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September 19, 2018

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NAVIGATING THROUGH THE TRAFFIC STOP MINEFIELD

August 25, 2017

          

 

The sudden flash of red and blue lights accompanied by the startling WHOOP-WHOOP from behind makes even the most innocent of drivers utter four letter prayers.  Given recent media attention and scrutiny from the public, we have seen the concerns of a traffic stop shift from fear of getting a ticket to fear of death.  With those fears running through peoples minds we felt it prudent to create a post regarding what you are legally required to do during a traffic stop versus what to look out for.

 

            First and foremost is the most obvious:  When you see those lights behind you, STOP.  Safely pull over as quickly as possible.  Even if you are only one mile from your destination or a parking lot the last thing you want is some grumpy officer turning a routine traffic stop into an arrest for Resisting without Violence, or worse Fleeing and Eluding, because the officer subjectively felt that you took too long to stop.  If the stop is occurring later in the day or at night, turn on your overhead lights inside the car so as to further deescalate any potential problems.  This will allow the officer to more clearly see in the vehicle, giving no “It was dark and I observed furtive movement” excuses in a police report.

 

            While waiting for the officer to approach the vehicle keep your seat belt buckled and roll down your window.  Wait for the officer to ask for your license and registration before retrieving it.  You are required to provide your true name and provide documentation as to your identity should that information be required for the issuance of a citation or notice to appear.  Providing a false name to an officer when you have been arrested or lawfully detained will earn you a first degree misdemeanor charge.

 

            At this point of the traffic stop a citation is issued and you carefully continue on your way, mumbling curses under your breath at the ridiculous over-inflated fine you just received.  But let us assume there is more to the story and things do not go quite so smooth...

 

            Scenario 1 The officer asks you to step out of the vehicle: 

 

            An officer is permitted to request the driver AND passengers to step out of the vehicle for “officer safety purposes”.  Sometimes these are legitimate safety concerns, other times it is a pretext to give you a pat down or search your vehicle.  Roadside is NOT the time or place to debate or argue the injustices of your case.  The officer is not going to suddenly realize his errors or mistakes and send you on your merry way.  Save these frustrations and arguments for your attorney to make in the courtroom!

 

            In this scenario an officer may conduct a “pat down” for weapons.  This sort of search allows the officer to do just that, “pat down” your person and the passengers persons for weapons.  The officer is NOT permitted to reach into your pockets, bags, or underpants and pull out the contents.  Should this happen remember, roadside is NOT the time or place to argue.  Keep these issues in mind and inform your attorney of everything that occurred during the stop.

 

            Scenario 2 The request to search:

 

            Usually these pat downs and step outs will be followed by requests to search your person and your vehicle.  Your answer should be the same every single time: NO.  You should NEVER consent to a search of your person or your vehicle!  Your consent is NOT going to make the officer think you have nothing to hide nor is it going to earn you good will.  If they are asking to search then they are already looking for any reason they can find to arrest you.  Do not make it easier!  Also if you do consent to what would have otherwise been an illegal search then you just waived any and all ability to challenge that search.

 

            So you have said NO, but now the officer is pushing you for permission.  They are asking you “Why not?”  or “If you don't let me I am going to have to call a dog sniff then”.  Stand strong!  Politely, but firmly, maintain your answer of NO.  If the traffic stop is purposely delayed by the officers beyond the time it would normally take to write up and provide you a citation for the initial stop then any evidence obtained pursuant to a subsequent search could be thrown out!

 

            Should the officer elect to search you and your vehicle regardless of your refusal to consent, remember once more that roadside is NOT the time or place to argue.  The officer has already made up his/her mind as to what they are going to do and if you act in a way they can categorize as “resisting a lawful command” you may just give them a way around their otherwise illegal search.  Save you objections for your attorney!

 

            Scenario 3 Marijuana in the vehicle:

 

            We cannot even begin to tell you how many times we have read the following line in police reports:  “Based on my background, training, and experience I noted the odor of marijuana emitting from the vehicle.”  The reason officers put this in their report is the smell of marijuana provides a police officer with probable cause to search you, your passengers, and your vehicle!  You have a reduced expectation of privacy when in your vehicle compared to when in your house, allowing police officers to get away with searches that would otherwise be unconstitutional if they were at your home.  With that in mind, it should make sense that we continually advise our clients that your vehicle is the absolute worst place you could store your marijuana.

 

            If you absolutely must travel with your marijuana in your vehicle then there are some restrictions you may wish to know about.  First, one location for you to place it is in your trunk.  A vehicle search incident to arrest is limited to the passenger compartment.  However this area of the law is still fresh for argument and the Government looks for any reason it can to bend this in their favor.  For example, if the trunk is accessible from the back seat, the courts have found the search permissible.  Another piece of advice we were told by a K9 officer in the past is, to pick a pun, “The higher the better.”  Most dog sniffs are centered around the lower areas of a vehicle to see if drugs are being smuggled in compartment areas or underneath the seats.  Therefore, the higher in the vehicle it is, the less likely the drug dog is to detect it.

 

            The caveat to that, of course, is if the officer smells it, you and your vehicle will be searched.  Your consent is not required and absent your attorney being able to convince the Judge that the officer really could not identify the smell of marijuana that evidence will be used against you.  Best advice you could follow is also the first:  Do not have it in your car!!!

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