My idea for “The Festival Lawyer explains in less than two minutes” video series is to outline some simple steps you can take to safeguard your Constitutional Rights in a variety of situations. Although geared primarily for festival goers, these tips actually apply to anyone, anywhere.
The second video in this series explains how to avoid a car search on the way to a festival.
STEP ONE – DON’T MAKE YOUR CAR, “ROLLING PROBABLE CAUSE”
Obviously, the best way to avoid a car search is to avoid having your car stopped by the police in the first place.
Unfortunately, If you regularly take road trips to a festival, you know that “festie” vehicles can sometimes be a target for law enforcement. There are certain festivals that are notorious for having only one major way in or out of the festival. Local police will sometimes set up on this road like bears waiting for salmon at a fork in the river and stop one car after another.
One of the best things you can do before heading out on a road trip is to make sure you aren’t, “rolling probable cause.” This is a slang term that cops sometimes use for a vehicle that has an ongoing minor traffic violation (say a broken taillight) which gives the police the authority to stop that vehicle and investigate the occupants at any time.
If you’ve heard this term before, you might be a fan of the show Archer.
Before you start your road trip, take some time to make sure you are not attracting undue attention to your car. For example, avoid writing phrases like “Carpoolchella” or “Wakarusa Bound” or anything else which might “flag” your car as a target for the police.
More importantly, keep your car in good running order. Make sure your license, insurance and registration are current. Make sure your lights and brake lamps work.
Part of the fun of a festival can be a road trip. But keeping things safe and low key until arriving at your destination is often the best call.
STEP TWO – DOWNLOAD THE “WAZE” APP
I use the “Waze” app almost daily. Waze is the world’s largest community-based traffic and navigation app. It allows people to share real time information about traffic, accidents, construction sites and other road issues
It is also one of the most helpful apps for reporting police sightings to other drivers. When someone sees a police car or a speed trap somewhere along their route, they can make a report alerting other drivers in the area to that police activity.
I’ve noticed that a lot of Reddit and Facebook festival groups try to share this type of information informally with each other online. The problem is that it can be difficult to spread this information to other festival goers in time for it to be of any practical use.
Waze, on the other hand, allows real time updates about police checkpoints and speed traps. It even allows you to type in a group message to send to fellow festies to give them a heads up as to exactly what they might be encountering as they near the festival grounds.
There are a few different GPS apps out there that have similar features, but Waze has the most users. Any community-based app is only as good as the people who use it. Waze does a good job of rewarding those users who make frequent and accurate reports. Because of that it has a large and very active community.
Waze also allows you to connect to Facebook. You can coordinate when everyone is arriving at a festival or locations to pick up friends. It really is a great app for festival goers who take road trips to their destination. You can download it here.
STEP THREE – COOPERATE BY CALMING GIVING YOUR LICENSE AND REGISTRATION TO THE POLICE
If you do get stopped by the police for a traffic violation, you no doubt want to end this encounter as quickly and painlessly as possible.
This year, in a case called Rodriguez v. United States, the Supreme Court gave everyone a powerful new right to help you do just that.
In Rodriguez, the Supreme Court ruled that the police cannot extend the length of a traffic stop, even very briefly, to conduct a fishing expedition to determine whether the vehicle contains drugs.
In this case, Mr. Rodriguez was stopped for a traffic code violation. The officer spoke to Rodriguez and his passenger, conducted a record check on the two men and gave Mr. Rodriguez a ticket.
The officer then asked for permission to search the car. Mr. Rodriguez did not consent to the search. The officer then continued to detain Mr. Rodriguez while waiting for a second officer to arrive. He then led a drug dog around the car and discovered drugs in the vehicle.
Though the drug dog sniff only extended the length of the stop for “seven to eight minutes,” the Supreme Court ruled that even this brief extended detention was not allowed.
“The tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’—to address the traffic violation that warranted the stop, and attend to related safety concerns…..“Because addressing the infraction is the purpose of the stop, it may ‘last no longer than is necessary to effectuate th[at] purpose.”
In other words, an officer stopping you for a traffic violation is allowed to detain you. But that authority to detain you only lasts long enough to complete the traffic stop. When the traffic detention is completed (or reasonably should have been completed) the detention has to end unless there is further justification to detain or search you.
If stopped, keep your hands on the steering wheel in a visible way. Keep your driver’s license, insurance and car registration handy and in an easily accessible location. Address the officer as “Officer” and politely cooperate in processing the traffic ticket by handing over your documents and signing any necessary paperwork.
Remember, it is in YOUR best interest to make it easy for the officer to process your traffic violation. Arguing with the officer about the traffic violation or refusing to sign the ticket isn’t smart. Instead, stay calm and be respectful to the officer. Then, end the encounter as quickly as possible.
STEP FOUR – DON’T SMOKE IN YOUR CAR (UNLESS YOU WANT IT SEARCHED)
In most states, the police don’t need a search warrant to search your car. Instead, the police can search your car upon a showing of “probable cause.” Probable cause means some facts or evidence that would lead a reasonable person to believe that you are involved in criminal activity. For example, an officer stopping someone for a speeding ticket might see contraband in “plain view” as they write up the ticket.
As a practical matter, one of the most common reasons police want to search a festival goer’s car is the sight or smell of marijuana in the vehicle. Even in a medical marijuana state like California, the courts have consistently upheld searches based solely upon the odor of marijuana coming from the car.
Therefore, even in a medical marijuana state, NEVER “hot box” or smoke in your car. It is basically an open invitation to have your car searched.
STEP FIVE – DON’T EVER CONSENT TO A SEARCH OF YOUR CAR
Sometimes during a traffic stop, an officer will ask you if you will agree to let them search the car. The answer should always be “NO.”
Some officers will try to imply that not agreeing to a search means you must be guilty. They may ask if you “have something to hide” or suggest that what they are asking you to do is no big deal.
The reality is that if the police are asking for permission to search your car it means two things.
1) They think you are guilty of a crime and are looking for evidence to prove that.
2) They know that legally speaking they don’t have probable cause to conduct a search.
In other words, an officer asking this is basically asking you, “Mind if I search your car illegally and try to put you in jail with what I find?” Given that, there is only one way to answer if the police ask you for consent to search your car:
“Officer I do not consent to a search of my vehicle.”
If the police search your car anyway, your lawyer can file a motion to suppress (throw out) the evidence. On the other hand, if you agree to the search, you have waived your right to challenge the search.
Therefore, never, under any circumstances, consent to a search of your car.
STEP SIX – DETERMINE IF YOU ARE FREE TO GO AND IF NOT, ASK FOR A LAWYER AND REMAIN SILENT.
As I mentioned when I talked about the Rodriguez case above, once the officer has finished investigating the traffic violation, you must be allowed to to leave unless the officer has probable cause for a search or has some other basis to detain you.
The best way to determine if you are being detained or you are free to leave is also the simplest. ASK. This also has the benefit of making it clear in a non confrontational way that you have cooperated and now wish to end the encounter.
For example, if an officer threatens to call in a K-9 unit if you refuse a search, you should ask, “Officer, are you detaining me, or am I free to go?”
Asking this question gives you an immediate answer as to whether you are legally “detained” or free to leave. It also puts you in the best legal position possible should you later want to challenge the legality of the car stop.
Obviously, if you are told you are free to leave, LEAVE. If you are not free to go you should assume that you are being detained and that you are potentially going to be arrested.
Legally speaking, at this point you need to completely exercise ALL of your Constitutional rights. State the following:
“Officer I am choosing to remain silent. I want a lawyer.”
Hopefully, by following these tips and by “keeping it sensible” things will never get to that point. But these tips will give you the best legal protection should your festival road trip ever run into a snag.