When law enforcement agents stop a car, they may simply be intending to write a speeding ticket—or they may be hoping to find evidence of a greater crime. It can be very hard to tell what the officer’s up to, but either way, it’s important to maintain careful control of what you’re saying.1
Even in a routine traffic stop, you can be polite and low-key without babbling. Normally, the first thing an officer says to you, after pulling you over for a vehicular violation is: “Do you know what you just did?” Unless you don’t care about getting a ticket, it’s silly to say, “Oops, I guess I ran a red light.” So don’t make damaging statements. Instead, ask: “Should I get out my license, sir?” To offset the fact that you’re not answering the officer’s question, it’s important to convey respect through your tone of voice and facial expression. An officer who believes you’re being cocky is likely to indulge in unprofessional conduct.
Unfortunately, it’s perfectly legal for an officer to detain you for a minor vehicular violation, in the hope of turning up evidence of some greater crime. This is called a “pretextual stop.” 2 (You can reduce the risk of pretextual stops by driving conservatively and keeping your car “tight”: no missing lights, no loose tailpipe, no overdue registration.) These pretextual stops begin as mere traffic tickets, but can become very serious indeed, for example:
An officer has a hunch that the driver of a certain car has recently purchased illegal drugs, but the officer doesn’t have enough proof to detain or arrest the suspect. So the officer decides to make a pretextual stop and pulls the car over on the basis that the car’s left taillight is broken. The officer checks the driver’s license, starts writing a fix-it ticket, and then asks, “Do you have any drugs in your possession?” The driver says, “No, no way.” The officer smiles and says, “Fine, then you won’t mind if I have a look in the trunk?” The driver replies, “Uh, okay, I guess so.” In the trunk, the officer finds a controlled substance.
The driver in this story did two things wrong. First, when the officer asked whether he had drugs, the driver should have said, I’m going to remain silent. I would like to see a lawyer. Second, the driver should not have agreed to open the trunk; he should have said, “No, I don’t consent to your searching the trunk.” Clearly, the officer was already convinced the driver had drugs—he just didn’t have enough proof to search or arrest. So the officer was trying to get the driver to say or do something that would provide probable cause. That’s why the driver’s best response would have been to refuse to answer questions and refuse to consent to a search—because invoking these rights cannot be used by the officer to justify arrest or search.
Passengers in a car that’s been pulled over should get the officer to say whether or not they’re being detained. When the officer comes up to the car, the passenger should ask, “Am I free to go?” It’s possible that the officer might say “Yes,” in which case the passenger should get out and walk away. More likely, the officer will say, “No, stay in the car.” Making the officer specify this will help the passenger’s lawyer argue that the passenger didn’t voluntarily submit to an investigation. Naturally, the passenger must also say, I’m going to remain silent. I would like to see a lawyer, and then stay silent.
1. Also, remember to stay in your seat and keep your hands on the steering wheel, where the officer can see them.
2. In many instances, pretextual stops have been correlated with racial discrimination, such as detention or arrest for "Driving While Black."
©2007 Katya Komisaruk
Republished by permission from the Just Cause Law Collective
What if Police Say They Smell Marijuana?
Women Sue for Humiliating Vaginal Search From State Troopers (Video)
BUSTED:The Citizen's Guide to Surviving Police Encounters