1 Spring 2010 Road Show Training Maine Chiefs of Police Association LEGAL ISSUES RELATED TO VEHICLE STOPS Brian MacMaster Office of the Attorney General

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Spring 2010 Road Show Spring 2010 Road Show TrainingTraining

Maine Chiefs of Police AssociationMaine Chiefs of Police Association

LEGAL ISSUESLEGAL ISSUESRELATED TORELATED TO

VEHICLE STOPSVEHICLE STOPSBrian MacMasterBrian MacMaster

Office of the Attorney GeneralOffice of the Attorney GeneralState of MaineState of Maine

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Legal Issues Related to Vehicle Legal Issues Related to Vehicle StopsStops

The focus of this training isThe focus of this training is

on the individual vehicle stop on the individual vehicle stop with a few notes on non-with a few notes on non-individualized stops, as in individualized stops, as in

vehicle checkpointsvehicle checkpoints..

Categories of SeizuresCategories of Seizures

Arrest – most intrusive – requires PCArrest – most intrusive – requires PC

Investigatory Detention – brief Investigatory Detention – brief and to the point – requires RASand to the point – requires RAS

Di minimusDi minimus intrusion – requires only intrusion – requires only that the initial seizure be lawful that the initial seizure be lawful

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Individual StopIndividual Stop

A vehicle stop is a seizure of the driver A vehicle stop is a seizure of the driver and passengers in a car.and passengers in a car.

It triggers the Fourth Amendment and It triggers the Fourth Amendment and requires individualized reasonable and requires individualized reasonable and articulable suspicion ofarticulable suspicion of

(1) A violation of law, or(1) A violation of law, or(2) A legitimate public safety concern(2) A legitimate public safety concern

The seizure must be brief and limited to The seizure must be brief and limited to its purpose. its purpose.

Reasonable SuspicionReasonable Suspicion

Suspicion that can be articulated as objectively Suspicion that can be articulated as objectively reasonable.reasonable.

When facts or circumstances the officer knows are such When facts or circumstances the officer knows are such as to cause an ordinary and prudent officer to act or as to cause an ordinary and prudent officer to act or think in a similar way under similar circumstances.think in a similar way under similar circumstances.

It is less than probable cause.It is less than probable cause.

Probable cause is a fair probability – what you believe Probable cause is a fair probability – what you believe is.is.

Reasonable suspicion is what you believe Reasonable suspicion is what you believe may bemay be..

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Vehicle CheckpointVehicle CheckpointIndividualized suspicion not requiredIndividualized suspicion not required

Must not be discriminatoryMust not be discriminatory

Lawful for regulatory situationsLawful for regulatory situationsExamples: OUI, Inspection, Registration, LicenseExamples: OUI, Inspection, Registration, License

Unlawful for detecting criminal Unlawful for detecting criminal activityactivityExample: Drug checkpointsExample: Drug checkpoints

Lawful for information gatheringLawful for information gatheringExample: Homicide, Burglaries, Hit-and-RunExample: Homicide, Burglaries, Hit-and-Run

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Pretextual StopPretextual Stop

Officer’s motivation for stop Officer’s motivation for stop irrelevantirrelevant

Objectively lawful justification is Objectively lawful justification is the test for legality of stop.the test for legality of stop.

Not “would” you stop it, but Not “would” you stop it, but “could” you?“could” you? Example: Officer’s hunch of drug involvement does Example: Officer’s hunch of drug involvement does

not invalidate traffic stop that is otherwise lawful, not invalidate traffic stop that is otherwise lawful, e.g., inoperative tail light.e.g., inoperative tail light.

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Original Purpose of Original Purpose of StopStop

Unlawful to prolong the stop beyond the Unlawful to prolong the stop beyond the purpose of the stop, unless:purpose of the stop, unless:

(1) There is reasonable suspicion (or PC) of another violation (1) There is reasonable suspicion (or PC) of another violation of law, orof law, or

(2) The seizure is terminated and transitions to a consensual (2) The seizure is terminated and transitions to a consensual encounter.encounter.

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Duration of StopDuration of Stop

Duration must be reasonable for Duration must be reasonable for the original purpose of the stop.the original purpose of the stop.

Questions about matters Questions about matters unrelated to original purpose of unrelated to original purpose of stop OK if the stop is not stop OK if the stop is not unnecessarily prolonged.unnecessarily prolonged.

Dog sniff OK even if unrelated to Dog sniff OK even if unrelated to original purpose of stop so long original purpose of stop so long as stop is not prolonged.as stop is not prolonged.

Actions Related to StopActions Related to Stop

Officer SafetyOfficer SafetyLighting InteriorLighting Interior

Opening DoorOpening Door

Exit or Stay InsideExit or Stay Inside

Positioning OccupantsPositioning Occupants

Keep Hands in SightKeep Hands in Sight

Questions re Officer SafetyQuestions re Officer Safety

Frisk of Persons for WeaponsFrisk of Persons for Weapons

Frisk of Vehicle for WeaponsFrisk of Vehicle for Weapons

HandcuffingHandcuffing

Search of VehicleSearch of Vehicle

Plain ViewPlain View

Search for VINSearch for VIN

Search Incident to ArrestSearch Incident to Arrest

Search based on PCSearch based on PC

InventoryInventory

Consent SearchConsent Search

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Officer SafetyOfficer SafetyLighting the InteriorLighting the Interior

Officers who are standing Officers who are standing outside the vehicle may outside the vehicle may use a flashlight or spotlight use a flashlight or spotlight to illuminate the interior.to illuminate the interior.

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Officer SafetyOfficer SafetyOpening DoorOpening Door

If the tinting on a car’s If the tinting on a car’s windows is so dark that an windows is so dark that an officer cannot see the number officer cannot see the number or location of the occupants, or location of the occupants, the officer may open a door the officer may open a door and, without entering, look and, without entering, look inside.inside.

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Officer SafetyOfficer SafetyExit or Stay InsideExit or Stay Inside

An officer may order the An officer may order the driver and any other driver and any other occupants to exit the vehicle occupants to exit the vehicle or stay inside the vehicle. or stay inside the vehicle. The legitimacy of the stop is The legitimacy of the stop is the only required justification.the only required justification.

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Officer SafetyOfficer SafetyPositioning OccupantsPositioning Occupants

If the occupants have been If the occupants have been ordered out of the vehicle, an ordered out of the vehicle, an officer may require them to officer may require them to stand or sit at a certain place, stand or sit at a certain place, either together or separated, if either together or separated, if such an order is reasonable in such an order is reasonable in light of the circumstances.light of the circumstances.

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Officer SafetyOfficer SafetyKeep Hands in SightKeep Hands in Sight

An officer may direct the An officer may direct the driver and any other driver and any other occupants to keep their hands occupants to keep their hands in sight regardless of whether in sight regardless of whether there is reason to believe they there is reason to believe they are armed or dangerous.are armed or dangerous.

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Officer SafetyOfficer SafetyQuestions Regarding Officer Questions Regarding Officer

SafetySafety

An officer may ask questions that An officer may ask questions that are reasonably necessary for the are reasonably necessary for the officer’s safety so long as the officer’s safety so long as the questioning is brief and to the point. questioning is brief and to the point. Concerns about an unduly prolonged Concerns about an unduly prolonged stop will be raised if questions are stop will be raised if questions are farfetched or exploratory beyond farfetched or exploratory beyond legitimate safety inquiries.legitimate safety inquiries.

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Officer SafetyOfficer SafetyFrisk of Persons for WeFrisk of Persons for Weaponsapons

Terry Stop and FriskTerry Stop and Frisk

1. Lawful basis for seizure or 1. Lawful basis for seizure or detentiondetention

2. Reasonable suspicion the 2. Reasonable suspicion the person is armed person is armed andand constitutes a constitutes a potential danger to the officerpotential danger to the officer

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Officer SafetyOfficer SafetyFrisk of Vehicle for WeFrisk of Vehicle for Weaponsapons

Car “frisks” are lawful essentially Car “frisks” are lawful essentially on the same basis as would allow on the same basis as would allow the frisk of a person.the frisk of a person.

1. Vehicle stop is lawful.1. Vehicle stop is lawful.

2. Reasonable suspicion of an easily 2. Reasonable suspicion of an easily accessible weapon in vehicle accessible weapon in vehicle creating situation dangerous to creating situation dangerous to officer.officer.

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Officer SafetyOfficer SafetyHandcuffingHandcuffing

Although seldom necessary, an Although seldom necessary, an officer may handcuff the driver or officer may handcuff the driver or other occupants if there are other occupants if there are circumstances that make it circumstances that make it REASONABLY NECESSARY, e.g., REASONABLY NECESSARY, e.g., person(s) overtly threatening or person(s) overtly threatening or hostile or otherwise not hostile or otherwise not controllable.controllable.

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Search of VehicleSearch of VehiclePlain ViewPlain View

The Plain View Doctrine portends not a The Plain View Doctrine portends not a search, but a seizure based on search, but a seizure based on probable cause.probable cause.

Two requirements:Two requirements:(1) Lawfully present so as to be able (1) Lawfully present so as to be able to physically seize the item for to physically seize the item for whichwhich(2) there is probable cause to (2) there is probable cause to believe is seizable.believe is seizable.

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Search of VehicleSearch of VehicleIncident to ArrestIncident to Arrest

Arizona v. Gant (2009)Arizona v. Gant (2009)

A search of the passenger compartment of a vehicle A search of the passenger compartment of a vehicle

following an arrest is allowed only iffollowing an arrest is allowed only if

(1) the arrestee is unsecured and within reaching (1) the arrestee is unsecured and within reaching

distance of the passenger compartment at the time of distance of the passenger compartment at the time of

the search, orthe search, or

(2) it is reasonable to believe the vehicle contains (2) it is reasonable to believe the vehicle contains

evidence of the offense of arrest.evidence of the offense of arrest.

The search should be contemporaneous with the The search should be contemporaneous with the arrest. arrest.

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Search of VehicleSearch of VehicleIncident to Arrest (cont’d)Incident to Arrest (cont’d)


Any suggestion that the search incident to Any suggestion that the search incident to arrest doctrine is no longer valid is arrest doctrine is no longer valid is incorrect. incorrect. GantGant stands for the proposition stands for the proposition that once the arrestee is secured, a that once the arrestee is secured, a search incident to arrest of the involved search incident to arrest of the involved vehicle is lawful only when there is reason vehicle is lawful only when there is reason to believe that the vehicle holds evidence to believe that the vehicle holds evidence of the underlying crime on which the of the underlying crime on which the arrest is based.arrest is based.

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Search of VehicleSearch of VehicleIncident to Arrest (cont’d)Incident to Arrest (cont’d)


Some officers, wanting to conduct the search Some officers, wanting to conduct the search incident to arrest to which they are accustomed, incident to arrest to which they are accustomed, may decide to leave the suspect unsecured, may decide to leave the suspect unsecured, unhandcuffed, and near the car simply to unhandcuffed, and near the car simply to maintain the legal justification for a search.maintain the legal justification for a search.

Obviously, this is a significant risk to the officer’s Obviously, this is a significant risk to the officer’s safety.safety.

Also, there is a very good possibility that this Also, there is a very good possibility that this would render the search unreasonable in that the would render the search unreasonable in that the officer essentially created the requisite situation officer essentially created the requisite situation by not following appropriate procedures.by not following appropriate procedures.

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Search of VehicleSearch of VehicleVehicle ExceptionVehicle Exception

(Carroll Doctrine)(Carroll Doctrine)

An officer who has probable An officer who has probable cause to believe that contraband cause to believe that contraband or other evidence of a crime is in or other evidence of a crime is in an apparently functioning vehicle an apparently functioning vehicle in a public area may conduct a in a public area may conduct a warrantless search of any part of warrantless search of any part of the vehicle that could contain the vehicle that could contain the object of the search.the object of the search.

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Search of VehicleSearch of VehicleInventory SearchInventory Search

Not a “search” for evidence in the traditional Not a “search” for evidence in the traditional sense.sense.

Protection of owner’s property while in Protection of owner’s property while in police custody.police custody.

Protection of officers against false claims of Protection of officers against false claims of lost, stolen, or damaged property.lost, stolen, or damaged property.

Protection from dangerous instrumentalities.Protection from dangerous instrumentalities.

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Search of VehicleSearch of VehicleInventory Search (cont’d)Inventory Search (cont’d)

Vehicle lawfully in police custody.Vehicle lawfully in police custody.

Agency has policy requiring inventory of Agency has policy requiring inventory of impounded vehicles.impounded vehicles.

Agency practice is consistent.Agency practice is consistent.

Scope is the caretaking purpose; neither the Scope is the caretaking purpose; neither the vehicle nor any container should be unreasonably vehicle nor any container should be unreasonably damaged during an inventory search.damaged during an inventory search.

Inventory search may be challenged as Inventory search may be challenged as pretextual.pretextual.

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Search of VehicleSearch of VehicleConsent to SearchConsent to Search

In order to be valid, the consent must be (1) In order to be valid, the consent must be (1)

obtained from someone who has apparent obtained from someone who has apparent

authority to consent, and (2) the consent authority to consent, and (2) the consent

must be given voluntarily. Voluntariness is must be given voluntarily. Voluntariness is

based on a totality of the circumstances.based on a totality of the circumstances.

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Search of VehicleSearch of VehicleConsent to Search (cont’d)Consent to Search (cont’d)

Extent of search is anywhere in the Extent of search is anywhere in the vehicle that could vehicle that could reasonablyreasonably be be thought to be within the scope of the thought to be within the scope of the consent.consent.

Consent can be limited to certain areas Consent can be limited to certain areas and consent may be withdrawn at any and consent may be withdrawn at any time.time.

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A refusal to consent cannot be used A refusal to consent cannot be used as a factual justification for as a factual justification for reasonable suspicion and/or probable reasonable suspicion and/or probable cause.cause.

A person’s refusal to relinquish a A person’s refusal to relinquish a constitutional right cannot be used as constitutional right cannot be used as a basis of a police action against the a basis of a police action against the person.person.

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Failure to state an objection to a Failure to state an objection to a request to search is not consent.request to search is not consent.

In light of a recent Maine Law In light of a recent Maine Law Court case, it is best to state the Court case, it is best to state the object of the search in the object of the search in the request.request.

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It is risky to ask questions and to seek It is risky to ask questions and to seek

consent to search when neither is related consent to search when neither is related

to the stop. It supports the argument that to the stop. It supports the argument that

the seizure went beyond its original the seizure went beyond its original

purpose and unreasonably prolonged the purpose and unreasonably prolonged the

stop without further reasonable suspicion. stop without further reasonable suspicion.

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If the seizure or detention has If the seizure or detention has

ended and the person is truly free ended and the person is truly free

to leave, an officer may generally to leave, an officer may generally

request consent to search.request consent to search.

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““Free to Leave”Free to Leave”

A person has been “seized” within the A person has been “seized” within the

meaning of the Fourth Amendment if in view meaning of the Fourth Amendment if in view

of all the circumstances surrounding the of all the circumstances surrounding the

incident, a reasonable person would have incident, a reasonable person would have

believed that he was believed that he was not free to leave.not free to leave.

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Illegal DetentionIllegal DetentionIf a person is detained illegally, a consent If a person is detained illegally, a consent to search obtained as a result of the to search obtained as a result of the illegal seizure is subject to suppression as illegal seizure is subject to suppression as fruit of the poisonous tree.fruit of the poisonous tree.

Example: consent to search obtained during a Example: consent to search obtained during a prolonged stop not supported by additional prolonged stop not supported by additional reasonable suspicion.reasonable suspicion.

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Search of VehicleSearch of VehicleVIN SearchVIN Search

An officer may make a limited An officer may make a limited

warrantless search of a vehicle when warrantless search of a vehicle when

necessary to determine its necessary to determine its

ownership, but only if the VIN is not ownership, but only if the VIN is not

visible from outside the vehicle.visible from outside the vehicle.

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Other ConsiderationsOther ConsiderationsSkipping stepsSkipping steps

Follow the required procedures and protocol.Follow the required procedures and protocol.

Documentation, Documentation, DocumentationDocumentation, Documentation, Documentation

Underlying offense need not be proven, but reason for stop does.Underlying offense need not be proven, but reason for stop does.

MirandaMiranda

Generally not required during the limited and brief investigation.Generally not required during the limited and brief investigation.

Requests for identification of passengersRequests for identification of passengers

You can ask, but no requirement to produce unless being cited.You can ask, but no requirement to produce unless being cited.

MDT stopsMDT stops

Registered owner OAS sufficient basis to stop provided observations do not suggest Registered owner OAS sufficient basis to stop provided observations do not suggest driver is not registered owner.driver is not registered owner.

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Search of VehicleSearch of VehicleFinal Note on Consent Final Note on Consent

SearchesSearchesDrug interdiction training has led to today’s Drug interdiction training has led to today’s practice of seeking consent searches during practice of seeking consent searches during vehicle stops. The propriety of seeking a vehicle stops. The propriety of seeking a traffic violator’s consent to search his car or traffic violator’s consent to search his car or other property is currently a hot topic.other property is currently a hot topic.

Although a simple request to search is not Although a simple request to search is not unconstitutional, it is viewed by some as an unconstitutional, it is viewed by some as an abuse of the process, i.e., using a minor abuse of the process, i.e., using a minor traffic violation to create a somewhat traffic violation to create a somewhat intimidating atmosphere in which to seek intimidating atmosphere in which to seek consent.consent.

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SearchesSearchesIn the context of vehicle stops, where the In the context of vehicle stops, where the individual is at the side of the road and individual is at the side of the road and confronted by a uniformed officer seeking to confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch search his or her vehicle, it is not a stretch of the imagination to assume the individual of the imagination to assume the individual feels compelled to consent.feels compelled to consent.

Where there is little or no justification for a Where there is little or no justification for a search, requesting consent is especially search, requesting consent is especially likely to cause concern because it has all the likely to cause concern because it has all the appearances of a fishing expedition or appearances of a fishing expedition or grasping at straws.grasping at straws.

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SearchesSearches

Supreme Courts in some states have determined that requests Supreme Courts in some states have determined that requests for consent to search during traffic stops are only permitted for consent to search during traffic stops are only permitted under state constitutions or state laws if an officer has under state constitutions or state laws if an officer has reasonable suspicion.reasonable suspicion.

While most states follow the U.S. Constitution regarding this While most states follow the U.S. Constitution regarding this type of consent search, any state is free to enact a law that type of consent search, any state is free to enact a law that permits such searches only if there is reasonable suspicion.permits such searches only if there is reasonable suspicion.

Some police agencies in Maine are exploring whether to adopt Some police agencies in Maine are exploring whether to adopt policies that would require an officer to have reasonable policies that would require an officer to have reasonable suspicion before even asking for a consent search in a traffic suspicion before even asking for a consent search in a traffic stop.stop.

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Questions?Questions?

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Documents

1 Spring 2010 Road Show Training Maine Chiefs of Police Association LEGAL ISSUES RELATED TO VEHICLE STOPS Brian MacMaster Office of the Attorney General