Traffic Stops Generally, a Traffic Stop Consists

Traffic Stops

Generally, a traffic stop consists of an officer placing a person in custody pursuant to the authority in the Texas Transportation Code for a violation of a traffic law contained in either the Transportation Code or a local ordinance. Unfortunately, the statutory framework and the case law encourage confusion. Among the most perplexing problems in this area is that of determining how a particular detention is best characterized for purposes of legal analysis. What are often characterized as traffic stops are in reality stops made to investigate suspicions of other offenses. Usually, a traffic stop is based on action taken while driving or at least operating a motor vehicle. This need not be the case, however. Chapter 552 of the Transportation Code, for example, is titled, "Pedestrians" and prohibits some actions that can be taken on foot (Texas Statutes, 2009).

Given the confusion between arrests and detentions to issue citations, the subject is further muddled a law enforcement officer's decision to issue not a citation but a "warning" or to make a stop for that purpose. The matter is complicated by the complete lack of any provision for or reference to such warnings in the Code of Criminal Procedure or the traffic statutes (Melton, 2010). An officer has discretion in regard to traffic offense situations that includes not only to issue a citation or make a custodial arrest but also to take informal actions such as issuing of a warning. If a traffic stop is otherwise proper, a showing that the officer during the stop decided to neither arrest nor issue a citation and instead issue a warning is of no significance (Farrell, et al., 2010).

If the evidence shows that an officer made a stop intending to issue a warning rather than issue a citation or make a custodial arrest, this similarly should have no effect. The standard for determining the propriety of the stop should be no different. The stop itself should not be regarded as necessarily suspect for this reason (Ibid).

"Any peace officer may arrest without warrant a person found committing a violation of [Subtitle C ("Rules of the Road") of Title 7 of the Transportation Code]" (Texas Statutes, 2009, Trans. Code sec. 543.001). This basic statutory authorization for traffic stops is widely regarded as requiring that an offense be committed within the view of the officer (Farrell, et al., 2010). An officer who makes an "arrest" under section 543.001 must either immediately take the person before a magistrate or issue the person a "written notice to appear," generally referred to as a citation or ticket (Texas Statutes, 2009, Trans. Code secs. 543.002-003). A citation is mandatory if the offense is speeding or violation of the open container law, unless the person is a resident of another state or is operating a vehicle licensed in another state (Farrell, et al., 2010).

If the person arrested is issued a citation, the person must by signing the citation in duplicate make a written promise to appear in court as specified in the citation. When the person signs the citation, the officer retains the original and delivers the copy to the person arrested. "The officer shall then promptly release the person [arrested] from custody" (Texas Statutes, 2009, Trans. Code sec. 543.005). Although the Transportation Code uses the term "arrest" to describe the process by which a person is detained and later released pursuant to a promise to appear, it is clear that this procedure involves what both the courts and common usage refer to as a "traffic stop." Even though the statutory language requires that the detention involved be labeled an arrest, it is not the sort of "custodial arrest" that subjects the person to the incidental searches allowed by Fourth Amendment law (Farrell, et al., 2010).

The Transportation Code's authorization for the "arrests" that constitute traffic stops does not make clear the basis required of the officer to justify the detention. In fact, the language of the provision suggests that the arrested person must have actually committed the offense and be "found" doing so by the officer " (Texas Statutes, 2009, Trans. Code sec1. 543.001). A traffic stop is not permissible if it was made for what the officer mistakenly believed was a violation of law because the officer misunderstood the law (Farrell, et al., 2010).

Whether grounds for a traffic stop exist depends not only on the information available to the officer making the stop but also on the substantive content of the laws governing operation of vehicles and other uses of the public roads. Traffic offenses are traditionally drafted in rather flexible form. Critical examination of them sometimes shows that they cannot always be construed as broadly as has been assumed (Farrell, 2010).

While it is difficult to make generalizations, developing law makes it clear that law enforcement officers can use traffic stops for non-traffic purposes, free of concern that their actions will be condemned as pretexts (Farrell, 2010). A stop provides an opportunity for inquiry and observations ranging beyond the motorist's driving habits. It permits the officer to require all occupants of the vehicle to get out and -- under existing law -- a custodial arrest of the driver. Traffic stops may be used for what some regard as questionable or outright offensive purposes; they unquestionably can have considerably intrusive consequences for not only drivers but also passengers. As a result, courts are sometimes persuaded that law enforcement authority to make such stops can be limited by careful and rigorous construction of the statutes creating and defining the traffic offenses for which such stops can be made (Farrell, 2010).

Quite frequently, at some point during interaction between a stopped motorist and an officer, the situation ceases to involve a detention or seizure of the motorist and rather became a no-seizure situation. In such a no-seizure situation, the motorist freely agrees to remain with the officer and at least listen to the officer's questions and perhaps requests for further cooperation. Such requests often involve solicitation of consent to search the vehicle (Farrell, 2010). How is one to determine whether the traffic stop ended and, if so, when the situation became a voluntary discussion between the formerly-detained motorist and the officer?