NEWS

Q&Amy: Stopped by police? Your rights and responsibilities

Amy Clarke Burns
aburns@greenvillenews.com

Q: In light of recent events, what is required by law when a police officer stops a motorist? Do I have to show my license, get out of the car, let it be searched?

Amy in short: The case law is dense and the variables many in answering this question, but a little knowledge and some common sense can go a long way in staying within the bounds of the law and the good graces of the police.

A bit more: Particularly in the wake of some high-profile — and tragically ending — police stops, there has been some confusion from the public about what they are or are not allowed to do or not do when stopped by law enforcement.

Some of the answers are clear by law. You are required to pull over at the sign of blue lights. You are required to provide your driver’s license, vehicle registration and proof of insurance upon request. You are required to get out of your car or stay in your car when instructed.

Some issues are less clear-cut. Searches, for example, are especially murky waters.

For starters, drivers are not required to consent to a request for search.

“The difficulty with consent is it’s not always clear to the average driver when an officer is asking for consent and when they are commanding the driver to allow them to search,” said Seth Stoughton, assistant professor at the University of South Carolina School of Law and a former police officer.

“‘Can I see your license and registration, please?’ ‘Can I see your insurance card, please?’ ‘Would you step out of the car for me?’ ‘Would you mind if I search the car?’ All of those sound exactly alike. They all sound like polite commands, but only the last one wasn’t,” he said.

If there’s confusion, it’s OK to ask whether the officer is giving a command or making a request. “They are not allowed to lie and say it’s an order,” he said.

They are also not allowed to view the refusal to search as suspicious in and of itself, but you might expect the officer to continue investigating for probable cause for a search, said Greenville County Sheriff’s Deputy Jonathan Smith. That could include, for example, the use of a police K-9 to sniff for drugs or other contraband.

If you are arrested, you or your car may be searched, both for safety and security (to check for weapons or a handcuff key, for example) and for investigative purposes (to seek evidence of the crime of arrest).

Under the Carroll Doctrine and other case law, there are limitations on those searches, but I haven’t been to school nearly long enough to spell it out in great detail.

“It does get very complicated very quickly,” said Stoughton, whose area of study is police-civilian encounters and the regulation of law enforcement.

“It’s often not enough to just look at the law — what’s required and what isn’t required. You also have to look a lot at what’s allowed, and that depends heavily on discretion,” he said. “Officers have almost unfettered discretion about whether to make an arrest, whether to make a stop, whether to issue a warning or a ticket. A whole bunch of enforcement decisions are left up to an officer’s discretion.”

One of the best ways to stay on the not-in-jail side of that discretion: be polite.

It’s what police officers like Smith and criminal defense attorneys like Mark Foster both recommend.

“Mouthing off to an officer is not against the law. Is it advisable? No,” said Foster, who specializes in DUI and traffic law defense. “You can say what you want, but you have to realize that whether that may or may not be against the law in front of a court, the officer will probably charge you with something and let the court system figure it out down the road.”

In 2008, an estimated 17.7 million Americans said their most recent contact with law enforcement was as a driver in a traffic stop, according to Bureau of Justice statistics. About half of all stops resulted in a traffic ticket.

“People are going to be afraid and nervous. Their adrenaline’s going to be going. They may not be thinking entirely clearly because this is a new situation to them and it’s stressful,” Stoughton said.

Officers, too, are on edge, he said. “They don’t know who they’ve stopped. They don’t know how much risk there is.

“Maybe the single best way to avoid problems is to try to put yourself in the other person’s positions and that’s true for both civilians and officers,” he said.

Here are some do’s and don’ts from the experts to help keep the tension of a traffic stop to a minimum:

•Keep your hands on the steering wheel unless you’re asked to provide something or get out of the car, Smith said. It helps officers feel safer when they can see your hands at all times.

•If you’re stopped at night, turn on your interior light so an officer can easily see inside the car.

•Tell the officer what you’re doing before you do it. “My registration is in my glove box. I’m going to reach into there for it.”

•Keep your cool. “On the side of the road is not the place to argue whether you think you did something wrong or not,” Smith said.

Got a question? Send it to Q&Amy by emailing me at aburns@greenvillenews.com or calling 864-298-3822. You can find me on Twitter at @QandAmyNews.

YOU HAVE THE RIGHT

To remain silent. Defense attorney Mark Foster said stopped drivers can invoke their right to remain silent and their Fifth Amendment right not to incriminate themselves when talking to an officer.

To ask questions. “You’re within your rights to ask the officer why he made the contact with you in the first place,” Foster said. You can also ask if instructions given to you by an officer are requests or commands.

To ask for a supervisor. Greenville County Sheriff’s Deputy Jonathan Smith said drivers who believe they’re being treated unfairly can ask to have a supervisor come to the scene.

To record. “As an individual, you have the right to record a police interaction,” said law professor Seth Stoughton.

To sass, but maybe reconsider. “It’s perfectly legal to be disrespectful or irritated or belligerent with a police officer. Practically, it’s not a very good idea, but it’s perfectly legal,” Stoughton said.