What To Do: Unlawful Search and Seizure and Unlawful Arrests during Traffic Stops
Written by Cooper & Friedman PLLC on December 6, 2022
You may have witnessed the rise in videos from portable cameras like GoPros or dash cams on police interactions and misconduct, especially with the popularity of social sharing sites like TikTok and Instagram. Having video evidence is a great way to protect yourself from crimes such as insurance fraud, theft, and property damage, but it’s also a great tool to have when dealing with police misconduct and civil rights. Yet, it also increases the risk of unreasonable search and seizure and unlawful arrest.
As The Atlantic puts it, “Photography is a form of power, and people are loath to give up power, including police officers. It’s a power struggle where the citizen is protected by the law but, because it is a power struggle, sometimes that’s not enough.”
Even though police officers employ body-mounted cameras of their own, which are unlawful to turn off at any given point, cameras controlled by the people they’ve stopped become a threat of sorts, and that puts some officers on the defensive. And when people become defensive, tensions begin to rise and power struggles escalate. Many times, this leads to an unlawful demand of a search and/or unlawful arrest without sufficient reason.
If you’re ever in the position where a police officer unlawfully demands you to exit your car for a search and/or seizure without probable cause or sufficient reason, then here’s what you should do.
1. Record Your Interaction
Firstly, don’t stop recording, even if the officer tells you that you have to. You do not have to let the officer know that you are recording at all during a traffic stop, as Federal Courts have ruled that police officers have no expectation of privacy during a traffic stop, but if they are aware of the recording and demand you to put the phone away or stop the recording, then that is a breach of the First Amendment.
This doesn’t always protect you, though. Don’t let the recording equipment obstruct the officer, as they then have the opportunity to cite interference with police business, and don’t reach for a phone in your pocket after you’ve been pulled over, as an officer may very well think you’re reaching for a weapon with reason.
If you do happen to capture the unlawful violation on camera, whether that be a dash cam, cell phone, GoPro, or similar, then an officer may not break, delete, or otherwise tamper with the video, as it would become evidence, and tampering with evidence or obstructing justice is, as we know, illegal.
2. Know Your Legal Rights
While there are a few situations where it’s legal for an officer to conduct a search of your car, a routine traffic stop for speeding or a headlight that’s out usually isn’t one of them. The only exceptions are if:
- The officer has express consent from you for a search.
- It is not recommended to give your consent, and it is not legal for police to coerce or intimidate you into giving consent.
- The officer has probable cause to believe that there is evidence of a crime in your car.
- This factor can easily be abused by officers, but you may ask for clarification on why or what the evidence is. If the officer doesn’t have an answer or refuses to answer, this might be a sign of unreasonable search and seizure.
- However, if there are illegal items left out in plain sight or a passenger has been found with or arrested for having those items on them, then the officer is in his or her rights to conduct a full search after seizure of those items.
- The officer has reason to believe their or others’ safety is at risk.
- This could be due to a suspected hidden weapon, terrorism, etc.
- The officer has legally arrested you for a crime and the search is related to that arrest.
- This could be anything from weapons to illegal drugs to other evidence of your crime.
If the traffic stop qualifies for any of these four categories, then it is legal for them to search your vehicle, with or without your consent. If they do not obtain your express consent, nor have any probable cause for belief of evidence or safety concerns, then it is illegal under the Fourth Amendment for a police officer to search your car.
3. Remain Calm and Cooperative if the Situation Escalates
Unlawful search and seizure doesn’t always lead to arrest – sometimes it’s an intimidation or power tactic, and other times, the officer might truly believe that he or she has a right to search your vehicle. Belief, however, doesn’t hold up in court without evidence.
Unlawful search and seizure is invasive, embarrassing, unnecessary, and illegal, but at the end of the day, you might still get to go home without further incident. If you are put into handcuffs before the search without the stop satisfying any of the exceptions listed above or after, if there is no evidence or illegal items found, then an additional violation of unlawful arrest is committed and the charge can be added on, even if the officer cites exception #4, that they were conducting the search after you had been arrested.
Since you assumedly didn’t do anything to warrant an arrest in the first place, this doesn’t hold water. If you are still placed into handcuffs and are led to their police car, however, remain calm, silent, and cooperative so that the officer has no further reason or opportunity to indict you for an unrelated charge. Your Miranda Rights will be read to you, and amongst them is the right to remain silent. Utilize this right!
4. Contact the Police Misconduct and Civil Rights Attorneys at Cooper and Friedman, PLLC
If you get into a situation involving police misconduct, unlawful search and seizure, or unlawful arrest, then you should employ a lawyer to take your case to court and obtain compensatory justice for the damages caused. If the time you spent being searched and arrested lost you money, you could potentially recover those, and if you were exposed to particularly harsh or cruel treatment – whether that be excessive force from the officer or jail conditions – punitive damages also may be sought after.
If you or someone you love has been injured or involved in a police misconduct case in the State of Kentucky and are in need of an experienced civil rights attorney, give the lawyers at the Cooper & Friedman law firm a call. The attorneys at Cooper and Friedman PLLC have over 50 years of combined experience defending the rights of police misconduct victims. Contact us with questions you might have or schedule a free case consultation with an attorney by calling 502-459-7555 today.