Drivers and bystanders can record traffic stops as long as the recording doesn't interfere with the stop
An officer can order a driver out of the car, legal experts say, but there must be some danger perceived
No one can know what went through Sandra Bland’s mind when she was pulled over last week for what a Texas police officer later said was her failure to signal a lane change.
Chances are, it couldn’t have been good. Most people feel at least some anxiety when they see those flashing lights behind them. What exactly happened during Bland’s stop is unclear, as are the circumstances behind her death in a jail cell three days later.
But the contentious encounter between the officer and Bland has left many wondering what exactly they have the right to do when pulled over and, realistically, whether it’s wise to exercise those rights.
The first thing an officer is looking out for is his or her safety. A driver should turn off the car, roll down the window, stay inside the car and put their hands on the steering wheel, or at least make it clear that there’s nothing in their hands and they aren’t reaching for anything. “The officer doesn’t know who you are,” said Cedric Alexander, CNN law enforcement analyst and the public safety director of DeKalb County, Georgia.
Just this week a Hayward, California, police officer was killed during a traffic stop.
The officer should explain why he pulled you over and will ask for your license, registration and proof of insurance.
At this point, it’s in both the officer’s and the driver’s best interest to act in a way that de-escalates tension, Alexander and other law enforcement experts agree.
In Bland’s stop, the officer can be heard saying, “You seem very irritated.”
She answers, in part, “Yes, I am.”
To attorney and CNN legal analyst Joey Jackson, that appears to be a way to rile Bland up. Jackson said his father was a police officer who always told him that his biggest weapon was his ability to communicate and calm a situation. The Texas officer “seems to be escalating,” the encounter, Jackson said.
No law governing attitude
While there’s no legal rubric governing a person giving attitude, CNN legal analyst and longtime criminal defense lawyer Paul Callan said the verbal exchange between them is something the officer should not have allowed to happen. “Ironically, the motto of the Texas State Troopers is ‘Courtesy, Service, Protection,’” said Callan. “We don’t see much courtesy or protection going on in that encounter.”
The officer asks Bland to put out her cigarette.
Legally, she’s within her rights to continue smoking, Callan and others experts said.
If an officer feels in jeopardy by the actions of a driver, he can demand that driver stop whatever they’re doing.
In Bland’s case, Callan said he doubts her smoking could be presented in court as a danger.
Bland “could flick the cigarette at him?” Callan wondered.
If an officer feels any threat whatsoever, he or she can order someone out of their vehicle, said CNN legal analyst and attorney Danny Cevallos.
That right was established in a 1977 Supreme Court case that found Pennsylvania police officers were justified in instructing a man named Harry Mimms, whom they had pulled over for an expired license plate, to get out of his car.
Mimms complied and an officer patted him down after seeing a bulge in his pants under his jacket. Searching Mimms was not a violation of his Fourth Amendment right to protection against illegal search and seizure, the high court found.
The case supports the right for officers to also order passengers out of a vehicle who may be a threat, Cevallos said.
The theory is that “the officer’s safety outweighs the minimal intrusion,” for a driver or passengers, he said.
Yes, you can record
Was Bland’s refusal to put a cigarette out a threat that warranted the officer telling her to get out of her car? That will likely be debated in court, but certainly the discussion is more informed when there’s a recording of the encounter.
Just as law enforcement can and does tape traffic stops on dashcam recorders, so, too, can a driver or anyone in a car, as long as the recording doesn’t interfere with an officer’s ability to investigate, legal and law enforcement experts said.
In a recording of the Bland traffic stop, the officer can be heard telling Bland to get off her phone. She tells him she is not on the phone, but is recording and says she has every right to record.
During Bland’s traffic stop, a bystander is filming from a distance.
An order is heard, “You need to leave!”
The bystander can be heard responding by asking if they are on public property, and the bystander continues to film.
Retired New York police detective Harry Houck said an officer should never tell a person not to record.
But, he and other experts said, having the right to do certain things doesn’t necessarily mean you should do them.
“Any level-headed person who gets pulled over does what a police officer tells you and there won’t be any problems,” said Houck. “Whether the cop is wrong, you can hash it out in courts after it’s over.
“Can you smoke? Yeah, you can,” Houck continued. “Can he tell you to put it out? No. But why don’t you just be smart and put it out?”
Cevallos agrees. He advises people that the best option to avoid a potentially terrible situation – an arrest or worse – is “eat the bust and we’ll deal with it later.”
“We know the reality of trying to play lawyer with the police,” Cevallos said. “Do you want to make a stand for justice or do you want to go home? The way you show a police officer that they’re wrong is not at the time of the traffic stop. It’s later in court.”
Cevallos is well aware this isn’t soothing to anyone who has felt violated during a traffic stop.
Charles Blow, a New York Times columnist, said there’s a bigger question to be examined about what one can or should do during a traffic stop.
Earlier this year, his son, who is black and a chemistry student at Yale University, was detained by police at gunpoint allegedly because he matched the physical description of a burglary suspect.
There’s an “incredible amount of discretion” that officers are allowed, he said.
An officer can allow a lot of leeway or be incredibly harsh, Blow said, “and all of that can be legally justified.”
There has to be greater clarity, he said.