INITIAL CONTACT WITH THE POLICE
The Constitutions of the United States and the State of Florida afford the same level of protection of individuals against unreasonable searches and seizures by law enforcement officers. When a police officer initiates a traffic stop, the motorist being pulled over is deemed to have been seized, even if temporarily.
Typically, the stopping of a motorist by the police will be deemed to have been a reasonable seizure under one of the following circumstances.
- The police have probable cause to believe the motorist has committed a traffic infraction, such as speeding;
- The police have a well-founded reasonable articulable suspicion that the motorist has committed a criminal offense; or
- The police officer has witnessed a driving pattern indicating the motorist is sick, tired or is experiencing some form of distress.
“Probable cause” exists where the facts and circumstances within an officer’s knowledge are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.
A “reasonable suspicion” of criminal activity must be more than just an unparticularized suspicion or mere hunch, and must be supported by articulable facts that criminal activity may be afoot, even if the officer lacks probable cause. The Fourth Amendment requires some minimal level of objective justification for making the stop.
THE DRIVING PATTERN:
The driving pattern is usually the first series of observations a police officer will consider when determining whether to arrest a motorist for DUI. A stop of a motorist for swerving within or outside a lane of traffic is much more likely to result in an arrest for driving under the influence than a traffic stop for speeding. Police officers are trained to gather evidence by observing and scrutinizing the actions of those they encounter, an officer who witnesses a vehicle swerve may prejudge the motorist as likely being impaired, even before stopping the motorist.
Some of the most common reasons police cite as justification for stopping a motorist involve:
- Speeding
- Failure To Maintain A Single Lane Or Weaving/Swerving Within The Vehicle’s Lane Of Travel
- Failure To Obey A Traffic Control Device (Stop Light / Stop Sign)
- Unlawful or Too Dark Window Tint
- Failure To Use Seatbelt
- Malfunctioning Tag or Tail Light
The video embedded herein is of the driving pattern of a motorist who was charged with DUI and acquitted at trial. The motorist admitted to having a couple of drinks between five and seven hours earlier. From the video, do you think the stop was justified?
CAR ACCIDENTS & THE “ACCIDENT REPORT PRIVILEGE”
In Florida, a motorist involved in an accident who does not flee the scene of the accident, has a statutory right to not have his/her statements used against him/her. This “accident report privilege” does not cover observations of the physical appearance or mannerisms of the motorist an investigating officer may make, such as whether the motorist has an odor of alcoholic beverages emanating from his/her person, slurred speech, bloodshot eyes, etc., etc.
Florida Statute §316.066(7) mandates that no statement made to a law enforcement officer for the purpose of assisting in the investigation of an accident shall be used in evidence any trial, civil or criminal. The immunity provided by this Accident Report Privilege is equivalent to that required by the 5th Amendment to the United States Constitution. The purpose of this privilege is to foster honest and complete disclosure of the facts contributing to traffic accidents from the people who would most be privy to such facts, the participants, which is an important public interest.
In order for the police to stop the accident report privilege from applying, a police officer must communicate to the motorist that the traffic investigation has ended, that a criminal investigation is beginning, and then issue the motorist Miranda warnings, before any statement by the motorist may be admitted.
INITIAL CONTACT WITH POLICE
A motorist’s initial face-to-face contact with a stopping police officer may not be the chance to make a first-impression the motorist thinks it is. Before exiting the police car, any officer with a laptop computer or a radio knows the driver’s traffic and criminal history. The officer stopped the motorist for a reason and that reason likely included forming a bias as to the motorist’s conduct and whether the encounter will result in an arrest.
When an officer makes face-to-face contact with the motorist, the officer is looking for cues of impairment such as the smell of an alcoholic beverage, bloodshot eyes, slurred speech, an inability to readily answer questions about location and direction of travel, whether the motorist has slow physical responses to a request for a license, insurance or registration. A great many police departments in the State of Florida equip their traffic patrol cars with video cameras. A motorist should expect that their entire interaction with law enforcement may be recorded, and there is absolutely no requirement to inform the motorist that the encounter is being recorded. However, audio and video recordings are a double-edged sword for the police, and often wind up exposing flaws in a police officer’s ability to accurately recount the details of a traffic stop.