Tivis Colley Sutherland, IV, Esq.
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|Posted on 27 June, 2012 at 11:26|
One thing that we all have in common is the sinking feeling in our gut that occurs when we notice a Highway Patrol, Sheriff's Department, or City Police cruiser in the rear-view mirror.
Heart and mind begin racing as we glance from the mirror to the speedometer and note we are speeding, if only a little. "Are they following me or just behind me?" Time seems to slow to an agonizing crawl as we change lanes, and the patrol car follows suit. At this point we begin to wonder which is worse, this or water boarding.
Ultimately one of two things happens, the patrol car passes us at an alarmingly incremental rate or the blue lights are activated and life just got complicated.
This is where most people want to crawl into a hole and hide. Government agents know this and take advantage of this dynamic. They have the power; you don't. They have the gun; you don't (even though you should, but that's a tale for another day). Failure to stop for them is a crime in and of itself. They can put you in handcuffs; you don't even know how handcuffs work.
In short, your liberty is at risk. Fortunately for you (although this is certainly the farthest thing from most people's minds) this is where the rubber meets the road constitutionally. You have rights that are meant to offset the power dynamic at play here, and they are non-negotiable.
1. What is the purpose of a traffic stop?
When an officer observes a violation of traffic laws, he has probable cause to stop and detain us. The purpose of the stop is for the officer to issue a traffic citation. The status of our drivers license and insurance coverage is checked, the officer explains the offense and makes a determination as to what manner of citation, if any, that he will issue. The traffic stop is concluded when the officer returns our documentation and issues either a citation or a warning. Let me say that again; THE TRAFFIC STOP IS CONCLUDED WHEN THE OFFICER RETURNS OUR DOCUMENTATION AND ISSUES EITHER A CITATION OR A WARNING.
2. What are my rights?
Why the caps? The sentence certainly appears as mundane as any other sentence in that paragraph but it is highly significant, particularly if we have contraband in the vehicle.
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
That is the text of the Fourth Amendment. Well, what does it mean and what does it have to do with being pulled over for speeding or some other violation?
It actually means what it says; when we are pulled over we are "seized." The "reason" is a violation of traffic laws. If there were no violation of those laws, the "seizure" would be "unreasonable." (There are some minor complexities at play but for our purposes this line of reasoning will suffice).
Once the purpose of the traffic stop is concluded (ticket, warning) any further detention by the government represents a second "seizure," which is prohibited by the Fourth Amendment. The officer needs another "reason" to detain you further.
If, at this point, the officer asks to search your car, he himself is in violation of the law; the supreme law of the land, the Constitution of the United States. Any contraband that he might find as a result of such a search would be inadmissible. (If you have heard of evidence being "thrown out" in the media, this would be an example of same).
3. It can't be that simple
Before we get all wrapped in the flag the next time we are pulled over, there is an issue that must be addressed. Government Agents are human beings (I have difficulty with this proposition... from time to time) and they are as subject to vice and virtue as the rest of us. As such, some cut corners, exaggerate, lie and otherwise play fast and loose with the facts and the law.
Don't be surprised following a refusal to hear the "golden key" which will unlock your trunk, and the rest of your vehicle to inspection. "That's O.K. because I smell a strong odor of marijuana. I don't need your consent because I have probable cause."
Having been enlightened as to your rights in the foregoing paragraphs, this may come as a shock. Well it is true, IF they actually smell marijuana. Often times government agents will search a vehicle without providing any reason whatsoever. Upon finding marijuana they will write in their reports that they smelled a strong odor of marijuana effectively ratifying an unlawful search by lying ex post facto in their report. Then its their word against ours (unless there is video, and even then it remains something of a swearing contest albeit somewhat more favorable to the citizen).
I have been involved in several cases where government agents have made precisely that claim, torn my client's vehicle to shreds, and not found so much as a marijuana seed. In those instances the unlawful conduct of the agents was addressed outside the judicial process. The ultimate goal is discourage the activity, not to ruin the careers of individual officers who had a weak or (perhaps more accurately) nefarious moment. Again, they are human beings like the rest of us, and they have chosen a stressful profession.
I have also been involved in situations where a plainly bogus assertion (plainly bogus to me) of "a strong odor of marijuana" has led to the discovery of substantial contraband or evidence of other major crimes. This presents a somewhat trickier proposition, but such cases are ordinarily resolved to everyone's satisfaction. This being for public consumption I will simply say that everyone throughout the process is a human being, and prosecutors, judges and justices tend towards reluctance when it comes to letting a Ted Bundy or Pablo Escobar walk under such circumstances.
4. What do I do?
Bottom line, never smoke weed in your car. You are asking for the latex glove treatment.
Still, the answer to the question "Mind if I search your car?" is always "Yes I do mind, and no you may not."
If they've got probable cause they will search it anyway. If they concoct probable cause and find nothing, contact me and I will deal with them appropriately. If they have probable cause and find contraband or evidence of a crime, contact me immediately. If they concoct probable cause and find contraband or evidence of a crime, contact me immediately.
In case I was unlcear CONTACT ME IMMEDIATELY if you believe this might apply to your situation.
Categories: Search and Seizure