By Keith Jordan, former Criminal Defense Attorney in Santa Clara County, California. Originally published in 2002 and reposted with permission from Crime, Justice and America magazine
Can a police officer pull you over when you’re driving along minding your own business, or stop you when you’re walking down the street? Not without a reason to think you may have committed, or are in the process of committing, a crime. It’s called “reasonable suspicion.” It has to be more than a hunch that you’re up to no good, and they have to be able to point to something you were doing that looked criminal in nature.
Let’s say you’re clearly high, and walking down the street like a zombie. The cop can say, “I thought the subject might be under the influence and in danger of hurting him or her self.” That allows him to stop you and conduct further investigation.
Or you could be driving too fast or too slow, or weaving across lanes. The officer can then pull you over and check whether you smell of alcohol, whether you have your license/registration/insurance, and so on.
Many of my clients say, “That cop pulled me over for speeding and then arrested me for having drugs in the car and he didn’t even give me a speeding ticket.” That is legal! If you’ve got a dead body in the trunk, they won’t bother with that missing left turn signal.
And that brings me to another point. You have to keep your car in good running order. Keep your registration tags current; your rear license plate lamp working; no cracks in your windshield; license plates clear and unobstructed. Why? Because an officer can use that as a legal excuse to pull you over and find some reason to search the car. We used to call it a “pretext stop,” and it’s perfectly legal, so long as the officer had a legitimate traffic or vehicle safety reason to pull you over.
So to detain you – that is, to force you to yield to the officer’s authority and cause you not to feel free to leave — all the officer needs is “reasonable suspicion.” To arrest you, though, they need more than reasonable suspicion. The officer must have probable cause to suspect you’ve committed a crime. For the “under the influence” people, that can be sweating, being out of breath, an inability to stand still, rapid pulse, dilated eyes, and so on. This will stick even if he stopped you on a bike or running for a bus. The cop can be wrong, just so long as he saw something in his or her investigation that could be reasonably interpreted as criminal in nature.
If they think you’ve committed a crime, they will arrest you or, at least, cite and release you with a notice to go to court. But remember, you have a 4th Amendment right to privacy. You don’t have to consent to everything the officer asks.
This doesn’t mean you may put up a fight, because you’ll just wind up with a resisting arrest charge. What I mean is, if an officer says, “Do you mind if I search your trunk, your bag?” you can legally say no. If they have a warrant, that’s a different story.
In the end, don’t leave the house if you’ve been drinking or partying, and obey the traffic laws and keep those registration tags current. If you feel as if you’re being detained, ask, “Am I free to leave or are you ordering me to stop and talk to you, because I don’t really feel like talking.” At least this forces the issue and makes the officer take a stand or leave you alone. You do have constitutional rights and you shouldn’t be afraid to assert them. This is, after all, the United States.
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