Traffic Stops: Search and Seizure

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According to the Bureau of Justice Statistics, traffic stops are how the majority of the population engage with police officers. A traffic stop is not legal unless a violation has taken place (speeding, running a red light, etc.) and a traffic violation alone does not count as probable cause for a search and seizure. An officer must have reasonable suspicion that a criminal activity is going on in order to justify searching you, your car or detaining you.
If you are stopped and there is no probable cause to think you’ve committed a crime (other than the traffic infraction) you do not have to agree to a search of your vehicle. You have this right by virtue of the Fourth Amendment to the U.S. Constitution. Even though a police officer may come at the question friendly enough, “do you mind if I search your vehicle,” remember your right to say no.

Even if a police officer asks a direct or intimidating question like,” “do you have any narcotics in the vehicle,” you can decline a request to search. If there is no probable cause for the officer to search your vehicle (i.e. no reasonable belief that there’s been anything other than a traffic violation) it’s likely any evidence seized won’t be admissible in court. That said, if you are being questioned by the police and remain silent (as is your right), you may be deemed uncooperative and that alone may be deemed “reasonable suspicion.” If that occurs, then that may create probable cause and a right to search.

Probably cause clearly exists if during a routine traffic stop, such as running a stop sign, the police officer observes something like a gun in your front seat, or the smell of an illegal substance, there may be probable cause. In that case, search and seizure would be permitted.

If there is a routine traffic stop and “reasonable suspicion” that a crime has been committed, that can justify a search. What’s reasonable suspicion? That’s where things get dicey. Often it’s the officers gut feel that something is amiss and it’s important to stay calm and tactful so things don’t escalate.
A police officer needs a warrant or probable cause to search, and if it turns out he doesn’t have probable cause, there’s no right to search. If you don’t want to continue to speak to the officer or submit to a search, state tactfully and clearly that you won’t agree to a search, and ask the officer if you’re free to go. If the officer doesn’t allow you leave, then you’re in deeper…..to be continued.

Susan G. Parker, Esq.
sparker@reallifelegal.com


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