Drug Possession Laws in Virginia: Part III
In this third part of the series, I will cover the law governing the most common situation where people are arrested for drug possession: that of the warrantless search and arrest pursuant to a traffic stop.
What can you do during a stop, and most importantly,
What shouldn’t you do during a stop?
The Origin of the Traffic Stop
Police officers are often seen pulling people over.
Perhaps even you have been pulled over before.
Where does their authority to do so come from?
In 1968, the United States Supreme Court ruled in a case called Terry v. Ohio
That officers may temporarily detain or “stop” someone
If they have what is called “reasonable articulate suspicion” that a crime is or is about to occur.
Put more simply, if an officer has a reason that they can explain to a judge why they pulled you over,
That’s the “reasonable suspicion” they need to conduct a traffic stop.
This is considered a very low standard to meet,
As most officers can define what they thought was unusual before they pulled you over.
This is why many officers patrol on the highways or stay put in one place, observing other vehicles;
They are looking for people committing traffic violations.
Traffic violations are considered “breaking the law,”
And observing that– for example, speeding– is considered reasonable suspicion
To temporarily stop you on the street.
What should I do if the police is trying to stop me?
Under the law, you MUST pull over when an officer indicates that you should.
Don’t ever try to outrun or otherwise prolong an officer following you.
The officer may just out of spite charge you with the crime of eluding,
A misdemeanor at best in Virginia and a felony at worst.
When an officer does pull you over,
He may already have enough evidence to cite you for a traffic violation (for example, speeding).
In that event, he may just write you a ticket, and be on his way.
However, most officers are trained to do much more than write tickets.
Can the police officer arrest me in a traffic stop?
In fact, from the moment an officer pulls you over and walks up to speak to you,
The officer by his training and experience is already looking for any facts or reasons
That might allow him to search or arrest you.
What does an officer need for a valid arrest or search?
He needs probable cause to conduct either.
What is probable cause?
In 1949, the U.S. Supreme Court defined the term in a case called Brinegar v. United States:
“Where the facts and circumstances within the officer’s knowledge, and of which they have reasonably trustworthy information, are sufficient in themselves to warrant a belief by a man of reasonable caution that a crime is being committed.”
It’s a confusing standard, even for attorneys.
Analisys of the law in traffic stops
If we break it down, you can see it looks like this:
“… facts and circumstances… officers’s knowledge… and of which they have reasonably
trustworthy information… are sufficient in themselves… to warrant a belief by a man of reasonable
caution… a crime is being committed.”
When seen this way, it becomes easier to understand:
sufficient probable cause to arrest,
Or to search,
Is found where the officer knows sufficient,
trustworthy facts that lead a reasonable person to think a crime is being committed.
Notice that the word “reasonable” is mentioned twice by the Supreme Court.
That’s a very important concept in the context of traffic stops;
Even stops with probable cause can be negated by the court
If they were unreasonable.
Note also that this standard is also higher than the “reasonable articulable suspicion” standard
Defined in Terry.
That is, an officer can stop for you a reason,
But he’ll need more than just that that reason to stop or to search you.
Those “other” reasons that he needs for a search or arrest are the true subjects of this article.
The importance of knowing your rights
Overwhelmingly, the number one piece of evidence that officers rely on for arrests and
Are the words of the defendant themselves.
Officers love getting you to talk. Why?
Because if you simply answer the officer’s questions,
Not realizing what your rights actually are,
You’re not only giving the officer everything he needs so he can later say he had probable cause,
You are also giving him the evidence a judge would need to find you guilty later in court.
That’s something you can avoid.
In addition to verbal admissions,
Officers also rely very much on searches to gather evidence to use against you.
The best way to get searches isn’t through obtaining probable cause
(that standard, you see, is often more work for the officer).
Instead, like answering questions,
Officers often just ask if they can search your vehicle.
They ask or command you to allow them to.
More bluntly, sometimes they simply say “I’m going to search your vehicle,”
And then expect you to step aside.
This is also something that can be avoided.
Assert your right to silence
Although an officer may pull you over
Because they have reasonable articulable suspicion,
They cannot force you to talk.
The Fifth Amendment to the United States Constitution provides
“That no person shall be compelled in any criminal case to be a witness against himself or herself.”
This is the all-important right to silence.
You have the absolute constitutional right not to say anything to an officer,
Even if they pull you over.
You cannot be punished by an officer, or even a judge, for not saying anything.
Indeed, under Virginia law, you have no duty or obligation to answer the questions of any officer.
However, there are two limited exceptions:
First, you must provide your name to law enforcement officers
If you are stopped and told to identify yourself.
Don’t lie about who you are,
And don’t try to evade identification questions.
They do have a right to know that.
But even if you give your name,
You are still not required to answer other questions.
Second, if you are driving and you are pulled over for a traffic violation,
an officer can also require you to show your license, vehicle registration and proof of insurance.
But you still do not have to answer questions.
Meaning, if an officer walks up to you and says “Do you know why I pulled you over,”
You can and should absolutely assert your right to silence.
Tell the officer “Hello officer, I’m happy to answer any questions about my identity, but I won’t be answering any other questions except with a lawyer.”
Asserting your right to silence like this
Prevents an officer from using your statements against you to support probable cause for an arrest.
The law grants you this right!
You have the right to remain silent…
Most people know what their Miranda rights are (“You have the right to remain silent, any thing you say can and will be used against you,” etc.).
Keep in mind that the rules that govern Miranda warnings
Apply only to when the officer has to tell you you have those rights,
Which is almost always after you’re formally arrested.
However, those rights– including the right to silence– apply at all times,
Even if an officer does not tell you.
So don’t be afraid of asserting your right to silence;
An officer doesn’t need to tell you to have it for you to exercise it.
Should I consent to a search of my vehicle in a traffic stop?
Keeping silent prevents the officer from using your words as support for probable cause,
And may prevent you from being arrested.
Still, officers are trained to subvert your rights,
And one common way they do so is by, instead of looking for probable cause,
Simply asking you for your consent to a search of your vehicle,
Which is often just as useful for gathering evidence as your own admissions.
It is true that you can consent to a search of your vehicle.
However, you should not do this.
When an officer wants to search your car,
He’s not doing so because he really likes your Lexus or Honda.
He’s doing so to find evidence of wrongdoing.
If he has probable cause, he can theoretically search your vehicle even without your consent.
But officers like easy targets–
They won’t do more work (to obtain probable cause or get a warrant) unless they have to,
And denying them consent to search your vehicle is well within your rights.
If an officer tells or asks to search your vehicle,
You should, calmly and politely, decline the request.
“Officer, you’re asking to search my vehicle. I don’t give you consent for the search.”
This right to deny consent also applies to searches of your person.
Unless they have probable cause, they can’t.
And if you deny them consent,
they also can’t search you or your vehicle.
Do not access to commads
Note that officers in Virginia are not required to let you know that you can decline searches.
Don’t be fooled if they just command you to do so.
You can still decline a command;
Police count on you not to be assertive of your rights in order to do their job.
By firmly, calmly, and politely asserting your right to silence,
And denying requests for searches,
You cut off the most common reasons officers rely on for arrests.
Officers who know the law, if they have pulled you over for a traffic infraction,
Will simply write you a ticket and send you on their way.
what facts would they have to establish probable cause for anything more?
What should I do if the officer searches my vehicle after I refused?
Now, some officers may very well disregard your silence and your lack of consent
And search anyway.
Officers can and do abuse their lawful authority.
If that happens, let the officer do it.
Do not fight with them,
Do not scream or yell at them.
Instead, continue to let the officer know that you will not speak to them,
And that you are not consenting to their searches.
Almost all police cruisers have video recording equipment,
And officers are required to use them in traffic stops.
That video is excellent evidence an attorney can later use in court
To defend against arrests and charges brought under these circumstances.
After all, as seen above, probable cause uses “reasonableness” as a factor–
And searching a vehicle without the express consent of the driver
(And without sufficient probable cause) is not reasonable.
In the context of drug offenses,
Asserting your right to silence protects you from unwarranted intrusions by police officers.
Most people believe they are at the mercy of officers when pulled over.
This is not true–
In fact, the law grants people a great deal of power in the forms of the right to silence
And the power to decline searches.
Consenting, and answering questions, is making the job of obtaining probable cause
To search and arrest you and your vehicle very easy for police officers.
And although police can and do provide a useful service for society,
Anyone pulled over for a traffic stop just wants to go home
Without being arrested or searched.
Following the advice and lessons here greatly increases the chances of that being the result–
Rather than being dragged to jail.
Should I take a preliminary breath test in a traffic stop?
A final note: though this series has been focused on drug offenses,
it’s important to remember that
If an officer suspects you of driving under the influence,
He may, in addition to asking you questions and searching your vehicle,
Ask for you to perform field sobriety tests,
And to take a preliminary breath test (before you are arrested).
Both of these are voluntary, and you may and should refuse them.
Doing so, like the above, denies the officer the ability to gather support for probable cause to arrest or search you.