As mentioned in a recent News Roundup, the Raleigh Police Department (RPD) produced a short video entitled “Traffic Stops: What to Expect as a Motorist,” instructing drivers who have been pulled over by law enforcement on how they should behave. It appears that the RPD had the laudable goal of educating the public to ensure the safety of both officers and motorists. Captain Bruce, the officer who narrates the video, states that “by following a few basic steps, the experience can progress without misunderstanding or conflict.” The video is garnering attention: As of today, it has received 8,446 views on YouTube, with “likes” outweighing “dislikes” 21 to 15. This blog offers legal commentary on a few of the points made in the video, using a scale of green light for what appear to be sound instructions, yellow light for instructions that may raise questions, and red light for an instruction that may prove misleading to citizens.

Standard for a traffic stop: The officer in the video correctly states that a traffic stop must be supported “by reasonable suspicion based on facts the officer can articulate.” While there was a line of North Carolina cases holding that a stop for a readily observable traffic stop must be supported by probable cause, those cases have been overruled. See State v. Styles, 362 N.C. 412 (2008). The stop depicted in the video is based on failure to stop at a stop sign, an infraction. G.S. 20-158(b)(1). The officer was justified in making the stop; I didn’t even see the car’s brake lights come on as the driver rolled through the stop sign and made a right turn. An officer might choose to give a warning rather than a citation as no cars or people were around and the driving wasn’t particularly risky, but the decision is up to the officer.

The duty to answer the stopping officer’s questions: The officer tells viewers, “Answer any questions the officer may have fully and clearly.” This directive gives me pause. Under North Carolina law, a person operating a motor vehicle must identify himself or herself when requested by an officer (or, for that matter, when requested by any other person in the event of an accident). G.S. 20-29. Unlike some other states, North Carolina has not enacted “stop and identify” statutes when a person is not operating a motor vehicle. See In re D.B., 214 N.C. App. 489, 495 (2011). However, the North Carolina Court of Appeals has held that the failure to identify oneself during a lawful stop can constitute resisting an officer when it hinders the officer in issuing a citation or otherwise completing the stop. State v. Friend, ___ N.C. App. ___, 768 S.E.2d 146, 148 (2014) (trial court properly denied the defendant’s motion to dismiss the charge of resisting, delaying, or obstructing an officer where the defendant, a passenger, refused to provide the officer with his identification so that the officer could issue a citation for a seatbelt violation). The court recognized that Fifth Amendment protections may justify a refusal to provide one’s identity in some circumstances, but didn’t provide examples. Id.

Beyond identifying oneself and providing license and registration, the law does not require a motorist to answer questions. While a driver may want to answer an officer’s questions to expedite the stop, he or she has the right to remain silent. See Berkemer v. McCarty, 468 U.S. 420, 439 (1984). Further, if the officer’s questions are unrelated to the purpose of the stop, prolong it, and are not supported by reasonable suspicion of a crime, they may violate the 4th amendment. Rodriguez v. United States, ___ U.S. ___, 135 S. Ct. 1609 (2015); see also U.S. v. Guijon-Ortiz, 660 F.3d 757 (4th Cir. 2010) (police questioning may exceed the permissible scope of the stop where officer abandons prosecution of traffic stop and embarks on another course of investigation). For example, an officer may not extend a routine traffic stop to ask questions about drug activity.

Generally, Miranda protections don’t apply to questioning of a motorist during a routine traffic stop because the motorist isn’t in custody. Berkemer v. McCarty, 468 U.S. 420, 440 (1984). However, Miranda warnings are required if the officer arrests the driver or takes actions that constitute the functional equivalent of an arrest.

Consent searches: In the video, after the infraction has been addressed and the traffic stop completed, the officer seeks consent to extend the interaction: “Sir, at this point, you’re free to leave, but what I’d like to do with your permission is just have you step to the rear of your car and just talk with you for a few more minutes.” The driver is agreeable: “OK, sure, that’s no problem.” The officer then asks for permission to pat down the driver’s clothing and search his car.

As the video only depicts consent searches that take place after the stop has ended, there is no discussion of the legal justification that is required to support a frisk of an occupant or search of a car before a stop has ended, or the constitutional limitations on extending a stop and continuing to detain a person once the purpose of the stop has been completed, described in this recent post. See also Jeff Welty, Traffic Stops (2015); 1 North Carolina Defender Manual Ch. 15 (Stops and Warrantless Searches) (2d ed. 2013). In addition, while the narrator states that a motorist has the right to permit or refuse a vehicle search, the action suggests the right thing to do is consent; after all, this is a video demonstrating steps that motorists should follow in order to stay safe, as the narrator indicated at the outset.

As we describe in the manual Raising Issues of Race in North Carolina Criminal Cases (in section 2.7C), consent searches during traffic stops have become increasingly commonplace and officers have broad discretion in deciding who to ask for such consent. Concerns about misuse of this discretion for racial profiling have prompted some states to pass legislation banning the use of consent searches. See The Fourth Amendment and Antidilution: Confronting the Overlooked Function of the Consent Search Doctrine, 119 Harv. L. Rev. 2187, 2187–88 (2006). Questions have been raised about whether motorists actually believe they can decline an officer’s request to consent; some citizens who are confronted with an armed, uniformed officer may feel that submission is compulsory. In North Carolina, to ensure that motorists understand they have the right to decline, some police departments now have a policy that officers must obtain a driver’s signature on a consent form when seeking consent to search. In October 2014, Durham became the second city in the state (following Fayetteville) to adopt a written consent form policy. For data about the impact of this change, see Frank R. Baumgartner, Derek A. Epp, and Kelsey Shoub, Summary of Durham Stops and Searches Before and After Written Consent Policy Reform of October 1, 2014 at p. 4 (2015) (finding that consent searches declined substantially in the first six months after the policy went into effect; however, a corresponding increase occurred in probable cause searches, resulting in no change in search rates during traffic stops overall).

To name the elephant in the reel, the video portrays an African American man being stopped for a minor traffic offense who behaves in a courteous and cooperative manner throughout the encounter. Nonetheless, a backup unit is called, he is asked to get out of his car, he is subjected to a pat down, and he is instructed to sit on the curb with his legs extended and his hands on his knees while his car is searched. Giving the RPD the benefit of the doubt, the action may unfold in this way because the Department wanted to show the range of police actions that may follow a traffic stop. Nonetheless, this dramatization merits a red light to stop and consider the issues, especially in light of data from approximately 13 million North Carolina traffic stops indicating that, compared to White motorists, Black and Latino motorists and passengers are almost twice as likely to be searched following a traffic stop. See Frank R. Baumgartner & Derek Epp, North Carolina Traffic Stop Statistics Analysis: Final Report to the North Carolina Advocates for Justice Task Force on Racial and Ethnic Bias at p. 5 (2012).

Contacting Internal Affairs: The video ends by encouraging members of the community to contact the RPD Internal Affairs Unit (led by the narrator Captain Bruce) with any complaints about discourteous or inappropriate conduct by officers, and it provides contact information. This is an important public service announcement as many citizens may believe that they have no recourse when an officer fails to follow the law and departmental policies. Results of internal affairs investigations may be discoverable in some cases and may help determine whether a particular officer has selectively enforced the law, e.g., in deciding which motorists to stop or search. See Raising Issues of Race § 2.3D (discussing this issue). I therefore end by giving a green light to the RPD for “taking the Police Department’s integrity and [the Internal Affairs Unit’s] role in helping to preserve it seriously.”