We have all seen the videos online where a person is pulled over for a traffic violation and escalates the situation by being unreasonably difficult, citing the Fourth Amendment as the right to do so. But is the Fourth Amendment really a license to not comply with law enforcements requests? The answer is yes and no. While you must comply with lawful orders, you do not (AND SHOULD NOT) help law enforcement collect evidence against you. Your lawyer will thank you later.
Let’s dive into what the Fourth Amendment protects from during a routine traffic investigation.
For purposes of this conversation, I’ll use the following hypothetical:
A police officer is behind you and observes you take a left-hand turn. When you take the turn, you use your blinker, but you turn into the middle of three lanes (the number two lane). The officer turns on his lights and siren, and you properly and safely pull off to the right of the road.
Reasonable Articulable Suspicion
Okay, the first question is: was the officer allowed to stop you? If so, why? The answer to the first question is unquestionably yes. The reason is because you just committed a traffic violation (one of the most common infractions we see on DUI stops) which is not turning into the lane nearest to the median or centerline when taking a left-hand turn. Because of this, the officer had what he needed to conduct the stop—reasonable articulable suspicion.
Reasonable articulable suspicion (RAS) is what an officer needs to conduct an investigatory stop. This means the officer must be able to articulate exactly what it is that provides them with a reasonable inference that criminal activity is afoot. One way to better understand the RAS standard is to understand what RAS isn’t. RAS is not a hunch. A hunch is not enough. For example, if an officer sees a car driving down the road at two-o’clock in the morning in a beat up car (that has fully working equipment) near a bar that just closed down and the officer thinks that the person driving the vehicle is probably drunk—he cannot stop that vehicle. To do so would be illegal because he does not have RAS. Now, if the car begins to weave outside of its lane while driving, he then has RAS and can stop the vehicle for an investigatory detention.
Next, let’s take the original hypothetical one step further to understand more about RAS:
Let’s say the police officer comes up to the window and asks for you license and registration and you provide everything to her with no issues. The officer tells you about the improper left turn and writes you a ticket. Then, after she hands you the ticket, you mutter “this is bullshit” while she is walking away. These word provoke her to suddenly remember that she should ensure the roadways are safe and she turns around and tells you that she is going to conduct a DUI investigation.
Is this legal? No. Why?
Because the officer did not have RAS to conduct the DUI investigation. While the officer did have RAS to conduct the original traffic stop, she was required to have additional RAS to extend the temporary detention past the scope of the original reason for the stop (an improper turn). In other words, officers cannot use RAS that one crime may have occurred as a pass to go full on and investigate any other possibility. It is a LIMITED detention that RAS allows for.
If RAS is the standard that officers need in order to conduct a limited investigatory detention, what do they need to place you under arrest? An arrest is different than a limited detention in a few ways. It is not limited like RAS is. Once you are placed under arrest, you are likely to be charged with a crime. The reason is that in order for you to be charged with a crime, there must be probable cause (PC) that you committed the crime—which is the same standard needed for an arrest. Once placed under arrest, it is up to the officer whether or not to release you following the investigation or to book you into jail. Each agency has policies and procedures that are supposed to guide the officer’s discretion.
So what exactly does PC mean and what does it look like practically? Technically, PC evaluated by looking at the totality of the circumstances in any given situation, meaning everything that the officer knows or reasonably should know at the time of the arrest. PC means that a reasonable person would believe that a crime was in the process of being committed, had been committed, or was going to be committed. This is higher bar than RAS.
Let’s look to our hypothetical for an understanding of a practical application:
You’ve made an improper left turn, pulled over properly and police are in the process of writing you a ticket. While writing you a ticket, the officer smells an odor of alcohol and asks you if you have had anything to drink. Unwisely, you answer his questions without your lawyer present and tell him that you’ve had 2 drinks over an hour ago. At this point the officer asks you to get out of the car and places you under arrest.
Is this legal? No. Why?
Because the officer didn’t have the necessary PC to place you under arrest. In Arizona, it is not a crime to drink an alcoholic beverage and then drive a motor vehicle. It is, however, a crime to operate a motor vehicle while impaired to the slightest degree in violation of ARS 28-1381. Relying solely on the observations n the hypothetical, there is not enough information that would lead a reasonable person to believe that a crime has been committed. Namely, there is really no evidence of impairment here.
That said, there is additional RAS beyond the scope of the original stop such as in our latest hypothetical. Therefore, the officer could (and likely would) ask you to step out of the vehicle to conduct a DUI investigation. It is during this roadside investigation that the officer will be looking for clues to elevate RAS to the level of the PC required to make an arrest. For more information on what to do during a roadside DUI investigation, click here.
What happens if a law enforcement officer violates your Fourth Amendment Rights during a traffic stop?
The remedy for a violation of your rights here is a suppression of evidence—but not all evidence. The only evidence that is to be suppressed is the evidence that was collected as a result of the illegal search or seizure. In law, it is often referred to as the “fruit of the poisonous tree” doctrine. The poisonous tree being the illegal tree, and the fruit being any evidence obtained leading from that illegal search. It’s important to note that there are many exceptions to the Fourth Amendment and also to the remedy of suppression. A violation does not always lead to suppression.
What to do if placed under arrest following a traffic stop
Do not answer questions beyond simple identifying information, invoke your Fifth Amendment right to remain silent, remain otherwise cooperative, and ask to for a private phone call with a criminal defense attorney. Do not help police collect evidence against you without first speaking to an attorney. Do not help law enforcement officers elevate RAS to PC for an arrest. To be prepared, stop now and save my phone number in your cell phone. Attorney Steven Scharboneau (480) 363-0090. If you have more questions, you can send me a message HERE or you can call or text me 24/7 at (480) 363-0090.