Pretextual Stop Gives Police Probable Cause to Search a Vehicle

Anytime a Utah resident is pulled over for a minor traffic violation, that incident has the potential to become a pretextual stop, or an opportunity for police to find probable cause to search a vehicle.

Suspicious vehicle

Pretextual Stop

Photo by: Tony

There are times when law enforcement sees a vehicle that they would like to search but they have no probable cause to allow them access to it. The vehicle may be “suspicious” by fitting a certain profile that would allude to possible criminal behavior by the vehicle’s occupants or officers may want to search a car to help an unrelated investigation. Instead of waiting for a crime to be committed by the driver or getting a warrant to search the car, the vehicle may be followed until it makes a minor traffic violation instead.

Broken taillight = probable cause for a search

Speeding, switching lanes without signaling, no seatbelt, and even a broken taillight are all reasons that police can use to pull a car over and issue a citation. These simple traffic stops can also give law enforcement the opportunity to find probable cause to search a vehicle. A planned traffic stop with a hidden agenda is referred to as a pretextual stop, or an opportunity for law enforcement to search a vehicle for a reason that is actually unrelated to the traffic violation.

Whren v. United States

Photo by: Blogtrepreneur

In 1995, Whren- a driver of Mexican descent- was traveling along a stretch of road known as being a major drug trafficking corridor. Officers spotted Whren and proceeded to follow him for over 20 miles. Eventually a couple minor traffic violations such as failure to use a turn signal at a stop sign and speeding were made. This gave officers the opportunity to pull the vehicle over where they noticed narcotics in Whren’s hand. In court Whren attempted to have the evidence surpressed due to the pretextual stop violating his Fourth Amendment rights, however that motion was denied and he was ultimately convicted.

Pretextual stop not unconstitutional

The Fourth Amendment to the U.S. Constitution protects citizens from unreasonable searches and seizures that are conducted without probable cause. Unfortunately, the United States Court of Appeals stated in Whren’s case that a pretextual stop did not violate Whren’s Fourth Amendment Rights. They explained: “the temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.” They went on the further clarify that “Detention of a motorist is reasonable where probable cause exists to believe that a traffic violation has occurred.”

Limits to a pretextual stop

Photo by Drew Stevens

Although the U.S. Court of Appeals determined a pretextual stop to be constitutional, there are limits to what officers are allowed to do once a vehicle is stopped. A pretextual stop allows an officer to pull over a vehicle for a traffic violation but not necessarily to search the vehicle. In order to conduct a search, officers would have to have a warrant or probable cause to do a search. Probable cause might include:

• Seeing contraband in plain view;
• Smelling of illegal drugs by an officer or K9; or
• Observing activity that gives officers reasonable suspicion of a crime such as reckless driving that could indicate alcohol consumption or drug abuse.

If an officer cannot find probable cause to search a vehicle during their pretextual stop, they may ask the driver for permission to search. In an effort to cooperate with law enforcement, many individuals wouldn’t dare saying “no” when asked if officers can look in their vehicle. This is often a major loophole that police use to search a car without probable cause. While being respectful, it is perfectly acceptable to refuse officers to do a vehicle search. If they search a vehicle without probable cause, a warrant, or permission and find evidence of a crime, drivers are encouraged to wait politely but silently and have legal counsel discuss the unreasonable search during court. The evidence collected would likely be dismissed along with related charges. With all cases regarding a pretextual stop or illegal searches and seizures, it is recommended to obtain the aid of a criminal defense attorney. An experienced attorney will help ensure that no constitutional rights have been violated and that all searches were made lawfully.

Interfering with an Arrest in Utah When No Crime Has Been Committed

If a Utah police officer attempts to detain a suspect but a bystander is certain no crime has been committed, it is still recommended to allow officers to proceed to avoid facing possible charges for interfering with an arrest.

Do as you’re told

Photo by: Keith Allison

Photo by: Keith Allison

Law enforcement has been under increased scrutiny lately for many hot button issues such as police brutality and violation of constitutional rights. This has caused a widespread public disregard toward those once respected in uniform. This insolence toward law enforcement may give Utah residents the false notion that they can stand their ground if they feel someone is being arrested without cause. Unfortunately by interfering with an arrest, that person meddling may end up facing charges for their intrusion even if the charges for which they were interfering are dropped or deemed unlawful.

Interfering with an arrest

If an individual refuses to comply with law enforcement or attempts to stop a police officer from making an arrest, they can be charged with resisting arrest, otherwise known by Utah law as interference with arresting officer. Utah Code 76-8-305 states “a person is guilty of a class B misdemeanor if he has knowledge, or by the exercise of reasonable care should have knowledge, that a peace officer is seeking to effect a lawful arrest or detention of that person or another and interferes with the arrest or detention
(1) use of force or any weapon;
(2) the arrested person’s refusal to perform any act required by lawful order:
(a) necessary to effect the arrest or detention; and
(b) made by a peace officer involved in the arrest or detention; or

(3) the arrested person’s or another person’s refusal to refrain from performing any act that would impede the arrest or detention.”

Lawful is irrelevant

Interfering with an arrest

Photo by: Stever Baker

Although the above section states that no one should interfere with a lawful arrest, the world lawful is irrelevant as courts often look at statute’s plain language. For this reason, whether or not an arrest is lawful shouldn’t cause a person to decide that they have the right to get in the middle of police business. According to the State [of Washington] v. Holeman, “The determination of whether an arrest is lawful is often difficult and should not be left to bystanders who may have only a limited knowledge of the relevant law and who may let their emotions control their judgment.”

Acting within the scope of their authority

When it comes to making an arrest, officers are expected only to think they are making a lawful arrest. In the case of American Fork v. Pena-Flores, Nov 16 2000, it states: “Although police must have reasonable suspicion in order to make a legal detention, the use of “lawful” in section 76-8-305 does not automatically incorporate this standard in determining whether a person is guilty of interfering with a peace officer. So long as a police officer is acting within the scope of his or her authority and the detention or arrest has the indicia of being lawful, a person can be guilty of interfering with a peace officer even when the arrest or detention is later determined to be unlawful.”

Know the law

Regardless of what Utah residents feel toward law enforcement, they are not entitled to stop an officer from doing their job. Interfering with an arrest, whether or not it turns out to be lawful, will usually end badly for those trying to rid the world of injustice, one arrest at a time. If someone feels a person was detained unlawfully without reasonable suspicion or if they witnessed extreme use of force by police or a complete disregard for the detainee’s constitutional rights, it is best to file a complaint with the arresting officer’s supervisor. For those who overstepped their place and are facing charges for interfering with an arrest, contact a criminal defense attorney.

Law Enforcement Use of GPS Tracking Devices

Law enforcement officers have different measures to obtain information about a potential suspect including the use of “slap-on” GPS tracking devices attached to vehicles. Without a warrant however, this practice may constitute a violation of the suspect’s Fourth Amendment rights regarding unreasonable searches.

GPS tracking devices

Photo by: Surrey County Council News

Photo by: Surrey County Council News

The “slap-on” GPS tracking devices are mechanisms that can be placed inconspicuously on the undercarriage of a vehicle allowing police the ability to track the movement and location of said vehicle. These tracking tools allow law enforcement to keep tabs on potential suspects over an extended period of time and can be used to learn the whereabouts of illegal activity.

Protection from unreasonable searches

For several years, “slap-on” GPS tracking devices were under debate, with many claiming they violated a person’s Fourth Amendment rights regarding unreasonable searches. The Fourth Amendment states “The right of the people to be secure ( . . . ) against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ( . . . ). In October of 2013, the U.S. Court of Appeals agreed that GPS tracking devices constituted a “search” and law enforcement must obtain a warrant based on probable cause before placing such devices on a vehicle.

Ankle monitors

Photo by: Washington State House Republican

Photo by: Washington State House Republican

While tracking devices on vehicles were deemed unconstitutional without a warrant, the question was raised whether or not SBM monitors, commonly referred to as ankle monitors should fall under the same scrutiny (Grady v. North Carolina). Each state has their own specific uses for electronic tracking in the form of ankle monitors. Some states use these devices to forever track the whereabouts of convicted sex offenders after they have finished their sentencing. Other states such as Utah permit law enforcement to use ankle monitors on individuals placed on probation. (Utah Code 77-18-1.16)

Grey area

As law enforcement’s use of electronic searches is being evaluated, it is wise to consult with a knowledgeable criminal defense attorney to ensure that your rights are not being violated by the use of tracking devices or other means of technological trespass.