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

2 Legal Issues Related to Vehicle Stops The focus of this training is on the individual vehicle stop with a few notes on non-individualized stops, as in vehicle checkpoints.

Categories of Seizures Arrest – most intrusive – requires PC Arrest – most intrusive – requires PC Investigatory Detention – brief and to the point – requires RAS Investigatory Detention – brief and to the point – requires RAS Di minimus intrusion – requires only that the initial seizure be lawful Di minimus intrusion – requires only that the initial seizure be lawful 3

4 Individual Stop A vehicle stop is a seizure of the driver and passengers in a car. It triggers the Fourth Amendment and requires individualized reasonable and articulable suspicion of (1) A violation of law, or (2) A legitimate public safety concern The seizure must be brief and limited to its purpose.

Reasonable Suspicion Suspicion that can be articulated as objectively reasonable. When facts or circumstances the officer knows are such as to cause an ordinary and prudent officer to act or think in a similar way under similar circumstances. It is less than probable cause. Probable cause is a fair probability – what you believe is. Reasonable suspicion is what you believe may be. 5

6 Vehicle Checkpoint Individualized suspicion not required Must not be discriminatory Lawful for regulatory situations Examples: OUI, Inspection, Registration, License Unlawful for detecting criminal activity Example: Drug checkpoints Lawful for information gathering Example: Homicide, Burglaries, Hit-and-Run

7 Pretextual Stop Officer’s motivation for stop irrelevant Objectively lawful justification is the test for legality of stop. Not “would” you stop it, but “could” you? Example: Officer’s hunch of drug involvement does not invalidate traffic stop that is otherwise lawful, e.g., inoperative tail light. Example: Officer’s hunch of drug involvement does not invalidate traffic stop that is otherwise lawful, e.g., inoperative tail light.

8 Original Purpose of Stop Unlawful to prolong the stop beyond the purpose of the stop, unless: (1) There is reasonable suspicion (or PC) of another violation of law, or (2) The seizure is terminated and transitions to a consensual encounter.

9 Duration of Stop Duration must be reasonable for the original purpose of the stop. Questions about matters unrelated to original purpose of stop OK if the stop is not unnecessarily prolonged. Dog sniff OK even if unrelated to original purpose of stop so long as stop is not prolonged.

Actions Related to Stop Officer Safety Lighting Interior Opening Door Exit or Stay Inside Positioning Occupants Keep Hands in Sight Questions re Officer Safety Frisk of Persons for Weapons Frisk of Vehicle for Weapons Handcuffing Search of Vehicle Plain View Search for VIN Search Incident to Arrest Search based on PC Inventory Consent Search 10

Officer Safety Lighting the Interior Officers who are standing outside the vehicle may use a flashlight or spotlight to illuminate the interior. 11

Officer Safety Opening Door If the tinting on a car’s windows is so dark that an officer cannot see the number or location of the occupants, the officer may open a door and, without entering, look inside. 12

Officer Safety Exit or Stay Inside An officer may order the driver and any other occupants to exit the vehicle or stay inside the vehicle. The legitimacy of the stop is the only required justification. 13

Officer Safety Positioning Occupants If the occupants have been ordered out of the vehicle, an officer may require them to stand or sit at a certain place, either together or separated, if such an order is reasonable in light of the circumstances. 14

Officer Safety Keep Hands in Sight An officer may direct the driver and any other occupants to keep their hands in sight regardless of whether there is reason to believe they are armed or dangerous. 15

Officer Safety Questions Regarding Officer Safety An officer may ask questions that are reasonably necessary for the officer’s safety so long as the questioning is brief and to the point. Concerns about an unduly prolonged stop will be raised if questions are farfetched or exploratory beyond legitimate safety inquiries. 16

Officer Safety Frisk of Persons for We apons Terry Stop and Frisk 1. Lawful basis for seizure or detention 2. Reasonable suspicion the person is armed and constitutes a potential danger to the officer 17

Officer Safety Frisk of Vehicle for We apons Car “frisks” are lawful essentially on the same basis as would allow the frisk of a person. 1. Vehicle stop is lawful. 2. Reasonable suspicion of an easily accessible weapon in vehicle creating situation dangerous to officer. 18

Officer Safety Handcuffing Although seldom necessary, an officer may handcuff the driver or other occupants if there are circumstances that make it REASONABLY NECESSARY, e.g., person(s) overtly threatening or hostile or otherwise not controllable. 19

Search of Vehicle Plain View The Plain View Doctrine portends not a search, but a seizure based on probable cause. Two requirements: (1) Lawfully present so as to be able to physically seize the item for which (2) there is probable cause to believe is seizable. 20

Search of Vehicle Incident to Arrest Arizona v. Gant (2009) A search of the passenger compartment of a vehicle following an arrest is allowed only if (1) the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search, or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest. The search should be contemporaneous with the arrest. 21

Search of Vehicle Incident to Arrest (cont’d) Arizona v. Gant (2009) Any suggestion that the search incident to arrest doctrine is no longer valid is incorrect. Gant stands for the proposition that once the arrestee is secured, a search incident to arrest of the involved vehicle is lawful only when there is reason to believe that the vehicle holds evidence of the underlying crime on which the arrest is based. 22

Search of Vehicle Incident to Arrest (cont’d) Arizona v. Gant (2009) Some officers, wanting to conduct the search incident to arrest to which they are accustomed, may decide to leave the suspect unsecured, unhandcuffed, and near the car simply to maintain the legal justification for a search. Obviously, this is a significant risk to the officer’s safety. Also, there is a very good possibility that this would render the search unreasonable in that the officer essentially created the requisite situation by not following appropriate procedures. 23

Search of Vehicle Vehicle Exception (Carroll Doctrine) An officer who has probable cause to believe that contraband or other evidence of a crime is in an apparently functioning vehicle in a public area may conduct a warrantless search of any part of the vehicle that could contain the object of the search. 24

Search of Vehicle Inventory Search Not a “search” for evidence in the traditional sense. Protection of owner’s property while in police custody. Protection of officers against false claims of lost, stolen, or damaged property. Protection from dangerous instrumentalities. 25

Search of Vehicle Inventory Search (cont’d) Vehicle lawfully in police custody. Agency has policy requiring inventory of impounded vehicles. Agency practice is consistent. Scope is the caretaking purpose; neither the vehicle nor any container should be unreasonably damaged during an inventory search. Inventory search may be challenged as pretextual. 26

Search of Vehicle Consent to Search In order to be valid, the consent must be (1) obtained from someone who has apparent authority to consent, and (2) the consent must be given voluntarily. Voluntariness is based on a totality of the circumstances. 27

Search of Vehicle Consent to Search (cont’d) Extent of search is anywhere in the vehicle that could reasonably be thought to be within the scope of the consent. Consent can be limited to certain areas and consent may be withdrawn at any time. 28

Search of Vehicle Consent to Search (cont’d) A refusal to consent cannot be used as a factual justification for reasonable suspicion and/or probable cause. A person’s refusal to relinquish a constitutional right cannot be used as a basis of a police action against the person. 29

Search of Vehicle Consent to Search (cont’d) Failure to state an objection to a request to search is not consent. In light of a recent Maine Law Court case, it is best to state the object of the search in the request. 30

Search of Vehicle Consent to Search (cont’d) It is risky to ask questions and to seek consent to search when neither is related to the stop. It supports the argument that the seizure went beyond its original purpose and unreasonably prolonged the stop without further reasonable suspicion. 31

Search of Vehicle Consent to Search (cont’d) If the seizure or detention has ended and the person is truly free to leave, an officer may generally request consent to search. 32

Search of Vehicle Consent to Search (cont’d) “Free to Leave” A person has been “seized” within the meaning of the Fourth Amendment if in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. 33

Search of Vehicle Consent to Search (cont’d) Illegal Detention If a person is detained illegally, a consent to search obtained as a result of the illegal seizure is subject to suppression as fruit of the poisonous tree. Example: consent to search obtained during a prolonged stop not supported by additional reasonable suspicion. 34

Search of Vehicle VIN Search An officer may make a limited warrantless search of a vehicle when necessary to determine its ownership, but only if the VIN is not visible from outside the vehicle. 35

Other Considerations Skipping steps Follow the required procedures and protocol. Documentation, Documentation, Documentation Underlying offense need not be proven, but reason for stop does. Miranda Generally not required during the limited and brief investigation. Requests for identification of passengers You can ask, but no requirement to produce unless being cited. MDT stops Registered owner OAS sufficient basis to stop provided observations do not suggest driver is not registered owner. 36

Search of Vehicle Final Note on Consent Searches Drug interdiction training has led to today’s practice of seeking consent searches during vehicle stops. The propriety of seeking a traffic violator’s consent to search his car or other property is currently a hot topic. Although a simple request to search is not unconstitutional, it is viewed by some as an abuse of the process, i.e., using a minor traffic violation to create a somewhat intimidating atmosphere in which to seek consent. 37

Search of Vehicle Final Note on Consent Searches In the context of vehicle stops, where the individual is at the side of the road and confronted by a uniformed officer seeking to search his or her vehicle, it is not a stretch of the imagination to assume the individual feels compelled to consent. Where there is little or no justification for a search, requesting consent is especially likely to cause concern because it has all the appearances of a fishing expedition or grasping at straws. 38

Search of Vehicle Final Note on Consent Searches Supreme Courts in some states have determined that requests for consent to search during traffic stops are only permitted under state constitutions or state laws if an officer has reasonable suspicion. While most states follow the U.S. Constitution regarding this type of consent search, any state is free to enact a law that permits such searches only if there is reasonable suspicion. Some police agencies in Maine are exploring whether to adopt policies that would require an officer to have reasonable suspicion before even asking for a consent search in a traffic stop. 39

Questions? 40