A Primer on Search and Seizure In the Context of a Traffic Stop
As a general framework, there are three different levels of police encounters with the
public, with different legal rules applying to each level.
A level one citizen encounter with a law enforcement official is a consensual
encounter wherein a citizen voluntarily responds to non-coercive questioning by an
officer. Since the encounter is consensual and the person is free to leave at any
point, there is no seizure within the meaning of the Fourth Amendment (U.S.
A level two encounter involves an investigative detention that is usually
characterized as brief and non-intrusive. Although it is a Fourth Amendment
seizure, probable cause is not required. Rather, when specific and articulable facts
and rational inferences give rise to a reasonable suspicion a person has committed
or is committing a crime, an officer may initiate an investigative detention without
A level three encounter involves an arrest, which has been characterized as a highly
intrusive or lengthy detention that requires probable cause. A level three encounter
is also a Fourth Amendment seizure.
Typically, a traffic stop is considered to be an investigative detention (i.e., a level
two encounter). In this scenario, the officer is allowed to detain you for a
reasonable amount of time, sufficient to conclude the purpose of the stop.
So, for example, if the officer pulls you over for an improper lane change he is
entitled to examine your driver license, registration, and insurance documentation,
and he can run your name through his computer to ascertain whether you really are
insured and if you have arrest warrants. He can choose to give you a ticket for the
improper lane change, or merely give you a warning. If the officer extends the
detention for any reason not related to the improper lane change and the activities
referred to above, he must have either probable cause or a reasonable suspicion of
some other illegal activity. He cannot, during the course of the detention, ask if you
have drugs, alcohol, weapons, or other contraband on your person or in your
A traffic stop can, however, de-escalate from an investigative detention to a
consensual encounter. During a consensual encounter the officer can ask you for
permission to search you or your vehicle. Sometimes, however, it is not easy to
know when a traffic stop has de-escalated into a consensual encounter.
As a threshold matter, the officer must return all your documents to you. If he has
not, the stop is still a detention, not a consensual encounter. Even if the officer has
returned all of your documents to you, there may be other factors which would still
maintain the stop as a detention. Although no single factor is controlling, factors
tending to show de-escalation include:
The officer informing you that you are free to leave
The officer informing you that you do not have to answer additional questions
On the other hand, factors which would tend to show that the stop has not
de-escalated into a consensual encounter include:
Failure to issue a warning or citation before asking additional questions
A coercive show of authority, such as:
- The presence of more than one officer
- The officer's use of a commanding tone, indicating that compliance
might be compelled
- The display of a weapon
- Physical touching by the officer
- Flashing lights on the officer's vehicle
The officer's request to search you or your vehicle is legal if he has, in fact,
concluded the purpose of the initial stop and you are, in fact, free to leave.
Otherwise, the officer needs either probable cause or reasonable suspicion to legally
ask permission to search.
It is best to be cooperative in your tone with the officer, but you do not have to
consent to any search (otherwise, why would you be asked?)
|COMMITTED EXPERIENCED DEPENDABLE
|CALL FOR A FREE CONSULTATION
|LAW OFFICE OF MICHAEL D. BOUWHUIS, P.C.
|P.O. Box 150801 Ogden Utah 84415 (801) 393-6452
The information contained within this website is not, nor is it intended to be legal advice.
You should consult an attorney for advice regarding your individual situation. Your contact
is welcome, but it does not, by itself, create an attorney-client relationship. Please do not
send any confidential information to our office until such time as an attorney-client
relationship has been established.