Standard Procedures For Traffic Stops In California

[jenninator]

This evening, I was pulled over by a police officer, claiming I was speeding. At no point did he show me the radar, or any proof that I was speeding, and when my fiance and I asked for it, he told my fiance to "Shut up". He became very aggravated with my fiance (as well as myself) when he asked why we had been pulled over, which is my fiance's legal right to do so, as it is mine. The car also happens to be my fiance's.

I have a question about traffic stop procedures. Immediately after asking for my license, car registration, and the proof of insurance, he asked if EITHER of us were on probation or parole, and BEFORE he looked at the registration. He, at the time, was unaware that the car belonged to my fiance, and I was the one being pulled over, not my fiance. Even if he had seen the car was not mine, he had no immediate way of knowing the car belonged to the passenger sitting next to me. The officer then asked for my fiance's identification when we began to question why he had pulled me over. I know all the information required by law is the driver's name & address (hence, the license), registration, and proof of insurance. What legal right does the officer have to ask for my passenger's identification when no observable crime had been committed by him, and what right does he have to ask if we are on probation/parole?

[cdwjava]

This evening, I was pulled over by a police officer, claiming I was speeding. At no point did he show me the radar, or any proof that I was speeding, and when my fiance and I asked for it, he told my fiance to "Shut up".

There is no legal requirement for the officer to show the radar. And, absent a video, there really is no other physical proof of your speed that could possibly be presented.

No agency in California requires an officer to show the radar reading, and no state law in ANY state requires this.

He became very aggravated with my fiance (as well as myself) when he asked why we had been pulled over, which is my fiance's legal right to do so, as it is mine. The car also happens to be my fiance's.

He doesn't have to answer either of you. Personally, I don't engage passengers in conversation until I have the driver's license, registration, and insurance, and I won't discuss much of ANYTHING until I have that info. That is also how it is generally taught in CA police academies as well.

I have a question about traffic stop procedures. Immediately after asking for my license, car registration, and the proof of insurance, he asked if EITHER of us were on probation or parole, and BEFORE he looked at the registration.

Okay.

Please note that he can ASK anything. he can ask if you are married and have kids ... if you have a dog or cat at home ... and even where you like to take a vacation. But, the probation and parole thing is a good one because it lets the officer know if he will get to search the car or any occupants.

Even if he had seen the car was not mine, he had no immediate way of knowing the car belonged to the passenger sitting next to me.

As I said, he can ask anything he wants.

What legal right does the officer have to ask for my passenger's identification when no observable crime had been committed by him, and what right does he have to ask if we are on probation/parole?

The officer can ASK for ID (and the other stuff), but the passenger is not under a legal obligation - at least in CA - to provide it. However, the officer is also not required to advise the passenger that he does not have to provide it.

So, nothing wrong here.

if you want to complain about the officer's attitude then you need to contact his agency and ask to complete a personnel complaint. However, with what you have written here, this seems to be a pretty standard inquiry.

- Carl

[jenninator]

The officer can ASK for ID (and the other stuff), but the passenger is not under a legal obligation - at least in CA - to provide it. However, the officer is also not required to advise the passenger that he does not have to provide it.

I should have clarified the situation. When asked for his ID, my fiance initially refused. The officer became annoyed, raised his voice significantly, and DEMANDED my fiance's ID, all the while resting his hand along the bottom of the window frame (where the window goes down into the door). My fiance obliged, believing he had no choice.

Where can I find official proof my fiance was under no legal obligation to provide his ID?

[BOR]

I should have clarified the situation. When asked for his ID, my fiance initially refused. The officer became annoyed, raised his voice significantly, and DEMANDED my fiance's ID, all the while resting his hand along the bottom of the window frame (where the window goes down into the door). My fiance obliged, believing he had no choice.

Where can I find official proof my fiance was under no legal obligation to provide his ID?

I am quite familiar with the Hiibel case handed down in 2004. Here the USSC laid to rest, and expounded on Brown v. Texas (1979), when it is constitutional under the 4th AM to require a citizen to provide an ID when requested, such as a car passenger or citizen on the street, of course the driver has to show ID as proof of being able to drive.

In other words, if an officer approaches you at a bus stop and requests to see your ID, this is NOT a siezure under the 4th AM, however, if you ask if you are under investigation and s/he states, NO, then you are under no legal obligation to provide it. Read Hiibel carefully, syllabus and opinion.

Syllabus:

http://www.law.cornell.edu/supct/html/03-5554.ZS.html

Also click on the entire opinion and it will show a list, at least at the time of the opinion, of states that have such "stop and identify" statutes. CA is not listed, but that is not to say the jurisdiction/city you were in has not passed one. I haver read some Municicipalities have also passed such laws after Hiibel was handed down.

HOWEVER, Hiibel provides one MAIN and legally required point, the person who is asked to provide an ID/name MUST be "under investigation", expanding, again, on Brown v. Texas.

Carl can expand on what I have stated if he desires to.

In addition to what you stated in your first post, yes, it is true a passenger in an automobile that is "siezed" is also "siezed" and may challenge the constitutionality of it.

Held: When police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the stop’s constitutionality. Pp. 4–13.

http://www.law.cornell.edu/supct/html/06-8120.ZS.html

As a passenger, although siezed, unless such egregious conduct is displayed by an officer, it is best to let the driver handle it, since THEY are the one being potentially charged with a crime. A passenger has a right at the stop to question the legality of it, but confrontations must be avoided.

If the officer started to get irate then it was probably best for your fiance to show him his ID. As we saw on this forum a few months ago, and it made national news, an officer in MO was fired after threatening to make up charges on a stopped motorist, all caught on tape.

If you get a crooked officer, if he failed to show ID to him, even if he was not legally required to do so, he may have made up charges.

[cdwjava]

Under CA law we can not compel identification from people who are merely detained. Hiibel was in NV where they had such a law that required identification.

Here is how it pertains to CA as advised to law enforcement by the Attorney general:

The U.S. Supreme Court has drawn a distinction between a detainee's duty to identify himself and his duty to answer non- identification questions during a lawful detention. In Berkemer (1984) 468 U.S. 420, 439, the court stated that a detainee is not obligated to answer any questions you put to him during a lawful detention. (Christian (9th Cir. 2004) 356 F.3d 1103.) However, in Hiibel, the Supreme Court clarified that it was not referring in Berkemer to questions regarding identity. The court upheld as constitutional a Nevada "stop and identify" statute and found that a detainee's failure to identify himself could be the basis for a lawful arrest under a companion statute almost identical to Penal Code section 148. (Hiibel (2004) 124 S.Ct. 2451.)

Unlike Nevada and 20 other states, California does not have a statute mandating that a detainee identify himself, and that obligation cannot be read into Penal Code section 148. Although you may take whatever steps are reasonably necessary under the circumstances to ascertain the identity of a person you have lawfully detained, Hiibel does not provide a means for arresting someone for failing or refusing to identify himself. The Ninth Circuit has ruled that a suspect's failure to identify himself cannot, on its own, justify an arrest: "the use of Section 148 to arrest a person for refusing to identify herself during a lawful Terry stop violates the Fourth Amendment's proscription against unreasonable searches and seizures." (Martinelli (9th Cir. 1987) 820 F.2d 1491, 1494; Christian (9th Cir. 2004) 356 F.3d 1103, 1106; see also Quiroga (1993) 16 Cal.App.4th 961, 969, fn. 2.)

In your case, the officer may have demanded it but unless he had something more, he could not have arrested or charged your fiance for his failure to provide any DI.

At this point, he can make a personnel complaint against the officer but that's about it.

- Carl