Let’s look at some typical situations and discuss whether or not, as a matter of law, they constitute a search or a seizure.
You are driving on a city street or a highway and make a lane change without proper signaling or are slightly over the posted speed limit. In your rear view mirror you notice the familiar red and blue flashing lights. You take a breath and then pull to the side of the roadway. The officer approaches your car and asks for your license and insurance verification, which you dutifully provide through your rolled down window. At this point in time you have been legally seized. Your acceptance of his apparent authority to stop you is your submission to the seizure. What can the officer do at this point legally? Can he remove you from your vehicle? Can he put you in his car? Can he search your car? The answer to the first two questions is an unqualified yes, he may do both of those things. Further, while he has you in his car he may ask you questions about your travels, your plans, your hurry, your life. These are all fine, so long as he does not extend the stop to do so. He will call for information regarding your license validity and whether you have any wants, warrants or other issues which pose a potential hazard to him personally. But can he search your car? Not on the facts we have here so far. Assuming your license is valid and you have no other detainable issues, he should issue you either a citation or a warning and let you go. Now is where the situation changes. Once you have received all of your documents back – you are free to go. Thank him/her get out of the car and leave. Legally you are no longer seized and if you stay it is of your choice – that is, it is voluntary. Do not engage in any attempt at “small talk” with the officer at this time. This is where the average person gets lost. The officer is looking to get you to consent to a search because he lacks probable cause to do it on his own. The officer has no legal basis for continuing this seizure, is aware of that deficiency and wants you to provide it for him. Remember this is not about whether you have anything to hide, this is about letting the government agent (police officer) rummage through your personal effects to his satisfaction. It is about surrendering your right to “be let alone” at this point.
Sometimes the officer will “up the ante” when a person declines the request to search. This is done generally by threatening to “bring the drug dog” to sniff your car. Implicit in this is the dog will alert to your car because you are hiding drugs. Or at a minimum your stop will be further delayed until a drug dog can be located and brought to the scene. These are ploys nothing more. Legally, the officer cannot extend the stop to have a dog brought to the scene. As this situation usually happens after you have declined permission to search; your declination cannot be used as a cause to search your car. In fact (and law), once the reason for the traffic stop is concluded the officer cannot even get a dog out of his own vehicle and do a “free air sniff” around your car if that in any degree extends your seizure. Some of you probably noticed that I did not say let the dog search. Dogs legally do not do searches they do “free air sniffs” to alert to the presence of contraband. This “alert” then provides the officer the probable cause for him to search your car. Like the old drug slogan, when asked about searching your car, “Just say No” and leave.
One more point to be made about this. Do not equivocate. State clearly, politely and directly, “I do not consent to a search of my vehicle, unless I am under arrest I am leaving.” I have seen cases where people refused and then stayed to muck up their refusal. Don’t second guess the officer. Don’t say “Well your gonna do what you want.” That opens the door to a search and is not a refusal.
I have spent a considerable amount of time dealing with traffic stops mainly because this is an area which is most rife with seizure and search issues. There are many gray areas and you as a citizen must be fully informed to place you on a level field with the officer. He will not tell you what your rights are nor what legally you can do to thwart his intent. That is your responsibility not his.
Many years ago the Supreme Court announced what is called the “automobile exception” to the 4th Amendment. Essentially, the High Court found that because the automobile was indeed mobile certain rules could be somewhat relaxed regarding searches. Mainly this has been in the need to secure a warrant prior to conducting a search. In 1982, the Supreme Court held that an officer could search a car as thoroughly without a warrant as he could with a warrant, if he believed he had probable cause to do so. If the officer found “contraband” then that suspicion was
confirmed. Surprisingly, that justification is rarely used by the police. Once that assertion is made and the search conducted, if it leads to a custodial arrest then the officer will be required to explain that thinking to a lawyer in a later hearing. It is just easier to get consent.
In these posts I hope to provide you with some basis for understanding the criminal justice system. I do not do this as your legal counsel or in any way to act as your representative. However, this information is intended to help you navigate any contacts which you may encounter with law enforcement. Your first choice should, as I have stated previously, be to retain competent counsel at that time.
As always these are your rights, use them or lose them.