Uh oh, I'm getting pulled over! What do I do? How to protect your rights in a traffic stop.
What to do if the police pull you over?
One of the most frequent questions that I receive as a criminal defense attorney is, "What should I do if a police officer is pulling me over?" Unfortunately, there is not a one size fits all answer. My typical response asks, hypothetically, why is the officer pulling your over? Speeding? Suspicion of drunk driving? Warrant? Drugs in the trunk? This guide is intended to provide my readers with some straightforward guidance the next time you see the cherries & berries in your rearview mirror.
Uh oh, I think that cop is pulling me over!
If you are like me, your heart starts racing as soon as you see lights or hear sirens in your rearview mirror. If you see that the law enforcement officer is positioning his vehicle behind yours, you must take a deep breath and relax. In a quick, but not rushed, fashion calmly, carefully, and smoothly pull your vehicle to the side of the road in a safe location. Make sure that you use your blinker to signal that you are pulling over. Once you reach a complete stop, turn on your blinking hazard lights.
After your car has stopped moving, turn it off and place your keys on the dashboard in front of you. In most circumstances, the officer has no idea who you are or what your intentions are. Turning off the car indicates to the officer that you do not intend to flee.
Do not get out of the car! Nothing good will happen if you exit your vehicle. Even if you are simply exiting to explain the situation, such as a burnt-out taillight that you've put off repairing, an officer may easily mistake you exiting the vehicle for aggressive action. Do not rustle in your center console or your glove box, looking for your ID and insurance information. Again, an officer may mistake you rummaging through your vehicle as searching for a weapon or hiding drugs or paraphernalia. What you should do is put your hands on the steering wheel and wait for the officer to approach the side of your vehicle.
May I record the officer?
Wisconsin is a "one party consent state." Subject to certain exceptions listed in Wis. Stat. § 968.27., an individual does not need consent to record conversations in public where there is no reasonable expectation of privacy. This does not mean that you should wave your phone in the officer's face and tell him or her that you are recording. Instead, if you choose to do so, turn your phone's video record feature on and place the phone in an innocuous place such as the cupholder faced towards the window the officer is approaching. Even though it's 2020, some officers still do not have dash or bodycam, although you should assume everything you do or say is recorded.
Alright, the officer is walking over, what do (or more importantly, don't) I say?
Less is more. Much less is much more. I watch a lot of dashcam videos and most people incriminate themselves. That officer is not your friend. The officer's job is to issue citations and arrest citizens for criminal wrongdoing. Guess what, now that the officer pulled you over, you are the next candidate on his list. With that said, what should you do or say?
Sidebar, be prepared!
Let's backtrack a bit. The first step is something you can do after you finish reading this post. Go out to your car and organize your license, up to date insurance card and registration in an easily accessible location.
Back to the Action
Okay, back to you sitting nervously in your car, with your hands on the steering wheel. When the officer knocks on your window, calmly reach over and roll the window down. Next – be quiet. Don't explain that "you were going too fast," ask "how the officer is doing" or try to butter up the officer by saying that you "respect the police and understand that they have a hard job." Wait for the officer to address you.
The first thing the officer will do is ask you for your (hold tight, here comes some legalese):
Driver's License: Wis. Stat. §343.18(1) – Every licensee shall have his or her license document in his or her immediate possession at all times when operating a motor vehicle and shall display the license document upon demand from any judge, justice, or traffic officer.
Proof of Insurance: Wis. Stat. §344.62(1) - No person may operate a motor vehicle upon a highway in this state unless the owner or operator of the vehicle has in effect a motor vehicle liability policy with respect to the vehicle being operated.
Proof of Registration: Wis. Stat. §341.11(1) – Upon registering a vehicle shall issue and deliver to the owner a certificate of registration. The certificate shall contain the name, residence and address of the owner; a brief description of the vehicle, including its color; the registration number assigned; and the date of expiration of registration. The certificate shall be in such form and may contain such additional information as the department deems advisable.
You are legally required to provide the officer with these three items if he or she asks for them. If these items are in the glove box or your wallet, ask the officer if you may reach for them before you do. Again, officers don't like sudden movements and or drivers reaching for hidden items.
Don't be a fish that bites!
Next, the officer is likely wearing a body camera and microphone. He or she will ask you further questions. There are several things to consider. Number one - do not lie. Simple and plain. Number two, be polite. It costs you nothing and if your case is ever in front of a jury, trust me, it's hard to convince twelve people to vote for someone who acts like a jerk.
Next, you are under no duty to answer the officer's questions or respond to the officer's comments. For example, officers often start with "do you know why I pulled you over?" Don't guess, don't admit you were speeding, say no. If the officer says, "My radar gun has you 15 miles per hour over the limit," that's a statement, not a question. You can acknowledge the officer said that, by saying, "okay." If the officer says, "Were you going 15 miles per hour over the limit?" is a tougher question. Again, do not incriminate yourself. You may answer politely, "Officer, I do not have to answer that question, am I receiving a citation or warning, or am I free to go?". Same answer if the officer asks you where you are traveling.
Remember officers are fishing for admissions of guilt and you are not going to be a fish that bites.
For purposes of illustration, here is an example of what not to do!
What if the officer wants to search my car?
Unless you are 100% percent sure that there is nothing illegal in your vehicle, the answer to this is always "respectfully, no." Even if you are 100% sure, the safer bet is to say no. Officers need something called "probable cause" to search your vehicle without your consent. If you agree to let them search your vehicle, it doesn't matter one iota if probable cause existed. If you say, "sure, go ahead and search the car," your odds of later challenging the search in court have drastically plummeted.
Here is a tip. Officers will often frame these questions innocuously. "Sir, do you mind if I take a quick poke around the trunk?". If you're too nervous to politely say no, ask the officer if you are legally obligated to permit him to look in the trunk. If the officer says no, then say no.
What if I believe the officer is doing something illegal?
Let's say that the officer says, "Yes, you must let me search your trunk." Number one, you are not going to win the battle of whether probable cause existed on the side of the roadway. Unfortunately, this is a battle for the courtroom. If an officer directs you that you are legally obligated to comply then you should comply. Arguing with an officer will never help. Comply with the officer's orders, remain calm, and say as little as possible. Don't be intimidated. Don't admit guilt. Be polite.
The stop is over; what now?
If the traffic stop resulted in a citation, arrest, or criminal charges, your best course of action is to speak with an experienced criminal defense attorney. An attorney will advise you of any defenses to your case and assist you in fighting the case in court.
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