WASHINGTON, March 30, 2014 — Believe it or not, in Virginia, objects hanging from your car’s rear-view mirror must conform to a certain size, such that they do not obstruct your view. This little known fact can lead to unintended consequences.
A popular pine-tree shaped deodorizer led one of Virginia’s finest to pull over a motorist. The office saw drugs when he looked into the car. A conviction followed and was upheld, despite the legal challenge to the probable cause of the initial stop.
A new lesson for Virginians: get the small sized version of that little green tree.
Police can stop you while you are driving for many reasons without the need for a search warrant. Such reasons include illegal or erratic driving behavior. Police can stop you if the vehicle you are in matches the description of a vehicle they are tasked to find. Police can stop you if they suspect your front seat passenger is a kidnap victim.
The bigger issue here is that all these possibilities provide a teaching moment about our rights, including how and when the Fourth Amendment protects us.
We have all experienced our stomach tightening when we see police lights flashing directly behind us or when we hear the siren, even if we’ve done nothing wrong. When the police vehicle passes us without incident, we heave a sigh of genuine relief. When we are stopped, however, within an instant a police officer is asking us for our license and registration, and if it is dark, his flashlight is shining on us and on the contents of our car as well.
The law from state to state has said a great deal about the legalities of what follows in these situations. Are you required to step out of the car if asked? Are you required to open your trunk or glove box?
Generally, police need a warrant to search you or your property. During a traffic stop, however, they only need probable cause to legally search your vehicle. This means they must have some facts or evidence to believe there is some criminal activity afoot. Courts have continuously and unanimously agreed that because of the “exigent” circumstances that apply, (you can leave with the vehicle and destroy evidence) a warrant in these situations is not required.
Police however, cannot just have a hunch. There must be something real that can be articulated. Common examples where probable cause is found include an officer seeing or detecting the odor of contraband “in plain view or smell.”
Proving an officer did not have probable cause is not easy. The success of such efforts have been seen most often in cases involving alleged racial profiling and routine traffic violations. In 1998, The Supreme Court (in Knowles v. Iowa) said that police cannot search a driver or passengers after writing a routine traffic ticket.
Minor traffic violations (speeding, broken light) are also not considered probable cause. On the other hand, the Virginia pine-tree case is distinguished: the drugs were in plain view in the vehicle.
If you are pulled over, do so immediately. Turn off your car and put your hands on your steering wheel (police like to see your hands so they can feel safe). At night, turn on the vehicle’s interior light. Wait for the officer to request your license.
Your attitude can be a huge factor in how you are treated. If you are not told why you are being stopped, ask politely. Do not argue, raise your voice, use vulgar words or become hostile. If you get a ticket, accept it. You can fight it in court later.
You do not have to answer questions that force you to admit you have broken any laws such as “do you know how fast you were going?” Even though the Fifth Amendment allows you to refuse to answer, the best answer is “no, Officer, I don’t know” rather than “I know my rights and I don’t have to answer.” Why challenge someone who has a gun?
The officer may comment that he smells marijuana. This may or may not be true. It may be bait. Your reaction might be the difference with regard to what happens next. You should reply that you have nothing to hide, but you do not consent to any searches. If they search anyway and find something illegal, you’ll need an attorney and a good “suppression” motion once the case goes to court.
Police may order you and your passengers to get out of the vehicle. If they have a reasonable suspicion that any of you are holding a weapon, they may frisk the outside of your clothing. You may refuse to consent to this search and you should tell them you are not resisting, but emphasize that you do not consent to the search. You should only refuse verbally. Do not physically resist. Simply touching an officer can result in injury to you, as well as felony charges for either or both resisting arrest or assaulting an officer.
An officer might ask if you “mind” if they look in your car. This is a trick question. Your consent or failure to “mind” binds you if they find anything.
At a point in time when you might think your roadside encounter with police should be over, yet you have not been told you can go, you should ask. You can ask this at any time. Prudence suggests that you wait for the officer to check out your license and registration and return them to you. If there is discussion about a search, you should affirmatively tell the police officer that you do not consent to any searches. You should then ask if you are being detained, and ask once again if you are free to go.
If you are not free to go, that means you are being detained. If you are suspected of a crime, you may be arrested. The magic words then are “I am going to remain silent and I would like to see a lawyer.”
Do those little deodorizer things really work?
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His new book “Who Will Pay My Auto Accident Bills?, The Most Comprehensive Nationwide Auto Accident Resolution Book, Ever” can be reviewed on http://www.completeaccidentbook.com and can be ordered there, or obtained directly on Amazon: Click here to order
Mr. Samakow’s “Don’t Text and Drive” campaign, El Textarudo, has become nationally recognized. Please visit the website http://www.textarudo.com and “like” the concept on the Facebook page http://www.facebook.com/textarudo.