Like millions of Americans, I am disturbed and disgusted by the behavior of police officers like:
- Derek Chauvin who is now on trial for the murder of George Floyd, Brooklyn Center;
- Minnesota officer Kimberly Potter who killed Daunte Wright during a traffic stop on April 11;
- Former North Charleston, S.C., patrolman Michael Slager who executed Walter Scott in 2015 after pulling him over for having a broken brake light;
- And the Windsor, Va. cops who pepper sprayed and assaulted U.S. Army 2nd Lt. Caron Nazario after stopping him for not having a license plate on his vehicle even though he did.
As the father of an active-duty soldier I must admit that I found the video of the attack on Lt. Nazario who was in uniform at the time absolutely sickening.
But while it is extremely difficult and, in many cases, impossible to justify or rationalize the conduct of the officers involved in these and other similar episodes, I can explain the laws governing the one thing these incidents have in common: “routine” traffic stops.
At first glance, the Fourth Amendment, written in the 1780s, would appear to prohibit traffic stops:
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Like much of our jurisprudence, however, the law surrounding the Fourth Amendment has evolved over the years as a result of legislation and hundreds of court decisions, including 1925’s Carroll v. United States. This ruling established a motor vehicle exception that permits officers to conduct a warrantless search if they have probable cause to believe that a vehicle contains evidence or contraband.
Since Carroll opened the door to warrantless searches, the court has held numerous times that a person’s right to privacy must be balanced with the fact that police officers have an inherently unsafe occupation:
- In Terry v. Ohio (1968), the Court said officers could briefly detain people if they have a reasonable articulable suspicion of criminal activity;
- In Pennsylvania v. Mimms (1977), the Court held that police officers may order a driver to get out of their vehicle once it has been lawfully detained for a traffic violation;
- In Maryland v. Wilson (1997), the justices ruled that officers may order passengers to get out of a car during a stop;
- In Arizona v. Johnson (2009), the court stated that a law enforcement officer who has conducted a valid traffic stop may frisk drivers and passengers for weapons if the officer reasonably suspects they are armed and dangerous.
For better or worse — and as it relates to the incidents I referenced above I would argue “worse” — the Supreme Court has handed police officers in the field immense power during traffic stops. They are the sole determiner of what is “reasonable” in real-time which means it is absolutely essential that drivers and passengers do everything possible to comply with their instructions during a stop.
Unfortunately, asserting your Constitutional rights on the side of the road can have deadly consequences.
Not being a person of color, I know this is easy to say but deadly for some to follow. If a police officer asks you to get out of your car, he or she has complete authority to do it.
Not following commands will just escalate the situation.— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to firstname.lastname@example.org.