synaesthesia

This is not professional legal advice. The best policy is to never carry any sort of contraband in your car. However, sometimes you just can’t remember, or can’t be sure what your passengers are carrying.

Goal

You are trying to avoid two things: reasonable suspicion and probable cause. Reasonable suspicion is what allows the officer to detain or arrest you while a K-9 unit is summoned. Finding any contraband in your car or on your person then allows the officer to charge you. Probable cause is what allows the Prosecutor to use the evidence against you in court. The laws on what constitutes reasonable suspicion and probable cause vary state to state, but following this script is the best way to avoid the possibility of the officer establishing either, both in his own eyes and in the eyes of the court. If the officer does not establish what he believes to be reasonable suspicion, then you cannot be either arrested or charged. If the officer does not establish what the court would believe is reasonable suspicion, consent, or probable cause, then even if you are charged, the Prosecutor has a very weak case and your lawyer has a lot of leverage.

A note on dog sniffs

Once reasonable suspicion is established, it is a small step to then attain probable cause because of the notorious lack of credibility assessment assigned to any particular K-9 unit. The handler can say the dog ‘alerted’ even when the dog is completely disinterested in your car because he can simply cite the special relationship between the dog and handler that allows one to know the other better than anyone else possibly could. The handler can also train the dog to respond to motions that you wouldn’t notice, but that cause the dog to put on a show that appears to be an alert.

Dogs are supposed to be certified to detect various forms of contraband, but those certifications are not objectively tested on a regular basis. A fair system would require the dogs to submit to periodic double blind testing (just like citizens get to pee in a cup on a regular basis) in order for any alerts to be justified as probable cause. Otherwise, the odds could be 50/50 or worse that an “alert” is authentic, which is an unjust situation.

All in all, dog sniffs are rigged in favor of the cops, and everyone in the business seems to like it that way. So the best way to avoid establishing probable cause, which you can consider to be automatic as soon as the K-9 shows up since you would be VERY lucky to get away clean at that point, is to avoid establishing the reasonable suspicion that would cause you to have to submit to a dog sniff.

Strategy

Avoiding reasonable suspicion means you avoid being searched, which could lead to an arrest, which could lead to jail, your car and/or wallet being impounded or seized, a charge being filed against you, and potentially a conviction. A conviction, along with your punishment, means you are from then on considered a second class citizen in terms of getting a job, parenting your kids, driver’s license, voting, carrying firearms, getting insurance, getting student loans, traveling outside the country, and any number of other privileges that politicians have seen fit to strip from citizens in the name of the drug war. Avoiding reasonable suspicion will prevent this chain of events from ever being set into motion!

So our goal is really twofold: first and foremost, avoid reasonable suspicion by using psychology against the officer in a casual and friendly manner. Failing that, adopt a damage control strategy against probable cause, by knowing and non-confrontationally exercising your rights.

If you can avoid reasonable suspicion, you’ll be on your way. If you cannot avoid reasonable suspicion, but still avoid probable cause, you may be arrested, spend the night in jail instead of at your destination, have to pay to have your car impounded, and have to pay a lawyer to either convince the Prosecutor to amend the charge or file a motion to dismiss with the court — but at least you will not have a drug conviction on your record, and thus you won’t be a second class citizen. The difference between the Prosecutor willingly amending the charge and having your lawyer file a motion to dismiss is about quadruple the lawyer fees and a hit or miss outcome, depending on local precedent and whether the judge is having a bad hair day — and you are in control of this difference because it is YOU that decides how weak to make the Prosecutor’s case against yourself!

Follow the rules of engagement! Remember, when you live on the fringe, the system is rigged against you.

The rules of engagement

Your general goal is to put on your best “busy upstanding citizen” theater at the traffic stop.

If you have any contraband, make sure it is not in plain sight (the plain view rule bypasses the requirement for consent), or better, that it is in a closed/zippered backpack or purse that you do not also keep your driver’s license or proof of insurance in, or best of all locked away in a briefcase or similar item that you can carry with you in case your car is impounded. A locked carryable case is the best idea, because then an officer cannot use an odor as probable cause — he cannot search inside the trunk or any other locked receptacle based solely on his sense of smell. Don’t attempt to hide stuff in the engine bay or anywhere outside of the passenger compartment since the officer can inspect it without your consent, and it will be found anyway if the car is impounded. Don’t have any contraband, or anything related to contraband, on your person, because if the officer thinks he has established reasonable suspicion, you will then have to step out of the car and be searched. If anything is found, it then becomes more difficult to convince the court that the officer did not have reasonable suspicion. If nothing is found, this works in your favor because it looks like hassling.

Have a reasonable destination in mind (a business that you know is open, and better yet one that would be expected to have an appointment), a purpose for being there that does not contradict your appearance, and always look at your clock as soon as you are pulled over so that you know approximately how long it would take to get there! As soon as you see the flashing lights, you are to use these bullet points to begin calmly and rationally constructing the excuse you will give the officer. Don’t be nervous and fumble with things or act hurried. If you have to express some sort of emotion, express a slight level of annoyance — be thinking something like “it figures that this would happen on such a busy day”. Have your driver’s license and insurance ready to hand the officer so that you aren’t opening a glove box or purse for access (and the officer’s eyes). Don’t open the window more than is necessary to communicate with the officer. Unfortunately, probable cause can be established by the officer claiming that he smelled an odor of contraband in some jurisidictions, even though human noses have been shown in studies to be utterly unreliable as a contraband detector. (Oddly enough, it seems to help keep the officer from “smelling something funny” if you are not wearing dreadlocks, beads and patchouli oil and if you are clean shaven and well dressed. In other words, another good move would be to save your costume for your destination and dress like you would for your claimed destination.)

The Reasonable Suspicion phase

From the moment the officer pulls you over, unless he is a K-9 unit (which the officer may lie and claim that he is if it is dark outside, hoping you won’t notice – don’t believe the officer unless you can see the dog), you are now in the “reasonable suspicion” phase. At this point, the officer is hoping that a) contraband will be in plain sight, handing him probable cause without having to do any work, b) you don’t know your rights or can be coerced into consenting to a search, still making it really easy on him, or c) you say something contradictory or suspicious that allows him to establish “reasonable suspicion” so that you can be detained while the K-9 unit can be called. The officer is not allowed to detain you to wait for a K-9 unit unless reasonable suspicion is established, and if he does anyway, this will work to your benefit later.

You need to remember that proving that a detention was unreasonable means that the officer’s timeline in the arrest report, if you are arrested, must be correct and show that you were in fact detained for far longer than it should take to write a ticket for whatever he pulled you over for. The best way to ensure that the officer writes an arrest report favorable to you is to be polite and cooperative at all times, except when forced to assert your rights, and to not give him a reason to want to turn the screws on you. The officer will usually not allow you to use a camera to take pictures of the clock (I’m unsure of the legal basis for this), and even if you bring a friend, their testimony is irrelevant unless the case goes to trial, and even then the officer’s word is considered to be ultimately credible. He is in control of the timeline… another reason not to let things progress beyond reasonable suspicion. To a certain extent, the officer is in control of recording whether you consented to the search or not, but officers can be far less liberal with those facts than they can be with the timeline — there is a high probability that his lie will eventually be exposed and cost him his job if he pushes it.

Never Consent To Searches, But Don’t Resist

Don’t EVER consent to a search. This is truly an “idiot test”. You can assume that consenting to a search is equivalent to consenting to a drug conviction. The officer will usually offer you a warning for whatever he pulled you over for (example: a fix-it warning for a tail light, or a warning for speeding or rolling through a stop sign, which you may or may not have even done) in exchange for a search of your car. Simply say, “I’ll take the ticket so I can be on my way.” If the officer continues the dialogue by asking you what you have to hide, simply say, “I don’t have time, I am in a hurry so I can be at REASONABLE DESTINATION by REASONABLE TIME for BELIEVABLE REASON.” If the officer insists that the search won’t take long or that he just wants to check out a few things, say “That’s what they said the last time and they tore my car apart and damaged my possessions.” If the officer continues to pressure you, inform him at last that you are exercising a constitutional right and finally that “I don’t consent to searches”. Never appear agitated (it helps keep you calm that if you follow these rules, you will not be convicted) and never respond to verbal abuse offered by the officer, because agitation can allow the officer to establish reasonable suspicion.

The officer may ask you to step out of the car and search you. While this is not a permissible search in terms of obtaining evidence, DO NOT RESIST! If he is still in his reasonable suspicion phase, resistance will establish it and cause you to be arrested and the K-9 unit called or your car impounded for search. If you don’t resist but simply say “I don’t consent”, then if he finds anything on your person, it can’t be used as evidence. If you have screwed up and for some reason you cannot get out of the car without revealing the contraband, respond with “I’m really in a hurry, can I please be on my way?” Responding in this way does not earn you any brownie points in terms of ending the engagement, but what it tells the officer is that he will need reasonable suspicion before he can search your person.

The officer should go back to his car, run your plates, and write you a ticket at this time. If all went well, you should be on your way.

If the officer is taking an abnormally long time to write the ticket, he may be waiting for a K-9 unit to arrive. Every few minutes, ask him through your window if you are free to leave and remind him that you are in a hurry for the important engagement that you constructed above. If you are female, mentioning that you need to use the bathroom or are having your period may help. If you have been polite, respectful and calm up until this point, it is more likely that the officer may be persuaded to let you be on your way. Once you have the citation(s) in hand, you are legally free to leave even if the officer instructs you to wait. Politely tell the officer to have a nice day and drive away slowly; continuing to wait at this point for any reason can only hurt you later.

The Officer Is Never Your Friend

Remember that the officer’s job is to make an arrest and to assist in your conviction. It is NOT to be your advocate by “putting in a good word for you”, or to “help you if you help him” or “going easy on you”. Even given the knowledge that the officer is your adversary, always be polite, address him as “Officer” or “Sir”, and ensure that your only resistance to his statements or actions is in the form of calmly stated words. It helps prevent you from being detained, and helps prevent a trial or conviction in the case that you are detained and searched.

The Probable Cause Phase

Well, there’s not much to say from this point. Assume always that if the K-9 is called, the contraband will be found. If the contraband is found, you will be arrested and charged and will need to hire a lawyer. So focus on not giving the officer a reason to call the K-9. And for heaven’s sake, never surrender your constitutional right not to be searched, even if your day is going badly to that point.

Friends in your car

Tell them to shut their fat mouths and let you handle everything. If they won’t cooperate with this request, you shouldn’t be giving them a ride. Friends with big mouths, as in the “Busted” video given out by Flex Your Rights, are not friends at all when it comes to a traffic stop.