Comment by Amy L. Vazquez
On a sunny afternoon on Highway 99 near Anytown, U.S.A., Officers Doe and Smith were on patrol. Officer Doe, an experienced patrolman, was in charge of “showing the ropes” to Smith, a recent addition to the Anytown Police Department. The two officers were traveling westbound along Highway 99 while “running radar” on oncoming vehicles.
The officers “clocked” an oncoming car at sixty miles per hour in a fifty-five-mile-per-hour zone. Officer Doe remarked to Officer Smith that five miles per hour over the speed limit wasn't too bad, so they wouldn't stop the car. But, as the speeding vehicle passed the patrol car, Officer Doe recognized the driver to be Sue Jones, the wife of an alleged local drug dealer. Doe told Smith that “her husband is good for dope” and turned the patrol car around to follow her. Doe activated the overhead lights and pulled Mrs. Jones over to the side of the highway.
Both Officers Doe and Smith approached Mrs. Jones' car. The following exchange occurred:
Doe: “Hey Mrs. Jones, where ya going?”
Jones: “I'm going home.”
Doe: “Why don't you step out of the car for me?”
Mrs. Jones stepped out of the car and moved to the rear of the vehicle with the officers.
Doe: “Do you have any drugs in the car?”
Jones: “No.”
Doe: “Then you wouldn't mind if I look around?”
Jones: “Yeah, I mind.”
Doe: “Well, in that case, I am going to have to call in our drug dog to check out your car.”
Jones: “Well . . . alright . . . go ahead and look.”
Through this traffic stop, the rookie Officer Smith was shown a common practice among police officers that he did not learn while training at the police academy.
The prior account represents an all-too-familiar exchange between police officers and citizens who have been stopped for a traffic violation. This Comment will focus on the propriety and legality of this type of exchange occurring after a routine traffic stop. The United States Supreme Court has dealt with numerous issues that arise when a police officer stops an individual for a traffic violation, thus implicating the Fourth Amendment to the United States Constitution. But, as this Comment will demonstrate, at least one significant issue has gone unresolved and yet another should be reexamined.
Part II of this Comment will provide an overview of automobile stops and the Fourth Amendment jurisprudence surrounding these stops. Part III will demonstrate a discord among courts with respect to what type of questioning may take place during a routine traffic stop. Finally, Part IV will address the issue of the consent to search that often occurs during traffic stops. This Part will examine possible answers to the problem and show how the issue of consent should be directly linked to the proper scope of questioning by officers during a traffic stop.
While discussing traffic stops and the Fourth Amendment, it is useful to remember the forces at work. Society is concerned with the rights of the individual, but is also interested in the prevention of crime. Regarding the law of seizures, Justice Brennan wrote:
The difficulty springs from the inherent tension between our commitment to safeguarding the precious, and all too fragile, right to go about one's business free from unwarranted government interference, and our recognition that the police must be allowed some latitude in gathering information from those individuals who are willing to cooperate. Given these difficulties, it is perhaps understandable that our efforts to strike an appropriate balance have not produced uniform results.
When looking at the issues discussed within this Comment, Justice Brennan's words serve as a constant reminder of the conflicting interests at work.
About the Author
Amy L. Vazquez. J.D. candidate 2002, Tulane Law School; A.B. 1997, Georgetown University.
Citation
76 Tul. L. Rev. 211 (2001)