Many of us have been there, we are driving along when all of the sudden we spot a law enforcement officer in our rear view mirror. We look at our speedometer, check our mirrors, try to remember if our lights are all working as they should, and then get that touch of anxiety as to whether or not the lights are going to start flashing behind us. If, in your case, the lights do start flashing, it’s important to know the rules that law enforcement officers are required to follow during a traffic stop. In other words, what they can and cannot do.
Probable Cause and Reasonable Suspicion
Law enforcement must have reasonable suspicion/probable cause when taking action. The Fourth Amendment to the Constitution of the United States protects people from unreasonable searches and seizures. Over time, and through decisions made by the Supreme Court, the Fourth Amendment has evolved to mean that you cannot be arrested (seized) without probable cause. Probable cause means that the law enforcement officer had reason to believe that you were about to commit a crime, were in the act of committing a crime, or had committed crime already.
However, the standard for officers to pull you over is not identical to probable cause. In fact, an officer must only have reasonable suspicion, meaning that an officer can stop and briefly detain you if there is reason to believe that you are engaging in criminal activity.
For example, if an officer is behind you in traffic and notices that you are dangerously swerving between lanes as you drive the officer could make a strong argument that they had reasonable suspicion to stop you on suspicion of driving under the influence. Whether or not you are actually under the influence would be determined during the stop (or after), it is simply that your behavior demonstrated that you were possibly engaging in the criminal activity of driving under the influence and therefore the officer has reason to stop you.
What law enforcement officers can and cannot do
If an officer stops you without reasonable suspicion or probable cause they are limited in what they are allowed to do during the traffic stop. These limitations include, but are not limited to:
Asking for identification (such as your driver’s license), vehicle registration and proof of insurance.
Take action if reasonable suspicion or probable cause does exist that you engaged in criminal activity.
There are many acts that a law enforcement officer cannot do if they stop you without reasonable suspicion:
- Search your vehicle without consent. You have the right to refuse a search.
- Detain you longer than what is reasonably necessary for the reason you were stopped.
In these situations it may be difficult to know what you have the right to do or whether or not they have reasonable suspicion, so what can you do? You can ask. Remember that law enforcement needs reasonable suspicion to detain you so you can determine whether or not they do by asking if you are free to go. You can accomplish this by asking the officer “Excuse me officer, are you detaining me or am I free to go?”. If the officer says that you are free to go you can leave immediately without answering any other questions. If the officer indicates that they are detaining you then you have the right to remain silent if you choose to do so. It is generally advised that you remain silent until you’ve had the opportunity to speak with an attorney to determine your best course of action.
When can my person or vehicle be searched?
If the officer can support stopping you with reasonable suspicion the Supreme Court has held that the officer is allowed to conduct a pat down search of you, and your passengers, to determine whether or not any concealed weapons or present. It is not uncommon for an officer to ask you ahead of time if you have any weapons before performing the pat down. They may also ask if you have any sharp objects concealed, such as needles. The Supreme Court has held this decision because they determined that an officer’s safety is a justifiable concern when they are stopping someone who they suspect may have committed a crime.
With probable cause or exigent circumstances the officer has broader freedom when it comes to searching your vehicle. Exigent circumstances relate to circumstances that a reasonable person would believe would be necessary to prevent physical harm to the officers or others involved, the destruction of evidence, the escape of a suspect, or other consequences that may impede law enforcement efforts.
If you are lawfully arrested the officer is allowed to conduct a search “incident to a lawful arrest”. What this means is that a search of the interior of your vehicle incident to arrest is permitted by the constitution if it is conducted while an unsecured arrestee is within reach of the passenger compartment (glove compartment). For example, if you have been lawfully placed under arrest next to your vehicle but you are not handcuffed (unsecured) the officer(s) would be allowed to search the passenger and driver areas of your vehicle including the glove compartment and center console.
Officers may also be allowed to search your car’s interior if they reasonably believe evidence that is related to the offense of the arrest may be within the vehicle. However, they are typically not allowed to search the trunk. However, if following your arrest your car is impounded the police will conduct an inventory search of the vehicle to log the contents of the vehicle. If evidence is found during the search it may be used against you if you are prosecuted for the criminal offense.
With all that said, it is important to also know that a law enforcement officer an conduct a search and seizure without a warrant if they observed criminal conduct or saw evidence that was in plain view.