By Caleb O. Brown
SNITCH Cincinnati Contributing Writer
June 2002
No one likes flashing blue lights, especially on a lonely night through the rearview mirror. Your sweaty palms and racing heart are preparing you for the worst.
But why? You haven’t done anything wrong.
The officer approaches a few minutes later and asks for the license and registration that you’ve been thumbing for the last several minutes. He takes them and asks if you know why he pulled you over.
You swallow and offer a meek, “No, sir,” as another cruiser pulls up behind the first one.
“Your taillight was out,” he says, tapping your license between his fingers. You sigh, loosen your grip on the wheel and relax. The other officer runs a beam of light across the interior of your back and front seats.
The officer then adds, “You mind if we look in the trunk?”
You feel a bit insulted and unjustly suspected, but because you want this situation to end, you oblige and allow the officers to prod several other parts of your car as well. One officer even pats you down. You watch blandly, wanting to ask them to please leave, but you stay silent. After all, they’ve got the badges and guns.
The disappointed officers end the search, thank you for your time and send you on your way. The tightness in your chest and profuse sweating haven’t subsided and you’re furiously trying to think about how you could have, should have, handled that situation without feeling so powerless.
Pop quiz: When did you waive your right to say “no”? Did you consent to the seizure and subsequent search? Did the police violate your rights at all?
If you’re like most people, you don’t know what rights you have during a traffic stop. What’s more, you probably wouldn’t stand up for them if you were a criminal law professor.
Christo Lassiter teaches criminal law at the University of Cincinnati’s School of Law. He’s felt like kicking himself more than once after consenting to various minor invasions during a traffic stop.
He says the power differential between the police and lone citizens is so great that drivers — innocent and guilty — alike consent to things even when they know that they are waiving their rights.
“In the two times I was pulled over, I found myself consenting and hating myself for it,” Lassiter says. “Police are trained to exploit traffic stops for maximum benefit. Lack of knowledge of your rights isn’t the reason people consent.”
Lassiter contends that when an officer asks for your consent, they do so in such a way that draws no distinction between the reason for the stop — such as a broken taillight, rolling through a stop sign — and a “fishing expedition.”
Lassiter says that once an officer has investigated the reason for the stop, “You’re on consent time” with regard to the questions that follow.
“If a law enforcement officer stops you for a busted tail light, and he’s finished investigating that tail light, his authority is over,” Lassiter says.
He says officers are trained to get consent by making a concealed leap from “legal investigation time” to “consent time.”
“It’s a seamless transition,” he says. “Absolutely seamless. I’ve got videotape of the (Ohio vs.) Robinette case, and you simply can’t tell where you switch from the initial reason for the stop — going 55 in a 45 zone — to a narcotics check.”
Ohio vs. Robinette
Sometimes it’s great to live in Ohio. Across the river in Kentucky, that “seamless transition” from the reason for the stop to the “fishing expedition” is a routine matter for police. The subtle transition is one that often gives police the chance to poke through a citizen’s passenger compartment, trunk or unlocked glove box.
In Ohio vs. Robinette, the U.S. Supreme Court held that the Fourth Amendment does not require that police give any kind of “warning” or say, “You don’t have to allow this,” before seeking consent to search your car.
That made Ohio prosecutors happy. Luckily for Ohio motorists, that wasn’t the final word.
Ohio Supreme Court justices found that while police officers need not give warning, the officers must “clearly demonstrate” that a motorist would feel free to go before an officer requests such a search.
In other words, immediately after you decline to allow police to rummage through old Dr. Pepper cans and sticky straws, you can start up your car and go about your business. In that particular circumstance, Ohio is the exception, not the rule.
Shorten the stop
It’s a pretty simple process to avoid a stop, but sometimes the basics are easy to forget. Even if you have your papers in order, you may not be able to avoid the long, and sometimes annoying, arm of the law.
When an officer stops you, he’ll immediately ask for your license and registration. If your registration isn’t with you, the officer may reasonably ask, “Is this your car?”
It’s best to avoid that line of questioning altogether. Thus, it’s probably a good idea to keep those two items handy, along with making sure your car has the proper tags and all your lights and blinkers are in proper working order.
The American Civil Liberties Union produces what it calls a BustCard, a short explanation of your rights and recommendations for making your visit with The Man go a little more quickly.
Among the recommendations, the card suggests that you make it crystal clear to the officer that you do not consent to any kind of search of your vehicle. That way, if something illicit is discovered, it’s inadmissible in court.
It’s easier than you might think to make the police stop short and sweet without — out of a desire to cooperate — giving up your rights.
Lassiter says that when the police ask for license and registration, the motorist should respond, “Here you go officer, but I don’t consent.”
He believes it’s more important that you speak the “no consent” declaration many times, clearly, and at the beginning of the conversation so that there can be no question or confrontation on the matter later. Lassiter goes so far as to recommend that drivers practice so that it will be easier to refuse consent should the occasion arise.
“If you can actually voice those words, you might actually win something in that dynamic, but it’s really hard to get that out,” he said.
The ACLU’s Bustcard states, “If you’re suspected of drunk driving (DWI) and refuse to take a blood, urine or breath test, your driver’s license may be suspended.”
Terry Cosgrove, of the Cincinnati Law Department, advises police on such matters. He says refusing a breathalyzer test will get your driver’s license suspended, but it’s not a criminal penalty.
“In other states, refusing a breathalyzer test is a fourth-degree misdemeanor,” Cosgrove said. “In Ohio, it’s not a separate crime.”
This is routine?
Before you start denying consent left and right, though, it’s important to note what police can make you do during a routine traffic stop. A series of U.S. Supreme Court rulings have boiled down to a series of powers police do have, balancing the interests of public safety against Fourth Amendment protections.
Police can order a driver out of the car during a routine traffic stop. Police may frisk a passenger or order passengers out of the car, but cannot compel passengers to identify themselves. Police do not need to advise you of any of your rights unless you are arrested.
If you are arrested, police can search the available portions of your vehicle, including the available portions of the passenger compartment and — if it’s unlocked — the glove box.
Roadblocks
Police can pull you over for one of three reasons: probable cause, which means they have observed you committing a crime; reasonable suspicion, which means that, more than likely, you have not committed a crime, but you might have. It’s a lower, less definite, standard.
Or, in the case of a roadblock, police can pull you over for no reason at all.
Thankfully, in Ohio, police don’t engage in drunk-driving checkpoints, but it’s a matter of procedure for officers rather than mandate from the law books.
Cosgrove says police don’t use roadblocks because police “didn’t find it was that effective.”
He says the police department found that individual officers, for example, could take more drunk drivers off the road than the same number of officers working one roadblock.
Still, roadblocks go on all the time, but rest assured that during a roadblock, your car will not be targeted, Grateful Dead sticker or not. Officers conducting checkpoints are not allowed to use any discretion in choosing which cars are stopped at the checkpoints. This helps eliminate allegations that officers are profiling motorists.
A procedure could be “every second car, every third car … a procedure where every car is treated the same,” Cosgrove says.
But roadblocks generally seem to be constitutional, at least for drunk drivers.
Police — in the interest of public safety — can require a motorist stopped at a roadblock to step out of the car, provide “lung samples,” and undergo a field sobriety test.
Lassiter stresses that when an officer pulls you over, he or she is not there to give you a lesson in your rights.
Regardless of what the courts have decided, he said, police exist to investigate, stop and prevent crime.
