This is a version of a talk I gave at the National Coalition of Motorcyclists (“NCOM”) meeting on October 15, 2011, in Federal Way, Washington. I spoke about the rights of a person stopped by the police, and the powers the police have to stop people, detain them, and search them. This talk was given to bikers, so I’ve removed some of the more colorful language from this version.
Good morning, folks. My name is Rankin Johnson, and I’m a criminal and appellate lawyer from Portland. I’m here to talk about your rights when the police stop you, for a traffic infraction or anything else. I practice in Oregon only, not here in Washington or anywhere else. But most of what I’m talking about is federal law, especially Fourth Amendment law. Some state laws are better; the Oregon Constitution provides better protection for individuals in most ways than the United States Constitution.
This is a complex area of law; I think it was a one-year course at my law school. But, as I will explain, it is not crucial that you understand the law or police power. If it really matters, hire a lawyer. But usually you don’t need a lawyer, and you don’t need to know if the search was illegal. You just have to understand what to do. And what to do is to is say: “I don’t want to do that, Officer. I don’t want to answer questions. I don’t give you consent to search my bags. Am I free to go?”
As you may know, if the police search you illegally, the evidence can’t be used against you. The risk that evidence will be thrown out of court is supposed to keep the police honest. It sort of works, sometimes. But if a traffic cop searches you illegally and finds your stash, and confiscates it for later use, you aren’t gonna get it back no matter how illegal the search was.
In explaining what you are allowed to do, and what you can be ordered to do, during a traffic stop, it’s easiest to understand if we start by talking about what lawful powers the police have. Encounters between the police and citizens are usually divided into three types: Mere Conversation, Stops, and Arrests.
The police can always walk up to you and talk to you. This is Mere Conversation, and you don’t have to cooperate. You can always refuse to talk to them. You can always tell them to go jump in a lake, and you’re probably allowed to make more pungent suggestions that the police office engage in anatomically improbable acts. That plan, however, entails a certain amount of risk that you’ll spend the night in jail while the police try to locate a copy of the First Amendment to see what it says. It says, among other things, that you can tell the police to go jump in a lake.
The police, if they have “reasonable suspicion” that you have done something wrong, can stop you and ask you about it. A stop is not voluntary; if you don’t stop your motorcycle when the police turn on the flashing lights, that’s an offense all by itself. They can ask for you your driver’s license and insurance. And, while you’re stopped, they can chat with you, about the weather, the baseball scores, and whether you happen to have any drugs or weapons in that car and can they please look for them? Although a stop is not voluntary, it is short; no longer than necessary to do whatever they’re doing, such as investigating the offense of running a red light and giving you a ticket for it.
The police, if they have “probable cause” can arrest you, and, as part of an arrest, they can search you, the motorcycle you were riding, and the stuff within your reach. If they have “probable cause” that they’ll find something incriminating, they can search you.
If they want to search your house and there’s no particular hurry, then probable cause isn’t enough; they need a warrant, which means they have to ask a judge if they can search. Judges tend to say yes, but they don’t always.
But there are lots of exceptions to the search-warrant requirement. One of them is ‘exigency,’ i.e. hurry. If they have probable cause that you have evidence on your motorcycle, then you might drive it away. That means that there’s always a hurry to search for evidence in a vehicle, so they don’t have to get a warrant if they have probable cause.
The police can take reasonable steps to protect their safety. That means that if you’re being threatening, they can check you for weapons. If they don’t find any weapons, but they do find some weed, then you’re in as much trouble as you would think, even if there were no weapons or they thought a flashlight looked like a gun. If it’s disputed later, the police have to be able to convince a judge that they were genuinely concerned for their safety and they acted reasonably in response, but judges aren’t picky about that.
Police powers have very little to do with an individual officer’s motive. If you get stopped for doing 72 in a 65, it doesn’t really matter that you were stopped for riding a motorcycle, or because you’re a patch-holding member of a motorcycle club. It doesn’t matter that I wasn’t stopped, driving my minivan at 75. It might matter if you were stopped because of your race or gender, but even the dumbest cops know better than to admit that that’s why they did it. So, it just doesn’t help much if a traffic infraction is a pretext to stop you and hassle you.
With that backdrop about police powers, it’s a lot easier to understand your rights during the stop, and just as important, what you should do when stopped by the police. When the police stop you, you have a choice to make. You should make it as early as you can, and usually stick with it. Your choices are: cooperate with the police and be polite, or refuse to cooperate and stand on your rights. Cooperating reduces the chance that the police will give you a ticket, especially for something petty. If you were going 72 in a 65, you might just get a warning. If you were going 132 in a 65, don’t bother with the cooperating.
If you decide to cooperate, be polite, say ‘sir’ and ‘ma’am’ (saying sir to a female cop or ma’am to a male cop does not really count as cooperating.) Be careful about what you say: admitting that you went 72 in a 65 is not going to do all that much harm, but admitting that you had two beers will come back to haunt you. (As an aside, everyone says they had two beers. I have read police reports about hundreds of DUII investigations. When the guy is so drunk he can’t sit up straight, and when he has 23 empty beer cans in the car and a case with one beer left and a receipt dated two hours ago when he bought the beer, and an empty bottle of scotch, some of which he spilled on his shirt, he admits to having two beers.)
Even if you’re cooperating, don’t say much, especially not specific facts about what you were just doing. Try to be polite about it, because flatly refusing to answer a question is not very cooperative, but you can use the same kind of evasiveness that you might use with your wife. If the police want to look through your stuff, and if there’s nothing incriminating in there, then letting them will cause some hassle but might save you a ticket.
If you don’t want them to look through your stuff, then good on you. Tell them no. That could be because you have something genuinely incriminating or illegal, but it doesn’t have to be. Carrying a lot of cash will make them suspicious, but it’s not illegal. Maybe you have a legal firearm. Maybe you’ve got little blue pills. Maybe you’ve been on the road for a week and don’t want the cops rooting through your dirty underwear. If you refuse to answer any questions, including how fast you were going or whether you saw the stop sign, it will annoy them. But if you’re going to get a ticket anyway, it won’t make it worse.
So, if you aren’t cooperating, remember your rights. Everybody older than ten can recite the Miranda warnings, right? “You have the right to…” Say them with me. You always have the right to remain silent. If the police officer asks how fast you think you were going, you can refuse to answer. That will annoy the cop, but if you’re going to get a ticket anyway, you can’t make it worse.
Don’t consent to the police searching anything. Police are very good at asking people to do things and suggesting that it is required. Usually it’s not; if the police are ordering you to do something, they’ll be clear about it. If they’re just asking “do you mind if I look in your bags,” then just say no. Say it loudly, and repeat yourself.
Don’t do anything threatening. Don’t grab too quickly at stuff in your pockets, even if you’re just getting a wallet. If you have a firearm in reach, or in view, it’s probably wise to tell them about it, especially if they might see it or if you have a carry permit (which the stopping officer will probably know; they look that up when they run license plates and driver’s licenses.) Remember, the police have a lot of latitude if they say they were frightened. If the 6’2” police officer, with a gun and taser and body-armor, with a backup officer who’s 6’3” with a gun and taser and body armor and a tactical shotgun, tell the judge that they were frightened of a snot-nosed 90-lb. 16-year-old with a leather jacket and a bad attitude, the judge won’t even blink. The judge will believe how frightened they were when the kid made a quick move with his hands so maybe he had an Uzi tucked in his pants and they had to drag him out of the car and search him.
Don’t argue. It won’t help. Trust me. Don’t raise your voice; that gets threatening. Comments about donut consumption or catching the real criminals or how unfair it is that you’re stopped just for being a biker won’t help either, and the police have heard them all before. If you aren’t cooperating, great, but it will go better for you if you’re polite, or at least not aggressive.
I’m no fan of the police, and I think they sometimes shade the truth when they testify about how they find evidence. But I don’t think they often tell clear, unequivocal lies in court. If the cop is going to lie about you, there’s nothing you can do. But if the cop is going to shade the truth but will shy away from lying, then you need to be careful not to let that work. This comes up if the police officer says “You don’t mind if I look in here, do you?” while opening the trunk of the car or looking through a bag or whatever. That isn’t really consent, and it’s not a lawful search, but if the police officer says that the search was consensual, it will probably be good enough for the judge. You need to speak up and say, loud and clear: “I don’t consent. I don’t want you looking in there.”
If the police have the authority to search without your permission, or if they think they do, you can’t stop them. Say clearly that you don’t consent, but otherwise stay out of the way. You don’t have to cooperate in any way, such as producing keys to locked bags, but they can break locks open if they’re allowed to search at all.
There’s a lot of information there, but the most important thing is to remember the basics. The police can force you to stop to let them investigate, but they can’t ever force you to answer questions, and they can’t really force you to consent to a search. A whole lot of police work is based on people not knowing or not asserting the rights that the Founders thought were so important that they put them in the Constitutional. Don’t let them get away with it.
