Pulling Over for Law Enforcement

Intelligent people should not engage in conduct to “waive” or give up constitutional protections. One of the most basic of these constitutional protections is the right to be free from arbitrary traffic stops, based upon an officer’s hunch rather than some traffic/criminal violation, equipment defect, missing or expired tag or decal, or other legally justified cause. So, how do you decide when to pull over when an officer is following your vehicle but has not signaled you to pull over?

A driver that sees a police car following his or her car (but without emergency lights flashing) may instinctively think that pulling over is the correct thing to do. WRONG! Keep proceeding within the speed limit, obey all traffic laws, stay entirely within your lane and make sure that no “outward” (visible) problems exist with your vehicle. Use turn signals to make any lane changes or turns, no matter how minor. Don’t abruptly stop or suddenly turn into an adjacent parking lot without using a signal. Stay off the cell phone and do nothing to distract your attention from the roadway.

Court cases across the USA have consistently upheld the right of police officers who have not signaled or commanded that you pull over to come in contact with you without any legal justification when you are on foot, or if you pull over and stop your vehicle without being commanded to do so. Legal farces that have helped perpetuate this practice, such as the legal theory known as the “community caretaking” doctrine. Basically, the theory goes, if an officer sees anything amiss in his or her community, he or she can and should investigate the “problem” area or suspicious behavior to clear up any problems.

If an officer sees you pull into a shopping center parking lot in an effort to get him or her to quit following you, the officer is hoping that you will come to a stop. Then, he or she is going to be able to legitimately come in contact with your car (and your face) without any legal basis to suspect a crime has been committed or is about to be committed. If you kept moving, and never pulled over until signaled to do so by the blue or red lights of the patrol car (or the siren or hand signals to stop), then any encounter created by the use of “color of law” (using the emergency equipment to force you to stop your vehicle) is what attorneys call a “tier one Terry stop.”

The name Terry is derived from the landmark Fourth Amendment case, Terry v Ohio. Pulling over a car stopped at a red light that takes an extra second or two to shift the manual transmission into first gear when the light changes to green does not justify a tier one Terry traffic stop because no offense was committed.

The Terry decision embodies the Fourth Amendment’s protection against stopping a vehicle without a legal justification for doing so. Beyond the protections of Terry in prohibiting use of police power to stop a vehicle on a mere hunch, and for no real traffic violation (“tier one” Terry stops), Terry further outlines the illegality of an officer fulfilling the original purpose of the stop and then (with no justifiable belief that criminal activity is afoot) start investigating for further potential crimes. This is a “tier two” Terry detention. A “tier three” Terry encounter occurs when sufficient evidence to arrest has been obtained from objective, particularized data.

Thousands of legal decisions across America have interpreted and made rulings on both tier one and tier two Terry issues. A recent case from Utah adequately states the rule for us. Any further temporary detention for investigative questioning after fulfilling the purpose for the initial traffic stop constitutes an illegal seizure, unless an officer has probable cause or a reasonable suspicion of a further illegality.