In the wake of several high profile and tragic motor vehicle stops, it is a good idea to know and understand your rights and obligations on a motor vehicle stop. While you do have rights, you cannot act accordingly unless you know what they are, and also what the police can and cannot do. You can assert your rights without acquiescing to the
whim of a police officer or giving up your constitutional rights. It’s all about knowing how to verbalize your objection or refusal of a request of the police to do something, and making the police clarify that they are ordering you to do something if their language is ambiguous.
Let’s start with the basics of where you have no rights – when pulled over a police officer can order you to produce license, registration, and proof of insurance. This is non-negotiable. If you do not have your license the police can demand that you produce another valid form of ID. If you have no ID the police can take you into custody in lieu of issuing you a ticket at the scene.
While legal opinion differs on this, I believe that the police can order you out of the car, while other lawyers believe that the police can order you out of the car only if they are placing you under arrest. Even if I am wrong, I think the most prudent thing to do is get out of the car, but make the police order you out of the car.
You see, the police often couch orders in terms of requests. A cop may open your door and say “would you mind stepping out of the car for me.” This is no accident of language, he is couching his order as a request because that is what he was trained to do. This is because if the police “ask” you to do something instead of order you to do something, you are doing it on consent, which gives the police more legal leeway to ignore search warrant and probable cause requirements. More about that in a minute.
So listen carefully and if the police verbally “ask” you to get out of the car, even though their body language says something else, simply decline, or say “are you requesting I get out of the car, or ordering me out of the car?” If they do order you out of the car, roll the windows up, turn the car off, get out, lock the car, and put the keys in your pocket.
You button the car up because This is because if the police see something suspicious if the car is unlocked and open they can seize it without a warrant because it is “grabbable.” If however the car is shut and locked anything suspicious they see in plain view they cannot seize or inspect further without a search warrant.
You also have the right to video and audio record. In NY you do not have to tell the other party you are video & audio recording, but in some states you do. Check your state for details. However, don’t reach for the I-phone between the seats – at least not before you tell the cop that you are going to grab your phone and ask permission to do so. Then, do it slowly. Also, at night your camera light may come on and it’s bright. The police can order you to turn it off or away from them, or otherwise not blind them.
Often on motor vehicle stops the police want to search your car or your person. However to do that they need a search warrant, or an exception to the warrant requirement presents itself. Well, exceptions to the warrant requirement rarely crop up in real life, and they are not getting a warrant on the midnight shift, so the police are shit out of luck. Unless of course, you give…consent!
Consent to search is the mother of all end runs around the US Constitution. The police simply ask you “do you have anything illegal in the car,” and when you answer “no,” they ask “do you mind if I look?” Whatever you do just say “No.” I like the line “officer, I don’t consent to searches.” It’s non-confrontational and clearly asserts your right to refuse a consent search.
Don’t say “yes” because you don’t think they will really search (they will), because if you say “no” will give them what they need to search (it doesn’t), because they claim that they are going to bring a dog (let them), or because they tell you “if you cooperate, I will help you by telling the judge you cooperated.” Believe me, they won’t, and even if they did it would not matter, the judge would just look at them and say “ha, what? Why are you telling me this?”
If after you decline a consent search the police do it anyway simply verbalize your objection, record them, but whatever you do don’t interfere, touch them, or try to physically stop them. If the police find contraband, by verbalizing your objection gives you the greatest opportunity in having your lawyer get the evidence suppressed from trial.