A recent article in the Chicago Tribune discussed a 2013 study conducted by the ACLU regarding traffic stops in the State of Illinois. The results of the study showed that, in Chicago, African American and Latino motorists were more than four times more likely to have their vehicles searched after providing consent during traffic stops than white motorists, even though officers found contraband in the vehicles of twice as many white drivers. Statewide, the study showed that African American and Latino drivers were almost twice as likely as white drivers to have their cars searched during traffic stops. However, White motorists were 49 percent more likely than African American motorists to have contraband found during a search and 56 percent more likely when compared to Latinos.
The study further showed that there was racial disparity in the use of drug sniffing dogs. During the same time frame (2013), African American motorists were 55 percent more likely than white motorists to be subjected to having a dog sniff their care, even though white motorists were 14 percent more likely than African Americans to be found with contraband during these searches. Latino motorists were more than twice as likely to having their car subjected to a dog sniff, while white motorists were 64 percent more likely than Latino motorists to get caught by dogs with contraband. Based on the results of the study, the ACLU seeks to ban the use of consensual and dog searches for automobiles. While this study only focused on the State of Illinois, Indiana also faces the same issues. In a recent case, when granting a motion to suppress, the judge saw through the officers attempt to justify his actions and stated off the record that my client was pulled over for “DWB” (Driving While Black).
As I have emphasized in previous posts, knowledge is the most powerful weapon against unlawful police invasion. Both the United States and the Indiana Constitution require a search warrant, supported by probable cause, prior to the search of property. However, both Federal and State law have carved out exceptions for automobile searches. One exception is consent. If, during a lawful traffic stop, the police officer obtains consent from the driver of the vehicle, then he does not need probable cause prior to searching the vehicle. To best combat law enforcement’s use of this exception, we all need to remember the phrase we learned as a child regarding using tobacco and drugs: “Just Say No!” There is no law in the United States that requires someone to give consent to law enforcement to search their vehicle or any other property for that matter.
Another exception provided by law is if the police officer has probable cause to believe there is contraband contained in the vehicle. Many factors are considered when determining whether probable cause exists. Some factors the courts have used include: 1) the odor of marijuana, 2) officer seeing contraband in “plain view” through the window, 3) a tip corroborated by other evidence, 4) contradicting answers to officer’s questions, and 5) the alert by a trained narcotics detecting canine. However, a traffic stop cannot be unreasonably delayed for the sole purpose of the police to secure a drug sniffing dog to conduct an open air sniff around the exterior of the vehicle. The police must have reasonable suspicion that driver or occupants of the vehicle are engaged in criminal activity or that criminal activity is afoot. Reasonable suspicion is a lower standard than probable cause, but courts have held that the officer’s determination that he has reasonable suspicion must be supported by evidence and it requires more than just a “mere hunch.” One cannot defeat an officer’s determination for probable cause or reasonable suspicion on the side of the road. However, besides handing on officer a driver’s license and registration, a driver or occupant of a vehicle does not have to answer any questions asked by the officer. This may help defeat the officer’s determination of probable cause or reasonable suspicion in court.
SCOTT KING GROUP
Russell W. Brown, Jr.
Attorney At Law
Merrillville, IN 46410