Expert: Robin Sexton - 5/3/2008

Question
QUESTION: i was a passenger in my friends car when we were stopped.  upon stopping, the officer came up and simply asked us where we were going.  he did not give us a reason of why he stopped us.  anyways, the next question he asked the driver was if he drank.  he asked the driver to get out and perform a field sobriety check.  he then asked the driver if he could search the car, to which my friend said yes.  the officer then came to the passenger side where i was sitting and he told me to get out of the car, and he patted me down  and had me step into his police cruiser, where my friend was already being held. while searching the car, he found a pipe.  the officer brought it back to the car and started questioning my friend about it.  the officer asked my friend to tell him who he bought his weed from, then my friend would be free to leave.

anyways, my questions are: could my friend have refused a search? could smelling like alcohol be considered as probable cause? was it legal to be detained within the police cruiser during the search and questioning? and were the officers questions legal(ie, no miranda rights)?

thanks

ANSWER: Very common scenario and questions, Here we go.

1) Refusal of a search.  Yes the driver could have refused a search.  However if the driver was arrested for DUI then the officer could have searched incident to the arrest.

2) Smell of alcohol be considered probable cause.  Yes, that will depend on a couple of things.  Age of the driver, if the driver was under age for example.  Also although the officer did not state why he conducted the traffic stop there may have been a prior driving observation that made him suspect intoxication, The smell of alcohol would have just increased the suspicion.

3) Detain during search.  Yes, the reason is officer safety.  Courts have ruled that the officer can take reasonable steps to protect themselves while conducting investigations.  A lone officer conducting a search of a car with two subjects standing outside could be risky.  Detaining for a brief period is legal.

4) Officers questions legal.  Possibly, Understand that Miranda or preinterview rights have to do with statements that will be used in court.  Obviously both of you would have considered yourselves in custody so Miranda should have been used.  However if the statements were not going to be used in court it is kind of moot.

Courts have given quite wide latitude in officers actions during traffic stops.

Hope that helped. Please feel free to ask further if something wasn't clear


Good Luck

Robin

---------- FOLLOW-UP ----------

QUESTION: i need some more clarification regarding number four.  lets say, my friend was an informant.  wouldnt that be evidence that could be used in court if the dealer is to be convicted? if so, would miranda rights or no miranda rights make a difference?

thanks

Answer
Apples and Oranges,

The question is who made the statement and who is it being used against.  A statement made by a informant is hearsay, unless it is made by the suspect against his interest.  Such as I just sold a pound of weed.  A informant could testify to that, he heard the suspect say it.  Miranda rights protect a person from self incrimination, specifically being compelled to provide, verbal information that can be used against the speaker.  If a person is in police custody, before the police can begin questioning they need to advise him of his /her Miranda rights.
Police obtaining information from a source would not be subject to Miranda protections, unless 1) the source was in custody and 2) the information could be used against the source in court.

I know it seems like double talk,  easy sitting here try remembering all this stuff at 3 am on a road someplace.


Let me know if i helped.


Robin