What to do if the Police or ICE stop Your Car

Fourth Amendment

The Fourth Amendment states, quote, “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.”

Automobile Warrant Exception

While this means that law enforcement must generally have a warrant issued by a neutral and detached judge or a magistrate upon a showing of probable cause, the U.S. Supreme Court in a case called, Carroll v. United States (1924) stated in part, quote “… if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.”

The Supreme Court reasoned that it may not be practicable to secure a warrant to search a vehicle, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. Therefore, it’s important to keep in mind that if the police or ICE either observe illegal contraband in plain sight in your vehicle, other evidence of a crime, or they smell illegal substances such as Marijuana, they will likely be lawfully permitted to search your vehicle without a search warrant and without your consent, so long as they are able to point to specific articulable facts to build probable cause to trigger the Supreme Court’s Automobile exception to the Fourth Amendment’s warrant requirement.

Circling back to the Marijuana example, if the police smell marijuana emanating from your car, they will likely be permitted to search any part of your car which could contain marijuana, which is basically your entire car, that is of course, if marijuana is outlawed by your state’s laws.

Traffic Stop

If the Police or ICE attempt to stop your car, pull over in a safe, preferably well-lit area if it is dark out, and stop as soon as you can make safely stop your vehicle. Don’t flee. Turn your car off. Then turn on the cabin lights in your car if it is dark out, so the Police or ICE can see you. You don’t want to give them the appearance that you maybe have a weapon, or that you may otherwise present a threat to officer safety. Grab your phone and place it in your cupholder or another location and record your encounter. Recording police and ICE while they are acting within their official capacities in public is protected First Amendment conduct. Plus if something goes wrong with the stop, you have a record that you can provide your lawyer. Further, police generally need a warrant or your consent to access the contents of your phone.

Finally, roll down your driver’s side window and be courteous, respectful and appear cooperative. If it is the police, be prepared to present a copy of your driver’s license, registration and proof of insurance. The police are permitted to ask for these items and you are required to provide them if you are driving. If you are driving a rental car, have the rental reservation documents handy. Never present fake documentation or identification.

Be aware that the police or ICE may lawfully request that the driver and passengers exit the car for officer safety, pursuant to the U.S. Supreme Court’s rulings in two cases named Pennsylvania v. Mimms (1977) and Maryland v. Wilson (1997). Officers may then pat you down for weapons if they have reasonable suspicion that you may be armed and pose a threat to them.

If you are not a U.S. citizen, but you are legally in the United States, federal law requires you to carry your immigration paperwork with you, if you are over the age of 18. If you have valid documents, present them if you are stopped by ICE.

If you are not a U.S. citizen, and you are in the United States illegally, remain calm. Do not resist, run, lie or provide false documents. Stay even keeled and do not answer any questions.

Fifth Amendment Right to Remain Silent

The Fifth Amendment of the U.S. Constitution states in part, quote, “No person shall be compelled in any criminal case to be a witness against himself.” This means that the government does not have the authority to make you answer questions that may incriminate yourself.

Don’t Answer Questions, Don’t Consent to a Search

Therefore, do not answer any questions about your day, where you are coming from, your immigration status, how much you had to drink tonight or anything for that matter. However, be respectfully in declining to answer any questions. For example, say, “officer, I respectfully decline to answer any questions.”

Additionally, do not consent to any searches.

Sixth Amendment Right to Counsel

The Sixth Amendment of the U.S. Constitution states in part, quote, “In all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence.” This means that you have the right to speak with an attorney before answering any questions from the police or ICE.

Refuse to Speak with Police or ICE

Finally, if you are arrested, make it clear that you refuse to answer any questions until you have had the opportunity to speak with a lawyer.

Immediately contact an attorney as soon as possible if you believe your rights have been violated by a government official. If a state or local official violates your constitutional rights, you may have a claim where you could recover damages under 42 U.S.C. 1983- titled, “Civil Action for Deprivation of Rights.” If a federal official violates your constitutional rights, you may have a claim where you could recover damages, which is called a Bivens claim, under the 1973 U.S. Supreme Court precedent from case named Bivens v. Six Unknown Named Agents.

Contact Biazzo Law at alyssa@biazzolaw.com to schedule your consultation today.