WV Civil Rights Lawyer

Police Misconduct, Civil Rights Law

In the name of “officer safety”

Rick Horowitz from Probable Cause had an interesting post regarding “officer safety” and the rights of motorists.  In essence, his theory, which has long been a pet peeve of mine, is that supposed “officer safety” is used to violate the rights of motorists.  If you have ever tried an “obstruction” case, you will hear the prosecutor ask officers who conducted a “traffic” stop questions about their training and “officer safety” and why they instruct persons to get out of the vehicle – or to not get out of the vehicle – or to put their hands in a certain place, and so on and so forth.  Many times this coincidentally coincides with the officer(s) subsequently finding something incriminating in the vehicle.  For example, here is a portion of transcript from an obstruction (among other things) trial:

7       Q   So you turned on your blue lights; right?           

8       A   Yes.                                                

9       Q   And the purpose of doing that is to tell the driver 

10  of the vehicle what?                                         

11       A   To pull over.                                       

12       Q   And, was it clear to you, that there was a driver   

13  of that truck, with the Florida tags; you should see the     

14  driver?                                                      

15       A   Yes.                                                

16       Q   Did you attend the State Police Academy before      

17  becoming a West Virginia State Trooper?                      

18       A   Yes.  All troopers are required to attend the       

19  Academy before —                                            

20       Q   And how long — how long is the Academy?            

21       A   It’s going to be for 30 weeks, equivalent to seven  

22  months.                                                      

23       Q   And, as part of your training, do you receive       

24  specific training in traffic stops?                          

Page 359 

1       A   Yes, we do.  Like a lot if training, they try to go 

2  over and over.  What the purpose of that is – they call it   

3  muscle memory – when you get into a high-stress situation,   

4  or your stress level elevates, whatever you practice, their  

5  theory is that you’ll just automatically — you’ll           

6  automatically do in a high-stress situation.                 

7       Q   And from your training, and experience as a West    

8  Virginia State Trooper, are traffic stops considered high-   

9  stress situations?                                           

10       A   Yes.  Through the training that we received,        

11  everything other than a known felony stop, we actually       

12  consider an unknown stop, which is an unknown risk.  Mainly  

13  because we don’t know the driver, we don’t know who’s in the 

14  vehicle or what’s in the vehicle.  So, yes, they all — all  

15  of them are considered high-stress and possible risk stops.  

16       Q   And, from your training at the Academy, and then    

17  after you were out of the Academy, were you taught, and      

18  trained, in what percentage of police officers — shootings  

19  of police officers occur during what should be routine       

20  traffic stops?                                               

21       A   Yes.  It’s actually a higher percent than I like.   

22  Actually, I believe the US Supreme Court had a case on it,   

23  referenced where up to 30 percent of actual police shootings 

24  occurred during routine police traffic stops.                

Page 360 

1       Q   Now, as a practicing Trooper, can you estimate how  

2  many traffic stops you have made a month, at this point?     

3       A   And I don’t do a lot of traffic, some’s a lot       

4  higher than this, but I usually pull over, I would say,      

5  between 25 to 35 cars a month, for various traffic reasons.  

6       Q   And when you make those traffic stops, do you       

7  follow the procedures that you were taught in your training  

8  at the West Virginia State Police Academy?                   

9       A   Yes, ma’am, every time.                             

10       Q   As to the particular procedures that you were       

11  taught, what is the goal, what’s the purpose of those        

12  procedures that you are to follow in making a traffic stop,  

13  as a State Policeman?                                        

14       A   The main thing is, basically, risk reduction, for   

15  the safety of everybody there.                               

16       Q   And does that include safety of the officer?        

17       A   That includes the safety of the officer, safety of  

18  whoever we’re pulling over in the vehicle, along with the    

19  public safety.                                               

20       Q   And what are the risk factors in the traffic stop,  

21  that your procedures are designed to reduce?                 

22       A   With that, especially, and probably most of you can 

23  relate to seeing videos of being beside the roadway.  First  

24  off, it’s very dangerous for traffic stops, for other        

Page 361 

1  traffic coming by, just ’cause you’re in such close proximity 

2  to the traffic flow; that, in one, is dangerous.             

3       Two, like I said, you don’t never know who the driver   

4  is, or who you’re pulling over.  Mainly, if you’re doing a   

5  traffic stop – and, mostly, I’m going to give somebody a     

6  warning, but the driver don’t know that – and if it’s        

7  somebody else, it could be very dangerous.  Or, if they      

8  robbed a bank, thirty minutes down the road, and I’m unaware 

9  of that, they might have a gun, or something that could      

10  actually hinder myself during this stop, which I’m unaware   

11  of.                                                          

12       Q   And what about the flight risk; could you explain   

13  to the jurors the risk of flight when you have an unknown    

14  traffic stop?                                                

15       A   Yes.  And it is highly likely that, you know, even  

16  when I get out of the vehicle, that the car might pull off.  

17  Several occasions, you go to approach the vehicle and        

18  somebody – I mean, I’m sure you’ve seen it on TV – jumps out 

19  of the vehicle and takes off running.  So — and if I        

20  actually approach the vehicle and, let’s say, they are       

21  wanting to cause me harm, and they are able to do some kind  

22  of harm from me, it’s very possible for them just to take    

23  off without any help to myself.                              

24       Q   When you pull over the vehicle, either because it   

Page 362 

1  — the driver is a suspect in a crime, or because of a       

2  traffic violation, when you pull over a vehicle, is there    

3  information that you are supposed to relay, and also         

4  information that, by your training and experience as a West  

5  Virginia State Trooper, you are supposed to be receiving?    

6       A   Yes, ma’am.  The start off, every time we perform a 

7  traffic stop, we always want to notify our dispatcher —     

8  advise ’em of our location, that we’re actually on a traffic 

9  stop, so they can check on us and know what we’re doing.     

10  Some information you want to give to start off with is color 

11  of the vehicle, like I said, the location of where the stop  

12  is.  And also important, is the license plate of the         

13  vehicle.  With the license plate, they’re able to return the 

14  vehicle it’s supposed to be on, who owns the vehicle.  And   

15  they also can check to see if that license plate or vehicle  

16  has been stolen, or is a stolen vehicle.                     

17       Q   And do you do that, as much as possible, unless you 

18  are obstructed or prevented from doing that, every time you  

19  make a traffic stop?                                         

20       A   Yes, ma’am.                                         

21       Q   Now, do you — are there standard procedures, that  

22  you learned in your training, and you practice in your 25 to 

23  30 traffic stops a month, first of all, as to whether or not 

24  you want the driver to stay in the vehicle, or get out of    

Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

24  somebody might be able to put my connection with that        Page 363 

1  the vehicle?                                                 

2       A   Yeah.  Through our training, and it might vary from 

3  department to department, but what we want is the driver to  

4  actually stay in the vehicle.                                

5       Q   And why is that, explain that, if you would?        

6       A   The reason to have them stay in the vehicle, it’s   

7  more of a con — we have more control if they’re in the      

8  vehicle.  For the safety issue, like I said, to mention      

9  first, it’s a — a lot of times, we’re on the highway,       

10  interstate, busy roads, if the driver’s in the vehicle, it’s 

11  a lot less likely that he’s going to get hit by a passing    

12  car.  Two, we’re able to approach the vehicle and kind of    

13  keep an eye on the driver and see what he’s doing.  Where,   

14  if he gets out of the vehicle he could either (a) run, or do 

15  something else, which would make us have a lot less control  

16  over the driver.                                             

17       Q   Are you even taught, and trained, to stand in a     

18  particular relation to the driver’s door?                    

19       A   Yes.  And, as we’re taught, when we’re approaching  

20  a vehicle – and if you ever — anyone’s ever got pulled      

21  over, you maybe even noticed this and wondered – I always    

22  take my hand and touch the back of the vehicle in case       

23  something happens, you know, and the driver leaves.  Maybe   

 

Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ’em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       Page 364 

1  vehicle.                                                     

2       As I’m continuing to approach the driver, we can always 

3  look through the back glass and the windows, see if he’s     

4  maybe reaching under his seat to grab a firearm or trying to 

5  hide something he’s not supposed to have.  With standing at  

6  the vehicle, we always like to stand right behind the driver 

7  door, which allows us to have a — the best view we can of   

8  inside the vehicle, to check to see if there’s anything      

9  that’s not supposed to be there, or any weapons that the     

10  driver might be able to reach and grab.                      

11       Q   And would it be fair to say that, obviously, any    

12  time the driver is allowed out of the vehicle, that          

13  increases the flight risk, and the risk to the public?       

14       A   Right, yes.                                         

15       Q   Then what about your training and experience as a   

16  State Policeman, what do you instruct – order – the driver   

17  to do, if he gets out, as to his hands?                      

18       A   And, on traffic stops, it happens, sometimes the    

19  driver will go to get out of the vehicle.  Order them to get 

20  back in the vehicle and, usually, they comply with that      

21  order, and then wait for me to approach ’em.                 

22       Q   And if a driver gets out of the vehicle against     

23  your orders, what do you tell them — where do you want his  

24  hands?                                                       

Page 365 

1       A   If a driver gets out of the vehicle, and he’s not   

2  replying, of course, the stress level and the threat level   

3  increases, first because he’s not obeying my order, which is 

4  a lawful order.  Second, with the hands, I don’t want ’em    

5  anywhere near the coats or pockets, where they could reach   

6  — or anything that might cause me harm.  Either up in the   

7  air where I can see ’em, up on the vehicle where I know he   

8  can’t reach and grab anything to — that might harm myself   

9  or any public.                                               

10       Q   Was there a phrase that you were taught, that your  

11  instructors at the Academy used, to emphasize the need to    

12  keep the suspect hands up in the air or on a car?            

13       DEFENSE ATTORNEY:  Your Honor, I’m going to object to    

14  the leading nature of this —                                

15       THE COURT:  Overruled; 611 allows me to permit this     

16  type of preliminary stuff.  I’m going to allow it; go ahead. 

17       THE WITNESS:  Yes, as the — as the instruction — in   

18  the Academy, they often teach us, they always tell us that   

19  feet can hurt you, but hands can kill you.  Basically,       

20  meaning just, you know, being kicked and stuff can hurt you, 

21  but the hands can always grab a weapon such as a knife or a  

22  firearm.                                                     

23  PROSECUTOR (resuming):                                    

24       Q   Now, on the evening of June 8th of ’07, after you   

Page 366 

1  turned on your blue lights, can you tell the jury what did   

2  the defendant do?    

As I said, this has long been a pet peeve of mine.  Of course we all respect law enforcement officers and acknowledge that they have a sometimes dangerous and difficult job – just like many other professions.  However, they chose to be law enforcement officers.  And they chose to pull someone over for a “traffic” violation.  That they are worried, or trained to be worried, about their own safety, should not make it okay for them to treat someone like a criminal.  It’s one thing if you are pulling over a bank robbery suspect, but if you are pulling someone over for going 6 mph over the limit, you should not have your hand on your gun.  You should not shout at someone as if they are armed and dangerous.  Why should someone pulled over for a traffic violation have to keep their hands on the wheel?  What can be more demeaning that to be treated like a criminal as a practice and procedure of a law enforcement agency?  I would venture to say that more people are probably wrongly shot by law enforcement officers because they are jumpy due to all of this “training” than law enforcement officers who are actually shot by a traffic-stop motorist (especially in high crime areas where “traffic” stops are mostly investigatory pretext stops).  Don’t believe me?  Google it.  And surely, more officers are hit by passing motorists distracted by the emergency lights than who are shot.  And that is unfortunate, but it was their choice to engage in a profession where they have to stand on the side of the road and encounter strangers in cars.  That is just a risk that comes with the job.  It is not okay to feel safer by violating the rights and respect of innocent persons.

And it definitely is not okay to abuse the purpose of “officer safety” in order to assist in more efficient criminal prosecution, which is done in mainly two ways, such as was the case in the above-transcripted case: (1) to achieve an initial arrest of the person in order to question them and inventory/search their vehicle, and (2) to throw in yet another charge to try the suspect on and/or use for plea negotiations.  

Note: the defendant in the above-transcripted case was found not guilty of obstruction, despite the lengthy oratory of the prosecutor and trooper.

 – John H. Bryan, West Virginia Attorney.

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July 15, 2009 - Posted by | Police, Police Misconduct, Searches and Seizures, Vehicular Crimes

1 Comment »

  1. Very good article written.

    Comment by Apostille info | July 17, 2009 | Reply


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