NCJ Number
187494
Journal
American Criminal Law Review Volume: 37 Issue: 3 Dated: Summer 2000 Pages: 1143-1164
Editor(s)
Stacey E. Ostfeld
Date Published
2000
Length
22 pages
Annotation
The author believes that the U.S. Supreme Court's treatment of routine traffic violations stops in the context of fourth amendment non-custodial arrest doctrine has been confusing and inconsistent and that some lower Federal and State courts have incorrectly regarded such stops as Terry stops requiring only reasonable suspicion, even though the U.S. Supreme Court has held probable cause is required for such encounters.
Abstract
Some State courts have recognized a routine traffic stop is a non-custodial arrest but have done so primarily on the authority of State statutes rather than the fourth amendment. The U.S. Supreme Court has created this confusion by failing to explicitly recognize the constitutional doctrine of non-custodial arrests and by comparing routine traffic violation stops to Terry stops. This comparison is misleading because a routine traffic violation stop differs in several significant respects from an investigative stop. For example, a traffic violation stop requires probable cause, a higher degree of suspicion than is required for a Terry stop, and a traffic violation stop may last longer than would be permissible for a Terry stop. In addition, traffic violations are completed offenses that are too petty to justify an investigative stop. Because the U.S. Supreme Court has clearly recognized traffic violation stops are not custodial arrests, Miranda warnings do not need to be given during a traffic violation stop because a motorist pulled over to the side of the road is not in custody for purposes of the fifth amendment, and a police officer may not perform a search incident to custodial arrest during a traffic violation stop unless a vehicle occupant has been taken into custody. Since traffic violation stops are not investigative stops, custodial arrests, or consensual encounters, courts should recognize the fourth type of police-citizen encounter, the non-custodial arrest. 139 footnotes