by Steve Silverman:
If you’re unfamiliar with this tragic story, Sandra Bland was a 28-year-old black woman who was found dead in a Texas jail cell. After the dashcam video of her arrest was released, a reporter from The Guardian contacted me for a legal opinion of the ill-fated encounter.
Here’s what I had to say:
Steve Silverman, executive director of the nonprofit legal education organization Flex Your Rights, called [Officer] Encinia’s demand “technically legal but completely unnecessary”, and says that’s “largely a consequence of a bad 1977 supreme court ruling that few people have heard of”.The case in question, Pennsylvania v Mimms, held that police can legally order stopped motorists out of their cars, describing the request as “at most, a mere inconvenience” which the court said “cannot prevail when balanced against legitimate concerns for the officer’s safety”.Silverman said this ruling has “contributed to many unnecessary and avoidable escalations where police forcibly remove motorists from their vehicles simply because they talked back or were too afraid to exit”.
So if police ever order you out of your car, step out of the car.
While police generally need a warrant to search you or your property — during a traffic stop, police only need probable cause to legally search your vehicle. Probable cause means police must have some facts or evidence to believe you’re involved in criminal activity.
In other words, an officer’s hunch without evidence of illegal activity is not enough to legally search your car. Before searching, he must observe something real. Common examples of probable cause include the sight or smell of contraband in plain view or plain smell, or an admission of guilt for a specific crime. The presentation of any of these facts would allow an officer to perform a search and make an arrest.
Be aware that minor traffic violations (e.g. speeding, broken tail-light, or expired registration) are not considered probable cause.
Okay. So how can I keep police from searching my car?
Simply understanding the legal definition of probable cause probably won’t be enough to prepare you for the pressure and confusion of a real police encounter.
Most police are able to exploit a major loophole to the probable cause search requirement. But by following these basic rules, you’ll be better able to prevent police from tricking you into giving up your your constitutional rights. You’ll also improve your odds of driving away safely.