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Police Violate Fourth Amendment Rights

In Routine Traffic Stop of Club Member

By Tony Pan Sanfelipo

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A December 2016 traffic stop in Austin, Texas, is getting lots of views on social media lately. In a video posted on the Motorcycle Profiling Project’s Facebook page1 a motorcycle club member is detained after a police officer observed him neglecting to use a turn signal on his motorcycle. That traffic violation amounted to probable cause to pull the motorcycle rider over. Once detained, the traffic stop took on a whole new perspective.

A traffic stop in essence is a seizure because the driver is not allowed to leave after committing a traffic violation. Once detained, certain Fourth Amendment rights apply to the rider regarding search and seizure. Almost at the top of the video the officer explains that the rider is not under arrest and he is not going to receive a citation. At that point, unless the officer observed any other criminal activity, had reasonable suspicion that the rider had committed a crime or was about to commit a crime, the rider should have been free to leave.

Instead, the law enforcement officer insisted on taking photographs of the rider, including asking him to remove his vest and shirt so any chest or back tattoos could be photographed. When this video appeared, there was instant outrage at the police activity, accusations of profiling, and many questions about the legality of this traffic stop and the photographing of the rider.


It was clear from the onset that this stop was more about gathering information, including photographic documentation of the rider, than it was about a traffic violation. The initial stop was legal, because probable cause existed when the officer saw the cyclist fail to use his turn signal. Relevant to the traffic stop, any investigation must be reasonably related to the cause of the stop, or it violates the Fourth Amendment standard of reasonableness as articulated in Terry v. Ohio2. The police can legally photograph you at a traffic stop under something called the “public exposure doctrine.” The problem here is that photographing tattoos or other distinguishable marks had no relation to the reason for the stop in the first place. Also, the question arises about how long this photo session extended or prolonged the traffic stop.

Unlike mug-shot books that contain photos of people “arrested” for various crimes that can be used in the future to identify further offenses committed by these people, photographs at the scene of a traffic stop or other field investigation, where no crime or arrest took place, are digitalized and can be stored in some database for future use.

The big question that looms over the use of digital photographic database storage is why are people who have not committed a crime being placed in some database? Further, in the case of motorcyclists, is this an attempt at further profiling motorcycle club members by placing them in some database like GangNet of CalGang? Even though a person like the club member who was detained in Austin committed no crime, the possibility of his photograph being stored and subsequently viewed by victims or witnesses of future crimes presents the danger of wrongful identification.
If you think that’s overreacting, ask the Innocence Project what their opinion is. In fact, the Innocence Project explains that in more than seventy-five percent of convictions overturned with DNA evidence, eyewitness misidentification was a cause of the wrongful conviction in the first place.

The stop in Austin constituted what I believe to be an illegal “search” of the motorcycle member. First, he was told to remove his helmet, which could be determined to be a search in itself. Second, by removing his vest and shirt, his person was being searched also. Unlike a simple pat-down for officer safety, allowed under the reasonableness standard in Terry v. Ohio, removing articles of clothing to effect collecting photographs of person and/or tattoos goes beyond reasonableness, especially since no reasonable articulation can be made about how tattoos relate to a traffic violation stop. Viewing this from a different perspective, we can agree that law enforcement has a job to do in crime detection. But there is a huge difference between what police did in Austin and what another agency did in New York.

In September 1994 in the town of Brandt, New York, a car failed to use a turn signal and was pulled over similar to what happened in Austin. The officer in this case had been monitoring radio traffic from the Lancaster Police Department about a possible assault that took place that morning at a racetrack in Lancaster when he noticed a car without of state license plates driving away from the direction of Lancaster. There was reasonable suspicion after the traffic stop to suspect the five men in the vehicle might have been involved in the Lancaster event, based on the fact the radio transmissions talked about motorcycle club involvement and the men in the car appeared to be motorcyclists. The traffic stop progressed into a criminal investigation when weapons were seen in plain sight within the vehicle. The men were photographed as were the weapons, and all five were arrested at the scene for weapons violations.

The photographs of the five arrested in Brandt were legal because an arrest occurred. The Austin case was different in that there was no arrest made. The “public exposure” doctrine means the expectancy of privacy does not exist when a person is in the public eye. That’s why photographing motorcyclists at events or a funeral using telescopic lenses or drones is perfectly legal. That is different than using telescopic lenses to peer through windows of a home to take pictures, where there is an expectancy of privacy. The same holds true about lifting a shirt to see tattoos on a chest or back that are not exposed to the public view.

The Austin traffic stop was a seizure in that the cyclist was not free to go. Instead, he was told to submit to photographs or he would be “taken” to the police station and photographed. A reasonable person at that point would not feel that he was free to go. This was not a consensual police contact, because the rider was held against his will, thus he was seized. For this stop to be constitutional, the reason for the stop had to be justified, which it was, and the continued detention and investigation had to be reasonably related to the reason the stop happened, which it was not. Reasonable articulable suspicion is a standard of proof necessary to justify the stop under Terry v. Ohio.

Police might reason that because there has been a history of problems, including in Texas, among motorcycle clubs, it was prudent to investigate any movement or activity of motorcycle club members. The problem with that thinking is the Sixth Judicial District Court of Nevada said any investigative technique employed at a stop must relate to the immediate reason for the stop, and police could not alter the nature of the stop. If police decided to photograph and “search” the rider without his consent because of some theory about motorcycle club violence, they altered the nature of this stop and it was unconstitutional.

Although it didn’t appear to happen in this case in Austin, another consideration is whether the stop was prolonged because of the investigative techniques employed. On this, the court is somewhat unclear. No actual time limits seem to have been adopted, although there is a reference in some cases that place the reasonableness between twenty and ninety minutes, depending on individual circumstances.

In conclusion: It is unconstitutional for police to stop a vehicle or pedestrian solely for the purpose of taking photographs and establishing identity without reasonable suspicion or probable cause that a crime had been or is about to be committed. If a permissible stop takes place, any further investigation has to be relevant to the reason the stop first occurred, unless other probable cause or reasonable suspicion is discovered during the stop. Police are allowed to photograph individuals or items that are in the public view. Removing clothing to see tattoos is not public, and doing so constitutes a search and is illegal unless consent is given.

1. https://www.facebook.com/motorcycleprofilingproject/videos/1071675339635527/
2. https://en.wikipedia.org/wiki/Terry_v._Ohio
3. http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php

For more information on cases involving profiling of motorcyclists, visit the Motorcycle Profiling Project http://www.motorcycleprofilingproject.com/

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Reader Comments

Very informative. I question one thing however. The moment you are stopped or detained in any way by a police officer, you are under arrest. The cop doesn't have to say it at that point, nor does he NOT have to say you aren't under arrest...a cop can lie...............fact is your freedom of movement or say doing whatever you please has been restricted by the police officer. At that moment you are under arrest. This is true if not universally at least in every state that I'm aware of.

John Maragliano
Newburgh, NY
Tuesday, December 19, 2017
Editor Response I used the word "seized" when the police stopped the biker. It's a matter of semantics, but whether you say seized or detained, in effect, it constitutes an arrest. Your movement and freedom have been arrested, even if only temporary.

To be constitutional, the police must be able to articulate a reason for the stop, so of course it's usually a traffic violation; didn't completely stop, failed to signal a turn, dirty license plate, etc.

It's easy for them to create that probable cause, and many of us have been victim to that sort of stop in the past. As Mr. Maragliano says, at that point, you are under arrest (detained, seized).

The law is very clear that once the original reason for the stop has concluded, such as receiving a citation for speeding, you are free to go. Continuing to detain or extend the length of the stop past that point is unconstitutional.

One should never consent to a search of his person or property. It's not a matter of having nothing to hide, it's a matter of privacy, which is a sacred right. One should also refuse to participate in any conversation with the police, which can be construed as "consensual."

People get into all sorts of trouble by conversing with police. Once engaged, an officer can report that you seemed unreasonably nervous, or acted like you were drunk or high on something. That opens the door for further interrogation and investigation because you now gave the officer some "reasonable suspicion."

That's why lawyers always say to keep your mouth shut. You also need to verbalize a refusal to consent to a search. Simply remaining silent once asked if they can search your vehicle is not the same as saying "no."

I hope you liked the article and I will be watching for the outcome of these and other cases.

Merry Christmas and Happy New Year to you and yours,

--Tony Sanfelipo

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