Thoughts on a Traffic Stop (3): Do’s and Don’ts

Here’s the third part of my series, “Thoughts on a Traffic Stop.” Here’s Part 1, which is the backstory to the stop. Here’s Part 2, on fighting bureaucracy.

Lesson 2: Drivers should rehearse in advance how they’ll handle a stop.

Cops stop people every day. The average driver never stops anyone, and is not stopped all that often. It takes practice to do a good job at stopping someone or being stopped.  Since cops have the opportunity to practice everyday, they tend on average to be pretty good at conducting traffic stops (relative to their aims in conducting one). By contrast, the average person tends to be flustered even by the most mundane stop. Since stops are an inherently adversarial event, one imposed involuntarily on you, you should want to prevail against your adversary. You can’t prevail without practicing the strategy and tactics you intend to use against that adversary (or worse, without having either strategy or tactics). So you ought to practice. Rehearsing for traffic stops may seem paranoid or weird, but it’s not. If stops are predictable, consequential, and adversarial, there’s no excuse for no practicing how you’d handle one (or a series of different ones). In my view, no one should drive without know exactly how they’d handle a stop within the next five minutes.

That said, no matter how much you rehearse your plan for a police stop,  you’re unlikely to out-perform a cop who makes a dozen stops a day, every day. Despite my diligent planning and rehearsals for this particular stop, and despite the fact that it ultimately ended well, I was more impressed with Officer Gallagher’s performance during the stop than with my own. If I had to grade us for “Performance During a Traffic Stop,” I’d give Gallagher an A- and give myself a C+. I’m dismayed at how badly I did. So I’m humiliating myself here by telling you all about it.

Gallagher made one trivial mistake during the stop: he misread the NJMVC letter I gave him (he was reading it aloud for his body cam), and so, had to start from the beginning and re-read it for the benefit of the body cam. Otherwise, I can’t think of any mistakes he made. (At least I knew his body cam was on.)

My mistakes were both more numerous and more consequential. Here are four major mistakes I made in the course of a simple fifteen-minute stop. (I probably made a few more, but blocked them out.)

(1) I unbuckled my seat belt before the officer reached my vehicle, a big no-no. I had an “excuse” of sorts: I was trying to reach for my documents (registration and insurance), which weren’t easy to reach with a seatbelt on. So I unbuckled the belt in order to be a Good Boy and have the documents in hand for the officer’s arrival.

It’s a rookie mistake. When stopped, it’s common knowledge (or should be) that you (the driver) should sit absolutely still until the officer issues an explicit order to produce license, registration, and proof of insurance. At that point (and not before), you should (if necessary) unbuckle your seatbelt and carry out the order. This procedure eliminates any suspicion that you’re reaching for a weapon or contraband during the stop, and also eliminates the possibility of  being cited for not wearing a seatbelt. Ideally, your documents should always be put in a place that can be reached without having to twist or turn at all, and without having to unbuckle the seat belt. Ideally, you should keep your seatbelt on for the duration of the stop.

I was lucky Gallagher didn’t cite me for not wearing a seatbelt. He could easily have done so. He simply didn’t feel like it. In general, though, it’s not a good idea to rely on a police officer’s mood on the day of a stop.

(2) I usually put my driver’s license in the (unused) ashtray right in front of me, but this time I’d forgotten to do so, and had left my license in my wallet, in my coat pocket, on the (otherwise empty) passenger seat beside me. When asked to produce it, I had to reach for the coat, find the right pocket, unzip it, retrieve the wallet, retrieve the license from the wallet, and then hand it to the officer.

That’s a couple of steps too many. All of your driving-relevant documents should be immediately accessible–in the same place, every day, within easy reach. No exceptions. Don’t drive the car unless this is the case, and don’t make bullshit excuses for its not being the case. You shouldn’t have to do x, then y, then z to retrieve your license; you should simply be able to reach for what you need in one easy step, whether in daylight or in pitch darkness.  (And speaking of pitch darkness, make sure your dome light works. There’s nothing worse than fumbling around in the dark during a traffic stop. “Hang on, hang on, goddammit–it’s in here somewhere.” Bang!)

The thing to remember is that no matter how calm or practiced you think you are, come the day that you’re stopped, and see the flashing lights behind you (or worse, hear the order to pull over) you’ll be rattled. You’ll stammer, you’ll feel constriction in your chest, you’ll sweat, you might feel an urge to start crying or cursing. All of that is natural and unavoidable, and mostly can’t be helped. What can be helped is how you deal with it in advance of knowing that it’ll happen (it will happen–and it will happen to you, not the officer; the difference in demeanor is part of what makes the stop so discomfiting).* You want to make life as easy for yourself as possible. They will ask for your documents, and you must produce them. Make sure you can get past the easiest part of the stop in the easiest manner possible.

(3) While wiping some ice off of my door during the stop, I accidentally brushed too hard, and ended up brushing some of it onto Officer Gallagher’s shoes. (HFS.) This may seem comical (it is comical), but only because the officer took my clumsiness at face value, and ignored it. A different officer might have interpreted my pushing ice onto his shoes as aggression rather than clumsiness, in which case I’d have had a bigger problem on my hands than the inconvenience of a mere police stop. I got lucky in this case, but you don’t want the outcome of a police stop to depend on luck. So try not to brush ice onto the officer’s shoes, or anything similarly stupid.**

(4)  Officer Gallagher opened his interrogation*** with a predictably open-ended question, “Whose car is this?” Note the (deliberate) ambiguity of the question, designed to get the subject to fixate, defensively, on whatever it is that may be questionable about “whose car this is,” and to start blabbering about it in an open-ended way that matches the open-endedness of the question.  In other words, the point of a question like “Whose car is this?” is to induce the subject to start talking without a filter about the most legally questionable or contestable aspect of the subject under discussion. Most people are (falsely) under the impression that eager, candid answers to a police officer’s apparently ingenuous questions will quickly resolve the officer’s confusions, and reduce his suspicions, facilitating a quick and painless stop that leads to being “let go” without incident.

No, no, and no. Regardless of the officer’s demeanor–and Gallagher was entirely friendly and professional–a stop (any stop) is an adversarial encounter from start to finish imposed involuntarily on you. You’re being forcibly stopped so that, if at all feasible, you can be forcibly punished. There is no other motivation for the stop.

A stop is not a Socratic dialogue, an academic seminar, or a therapy session. It’s absolutely not the place to engage in the arts of suasion or persuasion. It’s not the place where you plead your case in the hopes of an impartial verdict. The officer likely has the answer, or thinks he has the answer, to every question he’s asking you. He checked the answers before he walked up to you. He’s not asking you questions to make novel and unexpectedly exculpatory discoveries about what he thinks you’ve done. He’s asking questions to confirm a hypothesis about you that he already regards as true. It’s not at all conspiratorial or paranoid to think that he’s “out to get you.” He is out to get you. That’s why he stopped you (so he’s already gotten you). And that’s why, if you try to leave in the middle of the stop, or otherwise defy his orders, he’s ultimately empowered to kill you.

Put another way, he’s asking you questions to trick you into making a self-incriminating admission, the kind of thing that makes convicting you of a crime or infraction much easier than it would otherwise have been. Whether he reads your Miranda rights to you or not, they apply (with certain provisos that I’ll discuss in my next post), and everything you say can and will be held against you. Worth remembering that there is no a priori reason to think that if something you say exonerates you, it will be noted in your favor. Maybe it will, maybe it won’t. But don’t be  surprised when it doesn’t.

What often happens during interrogations is that naive and overly conscientious subjects accidentally incriminate themselves in the process of what they take to be a process of exoneration. Their inadvertent admissions then become the basis for a citation or criminal complaint (despite any ambiguities in the assertion that mitigate its value as an admission). My own considered view is that a subject under custodial interrogation or investigative detention (including a traffic stop) should always treat non-cooperation as the default from which any deviation requires a special, fool-proof justification, one that’s explicitly articulated to oneself before it’s adopted. Silence should be the default, not talking; refusal to consent to a search should be the default, not consent to one.

But one doesn’t always follow one’s considered view, and I didn’t this time. Instead of remaining silent, I talked my ass off. Instead of refusing consent to a search, I willingly handed NJMVC’s letter to the officer, hoping it would clear everything up. Enthusiastic cooperation happened to work out well this time, but it’s a very iffy, chancy strategy to follow. I’m not sure how it could have gone wrong in this particular case; I only know that it could have gone wrong by some process I have yet to imagine. That said, there’s a bit of a dilemma in cases like this: invoking a right against self-incrimination and refusing consent to search (i.e., to read the NJMVC letter) might have been counterproductive in this particular case. I’ll address the legal complexities in my next post.

Here’s a simple concluding thought. As I’ve said, cops rehearse the script they intend to follow during a traffic stop. Most drivers not only don’t rehearse, but wouldn’t know how to begin rehearsing what needs rehearsal. Yet traffic stops are a common occurrence. They’re also an adversarial proceeding with consequences ranging from false accusation to death. It’s just plain stupid to fail to prepare for an event as predictable and consequential as that.

As suggested here, drivers tend, even with rehearsal, to be outmatched by cops in traffic stops. But there’s outmatched and there’s outmatched. It’s one thing to be prepared and outmatched; it’s another thing to be completely unprepared for how outmatched you end up being. You’d think that proper comportment during traffic stops would be a part of Driver’s Ed, but incredibly, it isn’t.**** Our schools have been so co-opted by pro-police propaganda that we’ve now come to think of police officers, through the efforts of “Community Policing,” as parental figures there to teach us the rudiments of morality, to keep us out of trouble, and above all, to keep us in line–with the Blue Line.*****

That has to stop. Starting in junior high school, students should be taught, explicitly, that their relationship with the police is both rule-governed and adversarial. They should be taught to play by the rules, but they should be taught about ambiguities in the rules, and above all, they should be taught to win by the rules. Victory in a police stop is far, far more consequential than the inconsequential victories won on the athletic playing field. If we spent half the energy on drilling students in how to deal with traffic stops that we spend on varsity sports (especially football), we would be living in a different, and much healthier moral and legal universe. But don’t expect changes any time soon. The people who prefer athletics to civil rights are the ones under the delusion that traffic stops are an inconsequential affair, and who believe that if you just obey the law and tell the truth, you’ll be fine. Only an idiot would take that gamble. But the world is full of idiots who would.

*And yes, it’s deliberate.

**Sometimes it’s not stupid; people just do odd things under duress. A friend of mine, on being asked for license, registration, and proof of insurance after a minor accident, took the documents out, ripped them up, and placed them in the officer’s hand. She was in shock after the accident (and was taken that way by a particularly sensitive officer), but could easily have been interpreted as defying the order.

***Questions asked when you’re involuntarily stopped are part of an interrogation, and should always be called that–interrogation, not “interview.”

****Driver’s Ed is mostly about passing the license exam, which is itself a pro forma exercise in rule-following. Same with “defensive driving classes,” which are decidedly not focused on how to defend oneself against over-zealous traffic enforcement. Online Driver’s Ed has made a travesty of what was itself previously a pathetic joke. Even worse, Driver’s Ed itself seems to be falling by the wayside.

*****For typical examples of prevailing attitudes, see this, this, and this. There seems little appreciation in this “literature” that the basic function of a School Resource Officer is to arrest and if necessary kill the students under one’s wardship. I reiterate the view I’ve expressed here before: either Community Policing should be banned from the schools, or Community Policing should have to compete with civil libertarians for time spent with students.

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