Updated Paper on Traffic Stops

I’ve just completed a revision of my paper on the law of traffic stops. It covers both when an officer may make a stop and what an officer may do in the course of the stop. It’s written for judges, lawyers, and officers, and is available here for free. As always, I welcome feedback on any aspect of the paper.

16 comments on “Updated Paper on Traffic Stops

  1. What about a circumstance where an officer runs a tag but enters the tag information incorrectly and then bases his seizure on information that is incorrect and has been obtained through his error of entry?

  2. It concerns me how when your in a car it seems our courts have thrown the fourth amendment right out of the window. right-you don’t get elected to be a Judge if you stand up for the fourth amendment rights, but you will get elected if you stand up for gun rights. our founders of this great country would have never allowed the government to stop their vehicles on so many BS exceptions. I have been stopped in over 50 roadblocks over the last 5 years-i don’t drink and i don’t use any type of drug. i just work late. The fourth is gone . I don’t mean to be a hater but Jeff your crew at UNC, to me and other like minded defense attorneys seems to find any way to interrupt the law for the State. i could rant on and on about the fact our fourth amendment rights have been whittled to nothing because america is nothing more then a police state. I wish you guys at the institute would read some historical books about why we even have a fourth amendment. Our founders would not stand for giving our government so much power.

    • Wolfpack, I’m somewhat perplexed. You need to report these roadblocks! This is not the USSR or Nazi germany! What dastardly entities are setting up roadblocks?

      I poke at you but, CHECKPOINTS have been constitutionally upheld. So long as said checkpoint adheres to accepted rule sets that do not allow the target of individuals. Example: a license and expiration check. We look at the license and the expiration date on the plate. If the expiration dates on both are good – the driver rolls on.

      I certainly would love to hear your opinion of DWIs. Specifically, when they go to trial. Let me start by first providing the scenario. SHP is dispatched to a call of a vehicle that lost control over the roadway for a considerable distance. Leaves the roadway, flips several times, comes to rest on a trailer. Trailer ruined. In the swath of destruction the car left lies a man. He is injured severely. Retracing the cars path the trooper determines that Mr hurt appears to have been driving, is drunk out of his mind, is the registered owner of the vehicle and there is NOONE aside from the people that live in the homes at the scene, around. Result: no one can put the man behind the wheel – no PC for DWI

      • And in a checkpoint EVERY vehicle and driver is checked.

        • This (every driver is asked for documents at a checkpoint) seems contradictory to reasonable suspicion. Is every motorist suspected of being in violation of the law by virtue of being on the road?

  3. Is there case law as to whether a detained driver (or passenger for that matter) in North Carolina is required to answer an “unrelated question” or may simply decline to answer it without jeopardy?

    • I agree. One day this country will either realize the damage we do to the Constitution which was meant to protect freedom. If it doesn’t, we are surely headed toward a police state.

    • The law says that no citizen EVER has tyo answer ANy question put to him by the cops. You have the absolute right to remain silent at all times, without exception. You may decline interrogation, which is what questions by cops really is, and are advised to. Commonly cops will ask such questions as ” Do you have anything in your car I should know about ” , or ” do you have any drugs or guns with you “? Of course only an absolute moron would admit such things to a cop so they could be busted..the cops begin often with seemingly innocuous questions, such as ” Where are you headed today ?” to get the driver loosened up for more direct attempts to discover evidence. Such questioning is an investigation and not a part of any legitimate checkpoint, but they do it anyway hoping to get someone nervous or evasive and add elements the cop can use to prolong the stop. The best way to deal with cops at a checkpoint, or any other time, is to simply say ” I refuse to answer any questions and I do NOT consent to any searches” and say nothing else..cops will at that point try and ask ” why ” or otherwise delay the end of the stop, as they see people exercising their rights as a threat or as disrespectful to their presumed authority, but when you say ” Are you detaining me or am I free to leave ” and keep saying that the cops know that if they cross the line they will lose any case brought by an illegal detention. Cosp cannot detain you longer than it takes to complete the stop, although most will begin the sneaky attempts at self incrimination after returning documents or a ticket or warning, seemingly as an afterthought: ” By the way, you don’t mind if we search you car and you, do you? If you have nothing to hide, why not? Etc. If you remain after the cop has returned your license, you are engaging in a ” consensual encounter ” and will not have a leg to stand on. You are supposed to know to leave and ignore the cop ‘s ” conversation ” after you are allowed to go. Most citizens don’t want to be rude and ignore someone, even a cop, speaking to them, but you must if you want to avoid being trapped into consent requests or worse. Cops bank on people not knowing their rights, and all citizens should know exactly what to do to keep cops from using their tricks to conduct suspicionless investigations, searches, etc.

      NEVER, ever under any circumstances agree to a warrantless search. If a cop says ” Why not let us search? Do you have something to hide ?”…just say ” No, but I DO have something to protect: the Constitution of the USA ” And then leave if they are not detaining you…if they are say nothing.That is the best advice possible. Playing the cops game will result in you losing every time..play your own game, which is to make the cops violate the law and your rights to proceed further than they are allowed by policy and the law.

  4. I’ve done this. As soon as I realize I’ve made an error, I apologize to the driver, tell them some information ran was wrong, look no further. Then hand them their docs back and bid them farewell.

    What if: you come across evidence or you have plain sight finds that’s your call – depending on the quantity. Be dagon sure to chat a supervisor and the DA ahead of time. If it goes to trial, any lawyer that breathes should be able to argue that the evidence gained as a result would be fruit from the poison tree.

    The what if is a scenario I’ve never been in. I usually will see my error pretty fast….or dispatches

  5. Great paper, lots of good information, vehicle stops made easy, or explained better.

  6. It seems that given the Appellant courts ruling in State v. Ivey that a vehicle stopped at a traffic light in a left turn only lane would not have to signal making a left turn. It would also seem given the ruling under the State v. Barnard that if another vehicle stopped at the same light heading in the opposite direction in the right lane with no signal on, sat at the light for 20 seconds after it changed green. Given the totality of the circumstances a reasonable and prudent person would be correct in believing that the person sitting 20 seconds after the light changed; was offering courtesy to the turning driver by permitting him/her to make the turn before they proceeded straight and there would be no violation of GS 20-154 especially since no collision occurred.

  7. Mr. Welty: It is disturbing that ” belligerence ‘ is allowed to be a factor is establishing RS for delaying a stop, given that most cops consider anything but complete and utter submission to any and all ” requests ” , as well as a ” respectful ‘ attitude to be belligerent conduct. Is the exercising of Constitutional rights ” belligerent “? If a driver refuses to answer questions, which is his right , most cops would see that as problematic and would no doubt adopt a confrontational attitude immediately.

    The term should be defined so that every officer is not allowed to consider anything he sees as ” uncooperative ‘ to be belligerence and therefore add to RS. Cops hate any challenge to their methods and most always see citizens who refuse to be interrogated as somehow suspicious, but merely protecting rights cannot be said to be suspicious alone. Since citizens are legally allowed to adopt any attitude they wish, legally, in the presence of an officer, even to the point of cursing them, when does the exercise of legal rights become ” belligerence ‘?

    • I have read/understand that a cop in the field may act as if silence is RS as a persuasive devise to gain consent (effectively a lie) but that silence is not upheld in court as being RS.

      • How a cop acts is not a legal issue..if a cop uses silence as a means to further detain someone or to form a bogus RS for a search, all evidence would be excluded, and the cop would be liable for a 1983 lawsuit. the law is firmly established that silence is a right for all citizens. Cops lie like they breathe, as natural to them as imaineable, but their lies do not persuade or change the actions of educated citizens. listening to a cop spew lies is the downfall of many people, who should adhere to the standard line for all of us: I do NOT consent to any searches, and I will not answer any questions, period. If the cops violate rights, then sue them.

  8. Ken,

    NO. COA11-1050 Sate V. Scotty Wayne Radford. Unpublished opinion.
    The telecommunicator ran the wrong tag number and the deputy stopped the truck based on that and ended up with a habitual DWI. The stop stood as a honest mistake. The question with your scenario is that the officer is inputting the information and has the immediate ability to take a few seconds to verify it on his screen, so the defense would be arguing that the officer failed to do his due diligence by taking a few extra seconds to verify that information.

  9. where an officer runs a tag but enters the tag information incorrectly and then bases his seizure on information that is incorrect and has been obtained through his error of entry?