Editor’s Note: Danny Cevallos is a CNN legal analyst and a criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter: @CevallosLaw. The opinions expressed in this commentary are solely those of the author.
Danny Cevallos: The encounter between Sandra Bland and state trooper raises vital questions about citizens' rights
Cevallos: Courts give cops tremendous power in traffic stops but they need to use it fairly
Texas police have released disturbing audio and video of the traffic stop of motorist Sandra Bland, who later died in a jail cell. The encounter between Bland and a state trooper raises anew some vital questions about citizens’ rights during a routine traffic stop.
The officer’s behavior should be viewed through at least two standards. First, was his conduct legal? Perhaps more important, even if it was legal, was it fair?
In the sometimes nebulous law of car stops, there are a few bright-line rules. One of these rules will inform how this video will be scrutinized over the next few days, and it is this:
If your motor vehicle is lawfully stopped for a traffic violation, police can order you out of the car. Period.
Texas State Trooper Brian Encinia stopped Bland on July 10, supposedly for not signaling a turn. After Trooper Encinia decided to issue only a warning, but before Bland knew she was free to leave, he asked her why she was upset. Then he ordered her to extinguish her cigarette. Bland refused. Trooper Encinia then ordered her to step out of the car. When she refused that, Encinia told her she was under arrest, saying, “I am giving you a lawful order” and pulling a weapon that looks to be a Taser.
In an instant, this escalated from a mere warning to the Trooper shouting, “Get out of the car!” and threatening to “…light you up! Get out! Now!”
Like the vast majority of citizens, Sandra Bland appeared to be just unaware of the rule; as evidenced by her audible objection to the idea that you could be ordered out of your car after failing to signal a turn. Bland says, “Wow, really, for a failure to signal? You’re doing all of this for a failure to signal?” The officer certainly was aware that he had this power.
Surely he had been trained to know the moment she refused his “exit order,” she unwittingly committed a technical violation that would ultimately form the basis of an arrest. But like most citizens, Bland was shocked at the notion that we can be ordered from our cars during a routine stop. It just feels wrong, doesn’t it?
Not to the U.S. Supreme Court it doesn’t.
Courts side with police
In Pennsylvania v. Mimms, the Supreme Court held that if a vehicle is lawfully detained for a traffic violation, the police officers may, without violating the search and seizure limitations of the Fourth Amendment, order the driver to exit their car. This also includes the power to conduct a pat-down search of the driver if the officer reasonably concludes the driver is armed and dangerous.
Why is this allowed? The same reason officers don’t shoot to wound: officer safety. According to the Supreme Court, the “legitimate and weighty” interest in safety outweighs the “de minimis” intrusion of ordering a driver out of the car. Obviously, officer safety is important, and on Wednesday, a dramatic example of that occurred. A police sergeant in Hayward, California, was shot to death after stopping a vehicle he saw driving erratically, and the driver was arrested.
But being forced out of one’s car just for being pulled over? Is this really a de minimis (meaning trivial, or minor) intrusion? In theory, yes. In practice, and on videotape, apparently not.
Being ordered out of your car by an armed state trooper on the side of a busy highway at night probably doesn’t feel like a de minimis intrusion. Of course, in fairness, these de minimis intrusions in other cases have also led to countless discoveries of drugs, guns, and missing bodies. It’s an outcome-driven analysis. Sometimes the same coercion applied to a bad guy is just good police work. But the other side of that coin is a case like this.
What about ordering a driver to get off the phone or put out a cigarette? While not directly addressed by the Supreme Court, such orders would likely be permissible, based on the general feel of court decisions on this issue. To the court, traffic stops are “especially fraught with danger to police officers.”
This risk to officers, drivers, and passengers is minimized, if the “officers routinely exercise unquestioned command of the situation.” And that’s exactly what officers are trained to do. Giving orders to a driver to turn off the radio or extinguish his corn cob pipe would probably fall under the jurisdiction of this “unquestioned command” over the situation.
When does a traffic stop end?
But the exit order actually conceals a more nuanced constitutional problem. Notice that as she’s being arrested, the officer tells Bland that he was originally just going to give her a warning. But if you go back to the moment he returned to the car with a warning, it seems he never told her that. So only the trooper knew that Bland was going to be released with a warning. Bland believed she was still being detained for a ticket, or worse. She ended up being right.
As far as the officer was concerned, the investigatory stop had concluded with the handing of the warning: He gives a warning; driver is free to leave. Thanks to modern recording devices, we actually learn that this is this trooper’s M.O.– from the car stop immediately preceding Bland’s.
What most citizens don’t know is that police not only continue investigating after an investigatory stop, some of their best busts happen after they give you your warning and a “have a nice day”.
This is where it gets complicated. You see, while you’re being detained, a court will scrutinize any answers or consent a driver gives, because of the coercive atmosphere of the stop. But, when police hand you back your license and a ticket, and say “drive safely,” courts have concluded that that moment, the encounter has just de-escalated from an investigatory stop, to – get this – a mere “consensual encounter.”
Criminal courts are full of defendants who were handed their ticket, didn’t realize they were free to leave, then the officer asked some new investigative questions, and the defendant consented “voluntarily” to search his truck, where there was a kilo of this or a banana clip of that.
This is where the Sandra Bland car stop, together with the advent of audio and video-recorded stops, really highlights the disconnect between Fourth Amendment jurisprudence, and the reality we live in. At the moment the car stop concluded with the supposed warning, Bland should have been free to leave.
But officers know what we all know: No one feels free to leave with an officer at the window with his car parked behind, lights ablaze. When he asked her why she was upset, and ordered her to put out her cigarette, he was continuing to fish – or worse, goad – after the investigatory stop had concluded. It’s not illegal, but it’s not fair, either.
After all, rational people who know they are free to leave a police encounter typically leave the encounter. The idea that motorists answer questions or give consent to search of their own free will in the presence of a highly armed, highly muscled state trooper, and his highly flashing vehicle, is just another “legal fiction.”
Resisting arrest in Texas
At some point, the trooper also figured he could charge Bland with resisting arrest for her “attitude.” Texas’ resisting arrest statute shows an arrestee no quarter. A person can “resist arrest” in Texas even if they make no contact with the officer. Any force used to avoid a detaining grip, whether pulling away, thrashing, or just being combative, counts as resisting arrest under Texas law. But what if the arrest itself is unlawful? In Texas, that doesn’t matter either, it seems. A defendant prosecuted for resisting arrest cannot use as a defense the fact that the actual arrest was illegal! Advantage: law enforcement, at least in the Lone Star State.
Reasonable minds may disagree on the final analysis, but this is mine: The car stop concluded, and all reasonable suspicion evaporated the moment the officer returned to the car with either a ticket or a warning. He knew it, even if he failed to make Bland aware of it.
At that point, Bland was technically and constitutionally free to leave, though it’s likely she – and virtually every other driver – would not be aware of that fact. (The trooper probably was aware of this from his training, but had no incentive to volunteer it).
While it was lawful to initiate further conversation with Bland for investigatory purposes, this officer’s questions were designed to instigate – not investigate. Asking someone what their problem is, or commanding them to put out their cigarette is just not the same as asking a driver if they had anything to drink tonight or if they have any weapons on them. Those are questions designed to investigate. This officer’s questions and orders had another design: They goaded this driver into getting frustrated. That’s not opinion; the trooper’s words speak for themselves.
Once Bland was upset, the officer probably felt he could articulate some “safety concern,” justifying his ordering her out of the car and patting her down – even though her maxi dress was not likely concealing a weapon – another observation actually verbalized by Bland during the video. Plus, once she got aggravated and balked at his orders to exit, this officer probably felt he also had grounds to charge Bland with resisting arrest, under Texas law.
The Sandra Bland car stop didn’t show legal experts and civilians anything we didn’t already know: If an officer really wants to stick it to a driver during a stop, he can find a way. That’s not an indictment against law enforcement at all. Rather, the permissive law of traffic stops, searches and arrests leaves much to individual judgment and personal observations of law enforcement officers. It’s that limitless authority of an officer that turns the rest of us into functional cowards and sycophants during a car stop. It’s all about self-preservation. Bravery has no place when you’re pulled over. Bland was no coward. But she also ended up arrested. With lots of force.
Every driver who has been pulled over by the police has faced the same Hobson’s choice: Be brave and argue with the officer about your asserted constitutional rights, or shut up and try to avoid any trouble. Most of us take the latter option, because it’s really no choice at all. Even if you are about to be arrested, defense attorneys would tell you to eat the bust and fight it later in court.
Trying to litigate yourself out of being arrested pro se usually only makes matters worse – even if you have a good argument. Being constitutionally in the right is little consolation when you’re contemplating your next court date from a jail cell.
It often comes down to economics: It’s more expensive to sit in jail and hire an attorney to vindicate those rights, than it is to simply avoid an arrest – or even a ticket – with a few well-timed “yes sirs.” And while some may admire another’s act of fearless civil disobedience, nearly all of us would opt instead for fearful obedience – and avoid a night in jail.