There was a time, during the civil unrest in this country due to race riots and anti-war demonstrations, that personal appearance or vehicle type was enough for an officer to form an opinion about you and stop your vehicle. Numerous court cases challenged those arbitrary stops and the tide seemed to be turning for the Constitutional rights of the citizen. In our February Newsbrief, we listed three of the cases that helped define what a legal and Constitutional police stop was:

1. Beck v. Ohio, 85 S.Ct. 223,225 (1964)
2. Florida v. Royer, 103 S.Ct. 1319, 1324 (1983)
3. Lankford v. Gelston, 364 F 2d. 197 (4th. Cir. 1966)

These cases affirmed the belief that probable cause consisted of facts indicating that a person had committed or was about to commit an offense. In our newsbrief, we discussed a case in Minnesota in which a biker was stopped on his way to Sturgis. The basis for the stop was a suspected illegal headlamp configuration (on a stock Harley). Although some contraband was found, the search was deemed illegal in an appeals court decision due to the fact that the officer had no real probable cause to stop the biker, and that he used tactics to intice or fool the biker into thinking he had no choice but to submit to a search.

Our U.S. Supreme Court, led by the conservative thinking Justice William H. Rehnquist, has in recent years moved back toward allowing broad and arbitrary discretionary powers to police. Once again, the color of your skin, the length of your hair, or even your choice of transportation could be enough for an officer to suspect you of being guilty of something. This broadening of police power is supported in three recent cases heard by the high court.

Whren v. United States, 116 S. Ct. 1769 (1996)

Pretext stops, stopping for vehicle or traffic offenses when the real reason is to search for contraband, are not unconstitutional under the Fourth Amendment guarantees prohibiting unreasonable search and seizure, according to the U.S. Supreme Court. The officers intent in making the stop is irrelevant. If he believes a violation has taken place, the stop is valid. Whren assures that police will be able to stop, based on race, appearance, transportation or their whim.

Ohio v. Robinette, 117 S. Ct. 417 (1996)

This case addresses one of the issues brought out in the case of the biker on his way to Sturgis. He never stated out loud that he objected to a search of his vehicle, nor did he ask to leave. In Ohio v. Robinette,the court ruled that the Fourth Amendment does not require that the officer inform the detained person that they have a right to leave before consent to a search is recognized as voluntary.

Maryland v. Wilson, No. 95-1268 (Feb. 19, 1997)

This case affirms that officers can legally order you out of, or off of your vehicle during a traffic stop. It also goes beyond the authority of a 1977 case, allowing officers to ask the driver of a vehicle to step out of a car. Wilson allows the officers to also ask passengers to step out of a vehicle, and to detain them, as well as the driver.

Officers may ask for permission to search your vehicle, but you do not have to consent. In fact, if you do not want to allow a search of your vehicle, you must vocalize that objection. Simply saying nothing is not the same as refusing to consent. The same holds true for asking if you are free to leave. You must ask if your are free to leave, because the officer is not under any obligation to inform you that you are free to leave.

According to an article in The Lawyer's Magazine, July 1997, figures on police searches in South Carolina in 1991 showed that less than 15% of the 4,000-plus vehicles they searched turned up any drugs. It must be remembered that the officer has discretion to decide whether to pursue the search or not. He has the option to further detain you, and call for drug sniffing dogs, for instance. Asserting your right to be free from unreasonable search (knowing you are innocent and have nothing to hide) could turn out to be a situation in which you are detained for a long period of time. The soft spoken, friendly officer, trying to obtain your permission for a search, could turn into an angry and determined individual not worried about keeping you on the roadside for an hour or more.

Random stops are still not permissable, but the recent court decisions, especially in Whren, move closer to random stops becoming a reality. In describing his concerns over this type of stop and search in the case of the biker in Minnesota, one of the justices hearing that case, Justice Tomljanovich, stated, "Our decisions in this case and in Dezo represent what I believe will be an ongoing attempt to come to grips with the increasing use by state troopers and police officers of subtle tactics to get motorists and others to consent to searches. It appears state troopers and police officers are receiving training on getting consent to search, similar to the training sales people receive in getting people to agree to buy things they do not want. We are not dealing with vacuum cleaners in this case but with the liberty and privacy interests of all the people of the State of Minnesota, and we have an obligation to ourselves and to the Constitution of this state to do what we can, in our limited role as a court of last resort, to provide reasonable protection to those interests."

Michael F. Hupy & Associates, S.C. Rights Cards. You can receive your personal statement of Constitutional Rights, on a plastic, wallet sized card at Michael's web site. --