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I Got Pulled Over, Now What? Practical Advice From a Criminal Defense Attorney.

March 6, 2010

When you’re a lawyer, a lot of people will come up to you ask you questions. Like, “If I’m drunk in the passenger seat with a forty of Mickey’s between my legs but I have my twelve year old kid as my designated driver, can the cops really bust me for having an open container?” Or, “It’s not armed robbery if the gun isn’t loaded, right?” By far, the most common law enforcement contact the average citizen will have is the routine traffic stop. Routine for the officer, but not for you.

I’ve advised and represented hundreds of people who have found themselves sitting on the side of the road with a cop slowly approaching their vehicle. Some would end up going home and some would end up going to jail. I’ve read several police training manuals, interviewed dozens of police officers in preparation for trial and cross-examined more than a few police officers at trial.

Mandatory Legal Ethics Caveat: The information and opinion I am about to impart is relevant most especially to the jurisdiction of New Mexico. While federal law provides a base floor of constitutional rights and most of these doctrines have a basis in federal law, individual jurisdictions may vary. For instance, New Mexico law treats automobile searches much differently than federal law. If you have any questions for your particular jurisdiction, contact an attorney licensed to practice in that jurisdiction. If you are contemplating something illegal, like putting eighty pounds of marijuana in your car and driving through a Border Patrol checkpoint, or if you’ve actually taken the initiative and have loaded the marijuana into your vehicle and are a few miles away from the checkpoint, you should immediately stop, meditate on your life and existence, reconsider your actions, and possibly turn yourself into the authorities.

Okay, now that that is out of the way, let’s get down to the brass tacks.

In the United States, police officers can stop you when they reasonably suspect that you have committed or are committing a crime. What the hell does that mean? Basically, you’ve got to be doing something wrong, something against the law. An officer can’t pull you over because he feels like it or has nothing else to do or had an argument with his girlfriend and now wants to talk it out with you. This would give the officer unfettered discretion and he might be pulling you over unnecessarily when he could be thwarting a bank robbery somewhere. Thus, the reasonable suspicion doctrine gives police officers some guidance in carrying out their duties, namely don’t mess with people unless they’re up to no good. Police officers are professional witnesses trained to look out for violations of the law by you, the citizen. For the average person, this will probably involve a motor vehicle code violation. The most basic example is that you are exceeding the posted speed limit and the officer watches you zoom by. Or the officer observes you fail to use your turn signal before making a turn. But it could also be that you happen to be driving a car that looks an awful lot like one fleeing a bank that was just robbed two blocks away from where the officer sees you drive by. These situations would generally justify the officers stopping you and investigating further.

One exception to this rule is in the use of a traffic checkpoint, the most common example being a DWI sobriety checkpoint. How can they stop you? Well, sobriety checkpoints need to meet certain legal requirements in order to pass constitutional muster. There are many factors for a court to weigh, including whether the checkpoint was publicized in advance and whether they are properly set up and operated. Of course, telling the officer when you pull up to the checkpoint that it is not constitutionally sound will most likely result in you being invited to the secondary inspection area and an opportunity to meet Sparky, the drug sniffing police dog. Keep your legal opinions to yourself.

As the officer approaches your vehicle, his primary concern will be his own safety. The officer has been trained to consider you a possible threat at all times. This will color the interaction you are about to have with him. Roll down your window, shut your car off and keep your hands on the steering wheel. Show him you are going to play nice.

Professional officers will usually say something like, “Hello, I am Officer Jones of the Las Cruces Police Department. I pulled you over because you were exceeding the posted speed limit. Can I see your driver’s license, vehicle registration and proof of insurance, please?” Other officers may say, “I need your license, registration and proof of insurance” and then snatch the documents from you and return to their patrol vehicle without uttering another word.

Other officers may try to get you to say something against your interest. For example, the officer may ask you, “Do you know how fast you were going?” Most people think that honesty is the best policy at this point, but the best answer is probably something like, “I think I was going the speed limit” or that you are not certain. If you say, “Well, I think I was maybe going a little fast,” guess what the officer is going to write on your citation?

This brings us to the first rule of how to deal with the routine traffic stop: Keep your mouth shut. Say as little as possible. Try to answer the officer’s questions in a yes or no manner. While you are required to provide proof that you are licensed to drive the vehicle you are in, that it is properly registered and insured, you have no obligation to provide the officer with any other information. However, failing to cooperate with the officer may result in a change in his demeanor toward you and may result in harsher consequences. It’s a fine line to walk.

While the officer is first making contact with you, he will use every opportunity to observe your demeanor. He will look for signs that you are impaired—slurred speech, slow or clumsy movements, bloodshot watery eyes, odor of alcohol, etc. He will try everything he can to look into your vehicle to see if you have anything you’re not supposed to have, like an open container of alcohol, a marijuana pipe or a bag of money you’ve just stolen from a local bank. If the stop is at night, he will undoubtedly shine his flashlight into the cabin of your vehicle. He is exercising his prerogative under the plain view doctrine to look for anything that will permit him to expand the scope of his investigatory detention and try to nail you on something much bigger than what you were originally pulled over for. For instance, in DWI cases, it is not uncommon for the ensuing police report to read something like, “I observed the Defendant going 75 MPH in a 65 MPH zone and initiated an investigatory stop. Upon making contact with the Defendant, I observed him speaking with slurred speech, fumbling with his license, and bloodshot, watery eyes and I detected an odor of alcohol emitting from the Defendant’s breath as he spoke with me through the window of his vehicle. I also observed an open can of Keystone Light beer between the driver’s legs. Based on these observations, I expanded my investigation from speeding to DWI.” This is an example of how things can go from bad to shitty in eight and a half seconds.

Therefore, the second rule of dealing with traffic stops is to be wary of the plain view doctrine. First off, if you are going to have something illegal in your car, don’t do it. If you do happen to have something that you are not supposed to have, don’t leave it lying on the backseat for the world to see. This is based on the right to privacy. In New Mexico, an automobile has been held to have the same protections as your home—legally, it is an extension of your house, your private domain, and must be treated as such by the officer.

So, hopefully, at this point all you are receiving is a traffic citation and you’ll be on your way. But, you may not be out of the woods yet. It is not entirely uncommon for the officer to come back to your vehicle with your citation and say something like, “Okay, here is your citation and promise to appear in court and I’ll need your signature here. By the way, you don’t have any drugs, illegal aliens or rocket launchers in your car, do you?” Regardless of the actual circumstances, most sane people reply, “No.” At this point, the officer is likely to say, “Well, you don’t mind if I look in your car then, do you?”

You have now reached the threshold of constitutional overreaching by the officer. First off, why would the officer ask you something like that? Because, at that particular point in time, he does not have probable cause to search your vehicle. If he did and he wanted to search your vehicle, he would just do so. He is seeking consent to search, which is an exception to the legal requirement that all searches of private property need to be from a validly issued search warrant. By getting your consent, with a few brightly drawn exceptions, you have now waived any challenge to the search in court. If he is a smart officer, he will likely have you sign a “Consent to Search” form, but keep in mind that verbal consent is legally sufficient. While you may say (truthfully) that you never gave consent to search your vehicle, the officer may have a slightly different recollection of events later in court. He may testify that he asked you for consent to search and that you readily gave it to him. You can then testify that you did not say any such thing. Absent some other compelling evidence, how do you think most judges, a good portion of which are former prosecutors and pro-government in worldview, will rule?

Now may be the time to start asking the officer questions. The first should be, “Am I under arrest?” He will likely say no, that he merely is conducting a non-custodial investigatory detention. The next question should be, “I have somewhere I need to be and since I am not under arrest and you have given me a citation for which I have signed, am I free to leave?” He will probably then ask you again for consent and may be much nastier about it. You must stand firm. “No, I do not give you consent to search my car.” Most officers usually say something like, “Well, I can go get a search warrant.” Tell him to do so. Then ask to speak to his supervisor. If this is going to get serious, you want more witnesses of you not consenting to any search your vehicle. If the supervisor shows up, tell him that you are now seriously late for where you were heading, that you don’t want anyone to search your car and that you’re not consenting to anything.

At this point, if the cop is going to search anyway (and some do) and finds something and you are charged with it, there’s nothing you can do about it. But you need to put yourself in the best possible position to legally challenge the search at a later point. If you are arrested, do not fight the officer. Do not threaten him. Do not threaten his family. Do not threaten his job. If you do, he will dutifully note these statements in his report and then tell the judge all about it later. Just keep your mouth shut and hope you’ll make bail.

I saw so many of my clients get themselves into these bad situations that I had the following written on the back of my business card so that they would not forget: “I do not wish to answer any questions or make any statements without my attorney. I do not consent to any search of my person or property. I wish to contact my attorney.” Some have successfully used these words to get themselves out of bad situations.

If you are really serious about protecting yourself, consider keeping a digital voice recorder in your vehicle and turn it on before the officer approaches. In New Mexico, you do not have to tell him you are recording the interaction. Most likely, the officer is doing the same thing to you. Most officers carry small digital voice recorders in their belt and will activate it prior to approaching your vehicle. Many officers carry these recorders for investigation purposes but also protect themselves should they later be accused of misconduct. You should consider employing the same tactic. Recordings, both audio and video, are powerful evidence in court. Unless they have been altered in some way, they provide the most accurate record of what happened and, unlike memories, they do not degrade over time.

So, let’s review:

1. Keep your mouth shut.
2. The plain view doctrine is a bitch.
3. Never consent to anything.

Before I forget, this is a good time to note that you should make sure your car is in good working order. Make sure your headlights, tail lights and turn signals are in good working condition so you won’t be pulled over unnecessarily. Consider removing from your car any stickers like “Legalize It” or “Cops Suck”. Follow these simple rules and you’ll put yourself in the best possible legal position should something go seriously wrong when you are pulled over by the police and you end up having to go to court.

C. J. McElhinney is a criminal defense attorney who has defended hundreds of cases ranging from traffic tickets to first degree murder. He lives in Las Cruces, New Mexico and can be contacted at cjmclaw@yahoo.com.

All material contained herein is © 2010 by C. J. McElhinney, however this article may be reprinted for educational or informational non-profit use and proper attribution is given to the author.

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