It seems as though sheeple are always willing to make the exception for the constitution and statute violating peace officer instead on the “prospect” of MAYBE catching a “bad guy.” What about all of those they deprive of their liberty and property interests in between those “bad guys?”

In my neighborhood, the deputy sheriff’s do BINGO! traffic stops where they, as a matter of “common practice,” IMMEDIATELY forcibly remove male drivers BEFORE questioning, place them in handcuffs and place them in the back of the patrol cars after removing all contents from the person of the motorist. Then conduct a FULL search, i.e. the complete vehicle, under the hood, the trunk, the full interior of the car in the hopes of finding something they can arrest for.

The forcible removal, and full body search is deemed for “officer safety.” They know all the proper “buzz words” to use to “justify” their illegal acts (illegal, as in the report they write after the stop about the illegal stop.

Now morons will agree and say as “Einhverfr” says that officers are reasonably concerned for their safety on every traffic stop, but this comment is nonsensical because a peace officer could be unsafe the whole time they are on duty and in uniform. This is the nature of the job, so that argument fails miserably.

Once the slide down the slippery slope begins, despotism starts to take root and grow. Once that begins. Any justification can be offered “in the name of.”

I also find it irrational, unreasonable, and nonsensical to hear that its “ok” for a peace officer to break or bend the law just because a peace officer is supposedly “enforcing the law.”

Think how many criminals will be off the street if a proper investigation and arrest is made as opposed to having these issues in court wasting time and expense in figuring out how to protect the officer’s illegal conduct. As well as keep the hundreds of innocents from having to experience the overzealous and oppressive conduct of these maniac’s with badges in between the time that they actually find wrongdoers.

PLEASE NOTE that this doesn’t apply to peace officers that are actually doing great jobs. You’ll never get to hear of those cases because those guys know how to make an arrest that is incapable of being challenged because they did some ACTUAL investigating BEFORE seizing a person and therefore the “bad guys” have nothing to appeal, because it’s wrap.

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.

In this specific case, the officer believed his own safety might well be threatened.

No, he didn’t. Nothing he did was consistent with any such belief.

In contrast, asking a few questions to assess your demeanor is reasonable, providing it doesn’t overly-delay the stop.

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.

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?

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.

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.

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.

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.

An assumption not based on the evidence.

de minimis, de minimis, de minimis, de minimis, de minimis, de minimis.

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.

Helene Edwards: 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.

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!

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.

Splunge: 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.

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.

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.

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.

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.

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.

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.”

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.

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.

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.

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.

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?

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.

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…”

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.

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.

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?

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.

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.