Traffic stops typically occur as a result of suspected moving violations committed by the driver of the vehicle. Passengers cannot be held responsible for the driverâ€™s conduct and are generally free to leave, unless police become suspicious of them during the course of the stop.
Unfortunately, this happens frequently and the amount of evidence required to detain passengers is minimal. For this reason, passengers must remember toÂ refuse search requestsÂ and refrain from answering questions without an attorney present. Police who suspect criminal activity will often separate the occupants of an automobile and question them separately. If their stories differ, this could lead officers to claim that they haveÂ probable causeÂ to prolong the detention or conduct a search.
As with any other brief detention, the best way to handle this situation is to determine if you can leave by askingÂ â€œOfficer, are you detaining me, or am I free to go?â€
While police generally need a warrant to search you or your property â€” during a traffic stop, police only needÂ probable causeÂ to legally search your vehicle. Probable cause means police must have some facts or evidence to believe youâ€™re involved in criminal activity.
In other words, an officerâ€™s hunch without evidence of illegal activity is not enough to legally search your car. Before searching, he must observe something real. Common examples of probable cause include the sight or smell of contraband in plain view or plain smell, or an admission of guilt for a specific crime. The presentation of any of these facts would allow an officer to perform a search and make an arrest.
Be aware that minor traffic violations (e.g. speeding, broken tail-light, or expired registration) areÂ notÂ considered probable cause.
Okay. So how can I keep police from searching my car?
Simply understanding the legal definition of probable cause probably wonâ€™t be enough to prepare you for the pressure and confusion of a real police encounter.
Most police are able to exploit a major loophole to the probable cause search requirement. But by following these basic rules, youâ€™ll be better able to prevent police from tricking you into giving up your your constitutional rights. Youâ€™ll also improve your odds of driving away safely.
Always Be Calm & Cool
If police flag you down, pull over immediately, turn off your car, and place your hands on the wheel. Police like to see your hands for their own safety â€” so wait until they request your paperwork before reaching for it. At night, itâ€™s also a good idea to turn on the dome light, so the officer can see youâ€™re not armed.
Always greet policemen and policewomen as â€œOfficerâ€. For example, you may start off with â€œGood afternoon, Officer. Howâ€™s it going today?â€ Under no circumstances should you ever talk back, raise your voice, or use profanity with a police officer. Being hostile with police is stupid and dangerous. You canâ€™t win that game.
If the officer writes you a ticket, accept it quietly and never complain. Listen to any instruction on paying the fine or contesting the ticket, and drive away slowly.
Remain Silent: What You Donâ€™t Say Canâ€™t Hurt You
Police may try to get you to admit to having broken a law. For example, an officer may ask, â€œDo you know how fast you were going?â€
You may assert yourÂ 5th AmendmentÂ protection against self-incrimination by refusing to admit you might have broken a law. As such, the best answer to that and similar questions is â€œNo, Officer.â€
Because anything you say can and will be used against you in court, the less you say the better. You also donâ€™t want to announce to police that you know your rights. Theyâ€™ll take that as a challenge. Just keep quiet and calm.
You Have the Right to Refuse Search Requests
Police may order the driver and any passengers out of the vehicle. If this happens, step out of the car. If they have reasonable suspicion to detain you, police may frisk the outside of your clothing to check for weapons, but only if they have a basis for suspecting youâ€™re armed.
If police detain and frisk you, you have the right to clearly state your refusal to consent to the search. For example, you may sayÂ â€œOfficer, Iâ€™m not resisting. I do not consent to this search.â€Â But you should only verbally refuse. Never physically resist. Just touching an officer could get you tasered or beaten. You could also get a felony charge for assaulting a police officer.
Whether they frisk you or not, police may ask you a series of questions. They will probably include something like â€œYou donâ€™t mind if I have a look in your car?â€Â Beware of that question: Itâ€™s the legal loophole that the officer wants to snare you in. (ItÂ might even sound like a command, but itâ€™s technically a request.)
In response to such request, you may politely decline by sayingÂ â€œOfficer, I know youâ€™re just doing your job, but I donâ€™t consent to searches.â€Â Some officers may use their authority to make you feel obligated to prove your innocence by asking â€œWhat do you have to hide?â€ Donâ€™t fall for such tricks. If necessary, repeat your refusal.
Remember: TheÂ 4th AmendmentÂ protects your right to refuse search requests, but it doesnâ€™t require police to tell you about your right to refuse.Â In fact, consenting to searches automatically makes them legal in the eyes of the law.Â So if youâ€™re pulled over, donâ€™t try to figure out whether or not the officer has probable cause to legally search you. You always have the right to refuse searches.
Refusing a search request is not an admission of guilt and does not give the officer the legal right to search or detain you. In fact, most avoidable police searches donâ€™t occur because police have probable cause. They occur because people get tricked or intimidated into consenting to search requests.
If police search your car and find illegal items despite your refusal, your lawyer can file a motion to suppress â€” or throw out â€” the evidence in court. If the judge agrees that the officerâ€™s search violated the 4th Amendmentâ€™s probable cause requirements, sheâ€™ll grant the motion. Unless the prosecution has other evidence, your charges would be dismissed.
Determine if Youâ€™re Free to Go
Unless youâ€™re detained or arrested, you may terminate the encounter anytime. But donâ€™t wait for the officer to dismiss you. Ask if youâ€™re free to go.
For example, if an officer threatens to call in a K-9 unit if you refuse a search, you should askÂ â€œOfficer, are you detaining me, or am I free to go?â€
Not only can this line can help withdraw you from an encounter, it also deflects any of the officerâ€™s probing questions or threats. So if an officer says â€œIf you cooperate with me, everything will go easy for you.â€ You may respond by saying eitherÂ â€œOfficer, I donâ€™t consent to any searchesâ€Â orÂ â€œOfficer, am I free to go?â€
If the officer lets you leave, do so immediately. If the officerâ€™s answer is unclear, or if he asks additional questions, persist by repeatingÂ â€œOfficer, am I free to go?â€
Ask for a Lawyer
If you are not free to go, you are being detained. The officer might have some reason to suspect you of a crime, and you may be arrested.
In such a situation, your magic words areÂ â€œIâ€™m going to remain silent. I would like to see a lawyer.â€Â These magic words are like a legal condom. Theyâ€™re your best protection if youâ€™re under arrest.
Never rely on police to inform you of your right to remain silent and see a lawyer. Repeat the magic words as necessary, but say no more. Remember that anything you say can and will be used against you in court.