This is part of the series on the Baltimore Citizen’s Academy, being posted every Monday and Thursday. Today’s entry is based on a presentation from Officer Livesay in the patrol division.

This is a continuation of part 1 on traffic enforcement by BPD where we talked about the framework of traffic stops. In this post, we will discuss how many of the stops that are executed are unconstitutional, and how that has become a large basis for the findings of the Justice Department report. It is also a followup to the post about Mr. Rosenblatt’s constitutional law academy training.

In traffic stops, its important to differentiate what officers can do and what they actually do. Lets look at a few examples from the Justice Department report, which was the basis for the consent decree, for examples of what has happened when the BPD stops an individual.

“In one typical case, a BPD officer unlawfully frisked an African-American man after a traffic stop for driving with headlights off. Because the driver “looked nervous” as the officer approached, the officer ordered the driver and his passenger to exit the vehicle and stand on the side of the road. The officer then frisked the passenger, which included a public pat down of the passenger’s groin. The officer identified no basis for frisking the passenger other than the driver’s “nervous” appearance — far short of the required showing of particularized facts pointing to the presence of a weapon.” Page 31 (Unconstitutional Frisks)

In another section on unconstitutional strip searches:

“[I]n 2015 an African American man filed a complaint stating that he was strip-searched by an officer whom BPD eventually fired in 2016 after numerous allegations of misconduct. The man stated that the officer ordered him out of his vehicle during a traffic stop and searched the vehicle without the man’s consent. When the stop of the vehicle did not uncover contraband, the officer pulled down the man’s pants and underwear, exposing his genitals on the side of a public street, and then strip-searched him.” Page 34 (BPD Conducts Unconstitutional Strip Searches)

And finally, an example of abusing protected speech:

“BPD officers also violate the First Amendment by arresting individuals who question the lawfulness of their actions. In one reported use of force, an officer described the arrest of a man who approached him during a traffic stop to ask why the officer had stopped his friend. The proffered justification for the arrest was that the man refused to leave the area when ordered to do so by the officer. Nothing in the officer’s report indicates that the man physically interfered with the officer’s duty or was otherwise committing a crime. He was arrested merely because he continued to stand ‘near’ the officer. Arrests for failing to leave a crime scene are also unlawful.” Page 115 (BPD Unlawfully Detains and Arrests Members of the Public for Protected Speech)

These were some examples of behavior since 2010 where the BPD has violated the constitutional rights of its citizens. Stops are required to be for very targeted reasons, and not just a fishing expedition. You do have a right to know why you were stopped, and the officer should tell you very early in the stop. They cannot stop you for no reason, pat you down, and strip search you look for violations. The Fourth Amendment protects us from that.

Lets take a quick sidebar to understand exactly what the fourth amendment protects. It says:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

What is a reasonable search and seizure (known as reasonable suspicion), and what is probable cause?

Reasonable suspicion is a standard established by the Supreme Court in a 1968 case in which it ruled that police officers should be allowed stop and briefly detain a person if, based upon the officer’s training and experience, there is reason to believe that the individual is engaging in criminal activity. The officer is given the opportunity to freeze the action by stepping in to investigate. Unlike probable cause that uses a reasonable person standard, reasonable suspicion is based upon the standard of a reasonable police officer.

According to the Supreme Court, probable cause to make an arrest exists when an officer has knowledge of such facts as would lead a reasonable person to believe that a particular individual is committing, has committed or is about to commit a criminal act. The officer must be able to articulate the facts and circumstances forming the basis for probable cause.

While they must have a specific reason for pulling you over, officers only need reasonable suspicion of a crime to stop someone for questioning. They only need reasonable suspicion that a crime has occurred, which is between probable cause and a hunch. That’s why many cars can be pulled over for having a taillight out, and then use that as a basis for additional investigation, such as checking if the driver smells like drugs/alcohol, seeing if any contraband is in view, or otherwise questioning the driver.

Confused? The BPD puts their officers through 34 sessions on constitutional law, and requires them to demonstrate a firm grasp through situational based testing. Individuals that don’t understand should not be officers.

Let’s look at an example of case law that has established what reasonable suspicion means. In Whren v US, the defendants turned at a stop sign without signaling and drove away at an unreasonable rate of speed. The officers stopped them because they had reasonable suspicion that the car had run the stop sign, and observed bags of crack in the defendant’s hands. The stop was conducted in a high drug area, and the traffic violation was presumably to see if the driver had drugs, but the Supreme Court upheld that the car was stopped for reasonable suspicion that a traffic violation occurred, which made the whole stop legal.

The way the BPD turned this into a civil rights violation, according to the Justice Department, is that the BPD stops black drivers at a disproportionate rate.

“From 2010–2015, African Americans made up 82 percent of people stopped by BPD officers for traffic violations, compared to only 60 percent of the City’s driving age population. As with pedestrian stops, BPD stopped a higher rate of African American drivers in each of the City’s districts, despite large differences in those districts’ demographic profiles and traffic patterns. For example, African-Americans accounted for 80 percent of vehicle stops in the Northern District despite making up only 41 percent of the district’s population, and made up 56 percent of stops in the Southeast District compared to only 23 percent of the population living there. “While there are limitations on using population data to benchmark vehicle stops because the proportion of drivers on roadways does not necessarily match the population living in a particular area, there are strong indications that BPD’s high rate of stopping African-American drivers is discriminatory. Indeed, the proportion of African-American drivers on Baltimore roadways is almost certainly less than their 60 percent share of the City’s driving age population. Baltimore’s traffic patterns are influenced by commuters and visitors from surrounding areas with significantly smaller African-American populations than the City’s. BPD’s data confirms that 25 percent of the Department’s traffic stops involve drivers who live outside the City, overwhelmingly in towns and suburbs within the Baltimore metropolitan area. The presence of these individuals on Baltimore roads lowers the proportion of African-American drivers, as African Americans account for only 27.6 percent of the driving age population in the Baltimore metropolitan area. Moreover, basic population data is likely to overstate the portion of African-American drivers on Baltimore roadways because African Americans are less likely than other City residents to have access to vehicles.” Page 52 (BPD’s Enforcement Activities Disproportionately Impact African Americans)

Unfortunately, statistics like this, combined with stories of black individuals being strip searched on the side of the road, show that the traffic enforcement of the BPD is not evenly applied.

What if they get a search warrant?

The worst part is that there are ten exclusions that allow an officer to search your persons, houses, papers, and effects which follows the acronym BEACH PPISS.

Border searches when you are crossing a national border

Emergency circumstances — In the case where a person has not been heard from in a while, and the officers are asked to do a wellness check, such as if there is an elderly person that might have fallen in their house, or a suspected death.

Administrative search — If you have a professional license, you might be subject to search. Liquor licenses, OSHAA, or other such professional licenses can imply consent by carrying that license.

Consent — An officer can search your car without probable cause or a warrant if given simple consent. “Can I search your car?” If the driver says yes, then there are no other requirements needed to be met. Also, if the driver consents to a search, they are consenting to the whole car being searched, including all passengers.

Hot pursuit — If a person is suspected of committing a felony and the police are in hot pursuit, they are allowed to follow the person into a personal residence to continue the pursuit.

Probable cause — According to Carroll v US, police may conduct a warrant-less search of a vehicle during a traffic stop if there is probable cause. The Supreme Court based this on the fact that a car can be quickly moved out of the city or jurisdiction of the investigating agency. US v Nielsen said that the smell of marijuana is enough probable cause to search the passenger area, but not the trunk. US v Parker said that searching the trunk is also ok with probable cause.

Plain view — As discussed earlier, if the officer can look into your car, or your open trunk, they are allowed to visually search your possessions.

Inventory search — If you car is towed, either because it is disabled, or because you are inebriated and can’t drive, or because you are otherwise arrested, the police have the right to search your car for valuables or hazardous materials. They are supposed to follow a standard form during the search, so they are searching only for valuables and hazards. This is not supposed to just be a blanket search.

Stop and frisk — Known as a Terry Stop, is a legal search an officer can execute based on reasonable suspicion. While the stop is legal everywhere in America, they were found to be executed in unconstitutional ways in New York City. In Baltimore, the Justice Department report called the practice out for the BPD exceeding what is allowed, as described on page 29. It remains to be seen if the consent decree will change that. If you would like to see examples of stops and frisks from NYC in 2011, look at the stop and frisk twitter account set up to shine light on the issue. Note: This paragraph has been corrected based on a comment by reader James Hammond.

Search incident to arrest — When being arrested, everything that is on your person is subject to search. If a cavity search, it has to be a medical professional performing the search.

However, the BPD has a track record of disregarding all of these exceptions:

“In one typical case, a BPD officer unlawfully frisked an African-American man after a traffic stop for driving with headlights off. Because the driver “looked nervous” as the officer approached, the officer ordered the driver and his passenger to exit the vehicle and stand on the side of the road. The officer then frisked the passenger, which included a public pat down of the passenger’s groin. The officer identified no basis for frisking the passenger other than the driver’s “nervous” appearance — far short of the required showing of particularized facts pointing to the presence of a weapon. (no reasonable suspicion to frisk man during a vehicle stop for a burned out light even where officers had information that the man had prior arrests for armed robbery).” Page 31 (Unconstitutional Frisks)

And of course, if they get a search warrant, then there is nothing you can do about it, as that is nearly airtight unless they got the search warrant under fraudulent circumstances, or got the information for the search warrant illegally.

What can I do to make the stop go smoother?

When getting pulled over, assuming the officer does not have ulterior motives for harassing you, what are things that can be done to make the stop go more smoothly, according to Officer Livesay and Sgt Corso?

When the officer walks up, engage the in conversation. Ask them their name or otherwise engage them. Officer Corso mentioned that officers who do many traffic stops might have a bit of a script. Breaking them out of that script a bit might increase your odds of ending without a tickets.

As they walk up, keep your hands on the steering wheel at 10 and 2, and do not start searching for your license, registration or proof of insurance. The less nervous you can make the officer, the better.

Turn your dome light on. Again, the less nervous the officer can be, the better.

Do not argue with the officer on the side of the road. You may be right, but that argument should be saved for a court room. Arguing with an officer just escalates the situation, and can only end poorly for you. You can be right, and still end up being justifiably tased.

What do I do after the stop?

If you were given a warning, then you don’t need to do anything.

If you were given a repair order for something like a broken taillight, you have 10 days to have it repaired. A recent change says that you can now have an officer review your repair, and sign off on your repair order if its one of the repairs with an asterisk on the repair order shown to the left. Fortunately, that means that if you are stopped for a broken taillight, they can give you a ‘fix it ticket’, have you fix it, and then have any officer sign off on it.

If you were given a citation, you have a few options:

Admit guilt and pay the citation

Request a waiver hearing, if you are admitting guilt, but think that there are extenuating circumstances (“yes Your Honor, I was speeding, but I was rushing my dying grandmother to the hospital and the officer still ticketed me!”)

Request a trial. If you have read any of the cases that I have cited through this writeup, you are reading about people who escalated the issue through the courts. If you think that they did something illegal, you can move to have the evidence dropped. This is why you don’t argue with the police on the side of the road.

Traffic stops are stressful situations all around, and require some patience. Understanding the process, and your rights might help a bit, but in the end, a cop that does not understand what rights citizens have won’t find the errors in their ways based on a compelling, side of the road argument.