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Spring 2010 Road Show Training Maine Chiefs of Police Association. LEGAL ISSUES RELATED TO VEHICLE STOPS Brian MacMaster Office of the Attorney General State of Maine. Legal Issues Related to Vehicle Stops. The focus of this training is
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Office of the Attorney General
State of Maine
The focus of this training is
on the individual vehicle stop with a few notes on non-individualized stops, as in vehicle checkpoints.
A vehicle stop is a seizure of the driver and passengers in a car.
It triggers the Fourth Amendment and requires individualized reasonable and articulable suspicion of
(1) A violation of law, or
(2) A legitimate public safety concern
The seizure must be brief and limited to its purpose.
Suspicion that can be articulated as objectively reasonable.
When facts or circumstances the officer knows are such as to cause an ordinary and prudent officer to act or think in a similar way under similar circumstances.
It is less than probable cause.
Probable cause is a fair probability – what you believe is.
Reasonable suspicion is what you believe may be.
Individualized suspicion not required
Must not be discriminatory
Lawful for regulatory situations
Examples: OUI, Inspection, Registration, License
Unlawful for detecting criminal activity
Example: Drug checkpoints
Lawful for information gathering
Example: Homicide, Burglaries, Hit-and-Run
Officer’s motivation for stop irrelevant
Objectively lawful justification is the test for legality of stop.
Not “would” you stop it, but “could” you?
Unlawful to prolong the stop beyond the purpose of the stop, unless:
(1) There is reasonable suspicion (or PC) of another violation of law, or
(2) The seizure is terminated and transitions to a consensual encounter.
Duration must be reasonable for the original purpose of the stop.
Questions about matters unrelated to original purpose of stop OK if the stop is not unnecessarily prolonged.
Dog sniff OK even if unrelated to original purpose of stop so long as stop is not prolonged.
Search of Vehicle
Search for VIN
Search Incident to Arrest
Search based on PC
Exit or Stay Inside
Keep Hands in Sight
Questions re Officer Safety
Frisk of Persons for Weapons
Frisk of Vehicle for Weapons
Officers who are standing outside the vehicle may use a flashlight or spotlight to illuminate the interior.
If the tinting on a car’s windows is so dark that an officer cannot see the number or location of the occupants, the officer may open a door and, without entering, look inside.
An officer may order the driver and any other occupants to exit the vehicle or stay inside the vehicle. The legitimacy of the stop is the only required justification.
If the occupants have been ordered out of the vehicle, an officer may require them to stand or sit at a certain place, either together or separated, if such an order is reasonable in light of the circumstances.
An officer may direct the driver and any other occupants to keep their hands in sight regardless of whether there is reason to believe they are armed or dangerous.
An officer may ask questions that are reasonably necessary for the officer’s safety so long as the questioning is brief and to the point. Concerns about an unduly prolonged stop will be raised if questions are farfetched or exploratory beyond legitimate safety inquiries.
Terry Stop and Frisk
1. Lawful basis for seizure or detention
2. Reasonable suspicion the person is armed and constitutes a potential danger to the officer
Car “frisks” are lawful essentially on the same basis as would allow the frisk of a person.
1. Vehicle stop is lawful.
2. Reasonable suspicion of an easily accessible weapon in vehicle creating situation dangerous to officer.
Although seldom necessary, an officer may handcuff the driver or other occupants if there are circumstances that make it REASONABLY NECESSARY, e.g., person(s) overtly threatening or hostile or otherwise not controllable.
The Plain View Doctrine portends not a search, but a seizure based on probable cause.
(1) Lawfully present so as to be able to physically seize the item for which
(2) there is probable cause to believe is seizable.
A search of the passenger compartment of a vehicle following an arrest is allowed only if
(1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, or
(2) it is reasonable to believe the vehicle contains evidence of the offense of arrest.
The search should be contemporaneous with the arrest.
Any suggestion that the search incident to arrest doctrine is no longer valid is incorrect. Gant stands for the proposition that once the arrestee is secured, a search incident to arrest of the involved vehicle is lawful only when there is reason to believe that the vehicle holds evidence of the underlying crime on which the arrest is based.
Some officers, wanting to conduct the search incident to arrest to which they are accustomed, may decide to leave the suspect unsecured, unhandcuffed, and near the car simply to maintain the legal justification for a search.
Obviously, this is a significant risk to the officer’s safety.
Also, there is a very good possibility that this would render the search unreasonable in that the officer essentially created the requisite situation by not following appropriate procedures.
An officer who has probable cause to believe that contraband or other evidence of a crime is in an apparently functioning vehicle in a public area may conduct a warrantless search of any part of the vehicle that could contain the object of the search.
Not a “search” for evidence in the traditional sense.
Protection of owner’s property while in police custody.
Protection of officers against false claims of lost, stolen, or damaged property.
Protection from dangerous instrumentalities.
Vehicle lawfully in police custody.
Agency has policy requiring inventory of impounded vehicles.
Agency practice is consistent.
Scope is the caretaking purpose; neither the vehicle nor any container should be unreasonably damaged during an inventory search.
Inventory search may be challenged as pretextual.
In order to be valid, the consent must be (1) obtained from someone who has apparent authority to consent, and (2) the consent must be given voluntarily. Voluntariness is based on a totality of the circumstances.
Extent of search is anywhere in the vehicle that could reasonably be thought to be within the scope of the consent.
Consent can be limited to certain areas and consent may be withdrawn at any time.
A refusal to consent cannot be used as a factual justification for reasonable suspicion and/or probable cause.
A person’s refusal to relinquish a constitutional right cannot be used as a basis of a police action against the person.
Failure to state an objection to a request to search is not consent.
In light of a recent Maine Law Court case, it is best to state the object of the search in the request.
It is risky to ask questions and to seek consent to search when neither is related to the stop. It supports the argument that the seizure went beyond its original purpose and unreasonably prolonged the stop without further reasonable suspicion.
If the seizure or detention has ended and the person is truly free to leave, an officer may generally request consent to search.
“Free to Leave”
A person has been “seized” within the meaning of the Fourth Amendment if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.
If a person is detained illegally, a consent to search obtained as a result of the illegal seizure is subject to suppression as fruit of the poisonous tree.
Example: consent to search obtained during a prolonged stop not supported by additional reasonable suspicion.
An officer may make a limited warrantless search of a vehicle when necessary to determine its ownership, but only if the VIN is not visible from outside the vehicle.
Follow the required procedures and protocol.
Documentation, Documentation, Documentation
Underlying offense need not be proven, but reason for stop does.
Generally not required during the limited and brief investigation.
Requests for identification of passengers
You can ask, but no requirement to produce unless being cited.
Registered owner OAS sufficient basis to stop provided observations do not suggest driver is not registered owner.
Drug interdiction training has led to today’s practice of seeking consent searches during vehicle stops. The propriety of seeking a traffic violator’s consent to search his car or other property is currently a hot topic.
Although a simple request to search is not unconstitutional, it is viewed by some as an abuse of the process, i.e., using a minor traffic violation to create a somewhat intimidating atmosphere in which to seek consent.
In the context of vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume the individual feels compelled to consent.
Where there is little or no justification for a search, requesting consent is especially likely to cause concern because it has all the appearances of a fishing expedition or grasping at straws.
Supreme Courts in some states have determined that requests for consent to search during traffic stops are only permitted under state constitutions or state laws if an officer has reasonable suspicion.
While most states follow the U.S. Constitution regarding this type of consent search, any state is free to enact a law that permits such searches only if there is reasonable suspicion.
Some police agencies in Maine are exploring whether to adopt policies that would require an officer to have reasonable suspicion before even asking for a consent search in a traffic stop.