Been reading a bit on traffic stops and consensual/nonconsensual vehicle searches. The latest Supreme Court precedent (2015) I found established that police can have a k9 sniff around the exterior of your car while the original cause for the stop is processed…but they can’t make you wait any longer than it takes to deal with that original cause.
OK, lemme see if I got this straight:
During a traffic stop, the police are not allowed to make me wait for a K9 exterior car-sniff for any longer than it takes to write me a ticket. If they do, I can file a complaint. If a K9 search under these circumstances finds some meth that last week’s Uber passenger left under my seat, the evidence can be suppressed as the fruit of an illegal search.
Am I understanding correctly so far?
A slightly separate issue came up when I read this site:
(Bolding/underlining mine)
Obviously if they’re illegally detaining you for a K9 search, the smart thing to do is wait it out and seek redress after the encounter is over. But suppose that during this illegal exterior car-sniff, the dog alerts, and the officers claim probable cause to search the interior of your vehicle. They ask you to unlock it. What should you do under these circumstances? Is the above paragraph correct? Is merely unlocking the car or handing over your keys (when ordered to do so by the detaining officer) legally regarded as consent? How do I legally withold consent under these circumstances (thus preserving my right to suppress any evidence they find)? If an officer wants to search my vehicle and I refuse to unlock it or surrender the keys, what will/can they do to me or my car?
IANAL. If they have a search warrant, or if they think they have probable cause to search, they can take the keys away from you or bust your window.
In a way, it might better if you did make them break the window, because it shows clearly that you did not consent to the search. If the court later rules that they did have probable cause, or if the wait for the drug-sniffing dog was not excessive, then it is evidence that you obstructed an officer in the performance of his duties.So it is kind of a two-edged sword.
In my non-lawyerly opinion, it is best to
[ul][li]Be innocent. Much better for you if the search doesn’t come up with anything.[/li][li]Hope the dashcam or the bodycam is turned on and working.[/li][li]Keep saying “I don’t consent to any searches” until the cop says “Give me the keys or I will break your window”. [/li][li]Be prepared to spend a lot of money on lawyers for very little ultimate satisfaction.[/li][li]Hope very much that, if your case makes it all the way to the Supreme Court, Justice Ginsberg is still alive and kicking. [/ul]I read the description of the various dissents in the case to which you linked, and it is entirely possible that some future Court might decide that waiting eight minutes for the K9 unit to sniff a car full of air fresheners is a basis for reasonable suspicion. In which case you are SOL. [/li]
Regards,
Shodan
I think you’d have a hell of a time trying to prove that the 15 minutes (or however long it takes to get the dog there) was longer than necessary for the officer to do whatever they needed to do during a routine traffic stop.
Also, IIRC, the officer smells marijuana or sees any paraphernalia or things that could be construed as paraphernalia (baggies, chore boy, scales etc) or anything else that they could link to you having drugs in the car, you’re going to be legally detained and they’ll have probably cause to search the car.
IOW, WRT the OP, the officer could make you wait for the K9 to come and search the car and when you argue that you were detained illegally since he made you wait longer than the amount of time it took to write a ticket, the cop can point out that you had plastic baggies and a scale in plain view on the passenger seat.
I’ve never heard that handing your keys to the cop equates to consent to search the car, but I’d have to imagine that varies wildly from jurisdiction to jurisdiction. When I watch LivePD, there’s plenty of times they ask for the keys because the person is showing signs that they’re going to take off.
If that constituted consent to search, I feel like more policies would have to be put in place. What would stop cops from asking for the keys just as part of the routine of pulling someone over. They could do it under the guise of officer safety, when it reality they’d be getting consent to search every car.
If the police have a basis to search that does not involve your consent, they won’t ask you; they’ll just “do”. Meaning, if they request that you help them conduct a search (such as by asking you to unlock the door or hand over the keys), they are ostensibly asking for your permission, which you do not have to give.
Practically, then, a cop isn’t going to have a dog sniff and alert and then ask for your keys. The dog’s alert is either going to trigger the cop to get a search warrant while you wait (at this point, if they have ‘probable cause’, the issue of extending the stop has been rendered moot; they can take as much time as they need to complete their investigation) or go into the car without asking you for help (based on a perceived exception to the warrant requirement - one common exception is called the ‘automobile exception’, which is intended to apply the concept of an exigency to the fact the cars are easy to move).
If a cop asks you to do something, and you aren’t sure, I’d say “I don’t want to do that. Are you ordering me to comply?” You need to follow their orders and trust that any errors they are committing will be handled later through the courts, but by vocalizing this question it is clear (presuming that there is video of the encounter, or that the cops are honest when filling out their reports) that your actions are ‘involuntary’, which would make it easier to suppress the results of what you did if indeed the cop didn’t have the right to order it done.
It’s mentioned above -
“if the cop is honest in their report”
“hope the dash / body cam is on”
With this in mind - is it legal for me to record my own video / audio of the incident?
Do I have to ask for permission to do this?
If I do ask - are the police required to “allow”* me to do this?
eg: allow me to retrieve my phone from the car. Or allow me to stand up and retrieve my phone from an otherwise inaccessible pocket. Or allow me the mobility to otherwise turn on a recording device that is immediately accessible?
Those are great questions, and I don’t know all the answers, but I can tell you that I (a white male, FWIW) have made a personal decision that, if I am ever pulled over, I will put my phone in my cup holder, angled towards me, and start recording. I am not sure if the cop will ask about it, or how he’d react, but I certainly don’t see anything inherently wrong with doing so. (I doubt the cop would be cooperative if I tried to retrieve it once I am out of the car, though, and he or she would likely be downright hostile if I tried to get it out of a pocket).
Agreed. In fact, you’re allowed to film anyone in public since they have no expectation of privacy. I’ve seen some videos of cops getting annoyed about it, but I’ve also seen some that don’t seem to mind at all. Keep in mind, they’re filming you as well.
However, you probably do need to make sure that you’re not interfering in their investigation. Setting the phone to record and putting it in the cup holder is one thing. If you’re constantly futzing with it, they’ll probably ask you to stop.
Another option is to get a dashcam. At the very least, you’ll get the audio (since it’s likely pointed forward).
Um…thanks, I guess? Maybe you didn’t notice that the paragraph I quoted in my OP (and had questions about) was from a FlexYourRights article. And the famous “Don’t Talk To Police” seminar you linked to doesn’t appear to address my main question, which was how to comply with police orders during a traffic stop without inadvertently consenting to a search of my vehicle (or if it did address my main question, then it did so at a point somewhere in the 46-minute video other than where you queued it to with your link).
I think Moriarty may have answered this point most clearly, i.e. it’s probably useful to verbally affirm that you do not wish to consent to a search, and then ask the officer to verbally confirm whether he’s making a request or giving an order.
This may be a moot point with any car make in the last few years. If you have the key in your pocket and are within 30 feet of the car, the door will unlock for the nice police officer.
My keyfob definitely doesn’t work within 30 feet. More like 5.
To the OP, I think the best you can do is verbally announce that you don’t consent to any searches. Let them take the key if they ask for it, that’s not consent, that’s just following directions.
Above all else, I would answer in a courteous manner. No matter what you do for a living or how much you know or how wealthy you may be, IMHO, it’s always a big mistake to give the police “smart mouth” or to be rude to the police. Just ask yourself, “What will that get you?” Being polite is always your best bet.
IMHO. “Mouthing off” to the police (meaning answering with some kind of “wise guy” reply) is always a mistake.
Also, I would always avoid the phrase, “I know my rights”. After all, if you truly do know your rights, then there is no need to tell that to the police. If you know your rights, then you should know how to reply.
I would also avoid saying, “No Problem” instead of “Thank you” or “You’re Welcome”. Seems to me that many people are just fed up with hearing people say, “No Problem”.