What Rights Do You Have During a Traffic Stop in California?
Talking through probable cause and unwarranted searches with a San Diego civil rights attorney
on November 17, 2021
Let’s say you’re out for a Sunday drive with your spouse when you’re surrounded by four police cars with flashing lights, and officers emerge with guns drawn issuing a series of commands. You’re told to throw your keys out, keep your hands up, get out of the car, walk backwards, and lay yourselves on the ground so you can be handcuffed.
Then let’s say after about 15 minutes, the officers tell you “Sorry, this was a mistake,” and they uncuff you and pack up and leave. Later, you find out there was a felony in progress, an armed robbery two blocks away, and the getaway car was similar to yours.
In those circumstances, are the officers allowed to stop and handcuff you?
“Yes,” says Grace Jun, a civil rights and civil litigation attorney at Iredale and Yoo in San Diego.
And do the officers have to explain anything to you?
“No, absolutely they do not,” Jun says.
What about later? Can you sue? Bring a civil lawsuit against the city? “Probably not,” Jun says. “Not based on qualified immunity.”
Overall, citizens might have fewer rights than they realize when it comes to traffic stops and unwarranted searches.
First, it doesn’t take much for the police to pull you over. “Probable cause for a traffic stop is really any violation of a Vehicle Code section,” Jun says, and then ticks off some examples: expired tags, busted tail lights, changing lanes without signaling, tinted windows, and air freshener hanging from the rearview mirror.
Wait, air freshener?
Yes. That one came up in the Daunte Wright case, Jun says, though the officer’s stated reason for the traffic stop was expired tags. “In my cases,” she adds, “what I’ve seen as the basis for a stop are relatively innocuous things like tinted windows and changing lanes.” She says that such Vehicle Code stops are often “pretextual”: the officer suspects something else is going on and wants to investigate.
Once the police have stopped you, they may ask to search your vehicle or they may tell you they’re searching your vehicle. If they ask, Jun’s advice is like the ’80s antidrug slogan: just say no.
“Do not consent to a search of your phone and do not consent to a search of your car,” she says. “Obviously, you want to stay as calm as possible, you want to be cooperative, you want to be polite. Nowadays many police agencies have body cam videos and, hopefully, there’s a body cam video that’s been activated by the officer. If it’s San Diego PD, they definitely have body cams and they will activate. So you want to make sure that you are presenting properly on the body cam. But you certainly do not need to consent to things.”
But if the officer searches your vehicle anyway? The advice is the same: remain calm and cooperative.
“Most likely, they’re going to remove you from your car,” Jun says. “Many officers will handcuff individuals, and they’ll do so for officer-safety reasons. … So let’s say they handcuff you and make you sit on the curb. What you should do, at that point, is, again, remain cooperative and polite. Because if you decide to fight or interfere, now you’ve given the officer a probable cause to arrest you for interfering with a peace officer. Which is a different criminal charge. You’ve given them more ammunition.”
Such actions may be a violation of your Fourth Amendment rights against unreasonable searches and seizures, but in the moment you don’t know that. “The problem with probable cause” Jun says, “is there is no strict guideline as to what can constitute probable cause. It’s incredibly fact-dependent and it relates to the totality of the circumstances. So it depends on the basis for the search of the car.”
A traffic stop is a potentially charged situation, Jun reminds us, that can escalate quickly. “Law enforcement officers will have some legitimate concerns—vehicle stops can be dangerous,” she says. “But there’s this countervailing concern of training officers to perceive civilians to be a threat when they may not be. And in perceiving civilians as a threat, they may interpret relatively innocuous gestures as something that is very dangerous and threatening. And that may set the tone for the rest of the interaction.”
She adds that all traffic stops are not treated equally. “If you’re a Black or Latino male, you’re probably going to be perceived, in some implicit, biased way, as a little bit more dangerous,” she says. “So for my Black or Latino clients, I advise them: Keep your hands on the steering wheel. If they ask you to throw your keys out of the window and keep your hands outside the window, just do it. Because it’s better for you to be cooperative in that moment than to be shot and killed.”