Probable cause can be manufactured. Here's how:
- Click here for the article.
Once an officer has written a ticket and completed the legitimate purpose of the traffic stop, the motorist must be released unless 1) there is reasonable suspicion of further crime like drug activity or 2) the driver gives consent to stay and chat (or have their car searched).
What the ACLU is calling the “Kansas Two-Step” is the practice of handing the driver their ticket or warning, taking two steps toward their patrol car, then turning around again and asking the driver if they don’t mind answering a few more questions:
The idea is that, if the driver says, “sure,” then the traffic stop turns into a consensual encounter. It is no longer a detention because the driver is now agreeing to hang around a bit longer. Therefore, there is no Fourth Amendment violation.
Most people, unwilling to rock the boat and risk making the guy with a gun mad at them, will simply agree. When a person doesn’t agree, the officer detains them anyway and calls for a K-9 unit if one is not already there.
If drugs or money are found, the motorist can’t challenge the search because they consented to it. If no drugs or money are found, no harm done, right? The motorist goes on their way and the officer moves on to the next black or brown person in a rental car with out of state tags…
When the officer completes the legitimate traffic stop and attempts to initiate a second, consensual encounter, they will usually give some version of “the speech.”
“We’ve been having a lot of trouble out here on the interstate with drugs and guns, you don’t have anything like that in your car, do you?” (No, sir, I don’t) “Well, then, you won’t mind if we have a look, would you?”
At this point, with few exceptions, the officer is going to search the person’s car. The only questions are 1) Does the officer have probable cause to search, or 2) did the person consent to the search?
If a motorist refuses consent to search their vehicle, the officer will probably either 1) wait for a drug dog to arrive that will give him probable cause to search or 2) search anyway. Then it will be a matter for the courts as to whether the officer had a “reasonable, articulable suspicion” that justified searching the vehicle.
Manufacturing Probable Cause
The officer will usually ask questions, not to be friendly and chit-chat, but to manufacture probable cause to support their search of your vehicle. Where are you from? Where are you headed? How long are you staying there?
These sound like normal, conversational icebreakers. Except, if you answer [insert any large city], and that you stayed a few days, the officer will make a note that you are traveling either to or from a “major drug hub,” and that they did not observe any luggage in your vehicle – this will later somehow become probable cause that you are a drug trafficker.
If there is a passenger in the car, they might ask them questions separately – any deviation in their response from your responses will be seen as probable cause to search.
What are some facts cited by SC police as probable cause to search? The driver appeared nervous;
- The passenger appeared nervous;
- I observed the driver’s heartbeat pulsing through his shirt;
- I observed the driver’s pulse beating in his neck;
- Air fresheners were hanging on the rear-view mirror;
- They were driving a rental car;
- They were driving a car with out of state tags;
- The driver and passenger’s stories didn’t match;
- There was no luggage in the vehicle; or
- The driver was traveling either to or from a “major drug hub” (any large city in the United States).
All of this is conduct that describes ordinary, law-abiding citizens just as it could describe a drug trafficker.
