Often times when stopped for a traffic violation such as speeding, NY VTL § 1180, cell phone use, NY VTL § 1225, or unsafe lane change, NY VTL § 1123, the stop is pretextual. This means that the cop really does not care about the underlying infraction but wants to engage in a fishing expedition to see if they can conjure up any other incriminating evidence against you such as drugs, and arrest you for that.
Pretextual stops are legal so long as the cop actually observed the traffic infraction. In other words, even though a cop would not otherwise stop you for having an obstruction hanging for your windshield, he still can use it as an excuse to pull you over so long as he observes the violation.
When you are stopped you have no idea as to whether the stop is just for the traffic infraction or a pretext. The way you can tell is if the cop starts asking you questions unrelated to your immediate driving. Questions such as:
Where are you coming from / going to?
Do you have anything in the car I should know about?
Do you have any drugs / weapons / bombs in the car?
Can I search the car?
Understand that the police have been trained to use pretextual stops when they have a “feeling” about a vehicle and their occupants that something is not right, but no probable cause to pull them over. The observed violation gives them the legal authority to make the stop.
Also understand that the police are highly trained in verbal judo. They are trained in how to talk to people and make it appear as just another conversation, that they are their “friend,” and that they are just trying to “help” them. Believe me, it is all a ruse. Moreover, the police are constitutionally permitted to lie to you. So if they say “hey, if you confess to having marijuana and give it to me, I promise I won’t arrest you, but if I have to search and find it, then I will arrest you,” and you turn it over, they can and will arrest you.
Often time people deny having anything illegal in the car. That leads to the police asking for consent to search. While a motorist has a right to not give consent, often times they don’t know it, or the general demeanor of the police is to intimidating that they give consent. To those that don’t consent, the cops play mind games “if you don’t have anything illegal in the vehicle, why can’t we search your car,” or “if you don’t let us search, we’ll call the dog and it will be worse.”
Hint: if they call the dog and find something, it won’t be worse, and often time there is no dog to be called they are bluffing
Cops, through their verbal judo and intimidation, often get people to consent to searches or confess and turn over evidence when they had no probable cause to believe that anything illegal was going on other than the motor vehicle violation which led to the stop.
Pretextual stops are becoming a huge problem in the United States because the police have been overusing them. It’s been recognized as such a problem that on November 15, 2019 the Oregon Supreme Court ruled in Oregon v. Arreola-Botello, that questioning a motorist about whether a vehicle contains anything illegal without any independent suspicion is unconstitutional under Oregon’s Constitution.
In Arreola-Botello, police officer Faulkner of the Beaverton Police Department observed Botello’s vehicle change lanes and turn without signaling. While Botello was producing his license, registration, and insurance card, Faulkner asked him questions about the presence of weapons, drugs, or other illegal items in the vehicle and requested consent to search the vehicle. Defendant responded, “Sure, okay,” and consented to the search. During the search Faulkner found methamphetamine and arrested Botello. The Oregon Supreme Court held that the questioning and search unconstitutional, limiting investigative inquiries to the purpose of the traffic stop or inquiries that have an independent constitutional justification.”
While this is the law in Oregon that does not mean that it’s the law in any other state. So, what should you do if a cop starts asking you those fishing expedition type questions if you are pulled over in New York – simple – don’t answer any of their questions but play your own verbal judo in return by asserting your Constitutional rights under the US Constitution.
Your sole obligation when pulled over is to give the police officer your license, registration, and insurance card. That’s it. You do not have to answer any questions at all. So, you don’t. To the cop’s question: “where are you coming from, going to,” you answer “I don’t want to talk about my day.” If the cop persists, you answer “officer, I don’t answer questions,” and if they continue, you answer “officer, I have a constitutional right to not answer questions and I am going to assert that right.” If they ask for consent to search, you say “officer, I don’t consent to searches,” and if they persist or ask why never answer to why you are not consenting just repeat “officer, I don’t consent to searches.”
Usually, after a few rounds of this the cop will realize that you know your rights and will back off. If however they don’t then you hit them with “officer, am I being detained or am I free to go.” This will really let them know that you know your rights, and the last thing a cop wants to do is mess with someone who knows their rights. You see, everyone else whizzing by you two on the side of the road does not know their rights. So the path of least resistance is to simply cut you lose (probably with a ticket, but so what), and go mess with someone else. Nonetheless, if all else fails and they persist in trying to intimidate you, demand that they immediately call a supervisor.
Sometimes the police will go totally overboard and search your car even though you did not give consent. If this happens there is nothing you can do – they have guns and authority. However, should they find anything you are in much better shape to have the evidence excluded from evidence and the case dismissed if you do not consent then if you do consent. Also, in today’s day an age record, record, record. If they ask questions that you don’t answer and persist, and then ask for consent to search and you say no and they persist or get aggressive, start recording on your cell phone. Tell them on your video that you already denied their request to search and told them that you are not answering questions. Usually this will stop them dead in their tracks, but if they still continue on and search your vehicle without your consent by all means record everything.
If you or anyone you know has received a NY State traffic ticket, or was arrested due to drugs found during a motor vehicle stop, don’t delay call us at once. We talk to people every day who have been given tickets and arrested for motor vehicle crimes, searches, and issues, and would be happy to answer any questions you may have.