Here’s an interesting (and to my mind troubling) recent example of how few limits the Fourth Amendment presently imposes on officer questioning during traffic stops, at least as presently construed by lower courts.
In United States v. Chaney, decided by the First Circuit last week, an officer pulled over a car because it had a headlight out. The officer asked the driver for ID, and then he asked the passenger for ID (for officer safety reasons, according to the officer). When the passenger said he didn’t have ID, the officer ended up spending about five minutes querying the passenger about his identity and whereabouts. As I read the opinion, the officer did not have reasonable suspicion for the first two minutes of the questioning, but then developed reasonable suspicion to thin the passenger was involved in some sort of criminal activity based on the evasiveness of his answers. The officer went back to his squad car and spent another five minutes trying to get a positive ID on the passenger. When he couldn’t get a positive ID on the passenger, he asked the driver to get out of the car and asked the driver more questions about the identity of the passenger. After a few more minutes, the officer shined a flashlight on the passenger and saw a bulge in his jacket. That eventually led to the discovery of a gun in the passenger’s jacket and charges against the passenger, Chaney, for being a felon in possession of a gun.
Held by the First Circuit: This was all constitutionally permitted. First, the Supreme Court has said that the police can ask questions unrelated to the purpose of a stop so long as the questioning does not “measurably” extend the duration of stop. In this case, the officer did actually extend the stop for a few minutes to ask the passenger questions, but the First Circuit concludes that this was “de minimus and did not unreasonably extend the duration of the traffic stop,” in part because the officer asked the questions for officer safety reasons. And once the passenger gave strange answers, that created reasonable suspicion for the officer to detain the car for more time to investigate if the passenger was involved in criminal activity. Thus the delayed stop was okay, and the officer did not violate the Fourth Amendment in delaying the group long enough to shine the flashlight and then have cause to frisk the passenger for the gun.
There are lots of cases on the books that are consistent with this decision, but it still makes me uncomfortable. In particular, the Supreme Court has said that questioning unrelated to the stop is okay if it does not measurably extend the stop. Several courts have held that very brief questioning of the driver is a de minimis extension that is permitted. But here the questioning measurably extended the stop by a bit longer, about two minutes before there was any reasonable suspicion, which is enough time to ask a lot of questions. The First Circuit concluded that this still was just a de minimis extension of the stop, but it seems to me that two minutes gives the police a tremendous amount of power: It means that the traffic stop that is so easily permitted by the Fourth Amendment gives the police a few minutes to question anyone in the car on whatever topic the officers like, even absent any reasonable suspicion or identifiable threat to officer safety, in a situation in which those in the car are not free to leave. In other words, the only questioning that is not permitted is questioning that goes on for a pretty long time in the complete absence of reasonable suspicion. But how likely is it that an officer is going to subject a passenger to extended questioning for a long time absent any reasonable suspicion?
The tricky part about this problem is how to devise a contrary rule. You could say that the police can’t ask the unrelated questions at all during a traffic stop absent some suspicion, although the Supreme Court has rejected that rule. You could say that the police can’t ask unrelated questions that extend the length of the stop at all, although that gets into difficult questions of exactly how you measure the length of a question or the proper length of a stop. You could say that the officer can ask the driver brief questions unrelated to stop but can’t pose the same questions to a passenger, although it’s not clear why that line would be justified. That leaves you with the rule suggested in Chaney and applied by some other circuits, that a “brief” extension of the stop is okay to ask those unrelated questions, which gets into how brief is brief enough. There aren’t a lot of easy answers here, but I worry that cases like Chaney just go too far.
UPDATE: I fiddled with the post a bit to improve accuracy.
David Nieporent says:
Orin, a minute or two may be de minimis, but isn’t the real problem where he extended the stay “about five minutes” because the passenger gave evasive answers? (Your narrative is a little off, I think; it was five minutes of talking to the passenger, then another ten minutes of trying to get confirmation over the radio, and then he asked the driver out of the car to chat with her.)
But in all that time, as far as I can tell, he never had any suspicion of any actual crime (*) or any actual basis for worrying about safety. The first circuit here held that all that was needed was rote recitation on the officer’s part that he was asking the questions for “safety” reasons, with the IMO absurd argument that merely having three people in the car somehow justified safety concerns. The court fails to explain how knowing the passenger’s name somehow protects the officer.
(*) The court talks about the officer having a basis for “reasonable suspicion” — but suspicion of what?
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October 21, 2009, 2:05 pmJeffH says:
Part of the problem in 4th Amendment cases is that almost all of the cases that set precedant are ones where a person was already convicted. Courts may say that they don’t consider the consequences of reversing a conviction, but my (admittedly limited) experience working with appellate courts tells me that this is not the case. Appellate courts go into cases like this looking for a reason to uphold the conviction, not the other way around.
This creates a pattern of stretching precedent cases to fit the facts. A precedent that says a “brief stop” or one that does not “measurably” increase the length of a stop, is extended to cover stops that are several minutes long.
Perhaps what we need to combat this erosion is claims from people who had their rights violated but were not convicted. The problem is that those people have little motivation to pursue a claim, and a usually strong motivation to let the matter drop.
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October 21, 2009, 2:06 pmbyomtov says:
Isn’t part of the issue here how the officer is allowed to react to answers to his questions? Suppose the passenger says that what he is doing is none of the cop’s business. Is that “strange and evasive” enough to justify further investigation?
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October 21, 2009, 2:08 pmPlastic says:
You’re right that the answer isn’t easy, but it is simple: Convince SCOTUS that detaining people (even during a Terry stop) in order to go fishing for crimes unrelated to the stop’s original reasonable suspicion is unconstitutional.
Perhaps the best arguement Roberts could make for increasing judicial salaries is that we get what we pay for.
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October 21, 2009, 2:11 pmOrin Kerr says:
The opinion states that “the delay of approximately two minutes that occurred prior to Officer Brown developing reasonable suspicion to further investigate Chaney’s identity was de minimus and did not unreasonably extend the duration of the traffic stop.” I understood that to mean that the officer asked questions for two minutes before getting RS.
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October 21, 2009, 2:12 pmOrin Kerr says:
Plastic says:
How do you see that as different from the proposed rule in the last pararaph of the post that “You could say that the police can’t ask the unrelated questions at all during a traffic stop absent some suspicion”?
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October 21, 2009, 2:22 pmenjointhis says:
A thought-provoking decision, and a thought-provoking comment. Thanks for bringing it to the attention of those outside the First Circuit. There was an interesting Mass. App. Ct. decision today with respect to searches & seizures in automobile stops (Comm. v. Brown, ) where the Mass. App. Ct. (not commonly known for its leniency) suppressed evidence associated with a taxi’s stop. This is a really fascinating area of the law, particularly w/r/t an officer’s discretion to do X, Y, or Z.
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October 21, 2009, 2:25 pmCrunchy Frog says:
I never cease to be amazed at the number of bad guys that get caught because they were in cars with broken headlights/taillights, expired tags, etc. That’s why I get upset with people that say cops shouldn’t be chased who hightail it after getting flagged for minor violations — if someone floors it as soon as they see a red light in the rearview, it’s because he’s up to no good, and it’s a good thing that the cops give chase.
Note to bad guys — if yer up to no good, make sure yer vehicle is up to snuff.
Back on topic — given that cops find bad guys this way, once they have a legitimate reason to pull you over, don’t act like yer up to no good.
I have no problem with the way things went down, and the conviction should stick.
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October 21, 2009, 2:27 pmsk says:
Very minor issue, but:
“In other words, the only questioning that is not permitted is questioning that goes on for a pretty long time in the complete absence of reasonable suspicion. But how likely is it that an officer is going to subject a passenger to extended questioning for a long time absent any reasonable suspicion?”
If the answer is ‘not very often,’ wouldn’t that be a good thing? In other words, it appears the Court crafted a Constitutional test or rule that is generally consistent with police/human behavior.
Yet it appears that, to your mind, this is a strike against it. I get a sense that you believe the rule is somehow invalidated simply because police are unlikely to be motivated to break it. I find this a curious (unspoken) test of a constitutional limit-that somehow, a limit has to be broken with some frequency, otherwise it is not limiting enough, perhaps?
sk
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October 21, 2009, 2:32 pmProfessor Chaos says:
Forgive my nitpicking, but is “de minimus” an accepted alternate spelling of “de minimis”?
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October 21, 2009, 2:32 pmDon Miller says:
What if the passenger said “I’m sorry officer, I don’t have ID, my name is Tom Jones. I am now going to excercise my constitutional right not to answer anymore questions without the presence of my Attorney” And then did shut up and refuse (passively)to interact with the officer in anyway?
Does the passenger in a vehicle stopped for a Terry stop have the right to not answer questions? Would the court still have supported the conviction? “Officer Safety” seems like an extremely thin shield if someone is sitting quietly doing nothing.
Of course, the likelihood of some petty criminal trying to go this route is extremely small. Most of them get caught because they can’t shut up.
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October 21, 2009, 2:46 pmVisitor Again says:
You might think different if you or a loved one gets hit head on by the suspect chased by the police. On June 1, 1994, the LAPD decided to chase a suspected car thief during rush hour. They chased him right into a head-on collision with the car my girlfriend was driving. The perp escaped by jumping a fence; my girlfriend suffered permanent back injuries that are very painful to this day. Most states give immunity to the police for their gung-ho chases provided they have a policy regarding chases in place, and the immunity holds even if the police violated their chase policy.
This decision is an example of the slippery slope. You let one thing slide a little, then a lot, and then you let other things slide a little, too, then a lot, and so on until you have the police doing whatever the hell they want to, which is the law of the fourth amendment today in traffic and pedestrian stops, as illustrated by this case.
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October 21, 2009, 2:47 pmPlastic says:
I don’t see them as different. In fact, I considered quoting the line and saying that this was the correct choice, but instead I decided to put it in my own words so that the comment would look more profound.
I may be generally disagreeable, but that doesn’t mean I can’t ever agree with you.
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October 21, 2009, 2:48 pmpete says:
If the court’s account is accurate I do not blame the cop for being suspicious. The guy could not even tell the cop his address and could not tell him what state gave him his ID among other things. And the cop was correct to be suspicious since he had given him a fake name and was in fact a convicted felon.
And it is not like this wasn’t for officer safety since it turns out this was a felon with a concealed gun so in retrospect the officer was wise to keep pressing for answers when the guy kept stringing him on.
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October 21, 2009, 2:48 pmChrisTS says:
But the officer knew neither of these things at the time. It turned out that he had given a fake name and was a felon. It turned out that he was carrying a gun.
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October 21, 2009, 2:55 pmChrisTS says:
Orin:
I suspect this was a typo, but I’m still laughing that the officer spent five minutes querying the passenger about his identity and whereabouts.
Um... Here, in the car, Officer?
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October 21, 2009, 2:57 pmzippypinhead says:
Professor Kerr, I’m not as troubled by Chaney as you are, mostly because I would take the points in your last paragraph one step further and argue that it’s virtually impossible to adopt an enforceable, bright-line rule that would work in the huge number of circumstances officers can face during traffic stops. Having said this, I think the initial step of asking the passenger’s identity for “officer safety” purposes and then running a records check on the passenger is fairly close to the line — although the minimal nature of this intrusion and the surrounding circumstances (middle of the night, outnumbered officer, no immediate backup available) arguably makes the initial few questions reasonable. And on the facts it seems obvious that the officer quickly had reasonable suspicion (which rose to probable cause after the requested records check failed) that the passenger was lying — and the last time I checked my copy of the Constitution, it didn’t say that one has a First or Fifth Amendment right to affirmatively make false statements to law enforcement officers. After the lies, the officer’s subsequent actions that led to the discovery of the illegal handgun seem wholly justified.
In the interest of full disclosure: I was recently pulled over well after midnight in another state under circumstances quite like the facts in Chaney, only without a lying felon-in-possession passenger. The officer asked why I was on a rural secondary road several hundred miles from home in the middle of the night. I politely explained. The officer was satisfied, told me where there were a couple of auto parts stores in the area at which I could buy a headlight bulb the following day, and sent me on my way. No citation issued. Total elapsed time, including the computer records check = approx. 4 minutes. But had I or a passenger behaved like the defendant in this case, total elapsed time = potentially infinite.
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October 21, 2009, 3:00 pmProfessor Chaos says:
“And it is not like this wasn’t for officer safety since it turns out this was a felon with a concealed gun so in retrospect the officer was wise to keep pressing for answers when the guy kept stringing him on.”
Because asking all those probing questions somehow made the officer bulletproof? If this guy had intended to shoot the officer he’d have done so; I don’t believe the mere act of questioning prevented that.
My beef with claims that Y or Z was needed for officer safety is that courts often seem to accept them pretty uncritically.
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October 21, 2009, 3:00 pmTNeloms says:
I agree with byomtov. To me, the troubling issue here is not the question asking, but that being “evasive” in answering those questions is grounds for reasonable suspicion.
To answer Orin’s question, what about a rule that says that refusing to answer questions, or evading them, cannot be considered grounds for reasonable suspicion? Wouldn’t that solve the problem?
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October 21, 2009, 3:00 pmCleanville Tziabatz says:
Since when does a refusal to answer police questions give rise, or even help give rise, to reasonable suspicion?
Don’t suspects have the right NOT to answer police questions (other than what is your name, address and birthdate)?
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October 21, 2009, 3:05 pmpete says:
You do realize that he claimed not to know his own address, right? And that he lied about his name.
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October 21, 2009, 3:08 pmcboldt says:
– Don’t suspects have the right NOT to answer police questions (other than what is your name, address and birthdate)? –
Sure. But suspects (and witnesses) can be detained, for hours at least, without being put under arrest.
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October 21, 2009, 3:10 pmTNeloms says:
Well the officer obviously didn’t know that he lied about his name until later, so that couldn’t have been grounds for suspicion. I agree that claiming not to know your address is suspicious, though.
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October 21, 2009, 3:12 pmJeff J says:
Unlikely. So what’s the problem? (Asked in a serious, un-snarky tone).
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October 21, 2009, 3:16 pmzippypinhead says:
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October 21, 2009, 3:23 pmJeff J says:
Why wouldn’t the passengers be free to leave absent reasonable suspicion or a threat to officer safety? They don’t need to stick around for the officer to write the ticket. It seems that under those circumstances they could decide to get out the car and hoof it. Granted, they may in effect be a “captive audience” because they don’t want to leave the driver or find another way to where they were going. But how is this circumstance different from a (Bostick?)situation where a bus passenger is asked by officers to search her bag and is reluctant to end the encounter because she doesn’t want the bus to leave her behind?
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October 21, 2009, 3:30 pmOrin Kerr says:
SK says:
Your mindreading skills are poor.
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October 21, 2009, 3:32 pmSeamus says:
But this guy wasn’t a suspect (at least not until the cop decided his answers were suspicious). If you aren’t a suspect (i.e., if the cop doesn’t even have reasonable suspicion) are you obligated to answer *any* of his questions? (I understand that, under Hiibel, if the cop has reasonable suspicion, you may be required to tell the cop who you are, but I haven’t seen anything suggesting your obligations go any further than that.
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October 21, 2009, 3:42 pmPhilistine says:
I’d like to know what “officer safety concerns” the officer had–and how they would be assuaged if the passenger had happened to have his identification with him.
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October 21, 2009, 3:53 pmsk says:
“Your mindreading skills are poor.”
Well, what is your angle here? I’m not the only one who noticed this statement: Jeff J basically made the same observation that I did.
Here’s your full quote.
“It means that the traffic stop that is so easily permitted by the Fourth Amendment gives the police a few minutes to question anyone in the car on whatever topic the officers like, even absent any reasonable suspicion or identifiable threat to officer safety, in a situation in which those in the car are not free to leave. In other words, the only questioning that is not permitted is questioning that goes on for a pretty long time in the complete absence of reasonable suspicion. But how likely is it that an officer is going to subject a passenger to extended questioning for a long time absent any reasonable suspicion?”
It appears that you are uncomfortable with the finding of the Court, and you are uncomfortable because “..the only questioning that is not permitted is questioning that goes on for a pretty long time in the complete absence of reasonable suspiction.” So far, this is simply a restatement of the Court’s findings. Your opinion of that finding is in the next sentence: “But how likely is it that an officer is going to subject a passenger to extended questioning for a long time absent any reasonable suspicion?”
I guess I’l repeat Jeff J.‘s nonsnarky question: what’s wrong with a constituional ban on unlikely behavior?
Sk.
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October 21, 2009, 4:01 pmSnaphappy says:
During law school, at exactly the point where law pervades one’s every thought, I got pulled over for speeding. The officer’s first question was, “What’s the hurry?” I immediately spotted the invitation to confess to being in a hurry, and the following exchange occurred:
O: Why were you going so fast?
SH: I don’t think I was going fast.
O: How fast were you going?
SH: I’m sorry, I’d prefer not to answer that question.
O: Well you have to answer.
SH: I have to answer?
O: I’m performing an investigation.
SH: And I have to answer your questions?
O: That’s right.
SH: {silence}
O: Well I clocked you at 72.
SH: {silence}
O: Wait right here.
At which point I got a ticket. The entire time I was trying to be polite yet avoid incriminating myself. The exercise was moot since I was driving on a highway out-of-state and had no intention of coming back to contest the ticket, so I might as well have just fessed up. But I didn’t feel I should have to. Even so, those were some highly uncomfortable silences.
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October 21, 2009, 4:08 pmmk says:
Should the 4th A require that a cop ask only P’s name, then rush back to his squad car to see if the name checks out? Surely it’s reasonable for a cop to confirm everyone’s identity; I mean, what if the passenger is Osama bin Laden? And as soon as the passenger’s identity did not check out, the analysis is fairly simple, is it not? Any contrary rule would require a cop to take a subject’s word at face value and let the subject go prior to a records check. “I don’t have any identification, but my name is Seymour Butz. See you later.”
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October 21, 2009, 4:11 pmOrin Kerr says:
sk,
I’m sorry if I was unclear: I realize it must be frustrating to guess that a blogger thinks something, and to write a response based on that guess, only then to be told that your guess was wrong. To be clear, no one is saying that there is anything intrinsically wrong with a ban on unlikely behavior. The problem, as I see it, is a combination of specific constitutional doctrines that make the length of the stop for questioning a surprisingly important question and one that I think gives the police a troubling amount of power.
To see why, I think you need to start with the recognition that the original stops in these cases are mostly (and in many cases entirely) pretextual. Pretty much every car will violate some traffic law, and Whren plainly allows an officer to stop the car for it even if he really just wants to ask questions unrelated to the stop. These stops are, of course, common. I know police officers who make traffic stops all day and don’t even have a ticket book, as they have no interest in writing tickets.
So the whole game becomes how long they can ask people questions and what questions they can ask them, and who you can ask. That is, the entire point of the traffic stop in the eyes of the officers is to get a chance to seize people without any suspicion, and to ask them questions designed to tease out if there is anything else a foot. In other words, the idea is to use the traffic violation as an automatic Terry stop, except without the actual reasonable suspicion to start things off, as a chance to ask questions unrelated to the stop. (Of course, its not that all officers do this, but many do, including many in these cases.)
The question is, to what extent will the Fourth Amendment limit the scope of permitted questions, in content or in time, to limit an officer’s incentive to use traffic stops in this way and to effectively bypass the reasonable suspicion limit of Terry? If the Fourth Amendment only bans the very unlikely situation of an officer who keeps asking unrelated questions, extending the stop, but can’t even get to reasonable suspicion based on the answers, then the answer would seem to be that it doesn’t: The officer is free to make the most of the pretext, and has the maximum incentive to make the pretextual stops.
The reason I think this is troublesome is not that I see an inherent problem with a constitutional ban on unlikely behavior, but rather that I see this narrow test as giving the police too much incentive to make pretext stops. I certainly agree that pretext stops are allowed, but the key question is how much incentive the police have to make them; I fear that a rule that effectively lets the police as many unrelated questions as they want for as long as they want gives them too much of an incentive to do that.
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October 21, 2009, 4:22 pmOrin Kerr says:
Jeff J asks:
Here’s the unanimous Supreme Court in Arizona v. Johnson last Term:
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October 21, 2009, 4:28 pmsk says:
Oh. To clarify in my own case: I don’t have a particular well developed opinion on the legal aspects of this post (I can see arguments on both sides). The phrasing of your question (and the two or three sentences just prior to it) just seemed odd or interesting (that’s why I described it as a very minor point in my original post). I thought it revealed a certain psychological or subconscious preconception (and, again, I don’t mean anything by this-rather, I was just observing a little quirk of language use)-I guess I was just reading too much into it.
Sk
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October 21, 2009, 4:35 pmSandy MacHoots says:
Down near the Mexican border, police pull people over all the time and put them through questioning. It gets so bad that some of the ranchers, when pulled over, say something like, “I’m sorry, it’s against my policy to chat with law enforcement officers,” or “Why the hell do you need to know that?”
The ranchers, who are well-to-do and politically well-connected white guys, get away with this, since the cops would find it more trouble than it’s worth to go after folks who know the judges and can hire good lawyers. I later tried this myself when I got pulled over for having a burned-out license plate light. Cop backed right off.
But much poorer and less-connected Hispanics have to put up with it. Cops just keep talking until they get suspicioius or tired of it. If they complain, they can get detained for hours while things get “checked.”
Police have to have discretion, but the more discretion the police have, the more it will be used against those who can’t defend themselves.
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October 21, 2009, 4:41 pmJeff J says:
Thanks. I had a sneaking suspicion I was missing some on-point caselaw . . .
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October 21, 2009, 4:50 pmJohn A. Fleming says:
Instead of enabling the Courts to forever tinker with the edges of the 4thAm, there is a 3rd way.
The people limiting the behavior of the police. For example. You’re pulled over. The officer comes to question you. Forestall the chitchat, and tell the officer, “If you think I have violated a traffic ordinance, please check my ID, write me a ticket, and let me be on my way. If you’re not going to write a ticket, then please be so kind as to inform me why we are seized, or let us be on our way now.”
I want the police to make lots of traffic stops. That’s how they catch the bad guys. It also adheres to the broken window Bratton/Giuliani concept. And, by keeping the stops short and efficient, it lessens the people chafing at abuse of the police power. We have to insist that officers have a reason to stop us. No more pretexts. No more getting off with a warning. Think of it this way. By insisting on a ticket, you’re doing your part, helping the police to keep your community a nice place to live.
Then again, Alinksy claims that demanding that an organization live up to its own rules is radical and subversive ...
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October 21, 2009, 5:05 pmOrin Kerr says:
John,
I’m curious, how did it go when you tried that?
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October 21, 2009, 5:18 pmDavid Nieporent says:
It’s worse than that. The probing questions made it far more likely the guy would shoot the officer, if the guy was dangerous. If the officer were really worried about safety — something the court doesn’t bother to even address, once the officer recites the pro forma line about “officer safety” — then the officer would have let them go with a ticket for a broken headlight, not prolonged the stop to ask questions without any grounds for suspicion.
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October 21, 2009, 5:33 pmAnderson says:
I am still trying to figure out how I, as a police officer, improve my safety by asking a passenger for ID. How is that not just blatantly pretextual?
Any help here, folks?
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October 21, 2009, 5:38 pmDavid Nieporent says:
Surely it’s not reasonable for a cop to confirm everyone’s identity. What possible business is it of the police officer as to the name of the passenger in a car stopped solely for a broken headlight?
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October 21, 2009, 5:42 pmJohn A. Fleming says:
It didn’t. I haven’t been stopped in years, and I got a warning. And I was annoyed, because I was rushing on my way to work, but I wasn’t aware of any obvious traffic infraction. But I was driving a busted old pickup. But I had on work attire, with a visible corporate badge. Not exactly an obvious Terry stop. And I was thinking, why is the officer wasting time on me, other than to calm rush hour traffic flow by having an excuse for flashing lights. After having been more informed by ... reading this blog, and others ... I’ve concluded next time (if it comes) I’ll insist on a ticket, or let me go. If he’s going to stop me and take my ID, I darn well better get a ticket for it. Just doing my civic duty to help regulate the police power.
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October 21, 2009, 5:48 pmzippypinhead says:
The moral of the story is, while you may — or may not — get away with not answering the officer’s non-vehicular related questions during a traffic stop (although basic identity questions aren’t ones I’d recommend stiffing Officer Friendly on), if your answers happen to be lies, you should be prepared for some unpleasant consequences.
In one of those interesting coincidences you sometimes get on VC, Professor’s Volokh Second Amendment post this afternoon has the following on-point quote from the new Fifth Circuit case, U.S. v. Bledsoe that makes this point rather well:
Sorry, but I have no sympathy for this defendant.
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October 21, 2009, 5:56 pmCleanville Tziabatz says:
No. I didn’t realize that. That cuts in favor of what the police did, as far as I am concerned.
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October 21, 2009, 6:03 pmWaste93 says:
The officer ran the driver and passenger through the computer system. I assume they ran them through NCIC. One of the regulations of NCIC is that it can only be used for investigative purposes and you need probable cause, for lack of a better word, to clear the person through the system. So the driver would be covered but clearing the passenger through the system may have been in violation of of NCIC rules. Though I don’t know an officer that doesn’t clear everyone in the vehicle on a traffic stop.
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October 21, 2009, 6:06 pmthe Bruce says:
I have used this reasoning a number of times when arguing motions to suppress. I am a prosecutor, so this rule helps me keep evidence I want for trial. That having been said, I fully expect that we’re not that far from the court limiting this rationale, even though it will mean distinguishing the Arizona v. Johnson language quoted by Orin. I think we’re going to see a decision that says something like “so long as the suspected offense that justified the detention is concurrently being investigated, and the unrelated inquiries do not measurably extend the duration of the stop, the seizure is not rendered unlawful by the questioning on the unrelated matter.”
I think there’s something of a logical analog to Knowles v. Iowa limiting Atwater v. Lago-Vista. Atwater says there’s no 4th Amendment concern where an individual is searched incident to arrest for an offense that is a citation-only offense under state law. Knowles says: you’ve actually got to make the arrest, not just have PC for that arrest and jump right to the search. In the detention context, the law is that reasonable suspicion justifies an investigatory detention; I think we’re going to see a case that says the officer actually has to make the investigation, not just take advantage of a free block of time to make random inquiries.
If I was the law-review-article-writing kind of attorney, I might just take a stab at it.
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October 21, 2009, 6:17 pmgasman says:
The officer safety story is a crock. The safest route from the officers perspective is to conclude the transaction (ticketing?) for the infraction of the headlight, then send them on their way. His safety only became in question when he potentially made the passenger jumpy with all of his questions. By exceeding the constitutional authority, the cop could have just as easily found himself looking down the barrel of the passenger’s gun. I’m not advocating knowingly sending gun toting felons on their way; merely that the safety issue is not a cause for what the officer did. He got lucky that he didn’t get shot as he made a suspect nervous, but did not have complete control of the situation (two suspects, two doors, unknown potential for weapons).
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October 21, 2009, 6:23 pmSplunge says:
Pretty much every car will violate some traffic law, and Whren plainly allows an officer to stop the car for it even if he really just wants to ask questions unrelated to the stop. These stops are, of course, common. I know police officers who make traffic stops all day and don’t even have a ticket book, as they have no interest in writing tickets.
I had to laugh at this. I was stopped once when I was driving slowly at night through a residential neighborhood (in fact I was looking for a small “FOR SALE” sign I’d seen earlier). The policeman very dutifully notified me that one of the license-plate bulbs was burned out on my car. Knowing full well that the actual problem was my admittedly odd behaviour driving slowly around, stopping frequently to peer into darkened lawns, I explained who I was and my actual errand, and the policeman was happy enough to let me go (although he followed me a for a little while afterward).
What made me laugh was the fact that my car not only has no license plate lights, it doesn’t even have any protuberance or ledge or whatnot that could hold them. The plate is simply screwed onto the bumper in a flat place.
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October 21, 2009, 6:32 pmBoom Boom says:
Here in Oregon, we value liberty. ANY extension of the stop for questioning unrelated to the purpose of the stop is prohibited unless it occurs during an “unavoidable lull” as occurs when an officer is running the driver’s info through dispatch. The officer can’t even legally ask the passenger questions unless he has reasonable suspicion.
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October 21, 2009, 6:49 pmJohn A. Fleming says:
I’m proposing a 3rd way KISS principle. All stops for cause. More stops, and quicker. Don’t get complicated trying to smoke out the bad guys. Quick ID checks, and quick once-overs of the drivers and passengers, looking for the obvious stuff. If the bad guys get the idea that they can’t ever go a mile before the police stop them, they’ll either leave, or stay around and clean up their act. Which is the desirable outcome, right?
It depends on the observation, of course, that the bad guys are none too bright, and generically scofflaws, so they’ll always be breaking traffic or vehicle laws, giving the police plenty of opportunities to check up on them.
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October 21, 2009, 6:56 pmSandy MacHoots says:
Sorry, this is [expletive deleted]. Exactly what remedy is there available for, say, a migrant worker and his family in an old pickup who are stopped and harassed by a police officer?
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October 21, 2009, 7:28 pmChrisTS says:
But the ‘lied about his name’ part cannot count as a basis for suspicion, because the officer did not know it was a lie at the time.
In fact, as much as I sympathize with the police, I think “I don’t know” as a response to “What’s your address?” from a passenger could be seen as simply refusing to answer. Not the smoothest approach and not what we might expect from our more intelligent peers, but still plausible as a simple evasion.
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October 21, 2009, 7:36 pmDavid Nieporent says:
Exactly. There are two possibilities:
1) The passenger actually doesn’t know; perhaps he’s mentally challenged, perhaps he just moved there and has forgotten.
2) The passenger does know, and doesn’t feel like telling the cop.
Neither one can constitute grounds for reasonable suspicion that he’s committing a crime or carrying a weapon.
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October 21, 2009, 7:44 pmCleanville Tziabatz says:
See, I would be okay with a rule that refusing to give an address is pretty much automatic reasonable suspicion.
I think police need a bright line rule as far as when refusal to answer a question is RS (and/or helps it along). I think the rule SHOULD be: refusal to answer name, addy and/or birthdate is RS, and any other “evasiveness” is not to be considered in the RS calculus whatsoever. Like all brightline rules, this is not perfect, but it is fairer than relying on an LEO’s “training and experience.”
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October 21, 2009, 8:09 pmEinhverfr says:
Snaphappy:
If I get pulled over, I tend to use a slightly different tactic.
1) I always try to get the first word in and make it friendly. “Hello, officer. What can I do for you today?” is a good way to start out. If I get asked to slow down, I ask how fast I was going. It really changes the dynamics in a positive way.
2) For traffic infractions I generally cooperate as best I can.
Generally this accomplishes two things: 1) it reduces suspicion by the officer against me by showing I am not afraid of the officer but not in a confrontational way (if you are afraid of the officer, this is often a basis for suspicion) and 2) It prevents a confrontation from developing.
I get more warnings than tickets but don’t get many of either.
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October 21, 2009, 8:11 pmDavid Nieporent says:
I’ll repeat what I said at the beginning of the thread: “reasonable suspicion” of what?
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October 21, 2009, 8:24 pmAnderson says:
I’ll repeat what I said at the beginning of the thread: “reasonable suspicion” of what?
Homelessness? Dislike of cops? Those are misdemeanors, right?
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October 21, 2009, 8:29 pmShelbyC says:
Isn’t the criteria for a Terry stop reasonable suspicion that criminal activity is afoot, or something of that nature? I don’t think you need reasonable suspicion of a particular crime, do you?
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October 21, 2009, 8:32 pmCleanville Tziabatz says:
Having a warrant out on you. I don’t know if that is the most common reason to refuse to give name / address / birthdate, but it would defo be on the Family Feud big board.
Sort of a side note: I have seen policemen assert that, if the officer has RS, then you must also, upon being asked, tell your Social Security Number and/or telephone number (upon pain of valid obstruction charges). Is this actually true anywhere, or does anyone know where this belief comes from?
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October 21, 2009, 8:34 pmohgoodgrief says:
OK, lets get some of the facts of life out:
Cops look for anomalies; headlights, tail lights, evasive answers, the smell of marijuana, the trash in the cars they stop... you know all this. But then they assess the totality of the situation to reach some preliminary conclusions about the likelihood that some sort of nefarious activity is taking place. In sum, they can pretty well guess whether you are a “bad guy” or a “good guy” by subtle indicators. That’s what they’re paid to do. The good ones are hunters. They’re prowling about looking for bad guys who are prowling about looking for “good guys” to prey upon.
How does one reconcile this sort of practice with the 4th A? Lawyers need to teach classes to cops training/educating them how to better articulate their suspicions and the steps they took in reaching them that they fail to routinely put into their reports.
In the many years I spent in law enforcement including 21 years in the LAPD aka the “blue meanies” I can only recall a couple of times where my articulation of the steps I took to reach a conclusion did not result in at least a DA or CA filing. As a leader, I tried to pass this lesson on to my subordinates. Sometimes successfully, sometimes not.
Not all police are equal, just like there are lawyers who don’t amount to much. Certainly, we could do better in getting better educated, more intelligent more articulate cops. But lawyers could do a better job of teaching cops and, supporting them in their endeavor to protect the “good guys”.
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October 21, 2009, 9:05 pmGov98 says:
Orin’s dislike of confirming ID of passengers leads to a total catch 22 for police and prosecution.
On the Barker speedy trial side if cops aren’t attempting to run warrants and serve them on people who have absconded then that weighs against the prosecution in a speedy trial claim, so here if we take Orin’s dislike and make a rule out of it, it is highly beneficial to lie to the police about anything that could result in warrant service, and then there is no means to prosecute when something turns up.
Ultimately, the not meaningfully prolong rule is there for a reason, a cop should generally be allowed to ask the driver and passenger their name and DOB and if a person is acting shifty (and the cop can articulate that) then yes prolong it to find out that information. (In the context of an already lawful seizure is this really unreasonable?) Seriously, unless your hiding something how much time does the name/ DoB question take, 5 seconds? Only a person who is making it up doesn’t know it off the top of their head.
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October 21, 2009, 9:23 pmArthurKirkland says:
.
An unkempt car — fast food wrappers, a cell phone charger, perhaps even empty Juicy Juice containers strewn on the floor — is an indicator of a “bad guy?”
A bad tail light is an indicator of a “bad guy?” That isn’t even sensible code for “poor people.” Tail light replacement frequency on some BMW 5’s is a known problem, according to my dealer. The subject has come up while I have had an annoying number of lights (always the passenger side, both vehicles) replaced.
Even if the target is “bad guys,” what would be the ‘subtle indicators’ associated with Scooter Libby, or a person who cheats on his taxes in six-figure chunks, or a person who arranges government contracts with bribes, or engages in securities fraud?
I believe the police roust plenty of people — customarily the poorer citizens — for no lawful reason. Most of the improper conduct passes without being recorded because the unreasonable intrusion generates no evidence of criminal conduct and the subject is relieved to depart without incident. Periodically, the
blind . . .officer finds an acorn and proudly holds it aloft as evidence of his ability to discern a “bad guy” by means of “subtle indicators.”Some people, apparently, then swallow it.
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October 21, 2009, 9:49 pmohgoodgrief says:
Y
You’re letting your political beliefs cloud your legal analysis.
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October 21, 2009, 10:18 pmArthurKirkland says:
Please enlighten me regarding the reasoning supporting an assertion that a messy car signals criminal activity.
Or the reasoning that supports the assertion that a dark tail light signals criminal activity.
Or the information supporting an assertion that the blown calls on “subtle signals indicating bad guys” are recorded, or the assertion that the number of arrest-generating “subtle signal” outnumbers the wild goose chases.
Perhaps the information — or, as I expect, the lack of it — will avoid (or at least identify) clouded thinking.
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October 21, 2009, 10:42 pmjccamp says:
“The officer safety story is a crock.”
I think more than a few misunderstand the concept of officer safety. “Officer safety” does not mean that the actions taken are supposed to be the safest available to the officer. The terms means that officers, while conducting traffic stops, investigations and/or threshold inquiries commensurate with the law, may take certain steps to increase their own safety. There is a risk inherent in many police duties, and the rationale of officer safety is to grant officers some leeway in 4th A issues by recognizing such inherent risks and establishing a government interest in allowing officers some latitude in order to minimize the risks.
In this situation, the officer stopped a vehicle for a traffic violation, and decided he wanted to know a little more about the other occupants who were going to be sitting just a few feet away while he dealt with the traffic violation. That’s common sense. Once the defendant gave evasive and unbelievable answers, the rest is history.
If officer safety meant nothing more than the absolute reduction of all risk, officers could sit at the station-house and read blogs, at the risk of nothing more serious than mild apoplexy at some of Arthur’s posts. But then, who would arrest the criminals? You know, like convicted felons riding around in cars with guns.
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October 21, 2009, 10:49 pmAnderson says:
Shorter jccamp: “officer safety” is not to be confused with officer safety?
decided he wanted to know a little more about the other occupants who were going to be sitting just a few feet away while he dealt with the traffic violation
This begs the question: how does “knowing a bit more” make the officer safe? A patdown would make more sense than merely asking for ID. On Camp’s logic, a patdown is justified anytime an officer pulls a car over. Maybe that’s the law, but it shouldn’t be.
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October 21, 2009, 10:58 pmjccamp says:
Arthur -
Such things as messy cars are situational. For instance, new car, or a not-new-but-still-valuable car (or even an old not-valuable-at-all car) which is messy may indicate the person in possession has no proprietary interest in the vehicle because it’s stolen, or obtained via some fraud (like an overdue rental car on a stolen credit card). An officer would have to articulate more than just the messy interior to justify some stop or seizure (in a 4th A sense), but it could be one element in such articulation.
A burned out running lamp is not indicative of anything but a traffic violation, which can be the basis for a legal stop. If there is an actual violation, then a stop is not pretextual.
If an action is lawful, then I don’t see why anyone would criticize an officer for taking that action in good faith. Law enforcement officers are paid and sworn to find and apprehend those breaking the laws. If an action taken by an officer while performing those functions is within existing law, then don’t complain about the police. Change the law if you can, whatever, but don’t expect cops to not do those things allowed by law just because you don’t like the same actions. If enough people agree with you, then our system provides a remedy, a way for change you can believe in.
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October 21, 2009, 11:08 pmjccamp says:
“a patdown is justified anytime an officer pulls a car over...”
Actually, it’s not, and I said no such thing.
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October 21, 2009, 11:09 pmHelene Edwards says:
One night at 3:00 a.m., anxious to get home, I blitzed a red light in front of a San Francisco State University dorm. Campus cop stopped me, and, red with anger, demanded to know where I was headed. I told him (verbatim): mind your own g.d. biz, write the f’ing ticket and don’t keep me one minute more than necessary. I think that last part may have been Cal. law at the time. He slunk away and did just that.
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October 21, 2009, 11:09 pmohgoodgrief says:
If you read the entirety of my post, and took it in its entirety instead of picking out the parts you find offensive, you’d perhaps understand that it takes a number of indicators to enable a cop to form the opinion that the situation bears further investigation. Certainly, I’ve “traffic stopped” people in Beemers, MB’s and even a Rolls Royce perhaps. It depends on contextnot merely the presence of trash (or any other single “subtle signal”. The neighborhood (not only poor neighborhoods are patrolled). Some of my best arrests were in nice neighborhoods where something about a person or car attracted my interest. Again context is the key. Poor people do attract statistically more police attention. Not because they are poor but perhaps some poor people have a higher proportion of bad habits that take them towards poverty. (Don’t let your head explode) People who have bad habits, people who are poorly educated, people whose cultural attributes are unhelpful in making it up the ladder of success, people who have a powerful drug habit e.g. methamphetamine, show the signs of their disadvantage. That’s not the cop’s fault. But a cop would be derelict it he/she didn’t take these indices into account in selecting to stop the red car instead of the blue one.
Folks sometimes say “You only stopped me ’cause I’m black”. I worked South Los Angeles during part of my career. I can safely say that had I seen a white guy in a black neighborhood I would be more likely to stop him as anyone else. Context matters.
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October 21, 2009, 11:10 pmjccamp says:
From the decision -
“...the officer testified that he requested the passenger’s identification based on safety concerns. Officer Brown was the only officer on the scene and was outnumbered three to one by occupants of the vehicle. The stop occurred in the early morning hours and Officer Brown was one of only three officers on duty, with each being assigned to different sections of town. Officer Brown also indicated that requesting identification allowed him to know more about who he was dealing with and protect not only himself, but also the other occupants of the car. Officer Brown’s testimony was consistent and his credibility was not meaningfully challenged.”
Unanimous decision by a three judge panel, 1st CCA.
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October 21, 2009, 11:13 pmDavid Nieporent says:
And how does asking for the passenger’s name increase the officer’s safety?
Uh, you have it backwards. Because there’s an actual violation, the stop is pretextual. (“Pretext” means that there exists a valid reason, but it wasn’t the real reason.) If there was no actual violation, then the stop would simply be illegal, not pretextual.
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October 21, 2009, 11:42 pmjccamp says:
David —
Definition of “pretextual”
from the U S Legal Definitions site:
“Pretext generally refers to a reason for an action which is false, and offered to cover up true motives or intentions. ”
“The reasons assigned to justify an act, which have only the appearance of truth, and which are without foundation; or which if true are not the true reasons for such act.” lectlaw.co
“And how does asking for the passenger’s name increase the officer’s safety?”
Place yourself in the officer’s position. Wouldn’t you like to know if the adult male passenger is
a) an off-duty police officer
b) a rabbi
c) Arthur Kirkland
d) a convicted felon carrying a firearm?
But then, the Circuit Court of Appeals understood the logic. That’s really all that matters.
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October 21, 2009, 11:52 pmArthurKirkland says:
When I drove a Chevette and an aged Corolla, I was stopped frequently, with explanations such as ‘you were a little late with your signal for that left back there’ or ‘you were moving a little fast for conditions, weren’t you?’ Driving in the South with out-of-state plates, I once was told the officer ‘just needed to ask me a few questions.’ The ‘few questions’ lasted 15 minutes, 10 of which involved a backup officer peering down my wife’s shirt through the passenger side window (and telling her, when she attempted to adjust her position to avoid his peering, to stop moving).
Driving BMWs and Lexuses (Lexi?) and a Porsche, I haven’t been stopped for anything less than 20 to 30 over the speed limit in 20 years. I have waited weeks to replace a headlight, months to swap annoyingly unreliable tail lights. My windows on one vehicle were unlawfully tinted, which cost me at trade-in dollars but never triggered a stop by police.
I believe my experience is the standard one.
One of my friends is a former managing partner of the largest office of a large law firm. He drives vehicles similar to mine, lives near me. He says he also was stopped frequently when he drove beaters — and that he still is stopped frequently enough that he tries to allow extra time for trips to important appointments. He is black. I believe evidence indicates his experience is common, shading toward universal.
The abuse of poor and black Americans is enough to incline me to supporting limitation of officers’ discretion, which plainly has been abused. A “juicy juice box on the floor” argument wouldn’t fool an eight-year-old, because at most it indicates the vehicle carries eight-year-old passengers.
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October 21, 2009, 11:56 pmArthurKirkland says:
Place yourself in the officer’s position. Wouldn’t you like to know if the adult male passenger is
a) an off-duty police officer
I dislike turning this discussion into a castigation of police officers, but if sworn misstatements constitute a crime in your jurisdiction, wouldn’t learning that the passenger regularly testifies against defendants constitute at least a ‘subtle signal’ that the passenger commits more crimes than the average citizen?
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October 22, 2009, 12:01 amjccamp says:
David —
Sorry, maybe that answer was incomplete. There is case law (here) that pretty much establishes the validity of so-called “pretextual’ stops, if in fact a violation occurred, even if the real reason for the stop is a desire by the cops to conduct some other investigative function unrelated to the original observed violation. So, in a legal sense, if a violation occurred, then there is no such thing as a “pretextual” stop. That was my point, responding to another post about burned out lamps and criminal activity. Maybe we’re saying the same thing.
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October 22, 2009, 12:02 amohgoodgrief says:
“The ‘few questions’ lasted 15 minutes, 10 of which involved a backup officer peering down my wife’s shirt through the passenger side window (and telling her, when she attempted to adjust her position to avoid his peering, to stop moving).”
Aha, now we’re getting to the heart of your concern.
If you can set aside your emotional reaction to the issue and look at it logically: Officer-A lasciviously peered down my wife’s blouse ergo all officers peer down women’s blouses. Officers sometimes do wrong things ergo we must punish society by preventing officers from seeking to ferret out criminals while protecting the public. Much like the exclusionary rule, you feel that society must be deprived of the (prospective) protections afforded these sort of stops in order to punish the policeman.
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October 22, 2009, 12:19 amjccamp says:
Arthur —
I’m not denying that the law enforcement industry (for lack of a better term) has its share of morons, cowards, liars, thieves and individuals with authority issues. But then, so does the U S Congress (as a percentage of the whole, maybe even more rascals). Or practically any other discrete group –save perhaps this blog — but then, it sounds like the essential issue becomes hiring, training, retention, etc. If we want a more professional law enforcement, then raise the standards, train better and manage better, and be prepared to pay better. Instead of hammering the system here, why not volunteer to teach at your local police academy (as another poster suggested) ? Or demand your local law enforcement require a college degree (despite what this would to do affirmative action numbers)? Maybe Insist on psychological testing for entry.
When you hire high school graduates and pay them low wages, give them minimal training (wasn’t this an issue in the recent Willingham thread?), encourage misbehavior through skewed priorities (like lots of drug arrests being some kind of panacea for elected politicians)...I’ll stop here. But you must see the point. Everyone seems to have some anecdotal evidence of police mis/mal/non-feasance, ala Helene Edwards @ 11:09 PM, or your cop gawking at your wife’s physique. That has nothing to do with the legal issues in the OP, which I think is “...limits the Fourth Amendment presently imposes on officer questioning during traffic stops...”
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October 22, 2009, 12:26 amArthurKirkland says:
Only one officer leered. That is an anecdote — which I ascribe to the particular problems of Texas law enforcement — dwarfed by the widespread problems of authorities’ everyday abuse of (certain) citizens.
Many officers roust the poor, the black, the young (those least able to do something about it) for no good reason — or, conversely, refrain from stopping the wealthy, the white and the etsablished despite having good reason to do so.
Most blacks are afflicted. Many poor citizens are afflicted. That is the problem. If you are a drug user, the best way to avoid being caught (and a good way to avoid a problem trhough officer discretion if you are caught) is to be wealthy, white, well-connected (or, best, all three). If you want to avoid problems associated with a failed headlight, drive a $75,000 car and be white. I was no more a criminal, or a subject of reasonable suspicion, when driving a ratty Chevette than I am while driving an expensive car.
When I read the Constitution, I do not find the provisions that support — or tolerate — these circumstances.
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October 22, 2009, 12:33 amKirk Parker says:
John A. Fleming (5:05pm): here in WA, open-carry activists have learned to open their side of the dialog with the police by asking, “Am I being detained?” If the answer is “No”, then the reply is simply “Have a good day!”
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October 22, 2009, 12:49 amjccamp says:
Arthur —
On other thing, about the inverse ratio of car value to probability of police stops: that also would be situational. Investigators specializing in organized auto theft, as one example, stop nothing but high dollar automobiles. They would use observed traffic infractions and equipment violations for the initial stop, and then give the vehicle a fast once-over while covering the violation with the driver. The quick and dirty examination would try to find discrepancies between the serial number (VIN) and the observed characteristics of the car/truck/whatever. Sometimes, the vehicle registration would contain clues to the stolen or fraudulent nature of a forged proof of ownership. If and when an issue is discovered in the first minute’s look, then the detective could articulate a basis for a longer stop and seizure if the evidence justified such.
Pre–Whren, the thinking detective would document each stop and write lots of tickets for observed violations that led to nothing more, to establish the non-pretextual nature of the stops. So, many people in expensive cars would get stopped and ticketed for minor infractions, to lay the predicate for the stops that resulted in felony cases.
I guess where you lived, there wasn’t much of an auto theft investigative function. Otherwise, you might have met them. When they wrote you a ticket.
But I grant that the average uniformed police officer is less likely to stop someone perceived as wealthy and/or important than a person driving a beater with one headlight and a tag stuck in the back window. Wouldn’t you be similarly inclined?
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October 22, 2009, 12:50 amArthurKirkland says:
I represent officers periodically (against departments, mostly), and have developed several fine friendships from that work. I believe most officers are fine people in trying jobs. I agree that most officers are as unrascally (or more unrascally) as the members of Congress I know.
A college degree requirement might be worthwhile. I agree that ‘rent-a-cop’ pay scales and insistence on part-time officers create unhealthy environments and put poor officers on patrol.
Systemic pressure seems to be one reason a police officer is far more likely than the average person to be culpable with respect to sworn misstatements; I have litigated that issue (pressure to lie or to refrain from telling the truth) more than once. The biggest factor is that officers testify far more frequently than nearly any other citizen.
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October 22, 2009, 12:54 amohgoodgrief says:
MostSome blacks are afflicted.ManySome poor citizens are afflicted.Most of the police come from the lower “classes”. I was born into poverty. Couldn’t afford a university education, drafted into the Army while attending my local junior college, sent to Vietnam, had to “bootstrap” my way up the economic ladder. Was stopped by the police, chased and got away a few times, roughed up, even stopped when I was a cop. So what? I’m better for it.
When black or other minority group cops stop black/poor/minority folk does that qualify as abuse of power? In and of itself, no. Is there abuse of authority? Absolutely! Is the answer to sanction society by preventing cops from stopping and investigating these people? If you argue in the affirmative, you and Drako might be kindred souls, for you would be inflicting the greatest punishment on the people of society at-large.
I’ve agreed that there are police abuses that they could and should do better. I wonder if you might agree that the solution is not on restricting the discretion of the faithful servants amongst the police service but doing a better job of selecting, training, educating and yes, supporting the police for the sake of the value they add to society.
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October 22, 2009, 1:03 amDavid Schwartz says:
You would be amazed at how frequently human intuition is right about these things. When you ask a person his name, and he says “umm” before he answers, that makes you slightly suspicious. It could just be he was deciding whether to answer you, but it could also be he was thinking of a plausible lie. So you follow up. More evasion leads to more suspicion, and soon you’re onto something.
People who know how to do this can be very, very good at it.
Officers do this kind of thing all the time. A neighbor complains that she heard a loud noise from a house, like a woman screaming. The police are called. A man answers the door and says there was no noise that he knows of and everything is fine. What does the officer do?
Same thing. Ask non-threatening normal questions and look for a germ of suspicion. If you find it, latch onto it and probe. When you’re convinced everything is fine, leave. If you find a problem, deal with it.
So long as you don’t arrest someone on a mere hunch, detain them for an hour on one, or force your way into the house, I don’t see the problem.
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October 22, 2009, 1:07 amjccamp says:
“Systemic pressure seems to be one reason a police officer is far more likely than the average person to be culpable with respect to sworn misstatements”
I suspect that, as well, many officers fail to understand exactly why they never seem to prevail in court. They suspect — well, they know — that defendants lie, lawyers misrepresent, judges and prosecutors tend to look down on cops, and all of this works against them. They may to think in terms of “no one else tells the truth, so why should I?” They equate their own poor technique and testimony and inability to explain the basis for what happened with a rigged system — which, of course, it sometimes may be. Instead of being taught the correct way to do things, they learn the correct way to say things...under oath. It’s a training and management issue. I’d say a moral issue, but usually, the cops think they’re doing the right thing.
In passing, this is one of my bigger objections to the war on drugs: it turns otherwise honest cops into liars, to justify marginal search and seizure and keep those numbers coming in. As you say, “systematic pressure.”
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October 22, 2009, 1:10 amVisitor Again says:
ohgoodgrief says:
Folks sometimes say “You only stopped me ’cause I’m black”. I worked South Los Angeles during part of my career. I can safely say that had I seen a white guy in a black neighborhood I would be more likely to stop him as anyone else. Context matters.
________________
Ah, yes, the context. I’m a white guy who has lived and/or worked and socialized in what is now known as South Los Angeles for more than 40 years. I began my legal career in the late Sixties as a poverty lawyer in Watts. On several of the numerous times the LAPD has stopped me, in their quest to protect and serve, officers have told me that the only reason a white man would be in that area after dark is to get drugs or a prostitute, a statement that is offensive to both whites and blacks. On another occasion, in the late Nineties, I was told I ought not to be driving around the area, I told the officer that I had been living and working there before he was born. He responded: “They don’t know that. To them, you’re just another white guy driving around and they might take a potshot at you.” I barely restrained myself from saying I didn’t know it was the LAPD’s job to enforce racial segregation in Los Angeles. Actually, the LAPD treats white guys in South Los Angeles after dark the same way the Beverly Hills Police Department treats black guys in Beverly Hills after dark.
Yes, context matters. And the context that matters is the one Arthur Kirkland points to. Stop and frisk, pedestrian and vehicular, is one of the ways the police harass the poor and particularly poor blacks and Latinos. The police would never treat the residents of West Los Angeles the way they treat the residents of South Los Angeles. I’ve lived in both places, and the difference is palpable.
Given the way the police treat young blacks and Latinos on the streets–often belly down on the pavement with hands clasped behind their heads and police guns pointed at their heads for a simple traffic stop–I am not suprised that a huge number of them have nothing but contempt for the LAPD and for police in general. And those who witness this kind of police conduct on a daily basis are not friendly to law enforcement, whatever their age.
The officers of the LAPD still need to learn that respect is a two-way street. They don’t have a clue. They wonder why they sometimes get turned down by the voters when police bonds are on the ballot.
If you want to know what law enforcement officers think about the poorer communities they patrol, visit one of the cop chat rooms on the web. Even allowing for the fact that they are unloading, their comments are disconcerting, to say the least.
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October 22, 2009, 1:33 amaidian says:
In this case the officer had no business asking the passenger ANYTHING. The cop made a stop for a legally legit if actually BS reason. I’m not thrilled with the legal framework that allows and encourages that, but that’s the state of play. At that point the officer had the legal right to secure the information he needed to handle the vehicle code violation. If while doing that you notice someone tied up in the back seat or a huge cloud of pot smoke coming out the windows, great. But that’s not what was going on here.
As for the officer safety issue, no, running everyone in the car doesn’t make the officer safer. It is much more likely to increases the chance of a violent confrontation. More importantly, and taking precedence over even a (non-existent in this case) legitimate consideration for officer safety, is the fact that questioning the passenger has nothing to do with the reason for the stop. The officer has reasonable suspicion that a crime has taken place — a vehicle code violation. Officer was justified to perform a seizure of the vehicle for the purposes of investigating and correcting that issue — not to go on a fishing expedition.
The whole “escalating chain of probable cause” which cops try to work is somewhere between a joke, an insult, and an betrayal of everything good and decent about the American experiment. I once had an officer tell me — a working reporter — about the probable cause ‘game.’ I like this cop. I grew up down the block from him and we’ve been friends for years. I think on balance my hometown is a better place because he’s protecting it. But I tore into him over that. The fourth amendment is not a game. It’s what you swore an oath to protect. It is more important than making an arrest. It is more important than the life of an officer. If you believe otherwise you shouldn’t be a cop. And maybe you shouldn’t be an American.
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October 22, 2009, 2:02 amSplunge says:
I was no more a criminal, or a subject of reasonable suspicion, when driving a ratty Chevette than I am while driving an expensive car.
Perhaps so. But what you are missing is that you now have considerably greater reason not to be a criminal — at least of ordinary modest crimes, like robbery, burglary, assault, or carjacking, rather than esoteric “social policy” crimes like violating Sarbanes-Oxley, insider trading, catching more fish than your license permits, or declaring on your 1040 you gave $5000 to the Red Cross when you actually gave it to the Obama campaign or blew it buying lines of coke to snort off the tits of Eliot Spitzer-class whores.
See, your social status and wealth are velvet chains on your behaviour, because your comfort is far more vulnerable to social retribution. If you are arrested, your standing with your neighbors and your career prospects will plummet far more than would Joe Poverty, part-time McDonald’s burger flipper. You will be far more inconvenienced by three nights in jail without your cell phone, absent from your busy desk, thinking up explanations for your teenage children, than will Joe. You are used to, and fond of your wealth (that’s why you’ve worked hard to acquire it), while Joe has only $250 left from last payday to lose, and if he gets evicted again because he can’t pay the rent, well, that’s nothing very new.
In short, we citizens believe you are less likely to commit a personal crime not because we think highly of your character — in fact, we don’t — but because we recognize that your evident desire for high social status gives you stronger objective reasons to avoid condemnation.
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October 22, 2009, 2:21 amohgoodgrief says:
“The officers of the LAPD still need to learn that respect is a two-way street. They don’t have a clue. They wonder why they sometimes get turned down by the voters when police bonds are on the ballot.”
Though I don’t live anywhere near LA anymore I do catch the news from there occasionally. It seems that the LAPD of late has received wide acclaim for the great job they’re doing. Again anecdotes do not reflect what statistics prove. Here are the statistics provided by the Los Angeles Police Commission for the 1st quarter of FY09:
Preventable Traffic Collision 56.6% 82/145
Neglect of Duty 15.6% 95/609 (sustained complaints / number made)
Unbecoming Conduct 13.5% 68 / 505
False Statements 8.5% 7/82
Unauthorized Tactics 7.4% 6/81
Other Policy/Rule 4.2% 4/96
Unauthorized Force 3.8% 12/312
Discourtesy 1.1% 6/565
False Imprisonment 0.0% 0/222
Unlawful Search 0.0% 0/83
Hardly an indication of widespread police abuse, especially when the number of calls for service during the same period was 182,500 and the number of arrests was over 10,000 during the same period.
Again anecdotes vice statistics.
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October 22, 2009, 2:33 amRicardo says:
Well, there’s that. Then there’s also the fact that a lot of criminals are simply stupider than the average citizen. A lot of people are arrested for serious crimes after being stopped for minor traffic violations — that’s what started this thread.
Now, you might think that if you had committed a serious felony or were about to commit one that you would be extra careful to obey the speed limit, make sure your brake lights are working, signal at least 100 feet before making a turn, etc. You might even try to save up enough money from your criminal activity to buy an inconspicuous Honda Civic or other Average Joe-kind-of-car. But that’s the problem: you’re thinking.
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October 22, 2009, 2:59 amjccamp says:
Aidan -
“In this case the officer had no business asking the passenger ANYTHING.”
I think that was the thrust of the OP. The court held that, in fact, the cops could do exactly that. If it’s legal, lawful and within agency policy, you should reasonably expect the cops to affirmatively do it whenever they can. That’s their job. Please remember that the cops did not construct this maze of rules and odd logic, of triggers and barriers. They just have to operate within it. Witness the great variety of (sometimes mistaken) opinion about what is within legitimate behavior just within this thread. If an educated and informed audience can misunderstand the right and the wrong (in a legal sense), how can we really expect some underpaid, under-trained and uncomprehending cops to figure it all out? The case in point was 2 years in the making, being argued up and down by people with graduate degrees, and the decision may have described legal minutiae in differentiating it from other similar cases which resulted in different outcomes.
So please spare me the outrage about cops operating within this otherworld environment.
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October 22, 2009, 10:28 amGuest says:
I applaud both your apparent lack of concern for the safety of other drivers by running red lights and your generally rude behavior towards those who will knowingly put themselves between you and danger for a middle class wage. Bravo!
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October 22, 2009, 10:55 amtom joad says:
Officer safety my ass. We accept the premise that, in order for an officer to be safe in the course of making a traffic stop, he has to know the identity of not only the driver but any passengers in the vehicle. But doesn’t the very act of making any traffic stop — where any driver or passenger could be a violent criminal — raise concerns of officer safety? Wouldn’t it really be in the best interest of police officers and their safety if, upon stopping any vehicle, they drew down and ordered the occupants to exit the car and put their hands up?
The problem here is the ex-post rationalization that so many people here have adopted. The guy was a felon and he had a gun. See– that’s why the cop was suspicious! Monday morning quarterbacking. When he stopped the vehicle, the officer had no reason to be suspicious. Sure, you can stop and search parolee’s for whatever reason you like. But you can’t detain random people using that same rationale when you don’t even know their identity. And the act of not carrying ID 24/7 should not — alone — give rise to the reasonable suspicion that would otherwise be requisite.
But officer safety. Yes.. officer safety.
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October 22, 2009, 11:29 amguest1 says:
First Circuit, repeat after me:
de minimis, de minimis, de minimis, de minimis, de minimis, de minimis.
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October 22, 2009, 12:56 pmOhgoodgrief says:
“When he stopped the vehicle, the officer had no reason to be suspicious.”
An assumption not based on the evidence.
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October 22, 2009, 1:34 pmJMA says:
The things that many of you here are hitting on for “suspicion,” or as a tipoff that the speaker may be dishonest, are–to put it bluntly–nonsense.
Hesitation in answering a question is not a sign of dishonesty. The word “uh,” in and of itself, is not a good indicator of criminal behavior. When asked, at the sandwich place down the street, to give my name, I am often given pause because this establishment has not done that in the past. An unexpected question is as likely to produce hesitation as a dishonest answer.
Let’s not even consider the possibility that this man may usually give his name as “Bubba,” but when asked by a police officer might–when “Bubba” is on the tip of his tongue–reconsider and give his right name, since “Bubba” will not help the officer at all.
In short, come up with better examples or better evidence. Don’t try to pass of “delay” or “hesitation” or “ummmm” as a reason for thinking a person is being deceptive.
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October 22, 2009, 1:58 pmjccamp says:
JMA -
“...are–to put it bluntly–nonsense.”
Actually, hesitation in answering a simple question is often a sign that the responder is thinking about his/her answer, possibly to craft a something untruthful. It does not have to be all the time, just sufficiently frequent to give rise to reasonable suspicion. Another typical reply that gives rise to suspicion? An officer asks a simple question, such as “What’s your name?” The person who has been addressed replies with the same question, as “What’s my name?” as if he/she is repeating the question to try to understand it.
It doesn’t really matter what you do or don’t do. It only matters that certain behavior may be indicative of deception, and can give rise to reasonable suspicion (which the officer must be able to articulate), allowing the officer to pursue things further. There is a relatively low standard to be met.
But then, anyone who has had children will recognize the signs immediately. Certainly, the courts do, contrary to your own feeling that this is nonsense.
What I think maybe some posters in this thread have done is also quite common among cops: you have confused your own sense of what you think is right and wrong and what the courts have wrought. Only the latter has meaning as a matter of law. Complaining that law enforcement officers use tactics not prohibited by law or judicial fiat is not particularly reasonable.
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October 22, 2009, 2:21 pmJMA says:
But didn’t you just say that the pause is to –think– about the answer? :) Doesn’t seem to necessarily color the answer as truthful or not, does it.
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October 22, 2009, 5:22 pmjccamp says:
JMA —
If I asked for, say, directions to the nearest elevated train station, or a specific place, and the listener paused before answering, then a reasonable assumption might be that person was considering the answer before speaking. If you were testifying under oath about an important matter, certainly you might pause before answering almost anything of substance, because of the setting and the significance of being precise. However, if I ask you “What’s your name?” and you pause to think about it, I think a reasonable person could think you might be considering a false answer. If you had no identification, paused before providing your name, and didn’t know your own address, then a reasonable person might be able to articulate a reasonable suspicion that the person was being deceptive.
Anyone with children has experienced this. “What happened to Grandmother’s lamp?” “Uh...er...uh, what lamp?” (while standing amidst the shards of whatever you’re talking about).
By the way, another thing cops like to ask is “What’s your date of birth?”, and then a couple of questions later, ask “How old are you?” It’s amazing how many people get tripped up with sequential questions like this. It’s not rocket science. All you are trying to establish is a relatively low burden to continue the contact beyond the very brief threshold enquiries.
Cops wouldn’t do this if it didn’t work. But it does. Maybe it’s annoying if you become the subject of one of these Q & A’s, but there is a point, ostensibly for the common good.
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October 22, 2009, 5:59 pmDavid Schwartz says:
And there is a legitimate officer safety issue here. For a routine traffic stop, the first thing the officer needs to do is make sure it is going to be a routine traffic stop. The demeanor of all the people involved in the stop is key to determining this.
Asking a question is the best way to get any information a person wants to give you, and it’s reasonable for the officer to open a dialogue with each person. If for no other reason, it makes sure there’s nothing they need to tell the officer.
The officer starts out with no idea what he’s getting himself into. The passenger might be a hostage. They might need medical attention.
What the officer did in this case seems to be ordinary and reasonable. He asked a very simple question as a way to open communication with the passenger. The passenger gave an answer that made the cop slightly suspicious, so he followed up.
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October 22, 2009, 6:40 pmSteve2 says:
Why do we accept “officer safety” as a justification for questioning at all? If there has to be a tradeoff between officer safety and strict limits on how much an officer can intrude into a person’s life and how many/what sort of questions they act — which is what I believe “officer safety” claims in the 4th Amendment context imply — why is the tradeoff invariably in favor of the officer at the citizen’s expense, rather than to sacrifice the officer for the citizen’s well-being?
I’m not saying police should be treated as completely disposable pawns, but shouldn’t protecting citizens from the police trump protecting the police from criminals?
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October 22, 2009, 7:25 pmEinhverfr says:
Arthur:
When I lived in central Utah, there was a new doctor who moved to town from California and in the time between when he arrived and when he got his plates changed, he was pulled over nearly constantly by police. Apparently they thought he looked Mexican and were always assuming he must be smuggling drugs. So I am not saying that abuse of this discretion doesn’t happen. (BTW, I am in favor of the exclusionary rule unlike some on this forum.)
This being said, let me tell you another story. A few years ago, where I live now (North-central Washington State), a sheriff’s deputy was shot and killed during an otherwise routine traffic stop in what was really a senseless act of violence. For two years after that instance, deputies never pulled any cars over in my county without backup already in place (every traffic stop involved at LEAST two police cars). So I guess I kinda see both sides here. Consequently I think a case-by-case review is the onl way to proceed.
In this specific case, the officer believed his own safety might well be threatened. He acted in accordance with those beliefs and they turned out to be justified. It is very hard to argue against the officer’s conduct here. If the officer had found a cigarette pack in the pocket instead and if this contained packets of heroine, this would be a good target for exclusion. However in this case, the concern over safety lead to the discovery of a weapon. It shouldn’t be excluded.
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October 22, 2009, 8:02 pmDavid Schwartz says:
Steve2: It’s not. From an officer safety standpoint, ideally, the officer would come out guns drawn, order everyone out of the car and have them lie flat on the ground, then he would thoroughly search them all. When done, he would handcuff all of them to the posts of their car to ensure they don’t attempt to flee or grab a nearby rock or stick. However, that would fail fourth amendment reasonableness testing, I hope.
In contrast, asking a few questions to assess your demeanor is reasonable, providing it doesn’t overly-delay the stop.
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October 22, 2009, 11:22 pmThe Volokh Conspiracy » Blog Archive » Officer Questioning in a … « Blogging says:
[...] See the original post: The Volokh Conspiracy » Blog Archive » Officer Questioning in a … [...]
David Nieporent says:
No, he didn’t. Nothing he did was consistent with any such belief.
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October 23, 2009, 3:42 amEinhverfr says:
David:
Don’t you think that officers are reasonable to believe that their safety might be threatened on every traffic stop?
As I say, after one of our sherrif’s debuties was gunned down at a traffic stop, it was two years before traffic stops were done with fewer than two patrol cars.
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October 23, 2009, 11:00 am