When Are You Free To Leave A Traffic Stop? Police Interaction, Part X
By Benjamin A. Tracy, Columbus Criminal Defense Lawyer and Civil Rights Attorney
This is the tenth part in a series of posts about what legal obligations you have when you interact with the police.
You have been pulled over at the side of the interstate for speeding. The officer who pulled you over is back at his police car writing you a citation. After a few minutes, he walks back to your car, hands you the citation, and returns you license and registration. Then he says, “Do you have anything in the car I should know about? Drugs? Weapons?”
You might wonder what to say.
The BEST answer: Say, “With respect sir, I don’t want to answer your questions. Am I free to go?”
The CORRECT answer: Say nothing.
The WRONG reaction: Tell him you have nothing to hide and that he can search the car if he wants.
It is absolutely flabbergasting how many people will have the WRONG reaction in this situation. I have personally encountered dozens of cases where people who know perfectly well they have drugs or guns or something they should not have, consent to a search anyway. In fact, according to the Department of Justice, in 2008 (the most recent year for which statistics were collected) 57.7% of people who were searched during a traffic stop consented to a search of their body, 60.0% consented to a search of their vehicle, and 50.8% consented to both a search of their body and vehicle. See U.S. Department of Justice: Bureau of Justice Statistics, Contacts between Police and the Public, 2008, at 10 (2008), http://bjs.ojp.usdoj.gov/content/pub/pdf/cpp08.pdf. Do not make the same mistake all these folks are making.
There are several reasons the WRONG reaction is tempting. First, the officer is not obligated to (and therefore usually will not) tell you that you have a right to refuse the search. You just have to know your rights and remember them when he asks. Second, the officer will often phrase that request in a way that makes it tricky to refuse. For instance, he may say, “May I see your license please?” (This is a legal demand and may not be refused.) Then he may say, “Would you please step out of the car?” (This is also a legal demand and cannot be refused.) Then he may say something like, “May I search the car?” This is not a demand but a request, and it may and should be refused. However, since it comes after a string of questions to which you are forced to agree, it may be irrationally hard to say “no” when the officer asks to search. Finally, many people assume that if an officer is asking to search, he probably will, whether you give consent or not and it is better not to annoy him. This is just wrong. There are many honest police officers on the job who know the law, respect the Constitution, and will not illegally search you without permission. But most importantly, if you are searched illegally and have not given consent, the search can later be challenged in court and the evidence excluded. If you give consent, it is legal and you cannot challenge the search later. So you should never consent to a search.
Obviously, we can figure out why the WRONG answer is WRONG if you have a kilo of cocaine or two-hundred pounds of marijuana in the trunk. The police will find it, and since you have consented to the search, it will be admissible as evidence and will be used against you in court. But what if you really do have nothing to hide?
Even if you have nothing to hide you still should not let an officer search. There are several reasons for this: First, you may have something to hide even if you don’t know it. That is, there are laws against things that you may not know are illegal. For instance, an elderly acquaintance was very surprised when I told her that sharing prescriptions was illegal and has the potential, depending on the type of drug and amount, to result in felony convictions. It’s not the best time to find out about something like this when an officer puts handcuffs on you. Second, you may not know what you have in your car. If the car is a rental, if you bought it used, if anyone besides you has ever been in the car or used the car, there may be things hidden in it somewhere that you do not know about. You do not want to be in the position of trying to deny that a baggie of marijuana stuffed inside the door panel of your car is not yours. Third, although it is quite rare, it is not completely unheard-of for police officers to plant evidence. Searching gives dishonest officers an easy opportunity. Since you do not know if you are dealing with an honest or dishonest officer you should not take the risk. Fourth, if you consent to the search, then they will probably search. Searches take time, and the more time you spend around the police talking with them, the more likely it is that they will discover something illegal or you will slip and say something you shouldn’t. The police are great when you are having a problem and they come to help you. But if a police officer is asking to search you, it is not because he wants to help you – it is because he thinks you did something wrong or have something to hide. He wants to find something.
It is also worth noting that there is an even worse WRONG answer in this scenario. You could admit that you have drugs or something else you shouldn’t. If you admit you have something, you will have given the officer probable cause to search. He will search. He will find it. And both what he finds and the admission you made to him will be used against you in court. You should never lie to the police, but you should never admit anything either. When in doubt, stay silent.
Let’s look at the BEST and CORRECT answers now. At the point where the officer handed you the ticket and your license, the traffic stop was over. That is, the officer pulled you over for a traffic violation, and now he has done everything that he needs to do relating to that violation and he has no more reason to hold you. So you do not have to answer any questions and you do not have to stay at the side of the road for one more second if you do not want to. Thus, the technically CORRECT answer is that you could just remain silent and drive-away. But if the officer (albeit wrongly) thinks he still has a reason to detain you, he may react by chasing you and that would not be good for you. So the safer and BEST choice is to tell him you do not consent to any searches, you do not want to answer any questions, and you want to leave. Because the traffic stop is over, he should let you. And if he does not, at least now you have made it clear that you do not consent to anything he may illegally decide to do. This will make it much easier to challenge the officer’s conduct in court later if it comes to that.
If you are under investigation, or have been arrested by any Columbus law enforcement agency, feel free to contact one of our experienced Columbus Criminal Defense Attorneys, for a free initial consultation about your legal rights and possible defenses.