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TRAFFIC
STOPS: WHAT ARE YOUR RIGHTS?
There was a time, during the civil unrest in this country due to race
riots and anti-war demonstrations, that personal appearance or vehicle
type was enough for an officer to form an opinion about you and stop your
vehicle. Numerous court cases challenged those arbitrary stops and the
tide seemed to be turning for the Constitutional rights of the citizen.
In
our February Newsbrief, we listed three of the cases that helped define
what a legal and Constitutional police stop was:
Beck v. Ohio, 85 S.Ct. 223,225 (1964)
Florida v. Royer, 103 S.Ct. 1319, 1324 (1983)
Lankford v. Gelston, 364 F 2d. 197 (4th. Cir. 1966)
These
cases affirmed the belief that probable cause consisted of facts
indicating that a person had committed or was about to commit an
offense. In our newsbrief, we discussed a case in Minnesota in which a
biker was stopped on his way to Sturgis. The basis for the stop was a
suspected illegal headlamp configuration (on a stock Harley). Although
some contraband was found, the search was deemed illegal in an appeals
court decision due to the fact that the officer had no real probable cause
to stop the biker, and that he used tactics to intice or fool the biker
into thinking he had no choice but to submit to a search.
Our
U.S. Supreme Court, led by the conservative thinking Justice William H.
Rehnquist, has in recent years moved back toward allowing broad and
arbitrary discretionary powers to police. Once again, the color of your
skin, the length of your hair, or even your choice of transportation could
be enough for an officer to suspect you of being guilty of something. This
broadening of police power is supported in three recent cases heard by the
high court.
Whren v. United States, 116 S. Ct. 1769 (1996)
Pretext
stops, stopping for vehicle or traffic offenses when the real reason is to
search for contraband, are not unconstitutional under the Fourth Amendment
guarantees prohibiting unreasonable search and seizure, according to the
U.S. Supreme Court. The officers intent in making the stop is irrelevant.
If he believes a violation has taken place, the stop is valid. Whren
assures that police will be able to stop, based on race, appearance,
transportation or their whim.
Ohio v. Robinette, 117 S. Ct. 417 (1996)
This
case addresses one of the issues brought out in the case of the biker on
his way to Sturgis. He never stated out loud that he objected to a search
of his vehicle, nor did he ask to leave. In Ohio v. Robinette,the
court ruled that the Fourth Amendment does not require that the officer
inform the detained person that they have a right to leave before consent
to a search is recognized as voluntary.
Maryland v. Wilson, No. 95-1268 (Feb. 19, 1997)
This
case affirms that officers can legally order you out of, or off of your
vehicle during a traffic stop. It also goes beyond the authority of a 1977
case, allowing officers to ask the driver of a vehicle to step out of a
car. Wilson allows the officers to also ask
passengers to step out of a vehicle, and to detain them, as well as the
driver.
Officers
may ask for permission to search your vehicle, but you do not have to
consent. In fact, if you do not want to allow a search of your vehicle,
you must vocalize that objection. Simply saying nothing is not the same as
refusing to consent. The same holds true for asking if you are free to
leave. You must ask if your are free to leave, because the officer is not
under any obligation to inform you that you are free to leave.
According
to an article in The Lawyer's Magazine, July 1997, figures on
police searches in South Carolina in 1991 showed that less than 15% of the
4,000-plus vehicles they searched turned up any drugs. It must be
remembered that the officer has discretion to decide whether to pursue the
search or not. He has the option to further detain you, and call for drug
sniffing dogs, for instance. Asserting your right to be free from
unreasonable search (knowing you are innocent and have nothing to hide)
could turn out to be a situation in which you are detained for a long
period of time. The soft spoken, friendly officer, trying to obtain your
permission for a search, could turn into an angry and determined
individual not worried about keeping you on the roadside for an hour or
more.
Random
stops are still not permissable, but the recent court decisions,
especially in Whren, move closer to random stops
becoming a reality. In describing his concerns over this type of stop and
search in the case of the biker in Minnesota, one of the justices hearing
that case, Justice Tomljanovich, stated, "Our decisions in this case
and in Dezo represent what I believe will be an ongoing attempt to come to
grips with the increasing use by state troopers and police officers of
subtle tactics to get motorists and others to consent to searches. It
appears state troopers and police officers are receiving training on
getting consent to search, similar to the training sales people receive in
getting people to agree to buy things they do not want. We are not dealing
with vacuum cleaners in this case but with the liberty and privacy
interests of all the people of the State of Minnesota, and we have an
obligation to ourselves and to the Constitution of this state to do what
we can, in our limited role as a court of last resort, to provide
reasonable protection to those interests."
Hupy and Abraham, S.C. Rights Cards
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