When a cop says "please step out of your vehicle" or "may I search your vehicle?"

[Sgt.Murtaugh]

I know you can always say "no, I dont consent to a search" but what if a cop says to you "sir, please step out of your vehicle?" Can you say "I will not step out of my vehicle" and remain seated, without consequence?

Often times, and it has happened to me, a cop will ask "can I search your vehicle?" or "is there anything I should know about in your vehicle?"

In the past, I have simply said "No, I do not consent to a search of my vehicle, I would like to be on my way" and that response has sufficed. Usually, the cop looks aggravated but has no option but to let me be on my way. I take offense to such a question, especially since I am not carrying anything illegal in my car and I take offense to the fact that a cop would just ask that question without probable cause, but what can you do?

Now, I thought of this the other day - what if a cop asks you to step out of your car? Does stepping out of your car grant him permission to SEARCH your car? Is there any response to this question that will allow you to decline his command and stay within the realm of legality? This is a gray area that I would love some input on. I do keep a Ruger GP100 in my car, and it is legal to do so in the state of TX, but I don't want to tell a cop about my gun unless I have to and I certainly don't want to cause trouble with DPD. I also just want to know my rights.

Thanks

 

[wishin]

If asked to step out, comply. That does not give LEO's the right to search your car. If they ask, politely refuse a search. Some here will suggest you lock the doors as you step out.

 

[TexasRifleman]

I know you can always say "no, I dont consent to a search" but what if a cop says to you "sir, please step out of your vehicle?" Can you say "I will not step out of my vehicle" and remain seated, without consequence?

No, you can't really refuse that. What most recommend you do is comply, get out of the car taking your keys with you and lock the door behind you. If the LEO asks why you locked the door just say "habit" and shut up.

At that point he will have to demand, or take, the keys from you to conduct a search. With the advent of so many dash cams it will be very difficult for him to prove you consented to a search.

That all assumes he doesn't have probable cause to search anyway. Keep in mind that things visible through the windows might give him PC.

 

[Sgt.Murtaugh]

When I was young and stupid, I let a cop search my car, even though I had nothing incriminating in it. He TORE the thing apart, and left all my possessions that were in the car, lying on the side of the road. He then drove off. I simply do not want a repeat experience. Damn TX state trooper!

 

[Guillermo]

a policeman has the right to separate you from the vehicle for his safety.

you have the right to lock it

 

[Sam1911]

We happen to have discussed this recently in several threads.

You do have to obey a lawful order, which instruction to step out of the car would appear to be. Absent any reasonable suspicion that a crime has been committed, the officer must limit his search to a search of the immediate area, and is only allowed to search for items which might compromise his safety.

One way to counter that is to lock and close the door as you exit the vehicle. At that point, the interior of the car is not accessible to you (or him) and is no longer the "immediate area." Ergo, nothing in that car represents an immediate threat to his safety. He may frisk you for weapons -- but only for weapons. Anything else (illegal) he finds may be confiscated, but may not be used to incriminate you in court.

He cannot -- short of having probable cause (for example, a concrete and reasonable belief that you've committed a crime) -- open your locked vehicle and search it.

Now, he may make any number of claims later (I smelled pot, etc.) and if he chooses to go ahead with a search you cannot legally try to stop him. However you should document the incident and make the best preparation you can for fighting it and protesting it afterward.

Remember: neither your NRA sticker, your Guns&Ammo magazine on the seat of the car, nor your statement that you do not consent to searches constitute ANY reasonable suspicion that you've committed a crime.

 

[NavyLCDR]

The general rule established by the US Supreme Court in several cases is that during a lawful Terry Stop made under legitimate puporses, if the officer has reasonable suspicion to believe that you are armed and dangerous, the officer has the right to frisk you for weapons AND to frisk the area of a vehicle that is readily accessible from which a weapon may be obtained. The limit of the scope of both these searches is for weapons only and these searches may be conducted without the consent of the subject.

If you exit your vehicle and lock the doors behind you, you have just now made the interior of your vehicle inaccessible from which to obtain weapons and it was seem to me that would eliminate the ability of the officer to search the vehicle without consent.

Grant v. Arizona

http://www.nowpublic.com/world/arizona-v-grant-held-supreme-court-4th-amendment-ri

If the officer can articulate reasonable suspicion that you are armed and dangerous, and he/she asks you to step out of the vehicle and you fail to comply, the officer would be within their rights to remove you from the vehicle for the purpose of a frisk.

The Supreme Court has never separated being armed from being dangerous, during a legimate Terry Stop or traffic stop. Federal courts have separated being armed and being dangerous in cases where the stop was due to a lawfully carried firearm only, though, which does not establish RAS for a Terry Stop: St. John v. Alamagordo (New Mexico).

 

[Erik]

Proximity to a locked vehicle does not, in fact, equate to an inability to immediately access it.

I do it all the time.

And from there, much of the assumptions concerning what a LEO may or may not be authorized to do begin to unravel.

 

[henschman]

No, stepping out of a car after being told to do so by a policeman does not constitute consent, whether it was a lawful order or not. The courts recognize that an order from a cop, whether lawful or not, has an a certain element of coersion to it. The supreme court has held that it is not reasonable to require citizens to refuse, resist, or object to an unlawful order by a cop in order to "invoke" their 4A rights.

If a cop proceeds to try to search your car after he tells you to get out, just remind him that you do not consent to a search. This should clear things up if he is under the mistaken belief that you consented. Consent for a search can be revoked at any time. If he persists in the search, the smartest thing generally is to go along with it, and afterwards, talk to a lawyer about the situation.

 

[Erik]

AZ v. Gant addresses the search of a vehicle subsequent to the arrest of an occupant. It does not address Terry Frisks of the vehicle. These are not the same things.

 

[Oyeboten]

So...an Officer who has no reasonable suspicion of any probable cause to search a Car, but is in the mood for a fishing expedition, can ask the Car's driver if he may search the vehicle, and, when the person says "No", the Officer then has his probable cause, because the person refused?

 

[Erik]

Basically:

Prior to AZ v Gant law enforcement, upon developing probable cause to arrest someone, could arrest that person and search without a warrant the vehicle for evidence of any crime.

AZ v Gant imposed a two-pronged rule on warrantless vehicle searches subsequent to arrest:

Police may search a vehicle incident to a recent occupant’s arrest (1) only if the arrestee is within reaching distance of the passenger compartment at the time of the search or (2) it is reasonable to believe the vehicle contains evidence of the offense of arrest.

More here: http://www.law.cornell.edu/supct/html/07-542.ZO.html

--

It all sprang from Terry v. Ohio: http://www.law.cornell.edu/supct/html/historics/USSC_CR_0392_0001_ZS.html

Terry Stops and Terry Frisks are not the same thing.

A Terry Stop requires reasonable suspicion that crime is afoot. Or in this case, awheel. More here: www.fletc.gov/training/programs/legal.../terrystopupdate.../download

A Terry Frisk, to include the lunging areas of the vehicle someone recently inhabited, requires reasonable suspicion that a person encountered during a Terry Stop is armed and dangerous. More here: www.fletc.gov/training/programs/legal.../terryfriskupdate.../download

 

[henschman]

Samuel, the cases that allow for a search of the interior compartment of a vehicle upon reas. suspicion are extensions of the rule from Terry v. OH, and are conducted for the same reason. These searches are for the purpose of discovering dangerous weapons. To lawfully perform one of these searches, an officer must have reasonable suspicion, based on specific and articulable facts, that the suspect is both armed and dangerous. Obviously, like with any objective standard, there is some question as to what constitutes reasonable suspicion... but you are definitely wrong when you say that a mere refusal to consent to a search could constitute reasonable suspicion. The officer must be able to articulate some specific facts that led him to believe that 1) the suspect was armed, and 2) the suspect was dangerous, in order to justify a Terry-type search. A simple "gut feel" or the fact that the suspect came across as "nervous" do not meet this standard.

 

[henschman]

I should add that you are legally within your rights to resist unlawful force being initiated against you by a police officer, just like you are with any other person. Legally, you may use reasonable force to defend yourself against unlawful force, like in any other situation, including deadly force if you are threatened with death or serious bodily injury.

However, there are several reasons why it is generally smarter to wait until after the fact to fight such a violation. For one thing, you may not be thinking clearly and may not know the legal standards involved, and you might mistakenly use force unlawfully. For another thing, you obviously may be hurt or killed if you resist. For another, and this is the biggest reason IMO... the average juror in this country is easily impressed with things like badges, uniforms, and official titles, and puts an extremely high amount of trust in anyone who is in the field of law enforcement. Even if your story is true, there is a very high likelihood that you will be convicted of a crime anyway, just because of who the alleged victim is/was. If you kill a policeman in self defense, be prepared to either suffer the harshest possible sentence for Murder 1 in your jurisdiciton, or to live the rest of your life on the lam.

 

[Erik]

Cite a/the precedent(s) equating refusing a request to waive your 4A right to unreasonable search and seizure with probable cause to obtain a warrant, please.

 

[Erik]

I disagree with most of your assertions, and in lieu of typing a resume snapshot, have provided links for readers to review.

 

[NavyLCDR]

However, if you are pulled over for a valid reason, and the officer asks to search your car and you refuse, then yes, that alone is enough to warrant the required "probable cause", and there is a volume of precedent to support it.

After 15 years of being an Assistant District Attorney, 10 years in criminal defense, and litigating over 300 criminal cases, I'd say I know the case law and precedent well, and understand how it actually plays out in a courtroom.

Then, it seems to me, that it would be extremely easy for you to present to us this precedent and case law that you speak of. Yet we have yet to see it from you.

Samuel79, maybe you would like to discuss United States v. Hunnicutt as precedent?

http://scholar.google.com/scholar_case?case=15932937010237706011&q=135+F.3d+1345&hl=en&as_sdt=1002

Mr. Hunnicutt's assertion is not without evidentiary basis. Officer Raines explicitly testified that the refusal to consent persuaded him Mr. Hunnicutt "had something to hide." III R. at 30. Although ample other factors supporting reasonable suspicion were present here, as well as alternative justifications for all searching and further detention, we emphasize that refusal to consent should not have been considered in determining reasonable suspicion. See Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 2387-88, 115 L.Ed.2d 389 (1991); Royer, 460 U.S. at 498, 103 S.Ct. at 1324; Brown v. Texas, 443 U.S. 47, 51-52, 99 S.Ct. 1351*1351 2637, 2640-41, 61 L.Ed.2d 357 (1979); United States v. Manuel, 992 F.2d 272, 274 (10th Cir.1993). Any other rule would make a mockery of the reasonable suspicion and probable cause requirements, as well as the consent doctrine. These legal principles would be considerably less effective if citizens' insistence that searches and seizures be conducted in conformity with constitutional norms could create the suspicion or cause that renders their consent unnecessary.

And, Mr. Samuel79, you will kindly notice that in this case, there was plenty of OTHER reasonable suspicion and probable cause of a crime being committed, however, the US Supreme Court states that exercising one's 4th Amendment rights to refuse a search does NOT in any way, shape or form contribute to that reasonable suspicion or probable cause.

I would think, after "15 years of being an Assistant District Attorney, 10 years in criminal defense, and litigating over 300 criminal cases" you would be aware of United States v. Hunnicutt.

 

[KodiakBeer]

However, if you are pulled over for a valid reason, and the officer asks to search your car and you refuse, then yes, that alone is enough to warrant the required "probable cause", and there is a volume of precedent to support it.

If you think being pulled over for a traffic stop and refusing a search constitutes "probable cause" then I hope to God I never have the misfortune of driving through whatever little corner of the USSR you're affiliated with.

 

[DaisyCutter]

The LEO is allowed to ask.

You can say no.

Many LEOs only ask as a courtesy, because they've already seen the beer behind the seat or the marijuana seeds on the floorboard... and the car is getting searched regardless of your answer. In fact, even people who've consented can recant and say they were under duress when they consented, because they reasonably believed they were detained (not free to leave). Many LEOs are only asking to see the drivers reaction.


Exiting your car doesn't not equate consent to search.


A search subsequent to arrest can include any area within the lunge or "wingspan" area of the driver.


The locking of the door after exit in a new one for me. I've never seen anyone try it. To most LEO, the keys represent the actual control for the car, and they'll get the keys first, then ask you to exit. After a LEO has a couple drivers fight him, drive off, drag him, etc... he learns to get the keys as soon as there is a sign of criminal activity.

Most of that has been discussed already.

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This hasn't been addressed.


While the LEO can't search your whole car subsequent to arrest, he most likely will still have to coordinate removing it from the scene, which requires a thorough inventory of everything in the vehicle.

Vehicle search A.K.A. tow inventory.


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Use your best judgment whenever anyone boasts about their vehicle's gas mileage, how much money they won in Vegas, and how often they outsmart the police.


A better bet is to not have contraband in your car.

 

[NavyLCDR]

Very Simple Answer....

Really, there is a very simple answer regarding a frisk and/or search. If the cop is asking for your consent, he doesn't have enough RAS or PC to conduct the search without it. If he did, he wouldn't be asking you for your consent to begin with.

Samuel79,
Instead of spewing more B.S., why don't you address United States v. Hunnicutt?

 

[TexasRifleman]

The locking of the door after exit in a new one for me. I've never seen anyone try it.

The ACLU has been recommending that one for many years now.

 

[highorder]

However, if you are pulled over for a valid reason, and the officer asks to search your car and you refuse, then yes, that alone is enough to warrant the required "probable cause", and there is a volume of precedent to support it.

I am not a lawyer, but that goes against everything I thought I understood about Probable Cause.

 

[henschman]

Samuel, you are confusing the requirements of a Terry stop with the requirements of a Terry frisk. Both situations involve the legal standard of "reasonable suspicion," but they require reasonable suspicion about different things.

For a "Terry stop," a policeman must at least have reasonable suspicion that criminal activity is being committed or is about to be committed, and the officer is limited purely to stopping the suspect for the limited purpose of investigating the crime for which there was reasonable suspicion. This does not extend to any further searches... just a limited seizure of the suspect during which time the officer can ask questions designed to affirm or dispel his suspicion.

For a "Terry frisk" of the suspect's person or the suspect's car, the officer must have Reasonable Suspicion, based on specific and articulable facts, that the suspect is armed and dangerous... not merely reasonable suspicion that a crime is being committed or is about to be committed, as is required for a stop.

Obviously one can lead to another, as it did in the original Terry v. OH case... a cop saw a guy in a long bulky coat with a bulge loitering around a store in a high-crime area. This gave the cop a reasonable suspicion that a robbery was about to be committed. The officer approached the man and asked him what he was doing and what he had under the coat. The man acted very nervously and did not offer an answer to dispel the reasonable suspicion. At this point, the officer had reasonable suspicion that the man was armed and dangerous, and patted him down, feeling that he had a gun hidden under his coat, which the officer was allowed to seize and secure.

Now with a simple traffic stop, say for a busted taillight, the cop just has a reasonable suspicion (and probably outright probable cause as well) that the driver has violated the taillight law. He has the authority to stop the driver for the purpose of investigating this crime and writing a ticket for it. If he asks for a search and the driver refuses, he cannot search under the Terry line of cases unless something about the situation or the driver's responses to his questions give him a reasonable suspicion that the driver is armed and dangerous.

If an officer really wanted to search the car, the right way would be to place the driver under arrest for the taillight violation and take him downtown, and then perform a search incident to arrest and/or a custodial search of the car. However, police rarely go to the trouble of placing people under full-blown arrest for minor traffic offenses, and many departments have policies against it.

If they really want to get a search that has a chance of standing up to judicial scrutiny, they usually go with the motor vehicle exigency exception to the warrant requirement, which just requires probable cause that evidence of a crime is in the vehicle. The scope of this search extends to anywhere that the cop has probable cause of evidence being located. The most common way to get this type of search is for the cop to pretend that he detects the odor of an illegal drug, usually marijuana. Since marijuana can be hidden just about anywhere in a car, a cop can then basically search anywhere in the car. Then with the plain view doctrine, he can seize any contraband that he finds, even if it is not related to the initial reason for the search.

 

[TexasRifleman]

Deleted a couple of posts. Let's try to keep on the topic directly please.

 

[henschman]

Not that I think you have to be a lawyer to discuss this subject authoritatively, but yes I am a lawyer... a pretty new one, too, so the requirements for all these various different types of searches are pretty clear in my memory from Bar Bri last summer!

Don't take it personally, I'm not breaking your balls... but you know what they say... the most you are ever going to know about the law right before you take the bar exam! From there it starts to get fuzzy, except for the areas you end up practicing in!