Earlier we examined what rights a person engaged in open carry has regarding stops by police. There I noted that a traffic stop is a bit different animal.
A traffic stop starts with an observation by the police of a criminal infraction. The nature of that infraction is normally minor and the stop is not a full arrest. “[A] relatively brief encounter,” a routine traffic stop is “more analogous to a so-called ‘Terry stop’ . . . than to a formal arrest.” Rodriguez v. United States, 575 U.S. ______ (2015) (quoting Knowles v. Iowa, 525 U. S. 113, 117 (1998) (quoting Berkemer v. McCarty, 468 U. S. 420, 439 (1984), in turn citing Terry v. Ohio, 392 U. S. 1 (1968))).
So what does a Terry Stop and the Routine Traffic Stop Allow?
A Terry Stop and the associated “frisking” is about officer safety. Where an officer has a legitimate reason for a stop and he believes the person stopped may be armed, he may frisk him for weapons. Terry v. Ohio, 392 U.S. 1, 27 (1968)(an officer may search a suspect for weapons where “a reasonably prudent man, in the circumstances, would be warranted in the belief that his safety or that of others was in danger.”)
Under this rationale, in a routine traffic stop, an officer may take actions necessary to ensure his safety. This includes ordering the driver and passengers to exit the vehicle. Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (an officer may order a driver out of his vehicle as a routine practice during traffic stops). Maryland v. Wilson, 519 U.S. 408, 415 (1997) (“We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.”) And, where the vehicle has dark tinted windows, opening a door to look for passengers and weapons. United States v. Stanfield 109 F.3d 976 (4th Cir. 1997).
Limitations on Duration
The routine traffic stop cannot be unlimited in duration, and the officer must handle the stop in an efficient and timely manner appropriate to the cause of the stop. “The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop.” Rodriguez v. United States, 575 U.S. ______ (2015) citing Illinois v. Caballes, 543 U. S. 405, 407 (2005). Unrelated enquiries “[can]not measurably extend the duration of the stop.” Arizona V. Johnson 555 U. S. 323, 333 (2009).
“Authority for the seizure thus ends when tasks tied to the traffic infraction are—or reasonably should have been—completed.” Rodriquez 575 U.S. ______ (2015) citing Sharpe, 470 U. S., at 686 (in determining the reasonable duration of a stop, “it [is] appropriate to examine whether the police diligently pursued [the] investigation”).
The South Carolina Courts have also favored limiting the duration of traffic stops and have noted in several recent cases that activities and questioning by Police cannot extend a traffic stop longer than necessary to conduct the business for which the stop occurred (i.e. the writing of a citation for the violation leading to the stop).
It is in your interest, as the person stopped, to see the officer finish his business as soon as possible and not to answer questions unrelated to the stop. Once he has completed his “mission” as regards the stop, he cannot legally further detain and search you. (And it is worth noting that you should always object to a search even if you think you have nothing to hide.) If an officer seems to be stalling, make note of this. (It is not uncommon for an officer to call a drug dog as backup and to hold a person while they wait for the dog to arrive, and consensual small talk is a way to make this appear natural.)
At least one Federal Circuit Court (The Tenth) has determined that it is reasonable for an officer to ask about the presence of loaded firearms in a vehicle. United States v. Holt, 264 F.3d 1215, 1224 (10th Cir. 2001) (“We therefore conclude that allowing officers to ask about the presence of loaded weapons in a lawfully stopped vehicle will promote the government’s “legitimate and weighty” interest in officer safety.”)
However the Court readily admits that the stopped person does not have to answer the question. Id. (“nothing compels the motorist to answer such a question”). And a refusal to answer such a question cannot be the basis for a search. Id. (“The officer may not use the refusal to answer as the basis for a more intrusive search, but the officer would certainly be permitted to use that information to justify prudent safety-related measures.”) Just expect to be ordered out of the car if you refuse to answer this question.
It is worth noting that for those of you holding a CWP and carrying a firearm pursuant to it, the statute authorizing that carry in South Carolina does require you to disclose the CWP and presence of the firearm to the officer when asked for identification. The rational above would not apply under these circumstances.
We’ve noted that an officer may order the driver and passengers out of the vehicle already. When the officer believes that the occupants of the car are dangerous he may perform a Terry style frisk for weapons and pat down the persons in the vehicle. Courts have ruled both ways on whether or not a further search of the car is justified.
In Knowles v. Iowa the Supreme Court declined to extend a bright line rule that where a citation is issued an officer may fully search a vehicle without additional cause. 525 U.S. 113 (1998). The Court noted that a search may be justified to gather evidence of an observed offense, but admonished the officer that “no further evidence of excessive speed was going to be found either on the person of the offender or in the passenger compartment of the car.” Id. at 118. Rather, the Court held that police must use other exceptions where a citation is issued and an arrest does not occur.
However, in Michigan v. Long, the Court noted an officer may conduct a “Terry” pat down of the passenger compartment of a vehicle “upon reasonable suspicion that an occupant is dangerous and may gain immediate control of a weapon.” Knowles, 525 U.S. at 118 citing Michigan v. Long, 463 US 1032, 1049 (1983). It is worth noting that in Arizona v. Gant, the Court stated that once a person was subjected to arrest and placed under arrest the officer safety rationale to search the persons vehicle was extinguished. 556 U.S. 332, 350 (2009) (“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.”).
Routine searches for evidence, incident to a traffic stop and unrelated to the reason for the stop, are unconstitutional. However, where an officer suspects that the person stopped poses a danger to the officer or others, he may conduct a Terry type frisk of the both the person and the passenger compartment of the vehicle. Further, if an officer arrests the occupants of the car, he may search the car for evidence pertaining to the arrest, and if the car will be taken into custody, the police may inventory the contents of the car.
Under the conditions of a traffic stop police have great leeway to ensure their safety. However this does not give them carte blanche to require you to answer questions nor to search your vehicle. You should always be polite, but it is important for you to know your rights and what you can refuse.
During a traffic stop the police have already established probable cause to detain the driver, and this cause spills over to the passenger occupants of the car. Police action must conform to the Terry requirements, and police are allowed to order occupants out of the car and to conduct a pat down of the occupants for firearms. A quick search of the interior of the car may be allowable where the occupants can quickly reach the vehicle, thus voluntarily distancing oneself from the vehicle is likely to extinguish this cause for a search.
Where police find a firearm during the above search they may seize it for the duration of the stop, and they should return the firearm upon termination of the stop. Some officers are in the habit of searching the serial numbers of seized firearms during a traffic stop, and such practice is questionable as it is outside the purpose of a Terry stop.
Police however cannot artificially extend the time of a traffic stop beyond that necessary to write citations and conduct checks of licenses, insurance, and registration. Consensual questions and answers are allowed, but you are not required to answer any questions about firearms. (Please note that if you are carrying pursuant to a CWP South Carolina law requires you to disclose that fact and the CWP upon a request for identification.)
Finally, be polite, be calm, and assert your rights. If an officer decides to disregard those rights be certain to clearly and directly state your objections and consistently deny consent for any search. With a clear objection to a search a Court may review the officers actions and find them unconstitutional. The side of the road is no place for a shouting match.