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Reminders for Traffic Stops

WHEN CAN I BE STOPPED?

The Fourth Amendment to the United States Constitution prohibits police officers from seizing people without probable cause. A traffic stop is a seizure under the Fourth Amendment because one’s freedom of movement has been impeded. Traffic stops lawfully can be made by a police officer in uniform and displaying his badge of authority who:

1. Personally witnesses a traffic violation by the driver. Typical examples are exceeding the speed limit, running a red light or stop sign, making an illegal turn, driving erratically (weaving within or outside the lane of travel).
2. Personally observes that the vehicle being driven does not conform to traffic laws or DMV regulations. Typical examples are loud mufflers or blaring radio/stereo set-ups, expired state inspection stickers or license plates, illegally tinted windows, obstructions of view (such as that graduation tassel or pine tree air freshener hanging from the rear view mirror), and faulty headlights, taillights, brake lights or rear license plate light.
3. When a member of a radar speed detail, receives a message from the officer monitoring a radar device that a vehicle passing his position is speeding, or when he receives a report from another officer the vehicle has run a red light.
4. When the vehicle meets the description of one involved in a crime, or the driver has an arrest warrant outstanding, and the officer has been so advised by his radio dispatcher.
   

The above are some examples of what the courts and Virginia law have found to be “reasonable” justifications for a police officer to stop a vehicle. The courts have also found that “sobriety checkpoints” properly conducted are reasonable under the law. If you are stopped, ask the officer why he did so if he does not tell you the reason right away --- you have the right to know.

WHAT ELSE SHOULD I KNOW?

If the officer asks me to step outside the car, should I? Yes. Always be polite and respectful. Be cooperative, to a point. You do not have to obey every request the officer makes, but this is a reasonable and frequent practice for policemen in order to make them feel safe. Remember, the nature of the job places a police officer in potential danger all the time when making a traffic stop --- he or she must consider whether the driver or a passenger has a weapon hidden and intends to use it. Respect that, and do what is reasonable to make the officer feel at ease, and especially, keep your hands in his view.

How long should the traffic stop last? That depends on the particular circumstance. Usually, no longer than 15 to 20 minutes from start to finish, which is long enough to give the officer sufficient time to obtain your registration and license from you, run a computer check on the status of the driver’s license and the vehicle, and issue a citation. This is considered a temporary restraint on one’s freedom and not necessarily a custodial situation. Once the officer returns to you the license and registration (and perhaps a traffic ticket), you are free to leave (unless you are placed under arrest for a crime). If you are not sure, ask if you can leave. If you stay to chat, you are doing so voluntarily and run the risk of saying something that could give the officer reason to extend the stop.

What if the officer asks to search the car, or me? When a policeman searches a car, it is thoroughly searched --- under the seats, between the seats, the consoles, the glovebox, under the floor mats, over the visors, and anywhere else something illegal may be hidden, no matter how big or how small.

Again, the Fourth Amendment protects you from unreasonable warrantless searches. Never consent to a search of your car! While you may not have “anything to hide,” you also do not know whether last week (or last year) a passenger, the guy who washes your car, your mechanic or anyone else with access to it may have accidentally left behind something illegal. If that is the case, then you will likely be placed under arrest and have to do the explaining to the judge.

Same goes for your person. An officer may search you without a search warrant after you have been placed under arrest, or if you give consent to the search. An officer can pat down your outer clothing for weapons if he reasonably fears for his safety, but cannot reach into pockets or clothing unless he feels a weapon.

Don’t I have a right to talk to an attorney when I’m stopped? In general, no; but there is no harm in asking the officer if you may because all he can say is “no.” The right to an attorney attaches once you are “in custody,” that is, not free to leave after a reasonable period of time. Once you are in custody, the right to have an attorney present before you answer questions goes into effect.

If I am stopped for DUI, must I do the field sobriety tests if asked? No, you do not. The officer can arrest you for DUI if he has probable cause to believe you have been operating the car while your driving is impaired by alcohol or drugs. The facts he has available through his observation of your driving before the stop, what you say in response to his questions (“I had a couple of beers,” for instance), and whether he smells alcohol or beer when he talks to you, may prompt him to ask you to take a field sobriety test. But you do not have to do them.

You may also be asked to take a roadside preliminary breath test (PBT), but you do not have to do that either, and the officer should tell you that. While a PBT is not admissible at trial, it can be admitted to show probable cause for the arrest at a preliminary hearing before trial.

Won’t I be arrested if I don’t do what the officer asks? That depends on the circumstances. Field sobriety tests are voluntary, not required. If the officer saw you weaving and that is the basis for the stop; or, if he stopped you for something else but smelled alcohol or beer when he spoke to you, those facts either alone, or in combination, might be, in the officer’s opinion, sufficient probable cause to arrest you for DUI. But while the officer may believe he has probable cause for arrest at that time, he or she still may want to gather further evidence to confirm that by asking you to do field sobriety tests to justify in court his or her decision to arrest.

That is because the officer’s probable cause determination could be wrong, and the arrest illegal. Whether probable cause for arrest is proper or improper is determined ultimately by the judge hearing the case. When you go to court, your attorney may argue that the officer lacked probable cause to arrest you, and if the judge agrees after hearing the evidence, this could result in the charge being dismissed. Therefore, by volunteering to do field sobriety tests a driver is more often than not helping build the officer’s case, and hurting his own chances to prove his innocence.

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