A Breakdown for the Cops and Robbers
By: David Zwanetz, Esq.
Once upon a time, I was 15 years old and skateboarding with friends across from the Columbia Mall in Howard County, Maryland. We were practicing our moves next to a large fountain in the town’s center when a lone member of the local police department appeared.
We were made to sit down while the officer decided what he would do to or with us. One of my friends got a little mouthy with the officer, making fun of his weight and mentioning something about doughnuts. While the comment was clearly out of line, it came from the mouth of a child who was being detained for nothing more than skateboarding in a public area.
In the end, no charges were filed (as no crimes were committed), but I was forced to sit still while I watched the officer break our skateboards in half with a few swift stomps, kick them into the bushes, and laugh in our faces. I rushed home to tell my father, who was raised in South Philadelphia, what had happened and to demand that he do something to get this officer back.
My father also laughed directly in my face and told me that there was nothing I could do as a “15-year-old, smart-ass skateboarder,” to take on a police officer, except to stay in school and learn about my rights. “Go to law school like your Uncle David,” he said. “Then, maybe, you’ll be able to do something for real.” My dad planted a seed in my mind and, to this day, I laugh about how beneficial that sleaze bag officer was to my path in life.
Since passing the Maryland Bar in 2005, I have always looked for creative ways to teach individuals about their Constitutional rights. I have a YouTube channel, a Facebook page, personal and work-related blogs, etc. In almost everything that I share on these pages, I try to add subtle references to hip-hop music principally because I love hip-hop, but also because the lyrics are often apropos.
I have, on numerous occasions, referenced Jay-Z’s second verse in “99 Problems” from the Black Album. In a few short and powerful lines, he brings to the surface important 4th Amendment issues: traffic stops, searches, probable cause, and racial profiling. These are the issues I live to argue about and to fight for/against! Thus, I feel compelled to delve into the verse and see if Mr. Carter is correct. Right or wrong, Jay-Z is hip-hop royalty and his song is awesome – this is by no means a jab at Mr. Z.
The lyrics go:
The year is ’94 and in my trunk is raw
In my rear view mirror is the mother fucking law
I got two choices y’all, pull over the car or
bounce on the double put the pedal to the floor
Now I ain’t trying to see no highway chase with jake
Plus I got a few dollars I can fight the case
So I…pull over to the side of the road
He’s carrying drugs in his car, something that he says is based on actual events from when he was younger. He goes on to tell how he sees a police car behind him and he’s faced with two choices: fleeing or pulling over.
Keep in mind, before police officers can pull him (or anyone) over, they need to have reasonable articulable suspicion that he has violated the law. This violation may be as simple as speeding or having an unlit taillight. This is also referred to as a Terry stop.
And I heard “Son do you know why I’m stopping you for?”
Cause I’m young and I’m black and my hat’s real low
Do I look like a mind reader sir, I don’t know
Am I under arrest or should I guess some mo?
“Well you was doing fifty five in a fifty four”
“License and registration and step out of the car”
“Are you carrying a weapon on you I know a lot of you are”
I ain’t stepping out of shit all my papers legit
“Do you mind if I look round the car a little bit?”
Well my glove compartment is locked so is the trunk and the back
And I know my rights so you gon’ need a warrant for that
Ultimately, Jay-Z decides to pull over and the police officer tells him that he was going “55 in a 54” (i.e., speeding). The officer goes on to ask for his driver’s license and registration and asks if he can search his car, but according to the lyrics, Jay-Z’s glovebox and trunk are locked. He tells the officer that he knows his rights (well, a little bit) and that the officer needs a search warrant.
“Aren’t you sharp as a tack are some type of lawyer or something?”
“Or somebody important or something?”
Nah I ain’t passed the bar but I know a little bit
Enough that you won’t illegally search my shit
Now, in order to legally search his car, the police need to have Jay-Z’s permission, or else they need to have either probable cause based on reasonable and articulable suspicion or a search warrant. Chances are most police officers are not going to have a warrant in hand, so without probable cause or Jay-Z’s expressed permission, they cannot search his car. This principle goes all the way back to a 1925 Supreme Court case,Carroll v. United States. The Court said that “the true rule is that if the search and seizure without a warrant are made upon probable cause, that is, upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction, the search and seizure are valid.” Carroll v. United States, 267 U.S. 132, 149, 45 S. Ct. 280, 283-284 (1925). This is called the Carroll Doctrine. If Jay-Z had tried to flee, he would have automatically given police probable cause to believe a crime has occurred and, as a result, allowed the police to conduct a full search of the passenger compartment of his car. The Maryland Court of Special Appeals stated in the case of Cox v. State “a person’s flight and nervousness, along with his presence in a high crime area, are factors that are relevant to the issue of reasonable, articulable suspicion.” Cox v. State, 161 Md. App. 654, 671, 871 A.2d 647, 656 (2005).
However, Jay-Z overlooked a few details. In 1966, the Supreme Court decided in the case of Terry v. Ohio that during an investigation, a police officer could conduct a limited pat-down search of a person for weapons to ensure the officer’s safety and the safety of those nearby. This is called a Terry frisk or Terry search. Courts have extended this procedure to traffic stops. During a Terry stop, police are actually allowed to search you and your car’s interior within your “grabbable areas.” This means, police can legally search your car’s backseat and glovebox (if it is unlocked). Basically, they can search anywhere that you could potentially “grab” something, such as incriminating evidence. In the case of Jordan v. State, the Maryland Court of Special Appeals noted that the Supreme Court has held that “a protective search of the passenger compartment of a car is permissible under Terry. In so holding, the court stressed a police officer’s need, during a Terry stop, to make a quick decision as to how to protect himself and others from possible danger. Jordan v. State, 72 Md. App. 528, 537, 531 A.2d 1028, 1032 (1987). However, the police cannot open your trunk if it is locked, as it is not considered “grabbable.” If you drive an SUV, though, police can search the back, as there is no barrier, or trunk.
If the police search your vehicle and do not find probable cause to believe a crime has occurred, the police do need to have a warrant to search a locked trunk unless you give them permission to search your vehicle without a warrant. The Maryland Court of Special Appeals found in Dixon v. State that “even if the initial seizure of appellant amounted only to a Terry stop, or instead constituted an arrest founded on probable cause, the State was not necessarily entitled to conduct a warrantless search of appellant’s trunk.” Dixon v. State, 133 Md. App. 654, 674, 758 A.2d 1063, 1073 (2000). If you take one thing away from this post, it is this: when you give consent to a search, police no longer need probable cause and you have essentially given up your Constitutional right under the 4th Amendment.
Even if you do not give your consent to a search, police can still search you and/or your car if they believe there is probable cause that a crime has happened based on things they can see or smell in clear sight in your vehicle. For example, if a police officer sees what appears to be drugs in your car, they may have probable cause to conduct a full search of your car without a warrant. Referencing the Carroll doctrine, the Court of Special Appeals observed in State v. Harding, “a warrantless search of an automobile stopped by police officers who had probable cause to believe the vehicle contained contraband was not unreasonable within the meaning of the Fourth Amendment.” State v. Harding, 166 Md. App. 230, 241, 887 A.2d 1108, 1115 (2005).
There is an exception to this rule, though. If you are arrested during a traffic stop and the police impound your car, they are legally allowed to inventory the items in your car without a warrant. It is the same principle as when someone is arrested and his or her personal effects—such as a wallet, jewelry, etc.—are taken, inventoried, and stored for safekeeping. The Court of Special Appeals summarized this procedure in Plitko v. State: “the making of an inventory of the contents of a motor vehicle by police officers following a lawful arrest of the owner or driver may not constitute a search in the constitutional sense where the evidence clearly shows that the making of such inventory was not a subterfuge to conduct an exploratory search but instead was a bona fide attempt to safeguard the owner of the inventoried property against loss.” Plitko v. State, 11 Md. App. 35, 38, 272 A.2d 669, 671 (1971).
“Well see how smart you are when the K-9’s come”
I got 99 problems but a *&%$# ain’t one
David Zwanetz is UNFORTUNATELY not associated with, sponsored by, or affiliated with S. Carter Enterprises, LLC or Roc Nation and the opinions expressed in this blog post are solely his own.