The law makes certain distinctions between a car and a home, etc., for obvious reasons. Sure, there’s potential for abuse if a cop claims he can’t see clearly whether there’s anyone in the back seat when he’s really fishing to see what else he can see. But there’s also potential for abuse if the law effectively allows someone to hide in the back seat of an automobile in a country awash with guns. There must surely be a balance in what a cop can reasonably ask for to ensure safety. Although IANAL, on common sense grounds I’m highly skeptical of Ultravires’ claim that the law says otherwise.
If the cop can articulate his concern and it is based on facts, then he can handcuff the driver and search the car.
From the police interactions I’ve been reading about daily, how can the driver ensure the cop doesn’t have ill intent?
Do you really think that restricting all cops from taking reasonable common sense measures to ensure their own safety is a sensible way to address the problem of bad cops?
What does this have to do with the question of whether/why a cop might have the authority to order the rear windows be lowered?
Here’s one problem that bugs me about all these “officer safety” arguments. If I were a criminal planning to kill a police officer, I wouldn’t wait to reach for a gun when he’s looking right at me with his hand near his holster. Not would I lurk in some backseat. I would obtain a rifle if possible, and fire as early in the encounter as feasible, when the ranges are long.
I would expect officers killed in traffic stops to have been engaged the moment they step free of their cruiser - that’s the first moment their body is fully exposed and a criminal waiting in ambush should open fire right then.
If that doesn’t happen, I would expect the outcome to be a peaceful encounter.
So it’s one of those things - all those police shootings where this is exactly what happened, and the criminal waits to “go for his gun” until the officer has him at gunpoint and is shouting at him. And, surprise, in a scenario like this it turns out he wasn’t going for a gun. Criminals may not always be smart but the average one is probably at least a marginally competent human.
In the case of my car, the window tint is light enough to see if someone is in there.
Sure, if you intended all along to shoot a cop. I doubt that most shootings of cops are that premeditated.
According to the Washington Post’s database for 2019, that doesn’t seem to fit most of the circumstances of police shootings.There have been 394 police shootings so far, of which 16 were of unarmed people and another 38 where the weapon is unknown. (Of the unarmed, about half were fleeing). So a very large majority of the time, he had a weapon of some sort, or it appeared that he did.
That is also not necessarily an assumption I would make.
Regards,
Shodan
IIRC, there was a case recently that went to appeal basically decided - if the purpose and reason for the traffic stop was a particular violation, detaining the person beyond a reasonable time to write up the paperwork for the violation constituted “detained” and there needed to be probable cause for that. (In this case, they delayed for I think about 40 minutes for the K9 to arrive). Basically if they delay the driver (and car) more than the time it takes to write the ticket, and for other purposes, they are effectively arresting the person - and for that they need probable cause. Probably cause means a lot more suspicious circumstances than just bad tail light or poor lane change.
I would put “open the rear window” in the same category as “open the trunk” and it would appear to me to be a part of a search. If he can’t see with the window up, it’s not in plain sight, is it?
Exactly what a cop can & cant order you do do is tricky. However, as said before the real answer is that the cop is right there, with a gun and handcuff, and you dont have the ACLU and a judge waiting to help you and give a ruling.
*If you are stopped in your car, DO…
DO show your license, registration, and proof of insurance when asked, if you were driving.
DO keep your hands on the wheel and let the officer know what you are doing (“I’m going to reach for my registration now.”).
DO say “I do not consent to a search.”
DO sign your ticket if you are given one. Otherwise, you may be arrested.
DO take the DUI test, unless you are willing to risk your license being suspended.
DO keep your car interior clear of unnecessary objects. It may give the police reason to search the car.
DO ask if you can park your car in a safe place or have a licensed driver take it away, if you are arrested, to avoid towing or impoundment fees.
NOTE: An AB 60 license should be accepted by state and local law enforcement in California, the same as other state-issued IDs.
If you are stopped in your car, DON’T…
DON’T physically resist a search. Say “I do not consent to a search.”
DON’T refuse to sign a ticket. You can be arrested for it.
DON’T search for your license or registration until asked. It may look as if you are trying to hide something.
DON’T disrespect the officer. Although you have a constitutional right to do so, it could lead to your arrest.
DON’T attempt to bribe the police.
DON’T play music loudly when the police walk up to your car.
DON’T have any objects hanging from your rearview mirror. It may give police a reason to pull you over.*
https://www.freeadvice.com/news/General+Practice/when-are-you-entitled-to-disobey-a-police-order.htmDisobeying a Police Order
*Every state has some version of a law like the one that Payne cited to justify his arrest of Wubbels. Obstructing justice is the common term given to laws that prohibit interfering with the police while they are carrying out their duties.
But what does it mean to obstruct justice? In most states, the duty to obey a police officer is not clearly defined.
It is generally accepted that if a police officer orders someone to break the law, the person to whom the order is given has the right to refuse that order. The Salt Lake City case might fall into that category, because Wubbels would have been violating laws protecting the privacy of patients by releasing the truck driver’s blood without his consent in the absence of a court order or warrant.
It is less clear whether individuals can disobey orders that do not require unlawful action, but that a police officer cannot lawfully give. For example, a police officer has lawful authority to tell someone to stop moving if the officer has an objectively reasonable suspicion that the person committed a crime. If the person who is given that order keeps moving in the correct belief that the officer has no authority to give it, has that person committed a crime?..As FreeAdvice has discussed, police officers often order people to stop recording police encounters. Courts have generally held that those orders are unlawful because individuals have a constitutional right to document the actions of public officials in a public place. …
In the end, doing what a police officer demands is the safest route to follow, but it is also the route that leads to a loss of liberty. The better answer is for states to more clearly define the orders that police are entitled to give and that individuals are required to obey.*
So, rolling down your back window is certainly not “a order to break the law”. It is perfectly legal for you to roll down your window.
Standing on your rights for such a trivial request is a bad idea. There’s a good chance the cops order will be found to be legal, and the cost to you could be very high.
ianal.
Here’s a nice, long pdf that discusses this issue at lenght:
https://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=2675&context=lawreview
I never said that “the law says otherwise.” There is no case on point. The Mimms and Wilson cases stand for the proposition that an officer may order the driver and any passengers out of the vehicle without any individualized suspicion on the grounds that this extra intrusion, in addition to the traffic stop, is such a minimal burden that officer safety outweighs it and makes it reasonable.
You could make an argument that rolling down the back window is similar, but I think it is distinguishable because it contradicts a whole bunch of other cases. The officer is, in effect, forcing you to expose items that you wish to remain hidden and bring them into his plain view.
That goes against Terry itself. While you may briefly pat down a suspect (with reasonable suspicion) over his outer clothing to check for weapons, you may not do a general search for other items. You may not order the suspect to empty his pockets to bring items into plain view. Your proposal would do just that by requiring the driver to expose the contents of his vehicle to plain view.
It is also distinguishable from Mimms and Wilson because in those cases, all you were required to do was step outside of the vehicle instead of sitting inside it. No personal embarrassment (according to the Court) was had simply because you were standing instead of sitting. But in the traffic context, maybe I have a 12-pack of super-sized dildos sitting on the back seat I don’t want anyone to see.
Further, what if the car is older and has only crank down windows in the back? The Constitution cannot seriously say that drivers of older cars have greater Fourth Amendment protection than those driving newer cars. Also most cars have a trunk accessible from the backseat that a person could crawl through. Do you get to search the trunk in every random traffic stop?
I am all in favor of police officers being safe, but in a free country, even one with guns (which is what makes it a free country, but another thread) that means that people will have protections from unlawful searches that will by definition put police officers in increased danger. I don’t think it is proper to treat a regular citizen who has allegedly committed a most minor traffic infraction to be treated like a felon. That’s not freedom at all.
You do not have to roll down your window (tinted or not) if a cop requests it. However, you DO have to hand over your license and registration, which means rolling down the window enough to do so. The officer can also require you to exit the car in order to determine if you were drinking or to ensure his own safety while making the stop. See Pennsylvania v. Mimms.
when I pull over a car I am seizing all occupants of the vehicle. I can open all the doors and make everyone get out even if I can’t search the vehicle. When the doors are open I can legally look inside even if I can’t enter the vehicle.
I have the lawful authority to demand to see who is in the back of the vehicle. If the windows are tinted in such a way that they block plain view of the interior, I have the lawful authority to order them down.
If plain view is blocked and I can’t see who is in the vehicle, or be able to determine if there is a hazard to my safety, I have even more reason to order them down. The back seat area is an area of reach for a driver to obtain a weapon. Looking through a car window from outside is not a search. If the windows are tinted to prohibit plain view than ordering them open is not a search nor an illegal order.
This has already been settled by SCOTUS via a couple of cases.
If the windows are tinted to an illegal level I can prohibit it’s further operation with them up. In other words, roll them down or your not driving off. And the vehicle gets towed to impound.
I think this actually applies because, conceptually, a darkened rear seat is comparable to an area of your body that cannot (somehow) be patted down. The tint prevents the officer from doing the legally allowed safety search of the rear area of the car.
Now, if it is settled law that they may NOT require the window be rolled down, the answer is to pull the driver and all passengers from the car, pat them all down, sit them in the cruiser and send them on their way once the ticket is written. If the cops partner takes that time to look closely from outside the car to see if there is any visible contraband, then that what will happen.
What about the above mentioned case of crank windows? What if the power window regulators are broken? What if the vehicle owner removed the power window regulators and bolted the windows in place? What if you pull someone over in a Chevy HHR Panel Vanwhich came from the factory with functional rear doors but no windows?
Seems to me that, at best, you can make a request of the driver, and then they can decide whether or not to lie to you about the functional state of the rear windows. Is that about correct?
eta: Also, what if someone is hiding in the trunk with a shotgun like in Jackie Brown? Are you allowed to order people to pop the trunk to make sure no one’s hiding back there?
I’m not going to spend a whole lot of time looking, and you’re certainly going to more experienced with these types of cases than I am, but on a brief search United States v. Stanfield (4th Cir. 1997) and United States v. Brown (D.C. Cir. 2003) seem to apply Mimms and Wilson (and Terry) and conclude that, when dealing with a vehicle with darkly tinted windows at night, an officer might be justified in opening the rear door and inspecting the inside for officer safety purposes.
Specifically, in Stanfield, the court reasoned:
After pointing to the concern in Mimms and Wilson about the dangers of traffic stops and the minimal burdens, etc., the court concluded:
Brown appears to adopt Stanfield’s reasoning and come to the same conclusion.
Now, I don’t know if Stanfield has been overruled (you practice in the Fourth Circuit, right?), but I do think that it would apply to ordering a driver to lower his rear windows, at least long enough to determine if the “the vehicle is occupied by one or several persons and whether the vehicle’s occupants are armed or have access to weapons.” I also think the logic of it is pretty sound.
I can just yank everyone out of the vehicle and just look in while the doors are open, problem solved. Some Deps and Officers I know always have occupants exit on every traffic stop. I am just the opposite. I prefer to keep everyone inside the vehicle unless there are circumstances which require them getting out.
The trunk is not a common area of plain view doctrine. But if I have reason to believe that someone is in the trunk, yes, I can order it open. There are several reasons why I’d want to know about someone in a locked trunk. But unless I have reason to believe someone’s in there, pooping the trunk could be an unlawful search.
One last question, then – it sounds like you CAN order people to exit the car, but you CAN’T order people to roll down their windows, since they can just lie and say they don’t work. In the case laid out in the OP, a hypothetical officer wanted the windows to be rolled down to confirm that the back seat was empty, for safety reasons. If I, as a driver, tell you that my windows don’t work (which may or may not be the truth), and I also say that nobody’s in the back seat, do you have any authority to open the rear door? Assuming you have no other reason to suspect someone is in the back seat. I don’t see how you could.
You may not “yank” passengers out of the vehicle if they are complying. You may order them to exit and if they do closing the door behind them, then you cannot search.
No disrespect, but this was the exact reason for Justice Stevens’ dissent in these cases. These methods are jackbooted thuggery directed toward passengers whom you have no suspicion at all that have committed any crime at all, not even a minor traffic violation, yet you are “yanking” them around for some unknown reason.
Yes, I know stops are dangerous, but you could encounter a dangerous person on the street. Should you be able to “yank” anyone around that you feel like?
It is troublesome that a person can refuse a search yet an officer can open doors because someone might be there and then search the back seat under the plain-view doctrine.
Knock off the nitpickery over terminology. You know what I meant.
And don’t get pithy at me because you don’t like what we can do. The courts ruled on this, not me.
Remember back to the Byrd case? I sided with Byrd even though he was a shitbag.