Rights at Police Stops

[mattaxelrod]

We've had a bunch of threads about ramp checks and stuff. Also about what police are and aren't authorized to do, and what our rights are (even if people routinely acquiesce).

This video is making the rounds. Interested in opinions. I think he might have gone wrong once about providing ID but I'm not sure.

http://www.youtube.com/watch?v=w-WMn_zHCVo

I guess the bigger question is--are DUI and other checkpoints actually legal?

 

[flyingron]

Yes they have been shown in the courts to be Constitutionally legal provided they are non-selective. This has no business being in this section. Hopefully the mods will move it into one of the non-aviation forums.

 

[ClimbnSink]

Legal? Dunno. Would the founding father's be cool with wagon stops? For the children or whatever.

 

[AdamZ]

Matt, you and I can have a nice long talk about this sometime but to cut to the chase, laws on this stuff vary from state to state. DUI check points have been found to be legal in several states.

In PA there are requirements for check points including that a check point be in a location where there is a known DUI problem and that check points be advertised prior to the actual establishment of the check point. The check point must also give the driver a reasonable opportunity to take an alternate route. The only other check points I've seen are to distribute flyers and ask questions about a missing child etc.

Many law enforcement officers whom I know and respect think that these check points are a joke, waste of money, time and manpower and the ROI is low.

I've seen absurd arrests from these check points that we've had blow out. So as not to take this to SZ I won't comment further but if you have any specific questions you know how to get in touch with me.

 

[comanchepilot]

your rights at a police stop are exactly the same as they are for any other stop by LEOs . . .

But - are they stopping you specifically or are we talking about random DUI/DL/Safety Stops? The rules are different ...

 

[AdamZ]

your rights at a police stop are exactly the same as they are for any other stop by LEOs . . .

But - are they stopping you specifically or are we talking about random DUI/DL/Safety Stops? The rules are different ...

Checkpoints at least around here are random ie you can't single anyone out but have to stop say every third vehicle.

 

[Norman]

IMHO, that cop isn't very bright. He came at the motorist with an attitude, and positioned himself next to the window where he would have been a perfect target for a bad guy.

 

[Vaflier]

Frankly if he had not displayed an antaganistic attitude to the police officer he would have been on his way shortly with a polite thank you. Police have a tough job and while they should not be able to abuse the public , we also should not be able to abuse them. Treat them well and my experience has been that they will do the same for you. I have had many traffic and DUI stops over the years in many states since I drive a lot , and I have never had an officer overstep his bounds or be rude. The one officer that did show an attitude was a special situation where he thought we were laughing at him. The truth was my friends were laughing at me for being stopped. In that instance I understood his attitude and when he became rude , I simply told him that I might have earned a ticket but I would not accept his lecture or attitude. The only thing he said after that was , Sign here sir. His behaviour under the circumstances was understandable. After all cops are people too, and we all have our moments. I have respect for the police and believe that most are good people doing thier best for all of us. Yes there are bad ones just as in every other profession. They do not seem to last too long. To the officers that read this, Thank you for what you do. Randy

 

[comanchepilot]

The attitude of the person being stopped should not change the attitude of the police officer. A stop is a stop - someone exercising their rights, whether more passively or aggressively, should not change the response of the State. If the officer decides to escalate an encounter because someone stands on their rights, they are not doing their job appropriately. 'Challenging' a police officers 'authority' by stating you do not consent to a search and refuse to answer questions is your right as an American. It is not 'suspicious behavior' or even a 'challenge' to the officer . . . it is your right. Yet, police often act as if your exercise of your rights is a personal act challenging them . . . such is childish and an reflection of poor training and poor hiring.

Frankly if he had not displayed an antaganistic attitude to the police officer he would have been on his way shortly with a polite thank you. Police have a tough job and while they should not be able to abuse the public , we also should not be able to abuse them. Treat them well and my experience has been that they will do the same for you. I have had many traffic and DUI stops over the years in many states since I drive a lot , and I have never had an officer overstep his bounds or be rude. The one officer that did show an attitude was a special situation where he thought we were laughing at him. The truth was my friends were laughing at me for being stopped. In that instance I understood his attitude and when he became rude , I simply told him that I might have earned a ticket but I would not accept his lecture or attitude. The only thing he said after that was , Sign here sir. His behaviour under the circumstances was understandable. After all cops are people too, and we all have our moments. I have respect for the police and believe that most are good people doing thier best for all of us. Yes there are bad ones just as in every other profession. They do not seem to last too long. To the officers that read this, Thank you for what you do. Randy

 

[timwinters]

I don't understand how knowing your rights and exercising them can be construed as an antagonistic attitude...unless you're a cop with an attitude.

 

[FastEddieB]

I was an officer in Dade County, FL for 8 1/2 years. Done thousands of traffic stops.

Don't much care for DUI checkpoints, but within limits they've been ruled constitutional. I've been the subject of two in N GA since I left the force.

That video made the rounds on another forum, and I've discussed it before.

An officer must maintain control of a stop. It's not a discussion or a debate. As soon as he loses control, his life may be at risk.

When an officer approaches a car, if he's well trained there are lots of little things going on. Clipboard and flashlight in one hand, gun hand free and gun positioned away from the subject. His hand may even be resting on it.

He has no idea what he's dealing with. It takes a split second for a driver to produce a gun. With good reflexes, the officer may be able to come down hard on the subject's gun hand with his clipboard or flashlight or baton as he pivots away to draw his own weapon and return fire.

All of this training is for naught with the driver's window rolled up. The subject can come up with a handgun, fire through the window and hit you below your vest. Lowering the window for officer safety is an order - not a suggestion. I would say, "Sir, would you please roll down your window." 999 times out of 1,000 if you ask nicely you get compliance. As soon as you don't hackles are almost literally raised as you try to figure what you're dealing with.

That's where in my opinion this stop went off the rails, and I'm not defending some of the crap that occurs later. But had it been me, as soon as the kid refused to roll down the window, I would have said something like, "I'm sorry, you don't understand. I need you to roll the window down now." Without compliance the next step would be, "Sir, step out of the car. Do it now. You're under arrest for obstructing an officer in the performance of his duty. Step out of the car."

From that point there's no turning back, and the kid can go easy or he can go hard - but he's going. And the vehicle gets an impound search prior to towing.

And it would be a lawful arrest, with the arrest form containing all the element of the crime. Whether the State Attorney wants to run with it or resolve it pre-trial or eve nulle prosse it matters little. What matters is you got control of the stop before things got out of hand.

I know it may sound draconian, but it's what keeps officers alive. Maybe only one in 10,000 drivers may come up with a weapon, but an officer may have that many or more stops in a career.

And it only takes one jerk with a 9mm firing through the driver's window to end a career, and possibly a life.

Try to understand and cooperate on you next DUI checkpoint stop. The cops for the most part don't want to be there any more than you do.

 

[FastEddieB]

'Challenging' a police officers 'authority' by stating you do not consent to a search and refuse to answer questions is your right as an American. It is not 'suspicious behavior' or even a 'challenge' to the officer . . . it is your right. Yet, police often act as if your exercise of your rights is a personal act challenging them . . . such is childish and an reflection of poor training and poor hiring.

I agree 100%.

We had nine months of Academy, including a smattering of Constitutional Law.

We ran role playing scenarios where you stop a citizen, who then says, "F*ck you, pig. You got no right to stop me and I ain't talking to you!"

He then starts to walk away. And you let him.

You better not stop him unless you have Probable Cause to affect an arrest. Even touching him can be construed as an arrest.

There are some exceptions, but I think the whole NYC "Stop and Frisk" is a travesty. A citizen has a right to go about his lawful business unmolested, and I always tried to respect those rights.

 

[Kelvin]

All of this training is for naught with the driver's window rolled up. The subject can come up with a handgun, fire through the window and hit you below your vest. Lowering the window for officer safety is an order - not a suggestion. I would say, "Sir, would you please roll down your window." 999 times out of 1,000 if you ask nicely you get compliance. As soon as you don't hackles are almost literally raised as you try to figure what you're dealing with.

I think you are off base here...but I could be wrong...I have not watched the video but I think I know which one it is...

Begs a question...Lowering it how far?

Far enough to communicate? Far enough for the LEO to investigate?

Exactly in percentages or feet and inches is far enough?

 

[FastEddieB]

I think you are off base here...but I could be wrong...

Begs a question...Lowering it how far?

Far enough to communicate? Far enough for the LEO to investigate?

Exactly in percentages or feet and inches is far enough?

Far enough for the officer to feel safe.

As soon as you start arguing with a driver over how many inches you'd like, you're losing control.

It typically does not end there. You then end up in a debate as to the legality of the checkpoint, or if the driver was really speeding, or whether you just stopped him because he was black.

None of this means a driver should not exercise his or her rights. But for the most part, complying with lawful orders is not an infringement of those rights. When they become unlawful orders is where it gets tricky. If that happens you have to decide whether to exercise your rights on the spot, or do it in court later.

 

[Kelvin]

Hmmm...it is THAT video...the driver's hands were on the wheel the entire time...would that make you as an officer feel safe? Seeing a "subjects" hands in plain sight?

You see, his window WAS down...to a point that communication was simple...the cop was looking to invade the guy and did...unlawfully I might add...lied through his teeth and made several other BIG mistakes...

Admitted the dude was innocent...

This video is the very reason that citizens are so weary of LEO's...the LEO and the dog handler should be indicted...

 

[docmirror]

I think the "lawful orders" part is where things go off the rails. Sadly, there's no defined answer, and one person has a badge, gun and mace, and the other is sitting in a car. It's not even a remote power situation from the driver perspective.

 

[FastEddieB]

Hmmm...it is THAT video...the driver's hands were on the wheel the entire time...would that make you as an officer feel safe? Seeing a "subjects" hands in plain sight?

You see, his window WAS down...to a point that communication was simple...

In those nine months in the academy, we all got killed. Repeatedly. By young guys, old guys, hot chicks, even old ladies and little kids.

Here's an invitation. Come to N GA. We'll simulate a traffic stop. I'll have a weapon concealed under my left leg. My starting position will be with both hands on the wheel, but with the window down as far as in the video.

We'll see if I can get to my gun and (simulated) fire through the window before you can take effective defensive measures. We can video it. We could post it to YouTube either way.

Game?

 

[Kelvin]

In those nine months in the academy, we all got killed. Repeatedly. By young guys, old guys, hot chicks, even old ladies and little kids.

Here's an invitation. Come to N GA. We'll simulate a traffic stop. I'll have a weapon concealed under my left leg. My starting position will be with both hands on the wheel, but with the window down as far as in the video.

We'll see if I can get to my gun and (simulated) fire through the window before you can take effective defensive measures. We can video it. We could post it to YouTube either way.

Game?

HELL YEAH!

 

[John Baker]

I, for one, am outraged........now what was I doing a minute ago? Oh wait, I remember, gotta take the clothes out of the dryer.

-John

 

[Kelvin]

I, for one, am outraged........now what was I doing a minute ago? Oh wait, I remember, gotta take the clothes out of the dryer.

-John

Before THEY wrinkle? ...

 

[ClimbnSink]

F'that rag constituition as long as the cops get home at night is all that matters in murca. Why do they make such a big flipping deal about cops killed in the line of duty? Why not cropdusters or ironworkers or call girls?

 

[docmirror]

F'that rag constituition as long as the cops get home at night is all that matters in murca. Why do they make such a big flipping deal about cops killed in the line of duty? Why not cropdusters or ironworkers or call girls?

Cause they are the awe-thor-itt-ee. Can't be allowed privacy, now can we?

 

[Kelvin]

So Eddie, do YOU see a problem with the police work in the video clip? Yes? No? Please elaborate...

 

[FastEddieB]

So Eddie, do YOU see a problem with the police work in the video clip? Yes? No? Please elaborate...

Yes. YES!!! A THOUSAND TIMES YES!!!

I haven't seen it for a while, but it was horribly unprofessional, and I said as much already. For specifics I would have to watch it again in its entirety. I do remember cringing repeatedly at the level of the police work shown.

Though many here disagree, I feel the correct, professional thing to do was to end it early on. Find my first post on the topic for how I would have handled it.

As soon as they started arguing/debating with the driver, it became personal and I know how quickly that devolves a situation.

Last post for the night. If there's anything meaningful to add, I'll do so in the morning.

 

[Kelvin]

Yes. YES!!! A THOUSAND TIMES YES!!!

I haven't seen it for a while, but it was horribly unprofessional, and I said as much already. For specifics I would have to watch it again in its entirety. I do remember cringing repeatedly at the level of the police work shown.

Though many here disagree, I feel the correct, professional thing to do was to end it early on. Find my first post on the topic for how I would have handled it.

As soon as they started arguing/debating with the driver, it became personal and I know how quickly that devolves a situation.

Last post for the night. If there's anything meaningful to add, I'll do so in the morning.

Dig that...I missed the details of your earlier post...up to speed now...

 

[JimNtexas]

There have been enough incidents of law enforcement officers engaging in various kinds of unfortunate to criminal behavior in the last few years that I view any encounter with one as being in the same class with encountering a rattlesnake or grizzly bear.

I think LEOs who commit gross violations of citizen rights should not enjoy official immunity.

To often LEOs who do badly wind up with paid vacation ('admin leave') as their 'punishment'.

 

[denverpilot]

There have been enough incidents of law enforcement officers engaging in various kinds of unfortunate to criminal behavior in the last few years that I view any encounter with one as being in the same class with encountering a rattlesnake or grizzly bear.



I think LEOs who commit gross violations of citizen rights should not enjoy official immunity.



To often LEOs who do badly wind up with paid vacation ('admin leave') as their 'punishment'.

That's my concern too, and it's tainting my very rare encounters with LE.

With so many bad cops not fired outright, after millions are paid out in AVOIDING criminal records by taxpayers, cities are setting up good Officers for negative interactions with the public.

Denver PD (and thankfully I rarely spend any time in the hell hole of the actual City and County of Denver proper, and go out of my way not to spend a single dime there other than sporting events usually on someone else's free tickets) has paid out over $3M to people for a single Officer in THREE separate violence cases, and he's still on the street.

Until LE cleans their own house, this will only get worse. My vote is one of "no confidence" these days. And I am paying for that level of service?

Eddie's given the tactical situation when standing alongside a car. It's a damn dangerous job.

Problem is, that stop didn't go wrong at the window not coming down, it went wrong at the second they set up the checkpoint.

And it's not the Citizen's job to make the Officer safe. It's smart if they do. But it's not their responsibility.

But be honest Eddie, if the kid wanted to kill the guy he could just as easily do it with the window open. You conveniently left that part out.

Hoping you can whack him with your clipboard is a nice tactical thought, but if he was out to kill the guy, he'd be dead.

And it's not "obstructing" anything to refuse to be detained without a charge. Period. End of discussion. That's a misuse of the law. Get the law changed so people must comply if you like, but faking up an obstruction charge because the job itself is unsafe, isn't appropriate.

If it were *really* about Officer safety, they'd never send out single-Officer cars and one Officer would draw and aim their duty weapon at every driver.

Nobody would put up with it and there'd be big discussions about the necessity and uses of traffic stops.

 

[kevin7500]

....I would have said something like, "I'm sorry, you don't understand. I need you to roll the window down now." Without compliance the next step would be, "Sir, step out of the car. Do it now. You're under arrest for obstructing an officer in the performance of his duty. Step out of the car."

You have no more authority to tell me to roll down my window than you do tell me to open my trunk. Do you also consider exercising 5th amendment rights obstructing as well? Personally, I don't know why people don't simply keep their mouths shut. Nothing deflates a LEO's ego more rapidly than not responding to their questions.

 

[FastEddieB]

But be honest Eddie, if the kid wanted to kill the guy he could just as easily do it with the window open. You conveniently left that part out.

Hoping you can whack him with your clipboard is a nice tactical thought, but if he was out to kill the guy, he'd be dead.

Good morning.

As your second part shows, I did not attempt to leave a part out.

Having physical access to a driver gives an officer more defensive options. A closed window decreases his options.

And it's not "obstructing" anything to refuse to be detained without a charge. Period. End of discussion. That's a misuse of the law. Get the law changed so people must comply if you like, but faking up an obstruction charge because the job itself is unsafe, isn't appropriate.

I have already said I agree. And yet the courts have ruled that DUI checkpoints are legal. So it's not a cut and dried, de facto "misuse". If it really violates the Constitution, which I think it might, those stops need to be challenged at every opportunity.

I'll try to avoid repeating myself, and my prior posts here pretty succinctly give my position, I think.

 

[stagecoachco]

Not DUI checkpoints but still pertains to this conversation

 

[JeffDG]

Having physical access to a driver gives an officer more defensive options. A closed window decreases his options.

Can you cite case law that says that the officer has the right to "physical access to the driver" in a DUI stop?

 

[FastEddieB]

You have no more authority to tell me to roll down my window than you do tell me to open my trunk.

I don't think the two are comparable. A rolled down window would generally not be a search - a forced opening of the trunk is.

Do you also consider exercising 5th amendment rights obstructing as well? Personally, I don't know why people don't simply keep their mouths shut. Nothing deflates a LEO's ego more rapidly than not responding to their questions.

The law covers this. A driver is obligated to produce his or her driver's license, registration and in some cases proof of insurance. Not to answer questions*. Beyond that the driver is under no obligation. I have had drivers tell me they'd rather not talk to me, and that ends that.

If an officer asks, "Have you been drinking?", if it's pre-Miranda any response is in admissible. If a driver say, "Officer, I know my rights and I want to exercise my right to remain silent", that ends that and a professional officer will end any questioning right there.



* I spent about a year investigating accidents. Florida state law requires you to cooperate and answer an investigor's questions. Refusal is an arrestable offense.

But...

Nothing you say in the accident investigation is admissible in court. Nor is anything that springs from your pre-Miranda statements (fruit of the poisonous tree). The officer figuratively has to "change hats" from his role as accident investigator to criminal investigator, and that goes something like, "I've now completed my accident investigation. I'm now beginning a criminal investigation. You have the right to remain silent..."

Imagine your motorcycle left the road. Cop arrived and asked what happened. In FL you are compelled to answer him honestly. You cannot just plead the fifth - he can arrest you if you do at that point. But if you tell the officer, "Yeah, I guess I was going too fast to make that curve", it goes in the accident report, but cannot be used in court. Let's say the rider is smart enough to clam up after Miranda, and the officer goes ahead a writes a ticket for "speed too fast for conditions". In court, the question will come up, "Officer, did you ever see my client in physical control of that motorcycle? No? Then how do you know he was even riding it?". "He told me" is not admissible unless it was post-Miranda. That case will get tossed, since the officer did not witness the infraction.

The above may seem absurd, but it is in the public's interest to have accidents investigated, and this is the way at least one state accomplishes that.

 

[FastEddieB]

Can you cite case law that says that the officer has the right to "physical access to the driver" in a DUI stop?

Not a lawyer. It is how we were trained.

Like frisking, I believe the courts have ruled it acceptable.

Also acceptable is a "wingspan" search of the area around the driver.

Anyone have any knowledge of the case law on this? I do not.

But I'll try to look.

edited to add: this is the first hit when I Googled "wingspan search", and it has some pertinent information, I think. It also reminds me why I did not choose to be a lawyer!

http://nationalparalegal.edu/conlaw...ctionfromsearches&seizures/extowarrantreq.asp

 

[JeffDG]

Not a lawyer. It is how we were trained.

Like frisking, I believe the courts have ruled it acceptable.

Also acceptable is a "wingspan" search of the area around the driver.

Anyone have any knowledge of the case law on this? I do not.
But I'll try to look.

I thought frisking required reasonable suspicion standard that a crime had been committed, not the case at a DUI stop.

 

[FastEddieB]

I thought frisking required reasonable suspicion standard that a crime had been committed, not the case at a DUI stop.

Apparently. (from a cursory look at my above link)

BTW, I never actually was part of a DUI checkpoint. I was an officer from 1982 to 1990 and I was in a busy enough area that we did not have a lot of extra manpower for that sort of thing. So I have never been briefed on the guidelines, and know about as much of the legalities of DUI checkpoints as anyone else here.

As an aside, I did make over 100 DUI arrests, and trained many officers in the procedures (I was a Field Training Officer for most of my career.) When you see the carnage and death that DUI's cause, I still believe it is important work.

 

[JeffDG]

So, to summarize.

You would arrest someone for obstruction for not acceding to a request (as there's no reasonable suspicion, there's no basis for a lawful order to roll the window down further), and for the motorist asserting his rights to refuse to answer questions and ask what the basis for his detention is.

Is that about right?

 

[JeffDG]

As an aside, I did make over 100 DUI arrests, and trained many officers in the procedures (I was a Field Training Officer for most of my career.) When you see the carnage and death that DUI's cause, I still believe it is important work.

That's cool. Anytime you want to make a legit stop, based upon specifically articulable suspicion, and arrest based upon probable cause, I have zero issue with any of that.

I have no sympathy whatsoever for folks who drink and drive and are caught. None, zero, zip. That said, such does not give police license to violate the law either.

 

[FastEddieB]

Some interesting science here:

http://www.forcescience.org/tablet/trafficstop.html

I thought this excerpt interesting:

Officers are trained to neutralize a suspect’s weapon in very close proximities rather than retreat and try to draw their own because drawing their own simply takes too much time (Adams et al., 2009; Davis, 2006). However, this neutralization was only seen in three of 93 participants, while the remaining 90 participants were often shot multiple times. Although nine officers made an attempt to neutralize the driver’s weapon, none followed through with or finished the attempt, resulting in the need for retreat and further exposure to the driver’s gunfire. Such an observation reaffirms the necessity for officers to engage regularly in tactical training along with visualization strategies toward neutralizing a weapon in close proximity with this type of assault during a routine traffic stop.

Wow. Only 3 out of 93 responded precisely.

Does anyone here honestly believe that window up vs window down would make NO difference in officer safety in this scenario?

 

[FastEddieB]

So, to summarize.

You would arrest someone for obstruction for not acceding to a request (as there's no reasonable suspicion, there's no basis for a lawful order to roll the window down further), and for the motorist asserting his rights to refuse to answer questions and ask what the basis for his detention is.

Is that about right?

No.

Window part, yes.

Right to refuse to answer questions part, no. With the exception of accident investigation, as stated.

Already covered repeatedly.

 

[JeffDG]

Does anyone here honestly believe that window up vs window down would make NO difference in officer safety in this scenario?

That's not relevant.

If officer safety were the only determinant, then the police would have the right to run the driver through an X-Ray machine at a DUI stop to ensure that they were carrying no weapons and then lock them in a cell while they conducted their investigation.

Absent some reasonable suspicion, however, the police do not have the power to detail an individual. They are free to request that the motorist roll their window down, and the motorist is free to comply with said request, or not. Not complying with the request is not a valid basis for reasonable suspicion or probable cause.