Dont pick your ass in public, son.
ah, got it.
Brendlin still left the question unanswered. The holding in Brendlin was that the passengers are seized because a reasonable person in their situation would believe that they are not free to leave. Whether they actually are free to leave is another question and not relevant for the question presented in Brendlin. This “reasonable person would not believe” has been cited in hundreds of cases and applies whether or not an actual, legal seizure has occurred.
SCOTUS has never ruled that passengers may not walk away from a traffic stop and the entirety of the rest of the case law would suggest that they could.
You have no RAS to believe the passenger committed a crime, right? So you must let them go. Please cite one principal of Fourth Amendment law that suggests otherwise.
An old friend who had been a Sherriff’s deputy used to brag about the good old days when he, a non-smoker, always carried a partial pack of Marlboros that had a joint or two inside. If he did not like the looks or attitude of someone he pulled over (especially latino) he tossed the pack in the car and charged them with possession. This would have been back in the Seventies and I’m not going to say where. Sweet, huh? You only have rights when someone is watching.
I thought this would be the end of the story and I was surprised by how long he kept the helmet. Once you had probable cause to arrest him, he loses any privacy right to keep the helmet off, in my humble opinion. Removing it is justified both by the need to disarm him and to positively identify him (whether on the roadside or at the station).
It’s not really a big deal and you all have the freedom to talk how you choose but, I for one, would prefer that cops used less provocative language. I trust that pkbites didn’t literally mean that he was yanking people around but that type of language normalizes the idea that police needlessly rough up the public. If this language reduces the public trust in the police or encourages even a single officer to abuse his or her authority, it causes real harm. And I realize your Blue Bloods quip is a joke but we have a similar problem - if popular depictions of police officers are all rowdy meatheads who abuse their authority, we run the risk of attracting rowdy meatheads to a job that is critical to preserving our public safety.
I don’t see where pkbites claimed that and I think I agree with everything he actually claimed. You posted your hypothetical but I think pkbites is rightfully dodging it because those won’t be the facts if he is pulling open the back door to look for hiding passengers. If an officer needs to search for passengers, it is likely because he perceived there were people in the back seat based on whatever evidence is available (movement of or sound from the car after the driver left or the officer’s furtive view of a passenger through the open driver’s door or any window). He’ll order the passengers out of the car and if no one comes out, he will assert that he needed to investigate further for his safety.
My opinion is that an officer opening a car door to look for people in the backseat is almost always going to be defensible under the Fourth Amendment jurisprudence. There is almost no meaningful Fourth Amendment protection for anything that happens in the passenger compartment of a car. Under the “automobile exception,” police can stop a car without a warrant based on probable cause that a crime has been committed because cars are moveable. Carroll v. U.S., 267 U.S. 132 (1925).
Once a car is legally stopped, police can do a search incident to arrest to protect the officer’s safety and to look for evidence. New York v. Belton, 453 U.S. 454 (1983). If the police reasonably believe that the suspect is dangerous, they can do a protective search of any part of the car that could contain a weapon that the driver could access, even if the driver is already in the officer’s custody (because the suspect could escape, naturally). Michigan v. Long, 103 S. Ct. 3469 (1983). Cops can order the driver out of the car if they have lawfully stopped the car. Pennsylvania v. Mimms, 434 U.S. 106 (1977). They can also order passengers out of a car even if the officers have no reason to believe that any of the passengers committed a crime or are otherwise dangerous. Maryland v. Wilson 519 U.S. 408 (1997). Lawful arrests include arrests for an action that is not a crime if the officer incorrectly but reasonably believes it is a crime. Heien v. North Carolina, 135 S. Ct. 530 (2014). Police can do an “inventory search” of a seized car once they have arrested the driver and decided to impound the car. E.g., Colorado v. Bertine, 479 U.S. 367 (1987).
If the officer ordered people out of the car and no one exits, the officer can likely arrest any passenger who didn’t get out for interfering with an investigation, failure to obey a lawful command, or something similar in your state.
If police can see in the car through a window or while a door is open, it doesn’t even count as a search under the plain view doctrine. E.g., Coolidge v. New Hampshire, 403 U.S. 443 (1971).
None of this requires even dubious consent to a search. So, if pkbites needs to open a car door to look for passengers, one of these precedents or their progeny will most likely give him that authority.
Thing is, he’s not dodging the hypothetical – he’s responded directly to it, first in the OP, then to me, then again to a clarified version from Saint Cad. He keeps running at it head on.
What’s he’s dodging, I think, is stating the obvious – that he wouldn’t actually have any justification to open the rear door and look inside the back seat without, as you say, “whatever evidence is available” that someone is actually back there. Instead, he’s starting with a belief – that he’s going to be able to look in that back seat no matter what, even though “I don’t like it” – and then working backward from there, saying that surely something would give him reasonable belief to check for passengers. And I’ll freely grant that in the real world this would never happen, and he’s probably not the kind of officer who would go ripping open back doors out of spite that someone didn’t drop their tinted windows, 4th amendment be damned. That’s not the way things work in the real world and he knows it about 10000x times better than I do. No argument there. This entire thread is nothing more than pedantry at this point.
Anyway, this is GQ and the existence of crank windows pretty much put the nail in the coffin of “an officer can order you to lower your tinted rear windows” question on page one. Crank windows > *.
[nitpick]
What I wrote was fine, since it wasn’t a direct quote.
So you really need a better excuse to brag that you know the source.
[/nitpick]
The sad fact is I think that this would absolutely (and wrongfully) be upheld by the Courts as a “reasonable search” using the logic of: the cop just had to open the door because reasons and because the door was open it wasn’t a real search because everything was in plain view.
My bolding. The level of proof needed to stop a car is a reasonable articulable suspicion not probable cause. In order to write a summons for a violation or conduct a search there must be probable cause but not to stop a car.
The totality of the circumstances would dictate whether I could or not. I’m sure pkbites would agree that he can’t routinely open up all the doors of a car just because. It is certainly not standard practice to open the doors on a car during a stop. However I can imagine circumstances where it might be reasonable to do so for my safety and how it would be easy to articulate my reasons why. In reality windows are voluntarily rolled down or passengers are made to step out of the vehicle and there is no great drama.
These threads are fun but they tend to devolve into pushing the hypothetical passed what I recognize as the reality of everyday police work. In 21 years of police work I’ve physically “yanked” maybe 3 people out of a car. The most memorable time was someone wanted on a murder warrant out of North Carolina. I have never had to open doors during a routine car stop because I thought someone might be hiding in the car.
The case law mentioned in this thread tend to lean towards officer safety and acknowledge that dealing with a car is different than dealing with immovable property. In general if the officer is acting in good faith he will be on the side of the law. If he is trying to push the envelope to get around the 4th amendment he may find himself named in the new case law.
In response to OP’s questions.
Legally? You have the right to object, cop is supposed to respect that objection. If he overrides it, he better have a damn good (legal) reason to do so.
Realistically? He can make life hell for you, without even breaking a sweat (or the law).
Example.
He can, quite honestly, state that he smells “something funny” in the car. Get a K9 to do official drug sniff. K9 can be instructed to detect on command, you know? Once they have K9 verification, anything unidentified in your car can be cause for arrest. Got a half-eaten marshmellow under your seat? “That looks like meth”. Got some trampled small leaves in your car carpet “that looks like marijuana”. Not to mention the infamous “you’re under arrest for resisting arrest” theme.
All very unethical, and ALL VERY LEGAL.
Don’t mess with the cops.
If your cops is a good guy, you are wasting the time and patience of a hardworking honest public servant.
If your cop is a bad guy, you are pissing on a sleeping bear.
Either way, its a bad idea.
I think this comes from the base idea that the police can take reasonable steps to ensure their safety during a traffic stop. Given the gun-toting world we live in, an officer is going to need the ability to check one thing (among others) during a traffic stop, that is whether or not there is a person in the back seat.
If a person has designed their car in such a way as to make that safety check impossible without lowering windows or opening doors, the result isn’t “Ha ha cop, you don’t get to ensure your safety!” the result is a lowered window or opened door.
No matter how many hypotheticals you throw, pkbites is going to assert that he will take whatever steps you make necessary to ensure a reasonable standard of safety during the stop. Not the least of which is going to be knowing the exact number of people in the car.
And yet the trunk with the shotgun wielding dude hidden within is off limits . . .
At a more abstract level, all that is saying is that people will hide bad things: guns to use in violence, drugs, dead bodies, etc. and people will want to keep those things private. People also want to keep other, legal things private. We have a Fourth Amendment that guarantees you and I the right to that privacy unless some exceptions, found in the law, allow the government to invade that privacy.
A free floating “officer safety” rationale is simply not one of them, no matter how many times the police want to chant that mantra. The fact that the jargon is that they “yank” people around, a word used by even the good cops that we have on this board, is disturbing as it shows the little use that the industry as a whole has for the privacy rights of individuals that they encounter.
The line of what is a “reasonable” intrusion has been drawn in generalities in hundreds of cases. What is always requested by the police is the next step which on its face will seem reasonable as compared to the very last intrusion requested and granted. And then the next.
But when you go back to basic law, there is no crime in having a back seat passenger, and the speculation that you might have one or two, and that those possible passengers will start shooting at the officer is the type of wild speculation that has never before allowed an intrusion into your private vehicle (again, as an automatic rule and without some sort of reasonable articulable suspicion).
Otherwise, there is no limiting principle. It’s easy to point to something, declare it desirable for officer safety and then “balance” the intrusion against the thought of a dead police officer. When you do that the intrusion, any intrusion, will be reasonable when couched in those terms. That’s why the law doesn’t do that except when it goes astray like in Mimms and Wilson, and it is simply unprincipled and not supported by general Fourth Amendment law to go any further down that road.
Why the back seat, and not, say, the trunk? Or the rear of a cargo van? Gun toting thugs could be hiding in those places, but nobody’s saying an officer can summarily open either compartment to check for passengers without some reason to believe that someone’s back there.
Clearly Loach is correct in that in order to address the question we’ve pushed the hypothetical past the point of normal police work. The GQ answer to the OP’s question is no, an officer can’t make someone lower their rear windows because that’s not always technically possible. And the GQ answer to whether or not an officer can hence open the rear doors is that the officer would need a reasonable reason to do so for his safety and be acting in good faith, per **Loach’s **again excellent summary. What’s left is a supreme court sort of issue where we wonder what would happen if an officer took a driver’s refusal to lower the rear tinted windows, and no other reasonable belief that a person was in the back seat, as sufficient reason to open the door. And this will probably never get tested in the real world because we’ve learned that’s not what happens. But I don’t see the harm in acknowledging the hypothetical and thinking about it, rather than dismissing it out of hand and saying “of course an officer will be able to look in there, because safety!” It’s a message board after all, and this is just entertainment
Unless you have something to hide, it is best to cooperate with law enforcement. Any lawyer will tell you, “Make your protests in court.”
Curiously, when I was trying to find cites for this thread I found one of those lawyer “what to do if you get pulled over” pages that said if an officer asks you to get out of your vehicle, you should raise your windows and lock your doors as you exit. There are ways to cooperate with law enforcement that will nevertheless piss off an LEO.
Nobody is suggesting that having back seat passengers is a crime. The suggestion is that not knowing the number of people you’ve detained during the traffic stop is a significant security risk. It places the officer in a situation of profound ignorance.
Why not the trunk? Because a cop can go an entire career without finding someone in the trunk, and can’t go down a city block without seeing someone in a back seat.
Is it “reasonable” to say that under certain circumstances (blacked out windows) that an officer is legally barred from confirming the number of people present during the traffic stop?
Trunk Monkey!
I think the difference is that someone in a dark space behind heavily-tinted glass has a tactical advantage: they can see you, but you can’t see them, so they can aim/shoot at you and you won’t even see it before they pull the trigger. OTOH, a person in a trunk or in the back of a windowless van does not possess such an advantage. They may still be able to pop the trunk or open the door and climb out, but that’s not likely to go unnoticed by the cop.