Month: September 2015

Your Rights During a Traffic Stop

♫So I pull over to the side of the road and I heard

“Son do you know why I’m stopping you for?”

Cause I’m young and I’m black and my hat’s real low

Do I look like a mind reader, sir? I don’t know

Am I under arrest or should I guess some more?

“Well you was doing fifty-five in a fifty-four

License and registration and step out of the car

Are you carrying a weapon on you?  I know a lot of you are”

I ain’t stepping out of s***, all my papers legit

“Well do you mind if I look around the car a little bit?”

Well my glove compartment is locked, so is the trunk in the back

And I know my rights, so you gon’ need a warrant for that

“Aren’t you sharp as a tack

You some type of lawyer or something

Or somebody important or something?”

Nah, I ain’t passed the bar but I know a little bit

Enough that you won’t illegally search my s***.

“Well we’ll see how smart you are when the K-9s come.” ♫

 

Jay-Z released “99 Problems” in 2003 and it included this verse about criminal procedure and your rights during a traffic stop.  Unfortunately, not all of it is accurate.  So, with the increased national focus on traffic stops and citizens’ rights when dealing with the police after the incidents in Ferguson, New York, Texas, and even here in Moore, Oklahoma let’s take a closer look at “99 Problems” and citizens’ rights during a traffic stop.  The questions we will answer are: what are your rights during a traffic stop?  Can an officer search your vehicle during a traffic stop?  And, what about the use of K-9s?

1. YOU HAVE THE RIGHT TO REMAIN SILENT

First, and foremost, if you have been stopped by the police you have the right to remain silent.  You do not have to answer a police officer’s questions and your silence cannot be used against you.  If you are going to invoke your right to remain silent, you must do so verbally and you must make it clear to the officer that you are doing so.  For example, say “I refuse to answer any questions” or “I want to speak to my attorney” or “I wish to remain silent.”   However, like all rights, the right to remain silent is not absolute.  If you have been pulled over and a police officer asks for your identification, you do have to provide it to him, along with your insurance verification.  Also, there is an exception to the right to silence in many states, if a police officer asks you for your name, address, and date of birth, you are required to provide that information.

2. YOU HAVE THE RIGHT TO REFUSE TO CONSENT TO A SEARCH OF YOUR VEHICLE

Second, you have the right to refuse to consent to a search of your vehicle.  “Well do you mind if I look around the car a little bit?  Well my glove compartment is locked, so is the trunk in the back and I know my rights so you gon’ need a warrant for that.”  Do not be fooled by the casualness of the question “do you mind if I look around the car a little bit?”.  This is a request to search the vehicle.  And, you are fully within your rights to refuse this request.  However, the police officer does not need a warrant to search the vehicle if you refuse to give consent.  There are several situations where police officers may conduct a search of your vehicle without a warrant, even if you do not give consent., including if the officer has probable cause to believe the vehicle contains contraband or evidence of a crime or your vehicle may be searched if you are arrested, and the officer may seize any illegal objects in your vehicle that are in “plain view.”  The most important of these exceptions is probable cause.  The United States Supreme Court has found that it is reasonable under the Fourth Amendment for the police to search a vehicle (this includes the entire vehicle, locked glove boxes, locked trunks, and everything inside the car, including any containers) without a warrant whenever they have probable cause to believe the car contains evidence of a crime, because of the inherently mobile nature of vehicles.  So, even if your glove compartment and trunk are locked, they may be searched, if the police officer has probable cause to search the vehicle.

However, even if you exercise your right to refuse to consent to a search of your vehicle and if none of the exceptions discussed above exist, the police officer may have a drug dog sniff the vehicle, because this is not a “search” under the Fourth Amendment.  The United States Supreme Court has held that dog sniffs do not reveal any information about the contents or the object sniffed except the presence of contraband, of which you do not have any right to privacy.  Thus, and this is the key, as long as the traffic stop is not prolonged to allow time for the K-9 unit to get there, the police may have a drug dog sniff your vehicle when they pull you over for a traffic violation and you have no right to object to the sniff.

3. YOU HAVE THE RIGHT TO LEAVE

Third, if you are not under arrest, you have the right to leave.  In a traffic stop, once the officer has processed the ticket or warning for the traffic violation that you were pulled over for, unless you have been arrested, you are free to leave in a calm and peaceful manner.  Just keep in mind, you may be arrested for a simple traffic violation.  Every crime (including a traffic offense) is an arrestable offense.

4. YOU HAVE THE RIGHT TO AN ATTORNEY

Fourth, if you are arrested, you have the right to an attorney.  If you are arrested, do not answer any further questions and immediately ask for an attorney.  You have the right to talk to an attorney and to have your attorney with you while you are being questioned by the police.  You may even exercise your right to an attorney after you have begun talking to the police and once you request an attorney all questions should immediately stop.  Even if you cannot afford an attorney, for most criminal charges, one will be appointed to you by the Court.

The bottom line during a traffic stop is:

  1. You have the right to remain silent;
  2. You have the right to refuse to consent to a search of your vehicle;
  3. You have the right to leave, if you have not been arrested; and,
  4. If you have been arrested, you have the right to an attorney.

However, keep in mind, the best thing to do during a traffic stop is to be polite, respectful, and to cooperate with the police officer.  Do whatever you can to set their mind at ease by showing them some basic courtesies:

  1. Roll your window down all the way;
  2. Stay in your vehicle;
  3. Keep your hands on the steering wheel; and,
  4. If it is at night, turn on your interior light.

Police officers are killed every day during “ordinary” traffic-stops and doing these things will help to alleviate any fears and concerns they may have as they approach your vehicle.  If they request your driver’s license and insurance information, provide it to them.  Do not argue with the officer about the reason for your stop.  This is not the time or place to try and prove your innocence-that is in court, with your attorney.  You are not going to convince the officer that he should not have stopped you and, more likely than not, you will just talk yourself into a ticket.  And, most important, if you are arrested do not resist or fight.  Even if you believe the arrest is illegal, you do not have the right to resist, cooperate, request an attorney and allow your attorney to fight the arrest in court.  If you argue with the police, are disrespectful, or resist the arrest you will have “99 problems.”

Separation of Church & State – Kim Davis: Martyr?

On September 3, 2015, Kim Davis, clerk of Rowan County, Kentucky, was ordered to jail for contempt of court for her refusal to issue marriage licenses to same-sex couples.  This has prompted many conservative Christians and Republican presidential candidates to call Ms. Davis a martyr and to compare her to Martin Luther King, Jr. or Rosa Parks.  Her supporters have argued that her First Amendment rights to freely exercise her religion have been violated and that she has been incarcerated for her religious beliefs.  The truth, though, is that she was not incarcerated for her religious beliefs.  The truth is she has blatantly violated the Constitutional rights of the same-sex couples whom she refuses to issue marriage licenses to.   And, the truth is she has violated the First Amendment’s prohibition against an establishment of religion.

Ms. Davis, an Apostolic Christian with a sincere religious objection to same-sex marriage, announced back on June 26, 2015, just hours after the United States Supreme Court held that states are constitutionally required to recognize same-sex marriage that the Rowan County Clerk’s office would no longer issue marriage licenses to any couple.  This was done to ensure that she would not have to issue marriage licenses to same-sex couples, even though the Supreme Court held that same-sex couples have a fundamental right to be married, the Governor of Kentucky had explicitly instructed county clerks to issue marriage licenses to same-sex couples, and it was her responsibility under Kentucky law as the Rowan County Clerk to issue marriage licenses to any couple that is legally qualified to be married in Kentucky.  Ms. Davis, in her official capacity as the Rowan County Clerk, was sued by two same-sex couples and two opposite-sex couples who were denied marriage licenses.  On August 12, 2015, Judge David L. Bunning of the United States District Court for the Eastern District of Kentucky issued a preliminary injunction preventing Ms. Davis from applying her “no marriage licenses” policy.  Ms. Davis refused to follow the judge’s order and appealed the decision to the United States Court of Appeals for the 6th Circuit and to the United States Supreme Court.  Her appeal was denied by both.  On September 3, 2015, Ms. Davis further refused a proposal to simply allow her deputies to process same-sex marriage licenses.  Ms. Davis was held in contempt of court and Judge Bunning ordered her to be incarcerated.  Judge Bunning has since ordered her to be released from jail and to not interfere with her deputies issuing marriage licenses to all legally eligible couples.

Immediately, her attorneys, several Republican presidential candidates, and other supporters denounced the Federal Court’s decision.  Roger Ganman, an attorney for Ms. Davis said, “Today, for the first time in history, an American citizen has been incarcerated for having the belief of conscience that marriage is the union of one man and one woman, and she’s been ordered to stay there until she’s willing to change her mind, until she’s willing to change her conscience about what belief is.”  Senator Ted Cruz of Texas said, “Today, judicial lawlessness crossed into judicial tyranny.”  Arkansas Gov. Mike Huckabee has demanded that “we must end the criminalization of Christianity!”  And, Fox News reporter Todd Starnes compared Judge Bunning to Bull Connor saying, “I truly believe Judge Bunning wanted to intimidate Christians and send a very clear message – that resistance to same-sex marriage will not be tolerated – doing with the gavel what Bull Connor tried to do with dogs and fire hoses.”

But, this rhetoric misses the point.  Upon taking office, Ms. Davis took the following oath of office, “I do solemnly swear that I will support the Constitution of the United States and the Constitution of this Commonwealth, and be faithful and true to the Commonwealth of Kentucky so long as I continue a citizen thereof, and that I will faithfully execute, to the best of my ability, the office of Rowan County Clerk according to law…”  Yet, Ms. Davis, since June 26, 2015, has not only failed to support the United States Constitution, but has openly refused to do so.  Ms. Davis was not “incarcerated for having the belief of conscience that marriage is the union of one man and one woman,” she certainly was not incarcerated until she changed her mind regarding her beliefs on same-sex marriage, and there is no evidence that Christianity has been criminalized.  Ms. Davis was incarcerated solely because she disregarded a direct order from Judge Bunning.  She was not incarcerated because of her religious beliefs, but because of her actions, as an elected state official, that violated the constitutional rights of same-sex couples in Rowan County, Kentucky.

Further, Ms. Davis’ First Amendment rights have not even been violated.  The First Amendment to the United States Constitution prohibits the making of any law respecting an establishment of religion or impeding the free exercise of religion.  Ms. Davis remains free to believe that marriage is the union of one man and one woman.  Ms. Davis remains free to exercise her religion as she sees fit.  She is free to attend services at any church of her choosing and no one is asking her to renounce her beliefs.  Simply, she is free to believe that same-sex marriage is wrong and to live her life accordingly.

But, she is not free to impose her Apostolic Christian beliefs, as the elected County Clerk, on the people of Rowan County, Kentucky.  And, by refusing to issue marriage licenses to same-sex couples, she is doing just that.  This is a very clear example of a First Amendment establishment of religion violation.  This prohibition against an establishment of religion is the fundamental principle that allows all Americans to practice their religious beliefs freely and openly without fear of the government.  It is precisely what ensures the separation of church and state.  As Christians, we should be celebrating this decision, not because we celebrate Ms. Davis’ incarceration, but because we celebrate the continued religious liberty of all.

The truth is Ms. Davis is not a martyr.  She is not the apostle Paul or John the Baptist or any number of other true martyrs who have been incarcerated and even put to death for their religious beliefs.  Ms. Davis is free to believe that same-sex marriage is morally wrong and is free to follow her religious beliefs.  She is free to resign her government position and exercise her religious beliefs anyway she sees fit, but she is not free to continue to take her state salary as the elected Rowan County Clerk and to violate the constitutional rights of same-sex couples and to even violate the First Amendment’s prohibition on an establishment of religion by forcing her personal beliefs on everyone else.  Again, she has never been asked or forced to renounce her beliefs.  She has merely been asked to do her job, in accordance with the United States Constitution, just as she swore an oath to do.

If at this point you still support Ms. Davis and believe that she has been incarcerated for her religious beliefs and that she should be free to instruct the Rowan County Clerk’s office to refuse to issue marriage licenses to same-sex couples in direct contradiction to the established law of the land as set forth by the Supreme Court and as instructed by the Governor of Kentucky, ask yourself a couple of questions:

  1. If Ms. Davis refused to issue marriage licenses to mixed race couples because it violated her religious beliefs, would you still support her?
  2. If Ms. Davis were a Muslim and she refused to issue driver’s licenses to women, because of her beliefs, would you still support her?

Much like with the 10 Commandments debate, we, as Christians, need to be careful what we do while we are the majority in the United States.  There may come a time when we truly need the protections of the First Amendment – to ensure the freedom to exercise our religious beliefs as we see fit and the guarantee of the separation of church and state, but this is not that time.  We live in an amazing country where we are free to exercise our religion as we see fit.  We do not fear reprisals from the government, because we are Christians, because we openly attend church, or openly proclaim our belief in Christ, as many of our Christian brothers and sisters have.  We must celebrate the religious protections found in our Constitution and work feverishly to protect them for people of all faiths, to ensure they are here if we need them.