20 January 2006

Shilling the Seat Belt Pretext Stop

In Virginia it is illegal to drive a car without a seatbelt. However, it is an offense which cannot be the primary reason for a traffic stop. Every year someone introduces a bill in an effort to change the law so that police can stop drivers because they aren't wearing belts and - so far - it has gotten shot down every time. Members of the General Assembly have actually been fairly plain spoken about why they have blocked the passage of this change. They have basically stated that this would just be another basis for a pretext stop and the police have enough of those. It's not stated in the exact terms which I would use in a courtroom but it's the reason given.

Now, just imagine how obvious a pretext setup a law must be not to pass muster in Virginia where the General Assembly is probably 60% Republican, 20%, conservative Democrat, and 20% other (those figures are guesses - go ask a poliblog if you want the real figures). Anyway, this year it's been presented yet again by Delegate Thomas Davis Rust (whom I believe is a NoVa delegate). He offers the bill with this struck:
No citation for a violation of this section shall be issued unless the officer issuing such citation has cause to stop or arrest the driver of such motor vehicle for the violation of some other provision of this Code or local ordinance relating to the operation, ownership, or maintenance of a motor vehicle or any criminal statute
and this put in its place
A law-enforcement officer may not search or inspect a motor vehicle, its contents, its driver, or any passenger solely because of a violation of this section unless supported by probable cause or consent.
The new language is obviously an attempt to quell the fears that this law will be used as a pretext. It's also perhaps the most ineffectual statement of law I've ever seen. For all intents and purposes it just says the officer can't violate the 4th Amendment of the federal constitution. Of course, that's not how pretext stops work.

In a pretext stop an officer pulls over a car for some trivial traffic violation because he has some sort of suspicion which does not rise to the level that he could constitutionally justify the stop. Favorite reasons given are things hanging from the rear view mirror, cracks in windows, loud music, license plate lights which are out, etc. Once the stop is accomplished the officer subjects the car to the "plain view/plain smell" test. If nothing jumps out at him he may stall for the time it takes to do a canine non-search of the vehicle (or, more likely, the dog was there when the officers pulled the target vehicle over). If that doesn't work the officer issues a warning so that a "reasonable person" would know that he's free to drive away from the officer standing 6 inches from his driver's side window and then immediately launches into this conversation:
Officer - You don't have any guns or drugs in your car, do you?

Driver - No, sir.

Officer - Then, it'll be okay if I search the car?
None of this runs afoul of the language offered for the statute.

If they were truly serious about making this a primary offense but limiting the scope of its effect the language offered should be something like this:
An officer who has stopped a driver pursuant to this statute may not expand the scope to investigate any other activity.
On the other hand, I've whined enough on this board about appellate courts in Virginia relying on legislative intent. Since it is obvious that the intent here is to address the concerns that legislators have about the use of this statute for pretext stops, perhaps the courts will find that an expansion upon a seatbelt stop - except when a violation is in plain sight - is a violation of the 4th Amendment because it was the intent of the General Assembly to have it be a violation of the 4th Amendment. However, I'm not going to hold my breath waiting for that opinion to be issued.

Hopefully the General Assembly will reject it yet again and for at least as many years as it takes to make sure language such as I offered above is added.

via 750 Volts

7 comments:

Windypundit said...

I, of course, blame the prohibitionists at MADD for primary seatbelt enforcement.

On the other hand, Ken, I'm pretty sure their legislative crusades ultimately earn you a lot of clients, so maybe you should be making regular donations.

Wow, I just checked MADD's summary of state laws, and they say you guys already have Keg Registration, but no Open Container law. So if you're driving, I can be having a cold one in the passenger seat? Maybe Virginia is a cool place after all...

Anonymous said...

You wrote:
{==
Officer - You don't have any guns or drugs in your car, do you?

Driver - No, sir.

Officer - Then, it'll be okay if I search the car?
==}
Let's suppose that, as far as I know, I have no contraband in my car. (Of course, this does not mean I don't--perhaps a passenger dropped a joint or prescription drug from her purse. Nor do I know what the Officer is really looking for--perhaps the crowbar I carry in my emergency kit, but that might have been used to vandalize all the cars in a nearby lot. And in many states, I might very well be carrying a firearm in what I think is a legal fashion--but officers are often misinformed as to carry laws, and tend to err strongly in favor of confiscation and arrest.)

What is the correct response to this question? And what can I expect the officer's response to be?

Tom McKenna said...

Windy:

Actually, we do have an open container law. And you're right, all of us lawyers on the public dole ought to be grateful the legislature keeps making up new crimes for us to prosecute and defend.

Ken Lammers said...

Anon:

The response should be "No sir, you cannot. I'm leaving."

The legitimate police response to that should be "Okay, have a good day."

I've had a number of officers swear that at this point they will let the driver go. The vast majority of the time they probably do. However, sometimes it doesn't happen the way it is supposed to.

Curtis P said...

I spent 10 years in private practice doing court appointed defense work. I now am a corporate attorney, but enjoy reliving my criminal defense days reading your blog.

On the seatbelt thing - I always loved/hated those officers who would, under oath and with a straight face, swear they could tell a driver wasn't wearing their seatbelt at 1am when the officer's car met the defendant's car on a stretch of deserted highway.

The laws may not be identical in state to state, but from reading here, I guarantee that all criminal defense attorneys have the same stories, just with different names.

Curtis P

Anonymous said...

Virginia should follow my state's lead (New Hampshire) and have no seatbelt law at all for adults (and we turn down federal highway funds). It's not that we don't like seatbelts, its that we don't like too many extra laws.

Windypundit said...

Ah! Important tip from Tom for VA visitors. Thanks.