Practice Areas

Blog

Legal News

Library

Understanding Virginia Police Procedures: Traffic Cases: Part 2

Rarely, though more frequently than one would imagine, traffic stops are made on hunches. These are known as “pretext stops,” and are illegal. The officer’s malevolence in making the stop is irrelevant though if there was an objective basis for doing so. If a traffic stop is shown to be based on pretext, and hence, illegal, nothing that results from it is valid, or admissible as proof in court. Therefore, one of the first things a lawyer defending a client facing charges as a result of a traffic stop is determining whether the stop was justified, or illegal.

In order to make valid traffic stops, the officer must have some justification for doing so. The justification need not rise to the level of probable cause, but except in certain, limited situations defined by statute, from his personal observation the officer must possess “reasonable, articulable suspicion of illegal activity” before making the stop. Violation of a state motor vehicle statute is not required, but violation of a local statute or ordinance is justification. For example, traffic stops have been justified when the basis for it was as innocuous as a non-working rear license plate light, an expired state inspection sticker, loud exhaust, loud music from the radio or stereo system, or that tassel from your high school graduation mortarboard or the pine tree car deodorizer you like to hang from the rearview mirror.

When a police officer effects a traffic stop, the very first thing he should explain to you is why he has interfered with your travel. The reason is simple. The Fourth Amendment to the United States Constitution prohibits state agents from “seizing” a person without a warrant or without probable cause. When you are stopped by law enforcement, you are entitled to know the reason. If you are not satisfied with the reason for the stop, you are perfectly correct and within your rights to ask the officer if you are free to leave. And you should ask that question! You do not need to stay unless the officer tells you not to leave; that is, that you are not free to go. At that point in time, at minimum, you have been detained, and certain rights may have attached – none of which is the officer likely to volunteer to tell you until he is ready!

There is a long line of United States Supreme Court and Virginia Supreme Court decisions where more serious consequences were at stake following a traffic stop than the issuance of a citation. In those cases the learned judges have emphasized that by remaining and talking to the arresting officer rather than walk or drive away, the appellant engaged in a “voluntary police-citizen encounter” and not a Fourth Amendment seizure. The implication being, of course, that every person knows or should know this!! Well, how many of you, your family, and friends regularly read the reported case decisions of the state and federal supreme courts??? Very few newspapers and television news programs report changes in the law and court decisions with depth and precision, and the general public is less informed about its civil rights than the appellate courts presume.

Well, you may ask, what if the officer tells me he is not seizing me, that I am not under arrest, and that he just wants to talk to me; but I ended up under arrest anyway because he said he “saw something” in the car that he could arrest me for and wanted me to explain it.

First of all, the police officer is not the judge of whether a seizure has occurred. Again, if you are not sure if you are free to leave or not, ask the officer! If you are subsequently arrested, and your attorney challenges the admissibility or use of any statements you made to the officer, a judge will determine whether you were “seized” or not, and whether or not your rights were adequately protected.

As you will recall from Part 1 of this series, police officers making a traffic stop are trained to use the opportunity to “be alert to and discover other criminal activity” that the stop may reveal. They practice this every time they stop a car. Therefore take these steps to protect yourself:

1. Be courteous and polite to the officer – don’t be argumentative, the officer is doing his or her job – but remember, he does not have your best interests at heart most of the time, so be wary of any questions asked or requests made.

2. Do not extend the length of the stop by “chit-chatting” with the officer – a traffic stop should not last longer than 15 minutes; if it goes any longer, be more alert. If you are not sure if you are free to go after your license and registration has been returned to you, ask the officer.

3. If you are arrested as a result, as soon as possible, WRITE DOWN EVERYTHING THAT HAPPENED so your attorney will know what defenses he can raise.

4. Know your rights in a traffic stop, and do not hesitate to invoke them – if not sure what to do, ask to speak to an attorney and don’t answer any questions until you do talk to one. You will likely be arrested on the spot, but your silence may prove to be the difference in how the arrest is played out.

Free Reports

Free Case Evaluation

FAQs