Monday, July 16, 2012

Knowing Your Rights: The Law Behind Getting Pulled Over (Jay-Z's "99 Problems")

Law school is three years of complex legal theories and academic debates about a bunch of stuff that has very little application to common everyday life, however one of the most useful classes that law school actually does offer -- and one that every American should take -- is Criminal Procedure ("Crim Pro").  Crim Pro is the intersection of where the Constitution meets with law enforcement.  In short, it tells us what the cops can and can't do to you when they try to come into your house, stop you on the street, or pull you over in your car, etc.  You can see how that might be important information.

Saint Louis University School of Law recently published an article in its law review by Southwestern Law School professor Caleb Mason titled "JAY-Z’S 99 PROBLEMS, VERSE 2: A CLOSE READING WITH FOURTH AMENDMENT GUIDANCE FOR COPS AND PERPS." It's a quick 20 page read that breaks down the 2nd verse of "99 Problems" where Jay-Z talks about getting pulled over by a cop while running drugs on the I-95 corridor.  Definitely worth checking out.

The highlights of what you need to know after the jump:  


(skip to the 0:57 minute mark)

So Jay-Z has set the stage above which is partly based on real life events and partly embellished to add dramatic effect, but the video brings up an important question that not many Americans know the answer to: what are your rights when you get pulled over by the police?

The short answer to that question is going to depend on what you are being pulled over for, but for purposes of this post we're going to assume that you are being pulled over for speeding since that is the offense most frequently cited by cops when they pull us over.

With that in mind, here are a few helpful Crim Pro tips from the S.L.U. law review article:

THE 4TH AMENDMENT OF THE CONSTITUTION KICKS IN THE MOMENT YOU ARE PULLED OVER BY THE POLICE:
"So I pull over [to the side of the road]
At this point, Jay-Z has been seized, for purposes of Fourth Amendment analysis, because he has submitted to a show of police authority.  He has thus preserved his Fourth Amendment claims. If you are stopped illegally and want to fight it later, you have to submit to the show of authority.

YOU (MAY) HAVE THE RIGHT TO RECORD YOUR CONVERSATION WITH THE POLICE (DEPENDING ON YOUR STATE):
"Do you know what I’m stopping you for?
This is an important part of any traffic-stop colloquy that should be memorialized by the prudent driver, ideally on a cell phone, unless you are (unluckily) in one of the thirteen states that require two-party consent for audio recording. They are: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Montana, New Hampshire, Oklahoma, Oregon, Pennsylvania, and Washington. Memorialization of the stated basis for the stop is important because the government must be able to show that the stop was based on probable cause, and you’ll be able to put the cop on the stand. So if you later develop evidence that you were not in fact doing what the officer said you were at the time, the officer will either have to fight the evidence, or else come up with a different basis for the stop, in which case he’ll have to contradict his contemporaneous explanation. This can happen, and judges find it most displeasing.

IF YOU ARE NOT UNDER ARREST OR REASONABLY SUSPECTED OF COMMITTING A CRIME (OTHER THAN SPEEDING) THEN THE POLICE NEED PROBABLE CAUSE TO SEARCH YOUR CAR:
"Am I under arrest or should I guess some more?
A great question, and an important one for any future suppression claim. As new lawyers learn (to their dismay), there is no constitutional problem with arresting someone for a traffic violation, no matter how minor. And if you are arrested for a traffic violation, your car can be impounded and then searched to inventory its contents, without a warrant and without any level of suspicion that the car contains contraband. Your person, clothing, and bags can also be searched with no required quantum of suspicion. On the other hand, if you are not under arrest, the police need probable cause to search the car. So if the cop tells you you’re not under arrest, and then proceeds to search the car, you will be able to suppress any contraband if you can show that there was no probable cause for the search. Here again, documentation will be important. [EDITOR'S NOTE:  In real life, "probable cause" requires the cop to be able to point to some fact, such as he smelled weed when he pulled you over, therefore he had "probable cause" to search for weed.  He can't just say "I had a hunch that the kid was a weed smoker, therefore I searched his car."  That's not "probable cause."  The cop has to physically see, hear or smell some set of objective facts that suggest illegal activity in order to satisfy "probable cause."]

UNFORTUNATELY THE POLICE CAN ORDER YOU TO STEP OUT OF THE CAR:
"I ain't steppin' outa shit, all my papers legit."
In the video, [Jay-Z] remains in the car and the cop backs off. Well, this is a basic question, the sort a criminal lawyer can answer: Does a driver actually have the right to refuse an order to exit the vehicle during an ordinary traffic stop? Unfortunately for drivers, the answer here is an unequivocal “no,” straight from the Supreme Court: “[O]nce a motor vehicle has been lawfully detained for a traffic violation, the police officers may order the driver to get out of the vehicle without violating the Fourth Amendment’s proscription of unreasonable searches and seizures.” So the order to step out of the car is per se lawful; the lack of suspicion of anything beyond the traffic offense is irrelevant.

IF YOU'RE NOT UNDER ARREST OR REASONABLY SUSPECTED OF COMMITTING A CRIME (OTHER THAN SPEEDING) AND THERE IS NO PROBABLE CAUSE TO SEARCH YOUR CAR THEN THE COPS NEED YOUR CONSENT TO SEARCH YOUR VEHICLE:
"Do you mind if I look around the car a little bit?"
Cops are trained to ask for consent, and almost everyone gives it. Consent is useful for them because voluntary consent renders moot any other problems that might arise with the search (for example, a later determination that the officer lacked probable cause). Furthermore, awareness of the right to refuse is not a prerequisite to a voluntary consent to search. A suspect who thinks he has no choice can nonetheless give voluntary consent as a matter of law...As a rule of thumb, think of it this way: if the police have the authority to search, they’ll just search. If they have to get your consent, it’s because they don’t have the authority to search unless you consent. So a good response to memorize is: “I do not consent.”

IF YOU ARE PULLED OVER FOR SPEEDING THE POLICE CANNOT SEARCH YOUR TRUNK WITHOUT PROBABLE CAUSE (THE GLOVE COMPARTMENT, HOWEVER, IS FAIR GAME IF THEY SEARCH FOR WEAPONS):
 "Well, my glove compartment is locked, so is the trunk and the back,"
Given that we’ve established (it appears) that Jay-Z is not under arrest, and given that the Terry frisk of the car [to search for weapons] is limited to accessible places a weapon could be hidden, the trunk is definitely off limits at this point. What that means is that if the officer opened the trunk by force, without developing articulable probable cause, the contraband found inside would be suppressed. [EDITOR'S NOTE: A weapon that is hidden in the glove compartment is within the driver's reach, therefore the cops do have a right to search the glove compartment IF they have "reasonable suspicion" that you may have a weapon.  Please note that "reasonably suspicion" is a much lower standard than "probable cause"; in the real world, so-called "reasonable suspicion" is usually satisfied by the cop merely saying that "in his experience" a person like you in this type of area usually has a weapon, therefore he had "reasonable suspicion" to search your car for weapons.  In other words, "reasonable suspicion" is nothing more than a cop's hunch.  But the law review article is correct, even if the cop said that he had "reasonable suspicion" to search for weapons, the 4th Amendment does not allow that cop to search your trunk b/c it's physically impossible for you to pull a weapon out of your trunk while sitting in the driver's seat of your car - unless you're Mister Fantastic from the Fantastic Four.]


THERE IS NO WARRANT REQUIREMENT FOR CAR SEARCHES:
"And I know my rights, so you go’n need a warrant for that."
There is no warrant requirement for car searches. The Supreme Court has declared unequivocally that because cars are inherently mobile (and are pervasively regulated, and operated in public spaces), it is reasonable under the Fourth Amendment for the police to search the car—the whole car, and everything in the car, including containers—whenever they have probable cause to believe that the car contains evidence of crime...So, in any vehicle stop, the officers may search the entire car, without consent, if they develop probable cause to believe that car contains, say, drugs.


CONCLUSION:
Hopefully you will never have to be subjected to a police officer who disrespects your Constitutional rights during a traffic stop, but if you find yourself in that predicament then you now have some legal ammunition to fight back with.  Police often operate in a world where most people are not aware of their rights. To the extent you can demonstrate (in a respectable manner of course) that you know your rights under the 4th Amendment, a cop who ordinarily takes advantage of such ignorance will not be able to pull the wool over your eyes.

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