10 Ways to Outfox Cops That Are Abusing Their Powers to Trick You
10/23/03 US v. PERKINS, No. 02-15891
(11th Cir. October 22, 2003)
Suppression of verbal and physical evidence obtained during a traffic stop for the
issuance of a traffic warning citation is affirmed where the circumstances do not give rise to reasonable suspicion justifying continued detention of defendants after the warning ticket had been issued.
Plain English once he is done writing your ticket that he pulled you over for! Your free to
Just leave! he can not detain you any longer like to wait for a drug dog for an example!
The fourth amendment to the U.S. Constitution limits the powers of the police to perform searches and seizures, requiring that any such search or seizure performed be "reasonable." Generally, satisfaction of this "reasonableness" requirement necessitates that police officers obtain prior judicial approval in the form of an arrest or search warrant before a search or seizure is performed. Recognizing the impracticality of officers obtaining arrest or search warrants prior to every search or seizure, the U.S. Supreme Court has recognized a number of exceptions to the warrant requirement that allow, under certain circumstances, searches and seizures to be reasonably performed without prior judicial approval. Each of these recognized exceptions has its own set of requirements, necessary factual predicates that must be present before the exception applies, and specific limits on the scope of action allowed where no warrant is obtained.
Consequently, the officer contemplating a traffic stop is confronted with a series of questions that must be answered if compliance with the fourth amendment is to be achieved. First, is the contemplated action a "search" or "seizure"? Second, if it is, does an exception to the warrant requirement potentially apply to the contemplated action? Third, where a recognized exception potentially applies, is the required factual predicate present? Finally, is the contemplated action within the scope allowed under the particular exception?
Typically, a traffic stop involves a series of police actions constituting searches and seizures. The car stop described at the beginning of this article provides an example of such a sequence of police actions. The officers stop the car because the driver fails to signal a turn. Once the car is s they see the passenger bend over in his seat, and upon closer scrutiny, observe through the car’s window the open container of malt liquor at the passenger’s feet. Based upon this observation the passenger is arrested. Further inquiry reveals that the driver is underage and unlicensed. This knowledge prompts the issuance of a citation, a neither the unlicensed driver nor the now arrested owner could lawfully drive the car from where it had been stopped, it is also necessary for the officers to impound the car. Pursuant to the impoundment, they perform an inventory of the car’s contents, locating marijuana in the glove compartment. Discovery of the illegal drug prompts a broader search of the car, during which the handgun is discovered. Each new discovery requires the officers to make an assessment regarding what additional actions may be lawfully taken. Any traffic stop may result in a similar progression of discoveries and necessitate decisions of constitutional significance.
THE STOP: INVESTIGATIVE DETENTION
When a police officer, through a show of lawful authority, causes a motorist to stop his car, this action constitutes a seizure of both the motorist and the car. The fourth amendment commands that all such seizures be "reasonable," but decisions of the U.S. Supreme Court make warrant less stops of this sort lawful where an officer is in possession of facts amounting to at least reasonable suspicion that the driver or some other person in the car is engaged in some type of criminal conduct. (As will be discussed in part two of this article, an officer in possession of facts amounting to probable cause to arrest an occupant of a car or probable cause to believe a car contains evidence of a crime is empowered to take significant warrant less actions beyond merely stopping the car).
In United States v. Sharpe, for example, an agent of the Drug Enforcement Administration (DEA) observed a blue pick-up truck with an attached camper shell traveling on a coastal North Carolina highway in tandem with a blue Pontiac Bonneville. The agent made this observation in an area he knew to be frequented by drug traffickers, and he also knew that pick-ups with camper shells were vehicles frequently used to carry large quantities of illicit drugs. Driving an unmarked car, the agent followed the truck and car and noted that the windows of the pick’s camper shell were covered with a quilted material. He also saw that the truck was riding low on its springs in the rear and that the camper did not bounce or sway appreciably when the truck drove over bumps or around curves. These facts caused the agent to conclude that the truck was heavily loaded. The agent followed the two vehicles for about 20 miles and determined that an investigative stop was appropriate. He radioed for assistance, and in response, a marked patrol car of the South Carolina Highway Patrol joined the procession. Within a minute of the appearance of the marked car, the truck and Pontiac turned off the highway onto a road that passed through a campground and accelerated to a speed considerably above the posted limit. In assessing the reasonableness of the investigative stop that followed, the U.S. Supreme Court stated that a finding of reasonable suspicion that the occupants of the two vehicles were engaged in criminal conduct was "abundantly supported" by the facts set forth.
In determining whether reasonable suspicion exists, officers should examine the circumstances before them critically, employing previously acquired knowledge training, and make a common sense assessment. Officers must also be prepared to relate the facts upon which they relied in the likely event that their actions are legally challenged at a time. These demands obviously favor officers who are observant, take careful notes, and who are articulate on the witness stand.
Once an officer has lawfully stopped a vehicle, there are certain actions he may take with no additional factual justification. These authorizations include: (1) ordering the person or persons reasonably suspected of criminal conduct out of the vehicle; (2) asking the driver for his driver’s license and vehicle registration; (3) asking the driver and occupants questions; (4) seeking consent to search the car; (5) locating and examining the vehicle identification number; (6) examining the exterior of the car and portions of the interior that may be viewed without entry; and (7) controlling the car and its occupants for the brief period of time required to accomplish the purpose of the stop.
Ordering Suspects Out of the Car
In Pennsylvania v. Mimms, the U.S. Supreme Court held that whenever a police officer lawfully stops a car for a traffic violation, he may with no additional justification order the driver out of the car. In Mimms two officers of the Philadelphia Police Department stopped Mimms’ car because the license plate displayed upon it had expired. The officers knew no other facts that pointed to any other criminal conduct. One of the officers ordered Mimms to step out of the car and produce his driver’s license and registration card. As Mimms got out the officer noticed a bulge under Mimms’ sports jacket, and fearing that Mimms was armed, performed a pat down search. The discovery of a .38 caliber revolver in Mimms’ waistband was the result. Since the officer’s observation of the bulge under Mimms’ coat was a direct result of his order that Mimms get out of his car, the Court was asked to rule on the reasonableness of this order. Based primarily upon concerns for officer safety, the Court held the order reasonable. Subsequent U.S. Supreme Court cases support the power to order out of a car passengers reasonably suspected of criminal conduct.
Producing Required Documents
Because operating a motor vehicle on public highways is a privilege rather than a right, it is constitutional to require a lawfully stopped driver to produce a driver’s license upon request, the vehicle registration, and other documents required by statute. The acquisition of the information contained in these documents gives an officer important facts to assist him in determining whether he is confronting innocent or criminal conduct. Inconsistencies between documents or between what is found in the documents and what the officer is told by the driver may provide clues to criminal behavior that might otherwise be overlooked. Refusal to produce required documents will almost universally constitute criminal behavior under State statutes. Thus, demand for and examination of required documentation by a police officer is a sound early step in investigating a stopped vehicle and its driver.
A police officer gathering information may also briefly question a stopped car’s driver and other occupants of the car where the car and occupants have been lawfully stopped. The U.S. Supreme Court has made clear that such questioning may take place without any prior Miranda-type warnings, so long as the persons questioned have not been placed under arrest or subjected to arrest-type treatment. This is true even where an officer may have determined that he has lawful grounds for arrest and has decided to effect such an arrest. Despite the fact that no warnings are required, persons being questioned do enjoy a constitutional right not to respond, and although a failure to respond may be taken into consideration as an officer weighs facts in assessing whether probable cause to arrest or search exists, a person’s failure to respond probably cannot constitute in itself a criminal offense, since the person is merely exercising a right guaranteed by the Constitution.
Requesting Consent to Search
An officer who has lawfully stopped a car may request that the person in lawful control of (generally the driver) waive his fourth amendment rights and give his consent to a search of the car. If such a consent is obtained, the officer should be prepared to prove at a later time that the consent was voluntarily given, that the person giving the consent was in lawful control of the items searched, and that the search performed was within the scope of the consent that was given.
Locating and Examining the Vehicle Identification Number (VIN)
Federal regulation requires that cars and trucks sold in the United States be marked with a unique identifying number and that this number be placed in certain specified places on the vehicle. For recently manufactured passenger cars, the number must be displayed on the dashboard so that it may be read outside the car through the windshield. Due to the importance of this unique identifier in the regulation of vehicles that travel on public highways, and a person’s lack of significant privacy interest in what his vehicle’s number might be, the U.S. Supreme Court has recognized the power of an officer who has lawfully stopped a vehicle to locate and examine this number. Included in this power is the authorization, where necessary, to enter the vehicle to reveal the VIN.
Examining the Exterior and Portions of the Interior Exposed to Public View
The fourth amendment does not require officers who approach a lawfully stopped car to wear blinders. The exterior of a car on a public highway is exposed to the public view, and it is unreasonable for a person to expect that a car’s exterior appearance is therefore private. Consequently, an officer’s visual inspection of the exterior of a stopped car does not constitute a "search" for fourth amendment purposes. Portions of the interior that are likewise exposed to the public view due to the placement of windows, etc., are also not private, and an officer’s visual examination of these areas from outside the car is also not a fourth amendment "’search." As a result, officers approaching a lawfully stopped vehicle frequently are exposed to a wealth of information which they may lawfully use for investigative purposes.
In Colorado v. Bannister, an officer approached a car parked in a service station lot that he had observed a short time earlier being driven in excess of the speed limit. When the officer neared the car, the driver and another occupant got out. The officer asked the driver for his driver’s license and also looked inside the car through the window of the driver’s door. The interior of the car was illuminated somewhat by the lights of the service station. In an open cubby in the console between the car’s front bucket seats, the officer saw some chrome lug nuts, and on the floorboard, he saw two lug wrenches. These items caught his eye since he had recently heard a radio broadcast reporting a theft of car parts in the immediate vicinity, and among the stolen items were chrome lug nuts. He then realized that the two occupants of the car matched the description he had heard of the car part thieves, promptly placed them under arrest and entered the car seizing the lug nuts and wrenches. The U.S. Supreme Court held that the officer’s viewing of the lug nuts and wrench through the car window was entirely lawful.
Similarly, in Texas v. Brown, an officer who had stopped a car at a driver’s license checkpoint asked the driver, who remained seated in his car, for his driver’s license. While the driver reached into his pocket, the officer shined a flashlight through the driver’s door window and observed falling from the man’s hand an opaque, un inflated balloon that apparently contained a small quantity of some substance. When the driver then reach into the glove compartment, the officer shifted both his position and the beam of his light so that he could better see the interior of the glove compartment. Illegal drugs were discovered in the balloon and in the glove compartment during a search prompted by the officer’s observation. The Court in its review of the case found the officer’s viewing of the car’s interior lawful.
In United States v. Sharpe, (discussed earlier in this article) where the DEA agent had caused the pick-up truck with the camper shell to be stopped, the agent after being refused consent to search the truck by the driver stepped on the rear of the truck to confirm his suspicions that the truck was loaded to the limits of its springs and put his nose to the back of the camper shell, thereby detecting the odor of marijuana. These investigative actions were held lawful by the Court.
An officer who has lawfully stopped a vehicle should employ his senses to gather information pertinent to his investigation. Information he gathers from outside the vehicle through sight, smell, touch, hearing, and even taste is lawfully available to him for use in determining what additional investigative steps may be lawful under the circumstances.
Controlling the Car and its Occupants for the Period Necessary to Carry Out the Initial Purpose of the Stop
An officer who stops a car for investigative purposes is seeking to quickly determine whether his suspicions are unfounded so that the stop may be terminated, or whether his suspicions are accurate and can be verified so that they may blossom into probable cause to arrest or search. A stop based upon reasonable suspicion may be lawfully maintained for a few minutes, unless the suspicion is more quickly dispelled, so that officers may take the investigative steps previously discussed in this article. During this brief period the officers may maintain the status quo by keeping the car and its occupants where they have been stopped.
Where an officer decides to extend the stop beyond the brief initial period, or to take steps more intrusive than those previously discussed, such as searching or restraining the detained persons or searching the stopped car, he must be prepared to demonstrate additional factual justification for his actions if he is to comply with the Constitution. These greater investigative or protective steps and their required factual predicates are the subject of the conclusion of this article.
Pat-Down Searches of Detained Suspects
In Pennsylvania v. Mimms, officers of the Philadelphia Police Department stopped a car because the license plate displayed on it had expired. The officers ordered the driver from the car and noticed a bulge under his sport coat when he emerged. One of the officers immediately patted the outside of the man’s coat with his hand, felt what he believed to be a revolver, and reached under the coat to remove it. The object the officer had felt was a .38 caliber revolver. This type of pat-down or frisk search was first approved by the U.S. Supreme Court in the case Terry v. Ohio. In order for such a search to be lawfully performed, the officer making the search must know facts that would cause a reasonable person to suspect that the person to be searched is armed and consequently posing a threat to the officer or others.
In Mimms the peculiar appearance of the driver’s outer clothing provided the factual justification for a pat-down search. Other facts that might cause an officer to reasonably suspect that a person he has stopped is armed are almost too numerous to catalog. Officers should weigh the facts in a specific instance and make a quick common sense determination of the legality of a pat-down. They should be prepared at a later time to recount the specific facts that caused them to suspect that the person searched was armed.
It is important also that officers performing a pat-down search restrict their actions to those allowed by this exception to the warrant requirement. The search begins with a pat-down of the person’s outer clothing. It may proceed to an entry into the clothing or removal of the clothing only where the pat-down reveals some item reasonably suspected to be a deadly weapon, or where outer clothing is of a thickness or nature that a pat-down cannot determine whether a weapon may be present. The entry into the clothing can be no more extensive than necessary to locate and remove the suspected weapon for examination. As will be discussed in detail hereafter, an officer who has developed probable cause to arrest a person has much greater latitude in performing a lawful search of that person.
The Vehicular Pat-Down
In Michigan v. Long, two officers patrolling a country road in a squad car late at night saw a car being operated at an excessive speed and in an erratic manner. Before they could stop the car it turned off the road onto a side road and swerved into a ditch. Long, the sole occupant of the car, met the officers at its rear. The driver’s door remained open. Long, after two requests, produced his driver’s license, and after a second request for the vehicle registration, started walking toward the open driver’s door. The officers went along with him and before Long could enter the car they saw a large hunting knife on the vehicle’s floorboard. They halted Long’s motion, and suspecting that he might also have a weapon on his person, performed a pat-down search. They found no weapons. Suspecting that there might be other weapons in the car, one officer shined his flashlight into the interior, saw a pouch protruding from beneath the car’s center armrest, and entered the car and raised the armrest to examine it. The pouch was open and was found to contain marijuana. This discovery prompted Long’s arrest.
In assessing the reasonableness of this warrant less entry and the limited search of Long’s car, the Supreme Court approved the officers’ actions by noting both the factual justification for suspecting the presence of weapons and the circumscribed nature of their search of the car’s interior. The Court held that where officers reasonably suspect the presence of readily accessible deadly weapons in a lawfully stopped vehicle, they may make a limited search of the vehicle’s interior for the purpose of locating and controlling the weapons. In performing such a search, an officer must restrict his examination to those places where readily accessible weapons might be concealed. This authorization presumably would not allow an examination of portions of the car beyond the passenger compartment.
Extending the Duration of the Stop
An investigative detention is different from an arrest in numerous ways, including the permissible duration of the seizure. Since the investigative detention is supported by a factual justification less than probable cause, it must be temporary in nature. For example, suppose an officer holds a car and its occupants in an investigative detention for a period extending beyond a few minutes and has not yet gathered facts amounting to probable cause to arrest or search; the officer must be prepared to show that the extension of time was necessary for legitimate safety reasons or for the completion of logical investigative steps that could reasonably be expected to be accomplished without substantial additional delay.
As the Supreme Court has stated, "In assessing whether a detention is too long in duration to be justified as an investigative stop, we consider it appropriate to examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the [suspect]." Clearly this statement sets no specific time limit on temporary detention. It does, however, emphasize the burden on the officer to demonstrate with facts the reasonableness of his actions.
Arrest of Occupants
Where persons who have been detained are in fact engaged in criminal behavior, the goal of the detention is to gather sufficient facts to justify an arrest. Presuming that the officer has statutory authority to arrest, a legal arrest requires that the officer possess facts at the time of the arrest that would cause a reasonable person to conclude that a crime probably has been committed and that the person arrested probably committed that crime. Once an officer has acquired probable cause to arrest, he may lawfully exercise much greater dominion over the person he has detained. The time limitation associated with investigative detention is no longer applicable so that the officer may hold the person a substantial period of time without concern for constitutional limitations. The officer may also use restraining devices, such as handcuffs, without a need for a specific showing of necessity, and may also relocate the arrestee with no particular showing of need. A full search of the arrestee’s person is also authorized. These expanded powers are available to an officer at the commencement of a stop in the circumstances where an officer already has probable cause to arrest. As a result, a stop for the purpose of making an arrest can be very different at the outset than one that is performed to effect merely an investigative detention. Obviously, it is beneficial for an officer to know at the outset the purpose and justification for a particular stop.
Search Incident to Arrest
In addition to searching the person of an arrestee, officers may perform a search of the passenger compartment of the car as an incident to the arrest of an occupant so long as certain conditions are satisfied. First, the occupant’s arrest must be a lawful, custodial arrest. Second, the search must be contemporaneous with the arrest, commencing no later than the time the arrestee has been placed safely under control. Third, the search must be conducted before the car is moved. Finally, the search must not exceed the scope allowed under this exception to the warrant requirement.
The U.S. Supreme Court marked the boundaries of such a search in New York v. Belton. In Belton, an officer stopped a car because it was being operated in excess of the speed limit. The car was occupied by four men, including Belton. The officer asked the driver for his driver’s license and the car’s registration, and through questioning, learned that none of the occupants were the owner or were related to the owner of the car. During this time the officer smelled the odor of burning marijuana and saw on the floorboard of the car an envelope marked "Supergold," a term he associated with marijuana. He arrested all four men at this point for possession of marijuana and removed them from the car. He then removed the envelope from the floor of the car and found that it indeed contained marijuana. At this point he searched each of the men he had arrested, and then searched the passenger compartment of the car where he found a black leather jacket on the rear seat. In the pocket of the jacket he found cocaine.
In passing on the reasonableness of this search, the Court denoted a "bright line" rule regarding the permissible scope of a search incident to arrest under these circumstances; the Court ruled that officers are constitutionally authorized to perform a full search of the car’s passenger compartment, including a search of any containers found therein whether they are open or closed. Searches of areas beyond the passenger compartment, such as the trunk, and perhaps searches of locked containers located in the passenger compartment require some other justification if the search is to be lawful.
This search authorization is a powerful tool for law enforcement. Its requirements are rigid, however, and delay of the search so that it is not contemporaneous with the arrest, or relocation of the car before the search is performed, will prevent its valid application.
Vehicle Exception Search
Under certain circumstances, officers may make an extensive search of a vehicle located in a public place without a search warrant. The first requirement for making such a search is that the officer possess facts that would cause a reasonable person to conclude that evidence of a crime or contraband is probably concealed in a vehicle. Second, the vehicle must be located in a place to which the officers have lawful access. Finally, the search must be restricted in scope to places where the evidence sought might be concealed (for example, an officer would not be justified in searching a small jewelry box where the item being sought is a shotgun).
An example of such a vehicle exception search is found in United States v. Ross, where officers developed information from a reliable informant that a person named Bandit was selling narcotics kept in the trunk of a car parked at a specific address. The source stated that Bandit had just completed a sale out of the car and had told the source that he had additional narcotics in the trunk. The car was described as a "purplish maroon" Chevrolet Malibu with District of Columbia license plates. Officers immediately drove to the address they had been given, saw a Malibu that matched the description they had been given, but saw no one nearby. To avoid alerting persons on the street, the officers then left the area. Five minutes later they returned and saw the Malibu being driven on the street, saw that the driver matched the description they had been give of Bandit, and stopped the car. The driver was ordered from the car and searched (incident to his arrest), and the interior of the car was searched resulting in the discovery of a pistol in the glove compartment. At this point the trunk of the car was opened, one of the officers located a paper bag, opened it and discovered glassine envelopes containing white powder. The bag was left in the trunk which was then closed, and the car was driven to the police station. There the car was thoroughly searched, and $3200 in cash was located in a zippered leather case. The search of the trunk of the car, the paper bag and the leather case were approved by the Supreme Court as components of a valid vehicle exception search. The search of the bag and pouch were proper because they were both items that could contain narcotics.
Two other aspects of the Ross facts are noteworthy. First, because the officers had probable cause to arrest the driver of the car before the stop began, they had immediate authorization to lawfully take full control of the man from the outset, and to conduct the contemporaneous full search of the passenger compartment incident to the man’s arrest. Second, because the officers had probable cause to believe evidence of a crime was present in the car before the stop commenced, they also had immediate authority to search any place in the car where the evidence sought might be concealed. This search authority is not circumscribed by the rigid contemporaneousness requirement of the search incident to arrest exception so that under the vehicle exception a later search of the passenger compartment (as well as other places where the evidence might be concealed) conducted at a place other than where the stop occurred is still lawful.
Officers are cautioned, however, that possession of probable cause to arrest is no guarantee of probable cause to search. Not infrequently an officer will possess probable cause to arrest an occupant of a car without having any facts indicating that there is evidence of a crime in the car. Under these circumstances, the officer’s search authority will be limited to the contemporaneous search of the passenger compartment incident to the arrest, unless facts amounting to probable cause to search later come to light.
Frequently, for reasons of public safety and to protect the interests of the owner of a car, it is necessary for an officer to impound a car he has stopped. For example, where the car is stopped so that it is obstructing traffic or stopped in a place where it may not be safely parked and the driver has been arrested, the officer must take custody of the vehicle. Under such circumstances, an officer may legally examine the car and its contents so long as certain requirements are satisfied. The justifications for this examination include the need to protect the owner’s property as well as the officer’s interest in locating hazardous items, and also his need to verify what items are present so as to avoid later false claims.
A lawful impoundment inventory requires first that the officer lawfully acquire custody of the vehicle. Consequently, both the legality of the stop and the necessity of taking control of the vehicle must be shown. Second, the officer must show that the inventory was conducted pursuant to a standard, uniformly applied inventory policy. Finally, the officer must show that his examination was within the scope of search allowed, that he restricted his examination to places where valuables or hazardous items might likely be concealed. This logically includes the passenger compartment, glove compartment, trunk, and the contents of any containers found therein.
Plain View Seizures
If during the scope of a lawful search of the types previously discussed an officer comes upon items that he has probable cause to believe are evidence, he may seize these items without a warrant. The officer must be prepared to show that when the item was observed, the officer was lawfully present in a place where he could make the seizure, and that upon observing the item, he had probable cause to believe that the item was subject to seizure.
Officers making traffic stops are confronted with substantial challenges and also with substantial opportunities to lawfully further investigative objectives. To meet these challenges and benefit from the opportunities, officers must have the necessary knowledge to keep their actions within constitutional limits. Such informed restraint will insure the admissibility of any evidence acquired, as well as protect citizens’ legitimate privacy interests.
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