PUBLISHED HERE WITH AUTHOR PERMISSION
Original Forum Post HERE
by xpd54 » Mon Aug 22, 2011 5:50 am
Ok, so when I first talked about a flow chart (in this thread: http://www.ohioccwforums.org/viewtopic.php?f=2&t=54723) I didn’t realize the magnitude of what I was going to do. So the flow chart is out. What I am going to do is break down the legalities of traffic stops and what cops can legally do into sections and post each section.
But first, I AM NOT A LAWYER. I am a cop. I have a BA in Criminal Justice, 15 years on the job and 10 years of experience training cops in traffic stops, use of force, firearms and other topics. I will try to give as much case law as possible so you can read for yourself what the Supreme Court of the United States (SCOTUS) has to say about what law enforcement is allowed to do. I am going to write this assuming the reader has absolutely no idea about the legalities of traffic stops, so if you know a bunch of this already, I apologize. We are dealing specifically with traffic stops, but many of the legal principles pertain to other encounters as well. Most of the court cases I am going to reference are SCOTUS cases, since they pertain to the whole country. I tried to be as accurate as possible, so if I made any mistakes, I will apologize up front.
So let’s get started.
Before we go too far, let me explain binding precedent. Court decisions are only binding within the jurisdiction of the court. Obviously, SCOTUS decisions are binding throughout the US and its territories. However, if the SCOTUS has not ruled on a particular case or topic, the legalities of a particular set of circumstances may vary from jurisdiction to jurisdiction. For example, in Ohio we have the following court jurisdictions (dealing with criminal matters, there are other civil courts) which may affect the legality of a particular action performed by a police officer:
- local municipal courts (misdemeanor courts)
- Courts of Common Pleas (the number in each county depends on the population of the county in question)
- 12 different District Courts of Appeals (each covers roughly 4-8 counties)
- Supreme Court of Ohio (SCO)
- Several different US District Courts
- 6th US Circuit Court of Appeals
- Supreme Court of the United States (SCOTUS)
Where I work, my actions are going to be judged by the Xenia Municipal Court or one of the Greene County Courts of Common Pleas, the Second District Court of Appeals, SCO, possibly the US District Court – Southern District of Ohio (Dayton), the 6th US Circuit Court of Appeals and the SCOTUS. In that order. A ruling from a court that is not one of those courts does not have a DIRECT bearing on what I can or cannot do. One of those courts that judge my actions may use another courts decision as part of their own decision, but that other decision does not affect me directly. So what is legal for me to do may not be allowed in Cleveland, or Georgia, or California or vice versa.
LEGAL JUSTIFICATION FOR A STOP:
First let’s talk about the LEGAL reasons for which a police officer may stop you while you are driving a car. There are 2 main reasons (there are others, but these are the main two): reasonable articulable suspicion (RAS) and probable cause (PC). The MINIMUM legal requirement necessary to stop a car is RAS, NOT PC. U.S. v. Cortez, 1981. http://supreme.justia.com/us/449/411/case.html Many people (including many cops) are confused by this.
So what is RAS? In the Cortez decision, the court said this:
“In determining what cause is sufficient to authorize police to stop a person, the totality of the circumstances -- the whole picture -- must be taken into account. Based upon that whole picture, the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. The process of assessing all of the circumstances does not deal with hard certainties, but with probabilities, and the evidence collected must be weighed as understood by those versed in the field of law enforcement. Also, the process must raise suspicion that the particular individual being stopped is engaged in wrongdoing.”
What can be confusing about RAS is that it is not always an exact science, for lack of a better term, like an obvious traffic violation. RAS can take many forms. I’ll list a few.
- a radio “be on the look out” (BOLO) concerning a suspect vehicle in which the vehicle stopped matches the suspect vehicle. Usually this would be a partial description – approximate year, color, type, etc.
- a caller who calls the police about a suspicious vehicle or a vehicle being operated recklessly. The caller MAY give enough information to justify a stop. Otherwise, the LEO who responds may need to develop their own RAS. An anonymous call, BY ITSELF, does not justify a stop based on RAS. Alabama v. White, (1990) http://supreme.justia.com/us/496/325/case.html If the Officer corroborates the information, it may be good enough for a stop.
- Officers can develop RAS based on their observations of specific articulable facts and circumstances that they observe. Their training and experience may make the difference between being legally justified or not. For example, I spent four years working narcotics. During that time, I videotaped, witnessed or participated in thousands of drug deals. Based on that experience, the courts will look at my education and experience when it comes to drug dealing in a different light than they would a rookie office 2 weeks out of the academy. So if I’m driving down the street and I witness what I recognize from my training and experience as a hand to hand drug deal, I may be justified in making a stop based on RAS. A rookie who saw the same thing could not draw on that same experience to articulate the facts necessary to make the stop justified.
Other than RAS, PC is the most common legal justification for a traffic stop. PC in its most common form would probably be the traffic law violation.
So what is PC? In the landmark case Carroll v. United States (1925), SCOTUS defined PC as: "If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed, it is sufficient." http://supreme.justia.com/us/267/132/case.html Clear as mud, huh?
Other types of PC could be:
- a radio “be on the look out” (BOLO) concerning a suspect vehicle in which the vehicle stopped matches the suspect vehicle. This description would have more detail that the RAS version. A license plate, or an Officer may be familiar with the vehicle because he’s dealt with the person/vehicle before.
- After an officer watches an obvious crime in progress
LEGAL ORDERS DURING THE STOP:
Once the Officer has stopped the vehicle, the SCOTUS has said that certain actions on the part of the police are permissible under the 4th Amendment.
- Pennsylvania v. Mimms (1977) – SCOTUS said that an Officer can order a driver out of the vehicle without any other justification other than the concern for the Officer’s safety: “The order to get out of the car, issued after the respondent was lawfully detained, was reasonable, and thus permissible under the Fourth Amendment. The State's proffered justification for such order -- the officer's safety -- is both legitimate and weighty, and the intrusion into respondent's personal liberty occasioned by the order, being, at most, a mere inconvenience, cannot prevail when balanced against legitimate concerns for the officer's safety.” http://supreme.justia.com/us/434/106/case.html Now, you may wonder why I would want to order someone out of a vehicle that I stopped for a license plate light being out or some other simple violation. Well, there are a couple of reasons. I’ve almost been hit while I was standing at somebody’s drivers’ window. If I can’t get to the passenger side window, I may very well order the driver to come back to someplace that’s safer for me. OR, if I stop a vehicle that has seriously darkened window tint, I may order the driver to come back and talk to me.
- Maryland v. Wilson (1997) – the SCOTUS extended Mimms to the passengers of the vehicle as well. They said: “On the public interest side, the same weighty interest in officer safety is present regardless of whether the occupant of the stopped car is a driver, as in Mimms, or a passenger, as here. Indeed, the danger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. On the personal liberty side, the case for passengers is stronger than that for the driver in the sense that there is probable cause to believe that the driver has committed a minor vehicular offense, but there is no such reason to stop or detain passengers. But as a practical matter, passengers are already stopped by virtue of the stop of the vehicle, so that the additional intrusion upon them is minimal.” http://supreme.justia.com/us/519/408/
SEARCHES AND “FRISKS” OF THE VEHICLE:
Now, this is the area which most people want to know about and have the most questions and concerns. The SCOTUS over the course of the last 2+ centuries has determined that there are 13 exceptions to the search warrant requirement afforded by the 4th Amendment. Several apply to traffic stops. They are:
- Stop and frisk
- Vehicle searched based on probable cause
- Incident to arrest
Many people are under the misconception that a “search” of a vehicle requires PC. That not exactly correct. A limited search or “frisk” is permissible without PC under certain circumstances. In the case Michigan v. Long (1983) http://supreme.justia.com/us/463/1032/case.html, the SCOTUS stated that an officer could search the lunge area of the vehicle (passenger compartment) for weapons if there is RAS that there is a weapon readily accessible in it. This decision goes hand in hand with the landmark Terry v. Ohio (1968) http://supreme.justia.com/us/392/1/case.html decision which allows the frisk of a person for weapons based on RAS. The requirements set forth in Terry apply to the Long decision. The Officer must:
- Have articulable facts that the person could be armed
- Limit the search to areas in the vehicle which could readily conceal a weapon (i.e., they couldn’t search a film canister – which is commonly used to carry narcotics)
The Long decision also went on to say that if an Officer finds contraband during a legal “frisk” of the vehicle, they are not required to ignore the contraband (drugs in that case) and that the “frisk” then evolved into a search based on probable cause.
A warrantless search of the vehicle based on probable cause is permissible under the Carroll decision referenced earlier. It is considered an exigent circumstance. In it’s US v. Ross decision http://supreme.justia.com/us/456/798/case.html, the SCOTUS said that a search of a vehicle based on PC can be as thorough as a search conducted with a search warrant. Probable cause can be established by numerous means. Items observed in plain sight, odors sniffed by “plain smell”, the list goes on and on. PC for a stop does not automatically mean there is PC for a search. Like RAS, it can be extremely situation dependent on what equals PC.
A driver who is stopped for a valid reason can give consent to search the vehicle. Consent can be revoked at any time, which means that the person granting consent needs to be in a position to revoke that consent. For example, if the driver of a vehicle grants consent to search the vehicle, then is placed in the back of a patrol car with no Officers staying with him and is not in a position to tell any of the officers that he is withdrawing consent and the officers find something after he tries to revoke the consent, the evidence located should be excluded as “fruit from the poisonous tree”. However, if consent is granted and the Officer finds something that develops probable cause of his own, he no longer needs the consent to search the vehicle. The search has evolved from a consent search to a search based on probable cause.
In it’s decision in the case South Dakota v. Opperman, the SCOTUS said that the administrative inventory of a vehicle prior to towing is not unreasonable: “When vehicles are impounded, police routinely follow caretaking procedures by securing and inventorying the cars' contents. These procedures have been widely sustained as reasonable under the Fourth Amendment.” Most agencies have policies in place regarding the inventorying of a towed vehicle because of this decision. Items found during this inventory can be used against the owner. http://supreme.justia.com/us/428/364/case.html Also see it’s Michigan v. Thomas decision. http://supreme.justia.com/us/458/259/case.html
People on probation or parole give up their 4th Amendment rights most of the time. Probation/parole Officers can search the residence or vehicle of their probationer anytime they wish. Be careful if you have a family member in that situation that wants to live with you. Probation/Parole Officers can search the common areas of a house along with the living quarters of their parolee/probationer. Police Officers do not automatically have permission to search a probationer’s vehicle. We can assist a probation or parole Officer with their search, but we cannot do so of our own accord.
SEARCHES INCIDENT TO ARREST:
In a 2009 decision the SCOTUS drastically changed the rules when it comes to the search of a vehicle incident to the arrest of the driver or occupant. The decision is Arizona v. Gant http://www.law.cornell.edu/supct/html/07-542.ZO.html. Prior to Gant, Officers could search a vehicle incident to the arrest of the driver or passenger, regardless of what the arrest was for (arrested for driving under suspension, search car, find marijuana, charge driver for marijuana). After Gant (I’m making this as simplistic as I can and not going into all the nitty gritty details), an Officer can really only search the vehicle if they can articulate that the vehicle may contain evidence of the crime for which the driver/occupant was arrested. There are some other issues at stake, but they are less important.
I have obviously condensed this topic to its most basic form. I had to, otherwise I’d have to write a whole book on the subject.
So there you go, xpd54’s guide to traffic stop legalities. I’m sure I’ve created as many questions and I have given answers.
About the Author:
Location: Dayton Area
Occupation: LEO, firearms instructor
Interests: 3 gun