Pulled Over by a Police Officer? What Are Your Rights?
What Are Your Rights During a Traffic Stop?
No one can say for certain what was going through Sandra Bland’s mind as she was being pulled over last week for what a Texas police officer later said was her failure to signal a lane change. Even more puzzling was her tragic death in a jail cell three days later. But the video now gone viral has a lot of people asking: what exactly are my rights when I get pulled over?
We’ve all felt that pit in our stomachs when we see those red and blue lights in our rear view mirror. And we each have our theories on how to get the officer to say those beautiful words: I’m going to let you off with a warning this time. Be overly-respectful, drop a line about a cousin being a state trooper, flash your military I.D. as your pull out your license, or, if you’re like my wife, flirt like nobody’s business.
Do I have to get out the car?
To the surprise of most, there is no gray area here. Yes, a driver being detained for a traffic violation may be ordered to exit the car. This includes the authority to conduct a pat-down search if the officer believes the driver may be armed and dangerous.
In 1977, the Supreme Court ruled that police officers were justified in instructing a man named Harry Mimms, who had been pulled over for an expired license plate, out his vehicle. Police claimed they saw a bulge in Mimms’ jacket and he was ordered out of his car and patted down. The Court recognized that traffic stops are particularly “fraught with danger to police officers” and ordering someone from the vehicle is relatively minor intrusion.
An officer’s priority is going to be his or her safety. Remember that above all else. As long as you’re not perceived as a threat, you shouldn’t ever have to get out the car. Turn your engine off and keep your hands in plain sight. This law applies to passengers as well. The legal theory is that an officer’s safety outweighs the minimal intrusion of being ordered out of the vehicle and searched.
Can I record the officer?
Yes. Just as police often record a stop with a dashboard cam, so, too, can the driver or anyone else in the car as long as the recording doesn’t interfere with the officer’s ability to investigate. But having the right to do certain things doesn’t necessarily mean you should do them. The appropriate time to hash it out the officer is later in court, not while being pulled over. Not to mention, recording the offer will likely eviscerate your chances of getting off with a warning.
Can I smoke while talking to the officer?
Yes, but don’t. Just don’t do it—ever. No law prevents a person from smoking in their own vehicle during a traffic stop. But police officers are trained to maintain authority over the situation at all times. An affront to this authority will be met with more authority, and that will likely lead to an arrest. So if you want to go home and fight the ticket later, put the cig out. If you want to make a point and litigate your constitutional rights on the shoulder of the highway, prepare to get arrested.
Turning briefly to the Sandra Bland traffic stop, was the officer within his statutory authority to order her to put out her cigarette and then order her out of the vehicle after she refused? Yes, he most likely was. But the more difficult question is whether this was fair. To that, I would argue probably not. Clearly Bland was agitated. The officer can even be heard saying “you seem very irritated”, to which Bland responded, “yes, I am. At this point, both the officer and Bland would have been well advised to de-escalate the situation. As the person with training and experience, the officer missed an opportunity to take the lead in calming the situation. Asking her to extinguish the cigarette was reasonable but not necessary and only appeared to goad Bland into getting more upset.
In conclusion, remember that it’s far more expensive to spend a night in jail and hire a Dallas criminal defense lawyer than it is to simply fight the ticket on the illegible date scribbled on the back. The pride of fearless civil disobedience can be fleeting. Fearful obedience will get you home and save you a ton of money and anxiety.
