Wyo. v. Houghton, 526 U.S. 295 (U.S. 1999).

Rules of the Road (KYR)

A police officer is normally not allowed to search your vehicle. However, there are several exceptions to this. An officer who observes you trying to either hide something under the seat or throw something out the window may legally search your car. Once cops are on your rear bumper with his spotlight silhouetting your every move, they're watching for any sort of sudden movement. A sudden lowering of one or both shoulders will tip them off that you're attempting to hide something under the seat.

If you are asked to open the trunk, say “No” and state, “I do not consent to a search.” If the police open it themselves, you should continue to state, “I do not consent to a search.”

If the officer has a reasonable suspicion you are armed and dangerous, he or she can frisk you (pat you down). Similarly, if the officer reasonably suspects that you are involved in criminal activity he or she can also perform a pat down, and if police officers have probable cause – a reasonable basis or justification to believe that you or your passengers are involved in criminal activity – they can search your car and objects belonging to passengers.

Even if the officer doesn't have reasonable suspicion or probable cause, once you are stopped, a police officer may seize any illegal objects in your car that are in “plain view.” Once they see the object, such as open beer or wine bottles or drug paraphernalia, they can open the car door to reach in and get it. After that, they may come across other objects that are in plain view and shouldn't be in your car, and they can seize these, too.

Lastly, your car may also be searched if you or any occupant is arrested. Also, if you're arrested and your car is towed, the police may make an “inventory search” afterward, even if they have no reason to suspect there is anything illegal inside.

Also, the officer's good faith belief that you may be dangerous justifies a search of the passenger compartment of your car for weapons.

If the police have probable cause that it contains evidence of criminal activity they can search your car without a warrant. Carroll v. US (1925). However, you do not have to consent to a search. If an officer or immigration agent asks to look inside your car you can refuse to consent to the search. Do not sign a consent form. Refusing consent does not mean that the search is invalid, or that the police won't do it, but it will help your attorney challenge the search later.

A case called Chambers v. Marooney (1970) held that it is reasonable to conduct warrantless searches if it would have been reasonable to seize the car and obtain a warrant. The police need probable cause that the car contains evidence of criminal activity. However, courts have been deferential to the fact that cars can be moved before a warrant obtained.

The police can search the car incident to arrest as long as the arrest is not made to far from the car and the search is not to removed from the arrest in time.

Valid Car Searches

Automobile Exception

Law Enforcement Officers (LEO) do not need a warrant to search a car. They need probable cause. The Court has held since 1925 that there is an exception to the requirement for a warrant to search a car. This is because cars are mobile and could leave the jurisdiction before a warrant is procured and because people have a lesser expectation of privacy in a car.

It is reasonable under the Fourth Amendment for the police to search the car—the whole car, and everything in the car, including containers—whenever they have probable cause to believe that the car contains evidence of crime. You don’t have to arrest the person, or impound the vehicle. You just need probable cause to believe that the car contains evidence of crime. So, in any vehicle stop, the officers may search the entire car, without consent, if they develop probable cause to believe that car contains, say, drugs. California v. Acevedo, 500 U.S. 565, 580 (1991) (“The police may search an automobile and the containers within it where they have probable cause to believe contraband or evidence is contained.”).

A warrant is not required so long as there is probable cause to believe that the vehicle contains contraband or evidence of a crime. Carroll v. United States (1925).

This “automobile exception” has been greatly expanded since Carroll. For example, the Court held in California v. Carney (1985) that a mobile home capable of traveling on a highway was included within the exception, and in Wyoming v. Houghton (1999), the Court held that the police may use the exception to search the personal belongings of passengers (but not the passengers themselves).

If the police have probable cause they can search your car. They can search all of it (to the point of near destruction). Carroll v. United States, 267 U.S. 132 (1925). This is commonly called the Automobile Exception. 1). If there is probable cause the police can search the entire car (assuming the probable cause extends to the area being searched). The police can also search containers in the car if there is reason to believe the item being searched for could be in the container.

Probable cause need not be related to a specific person, but rather to the car itself. For example, if you have probable cause to believe the trunk has marijuana in it then it doesn't matter who is driving. Ross

Containers

The police may search a container within a car without a warrant if they have probable cause to believe that the container itself holds contraband. California v. Acevedo, 500 U.S. 565 (1982). The scope of the search is defined by the object of the search. Whether you can conduct a warrantless search a container depends on whether the probable cause is container specific (Chadwick/Sanders) or general to the car (Ross).

Inventory Searches

“Inventory searches” are the third doctrine permitting the police to perform warrantless automobile searches. In Colorado v. Bertine (1987), the Court held that the police may thoroughly search vehicles that have been lawfully impounded for any reason. The Court explained that such inventory searches are justified to protect the owner from misappropriation, to protect the police from false claims of theft, and to prevent dangerous items from being stored on police property.

Search Incident to Arrest

The Court held in New York v. Belton (1981) that the police may automatically search an automobile's passenger compartment without a warrant after arresting an occupant of the vehicle because a criminal may hide contraband or weapons in the vehicle before the arrest. Since the Court held in Atwater v. City of Lago Vista (2001) that the police may arrest motorists for even petty traffic violations, the police now have an incentive to arrest minor traffic violators in order to perform “Belton searches” of their automobiles.

Belton has been criticized by legal scholars for allegedly failing to meet the constitutional standard of probable cause.

Belton has been distinguished by Arizona v. Gant, which restricted searches incident to arrest to circumstance where it is reasonable to believe that: 1) the arrested individual might access the vehicle at the time of the search; or 2) the arrested individual's vehicle contains evidence of the offense that led to the arrest

"Terry Frisk" of Car

An officer can ask you and your passengers to get out of the car to pat you down for weapons, and search the passenger area of the car for weapons if he has a “reasonable belief” you are dangerous.

If the cop has reasonable suspicion that something is up and they fear for their safety they can frisk the individual. Additionally, they can “frisk” the car for readily available weapons. Michigan v. Long, 463 U.S. 1032 (1983). This does not include looking to deep in anything or looking in the trunk. Can look for weapons.

Motor Homes

The “Automobile Exception” applies to motor homes. California v. Carney, 471 U.S. 386 (1985.) Although there is a distinction drawn between motor homes on the road and those being used for living. In United States v. Johns, the motor vehicle exception was applied to trucks. In United States v. Forrest it was applied to trailers pulled by trucks. United States v. Forrest applied the exception to boats and in United States v. Hill to house boats. In United States v. Nigro and United States v. Montgomery the motor vehicle exception was found to also include airplanes.

Rationale
Courts have given a few reasons for allowing warrantless searches.
  • Cars are mobile and the time it takes a police officer to go get a warrant would allow for a car to get out of the jurisdiction.
  • Courts have also said that there is a diminished expectation of privacy in car because they are heavily regulated by state and on the roads. Carney.

Federal Agents

Like regular law enforcement, The FBI can conduct a warrantless car search if they have probable cause to search the vehicle and any containers within, but only in parts of the vehicle and containers which there is probable cause to search. If you are arrested and your car is impounded law enforcement is entitled to perform a warrantless inventory search. Any contraband or evidence of a crime found may be used against you. Immigration Checkpoints

DUI Checkpoints

Sobriety checkpoints — also known as DUI checkpoints — are the most common roadblocks you might encounter. They function as a general purpose investigatory tactic where police can get a close look at passing motorists by detaining them briefly. A roadblock stop is quick, but it gives police a chance to check tags and licenses, while also giving officers a quick whiff of the driver’s breath and a chance to peer into the vehicle for a moment.

Remember that your constitutional rights still apply in a roadblock situation. Though police are permitted to stop you briefly, they may not search you or your car unless they have probable cause that you’re under the influence or you agree to the search. As such, you are not required to answer their questions or admit to breaking the law.

Since the Supreme Court’s ruling in Illinois v. Caballes police have more leeway to use drug-sniffing dogs in roadblock situations. There’s no need to waive your rights simply because dogs are present. But be advised that your legal options are limited if you’re arrested as a result of a dog sniff during a roadblock.

Also keep in mind that police closely monitor cars approaching the roadblock. So you’re not likely to have any success trying to evade it.

Sobriety checkpoints are generally permitted by the courts, but only if conducted properly. If you’re arrested at a police roadblock always consult an attorney before confessing or agreeing to a plea bargain. There might be some legal options that your lawyer can pursue.

Drug Checkpoints (it’s a trap!)

The Supreme Court has ruled that random checkpoints for the purpose of finding illegal drugs are unconstitutional. However, police sometimes put up signs warning drivers of up-coming drug checkpoints and instead pull over people who make illegal u-turns or discard contraband out the window. If you see a sign saying “Drug Checkpoint Ahead”, just keep driving and don’t panic. If there’s a rest area following the sign, DO NOT pull into it. If you do, you’ll find yourself surrounded by drug-sniffing dogs.

Police departments, especially in the Mid-west, have been pushing their luck with this tactic, so if you encounter anything resembling an actual drug checkpoint, please contact that state’s ACLU Chapter. Similarly, if you’re arrested as a result of a real or fake “drug checkpoint”, you must contact an attorney to explore your legal options.

Dogs

Is a dog sniff a search? Can they do that w/o Probable Cause?
K-9 sniffs are not a search for the purposes of the Fourth Amendment. If the police have a dog ready to sniff your car when they pull you over for a traffic violation, you have no basis for objecting to the sniff. And, of course, if the dog does alert to the car, that is probable cause, so the police can then search the whole car. United States v. Place, 462 U.S. 696, 707 (1983) (discussing the sui generis nature of dog sniffs).

Excessive Prolongation: K-9 sniffs around the car are not a search, BUT United States v. Jones, 269 F.3d 919, 926, 929–30 (8th Cir. 2001) (suppressing drugs found in car because traffic stop was unreasonably prolonged to await K-9 unit).

A traffic stop is a legitimate seizure of the person, for purposes of investigating the violation of the traffic law and writing up the citation. Of course if you give officer reasonable suspicion then you can wait longer. United States v. Hardy, 855 F.2d 753, 761 (11th Cir. 1988) (upholding Terry detention to await drug dog for fifty minutes when officer developed reasonable suspicion during stop based on passengers’ responses to questions about their identity and destination).

And the Fourth Amendment rule is very clear: if the police detain you after they’ve finished processing the ticket—or if they simply dawdle over the ticket processing for an unreasonable length of time—in order to get a K-9 team there, then the eventual dog sniff will be the fruit of an illegal detention, and any evidence. Illinois v. Caballes, 543 U.S. 405, 408–09 (2005).

Federal Distinctions

All advice stays the same except it is important to emphasize that 'it is most definitely a crime to lie to a federal agent'. It is often hard to tell them apart from State officials.

  • Agents, like all law enforcement officers, are trained to try to get you to talk, so remaining silent could be difficult. Stay strong. Don't fall for intimidation tactics and resist speaking without a lawyer present.
  • Even if you want to speak to the FBI about something, consult a lawyer and do not do or say anything without a lawyer present.
  • In all instances, invoke your right to silence. DO NOT TALK, EXCEPT to say “I would like a business card,” and “I would like to speak to my lawyer,” and to tell them how they can contact your lawyer. NOTE: It is a federal crime to give false statements to a federal agent.
  • If you do not have a lawyer take their card and say “I will get in contact with a lawyer and will not speak to you without a lawyer.” You can call Water Protector Legal Collective to ask for referrals, especially if you feel you are being targeted for political activity.
  • Relevant information to get from an agent is their name, contact information and agency. Take down a physical description of each agent when they leave.
  • You can film federal agents.