The law is clear that a police inquiry in a routine traffic stop must end on the production of a valid license and registration unless the police have grounds for inferring that either the operator or his passengers were involved in the commission of a crime…or engaged in other suspicious conduct. Unfortunately, in the real world, in the majority of traffic stops the officer will use even the most flimsy excuse or “hunch” to expand a routine traffic stop into a full blown investigation. “Furtive movement” is one of their favorites. While the officer was pulling the vehicle over, he “observed the occupants looking back at him and moving around, ducking out of sight as is to hide something” is language all too commonly found in police reports. Remember, the police write their reports after the event, and it’s not uncommon to see the use of embellishment to justify their actions.
When an officer is standing outside of your vehicle peering in, he is evaluating everything he sees – the manner in which you and your passenger(s) respond to the stop (“the operator [or passenger] appeared nervous, and his hand was shaking as he handed me his license”), items in plain view on the console or on the floor of the vehicle (“I observed what appeared to be a plastic bag containing white residue sticking out from under the passenger seat”), and whether you or your passengers are wearing seat-belts. He’s looking for anything that he can articulate later in a report to justify taking this routine traffic stop to the next level. Ultimately, if he has a “hunch” that you’re up to something, he’s looking for an excuse to get you out of that vehicle. A passenger not wearing a seat-belt justifies engaging the passenger in a dialogue – asking him for identification and subjecting him to further questioning. This alone may lead to an exit order, which in turn leads to a “pat-frisk” which could lead to a “plain feel observation” – leading, of course, to an arrest.
When the police stop you motor vehicle for a routine traffic violation they will ask you to incriminate yourself. “Have you been drinking today sir?” or, “have you been smoking marijuana?” are common questions designed to elicit an incriminating response. An affirmative answer leads to additional questions designed to further incriminate you. “How many drinks have you had” – or, “do you have any marijuana in the vehicle?” While it is neither unlawful to have a drink or smoke a joint, whatever your answer is, it may be memorialized (and embellished) in a police report and may come back to haunt you in a court of law. “Anything you may say can and will be used against you” IS NOT meaningless rhetoric so your answers have to be considered very carefully.
Under these circumstances is best to simply state that you are not impaired and that you are in compliance with the law. Hand over you license and registration, be polite and speak as little as possible. The more you say, the more you put yourself at risk. Don’t volunteer information, such as “I have a bag of marijuana in the trunk, officer.” An officer may not ask or tell you to get out of the vehicle based on the odor of either burnt or raw marijuana. If the officer believes that you are impaired based on his observations (blood shot eyes, slurred speech, the odor of alcohol), he will ask you to exit the vehicle. Most people do not know that they can refuse a roadside sobriety test. If there is even the slightest chance that you may fail, refuse to participate. If the officer believes that you are under the influence of drugs rather than alcohol, he may ask you to agree to an examination by a “DRE” – a drug recognition expert. You may refuse, and it is wise to do so.
Unfortunately, often times, the impaired are too impaired to know that they are too impaired to take these tests, making the attorney’s job more difficult.