Let's face it. Most of us have encountered police officers in our lives. The most common encounter takes place during a traffic stop. Maybe you got pulled over for a traffic violation. Maybe it turned into something more.
Cops are out on the roads enforcing traffic laws. If a police officer suspects that you have broken a traffic law, they will initiate a stop. In other words, they will pull you over.
Most of the time a traffic stop will lead to a traffic ticket. While traffic tickets are no fun and can cost you hundreds of dollars, they are not criminal violations and are, by and large, no big deal.
However, a traffic stop does give an officer an opportunity to make a lawful contact with you. Whereas a police officer cannot detain you for no reason, when you are suspected of a traffic violation, the officer can lawfully detain you for a brief of period of time. If the officer discovers that there is more to the traffic stop than a simple infraction, he or she may be able to arrest you and charge you with a crime.
A traffic stop occurs in every single DUI
case. Most of the time (unless the accused is alleged to have been weaving or asleep at the wheel), the cop will pull over a DUI suspect due to a traffic violation. Maybe the suspect is speeding or has ran a red light or maybe they have a burnt out tail light. Regardless, so long as the stop is lawful, the officer has a window of opportunity in which to make observations that may lead to your arrest.
For instance, if the officer pulls you over for an expired tag but smells marijuana when he or she approaches the driver-side window, you will likely be arrested for possession of marijuana
. If the officer suspects criminal activity and asks you to consent to a search of your car, you may be charged with a crime depending on what the officer may find. The officer may find a gun (carrying a concealed firearm
) or maybe even a large quantity of pills (trafficking in prescription drugs
Whatever the charge, it all started with a traffic stop.
So that begs the question...what if the traffic stop is not lawful?
Now you're thinking like a criminal defense attorney
. Whenever somebody comes into my office with a legal problem involving a traffic stop, the first thing I think about is whether the stop was legal.
If the stop was illegal, anything discovered as a result of that stop will be inadmissible against you!
If the stop was legal, the I ask myself, "Was the search legal?"
Cops cannot search you and your car for no reason. You are protected against unlawful search and seizure
by the police. Without a warrant, situations in which a police officer may search your car are limited. Of course, if a police officer sees contraband (called the "plain view exception"), then a search of your car is justified without a warrant.
In many situations, a cop will ask, "May I search your car?" If you say "yes," you have waived, or given up, your 4th Amendment right against unlawful search and seizure. Your consent to search negates the officer's requirement that they first obtain a search warrant.
Too many people consent to car searches, in my opinion. Many people become afraid during police encounters, which is quite normal. But your rights are yours to exercise. Don't be afraid to tell a police officer, "No, you cannot search my car."
If they have to ask your permission to search, chances are they do not have the probable cause that they need.
If you refuse to consent to a search of your car but the police officer searches anyway, this is illegal! Tell your criminal lawyer right away so that the appropriate action may be taken.
Be respectful but firm when you tell a police officer that they cannot search your car. Half-hearted answers, mumbles, or shrugs, may lead a cop to believe that you have consented. If a cop asks, "May I search your car?" and you mutter, "Whatever," a cop will almost always take this to mean "yes."
Here are some tips to avoiding problems during traffic stops:
1) Be polite. You don't have to kiss up to the cop, but you should treat them with respect. A few "yes, sir's" or "yes, ma'am's," won't hurt either. Police officers have a very tough and dangerous job where people treat them like crap all day. You'd be surprised how often a cop will let you off with a warning if you treat them properly.
2) Pull over immediately. If you take your time or try to lose them, you will be charged with fleeing and eluding
. This is a felony. You may face a mandatory conviction, the loss of your driver's license, and state prison time. No matter what, pull over.
3) Don't argue with the officer. This logic follows Number 1 pretty closely. Arguing with a cop will get you nowhere. You may be firm in asserting your rights, but do not try to get into a debate with the officer over whether his radar gun was properly calibrated. Sign the ticket (this is not an admission of guilt, by the way, just a promise to appear in court), and hire a ticket lawyer to fight the infraction.
4) Don't admit anything. Anything you say can and will be used against you. If the officer asks, "Do you know how fast you were going?" don't tell him. Your answer is an admission and can be used against you in proving your guilt. The Fifth Amendment protects your right against self-incrimination. Don't ignore the cop, but don't give up information that could hurt you.
5) Don't threaten the cop. Obviously, if you threaten the cop with physical harm you will be arrested and likely beaten to a bloody pulp. That's not what I meant. Some people get uppity and like to threaten to have the officer's job. Nothing infuriates a cop more than that. Every department has a procedure by which you can file a formal complaint against an officer. If you believe that you were treated unfairly or were the victim of police abuse, take note of the officer's name and badge number (it's written on your ticket) and call the officer's police department. Tell them that you would like to make a complaint against an officer and they will guide you in the right direction. Complaints against officers are taken seriously as departments have an interest in preserving a positive image in the community. If you have a legitimate issue, your complaint should be handled professionally.
I practice criminal defense in Miami-Dade County and Broward County. I am a former prosecutor
who once worked for the Miami-Dade State Attorney's Office. If you have a criminal matter involving a traffic stop, contact me
so that we may discuss the possible defenses to your charges.