In this article...

In this article, we will explore traffic stops from the perspective of the passenger, examining what behavior is acceptable and what to avoid.  Specifically, we will look at: What are a passenger rights in a traffic stop in Wisconsin?, Can passengers be detained in a traffic stop in Wisconsin?, What should I do if I am arrested as a passenger in a traffic stop in Wisconsin?, and What are a passenger rights in a traffic stop in Wisconsin?

While perfectly mundane, being pulled over by the police is always stressful.  This can be even more so if you are simply along for the ride, as a passenger in a car that has been stopped by the police.  You might wonder, what are your rights as a passenger in a traffic stop in Wisconsin, considering you were not the one driving?  Passenger’s rights are just as important as the rights of the driver and being aware of what you can and cannot do during a routine traffic stop can help manage the stress of this tense interactions and avoid serious negative fallout.  In this article, we will explore traffic stops from the perspective of the passenger, examining what behavior is acceptable and what to avoid.  Specifically, we will look at:

  • What are a passenger rights in a traffic stop in Wisconsin?
  • Can passengers be detained in a traffic stop in Wisconsin?
  • What should I do if I am arrested as a passenger in a traffic stop in Wisconsin?
  • What are a passenger rights in a traffic stop in Wisconsin?

Generally speaking, you can understand a passenger as having largely the same rights as a driver who has been pulled over by the police, with a few notable extras reflecting the fact they may not be under any suspicion of wrongdoing. The following list is not comprehensive, but will give you a good basis of how to behave during a traffic stop, we will begin with the most important:

The right to remain silent.

A right so important it is now ubiquitous due to the reading of Miranda rights in TV police procedurals, it none the less bears repeating that you always have the right to refuse questioning, and this also goes for when you are a passenger during a traffic stop.  One thing to keep in mind, police do not need to inform you of this this right until they are being formally arrested, so they will not begin a traffic stop by letting you know you can reject their questions.  However, at no point during a traffic stop do you need to answer police questioning.  If the traffic stop was initiated due to a failure to follow traffic laws, the right to remain silent extends to even questions regarding your name and identification.  This due to the fact there is no basis for suspicion in a stop for traffic law violations against the passenger, as they were not the party who was driving.  As such, you can decline to identify yourself in such situations, informing the police you are availing yourself of your right to remain silent.  You cannot be arrested for simply refusing to identify yourself when questioned as a passenger in a stop related to a traffic violation.  Note, the right to remain silent, along with all the other rights in this list, is not a blank check to engage in rude or disrespectful behavior towards the police.  Engaging in such behavior will do the party who is pulled over no favors and depending on the severity of your response could even open you up to further detainment or arrest.  Remain polite, but firmly invoke your right to silence, using language along the lines of “As I am not under suspicion of a traffic infraction, I am availing myself of my right to remain silent.”

The right to not be unreasonably searched.

Suspicion of a traffic violation is not reasonable grounds for a police officer to search a vehicle during a routine stop in Wisconsin.  This is doubly true for the passenger, who is ostensibly under no suspicion of a criminal or civil infraction, as they were not driving.  In some situations, it may be appropriate for a police officer to check your person for weapons, but outside of this narrow scenario generally speaking there is no basis for the police to search a passenger during a traffic stop.  Keep in mind that this is a right you may need to positively avail yourself of.  What this means is you may find yourself being subject to a search at the police officer’s whim, and you will need to inform them that you absolutely do not consent to a search of either your person or the vehicle.  Again, just as with the right to remain silent, you should always be polite with the police, while firmly and clearly availing yourself of your rights.  There are a number of situations in which a police officer can search a vehicle during a traffic stop, namely in the case of serious emergencies that require the officer to look through the vehicle for the safety of the passengers, in situations where contraband such as illicit drugs or weapons are in plain sight of the officer, when the smell of the vehicle makes it obvious cannabis is being transported or consumed by the passengers, or importantly when the officer has consent of either the driver or passenger.  This last scenario is why it is important to never let a police officer bully or threaten you into allowing a search of your vehicle, as while you have the right to refuse you can waive this right.  Do not physically resist the police officer, however clearly state “I do not consent to a search of my person or the vehicle,” in a calm but serious tone.

The right to object to an unreasonably long traffic stop.

If you are in a vehicle that has been pulled over, you should be aware that the police can only detain the vehicle for what is considered a reasonable amount of time.  For a simple traffic violation, this is not a significant amount of time, corresponding to roughly how long it takes to question the driver, run a background check, and deliver a traffic ticket or warning.  Anything seriously beyond this time period qualifies as legally unreasonable, and as a passenger in a traffic stop you can object to such a detainment of the vehicle.  Note, justifications on the part of the police such as waiting for a drug unit to inspect the car from outside do not form a reasonable basis during a routine traffic stop, without a valid reason for suspicion.  This again may be a time when you need to politely but firmly invoke your rights, saying something along the lines of “officer, are we under arrest or suspicion for a crime, if not are we free to go?” Never attempt to convince the driver to leave until you have affirmative confirmation from the police you are free to go, as an attempt to end detainment where the police do have reasonable suspicion to detain you could leave to serious charges.  

The right not to share information regarding a lack of documentation.

This can be understood as a subsection of the right to remain silent, but it is so critically important that a passenger in a traffic stop understand they have this right it warrants its own discussion.  It is possible that during a traffic stop, a police officer might pick up on queues that would lead them to believe the occupants of the pulled over vehicle lack legal documentation to lawfully be in the United States of America.  This could lead to a line of questioning in which an officer would demand or request identification on the part of the passenger.  In a routine stop related to a traffic violation, there is no reasonable grounds for the police to raise this line of questioning.  As the passenger, you are under no suspicion of wrongdoing, and as such do not need to answer any line of questions, provide any identification on request or demand, or provide proof of legal immigration status.  The police are not able to arrest you for simply refusing to identify yourself.  However, if you engage with the police officer and reveal any information regarding your status, this can be used by the police or Immigration and Customs Enforcement to take legal action against you, including deportation should be found to be in the country illegally.  

Can passengers be detained in a traffic stop in Wisconsin?

A traffic stop for the purposes of the United States’ Constitution constitutes a “seizure,” as the vehicle and its occupants are necessarily under the authority of the police for the duration of the stop.  The Fourth Amendment provides Americans protection from unreasonable seizures, i.e. baseless interference by government authorities, and this extends to detainment by the police.  It begs the question then, given that a passenger in a stop for a traffic violation has violated no law, and generally speaking could not reasonably be suspected of violating a law simply based on the driver’s behavior, would the police forcing the passenger to remain in the vehicle for the duration of the stop qualify as an unreasonable seizure?  This interesting legal question has made its way to the highest legal authority in the country, the United States Supreme Court.  In Maryland v. Wilson, the Court balanced the rights of the passenger in a traffic stop to be free from unreasonable seizure, against the safety of the police officer making the stop.  The idea is that someone leaving the vehicle splits the officer’s attention, opening them up to a potentially dangerous situation in which they have to handle multiple angles.  Ultimately the Court held that the immediate safety of the officer outweighed what they believed to be the minor infraction of liberty suffered by the passenger of the vehicle during a traffic stop, granting police the authority to detain the passenger for the duration of the stop.  Subsequent Circuit Court proceedings have solidified and expanded on this ruling.  More recently, US V. Williams saw the 9th Circuit Court of Appeals unequivocally find that an officer can force a passenger to return to their vehicle during a traffic stop, and in 2009 the Supreme Court again upheld their ruling in Arizona v. Johnson.  As such you can be detained by the police during a traffic stop, even for a simple traffic violation.  That being said, as being pulled over does qualify as a seizure under the Fourth Amendment, the initial stop must have been reasonably motivated by a grounded suspicion on the part of the police.  As you are being detained, you do have a right to challenge the lawfulness of the detainment at any point during the stop, keeping in mind to always do so politely.  You should be aware however that it is not terribly difficult for the police to justify a routine traffic stop, as any common traffic violation such as slightly speeding could serve as a lawful basis.

What should I do if I am arrested as a passenger during a traffic stop in Wisconsin?

The most important thing to do is contact a qualified Wisconsin criminal law attorney to advise you on your situation.  Each criminal proceeding has its own circumstances, and you will need good representation to navigate this process.  You should make a formal request at the time of your arrest to contact your attorney and should be allowed to do so via telephone.  The second most important thing to do is refrain from making your situation worse by not remaining silent.  Always remember you have the right to remain silent, and beyond identifying yourself there is no requirement you communicate with the police.  You can only incriminate yourself by offering explanations or excuses, speaking to your attorney, and letting them communicate with the police on your behalf is always in your best interest.  Police are not allowed to continue a line of questioning after you have formally request an attorney in response to their questioning, but you can inadvertently waive this right by deciding to subsequently answer their questions.  If the police can make a compelling argument that you were aware of your rights, and this will be the case if they have read you your Miranda rights at the point of your arrest, and you knowingly waived these rights by answering their questions, any information you provided them is admissible in your trial.

Request a consultation with an experienced Wisconsin criminal law attorney.  

The qualified Wisconsin criminal law attorneys at O’Flaherty Law are ready to fight for you in your criminal case.  We know the process and can help you reach a better outcome, advising you on when to fight and when to settle.  Call our office at (630) 324-6666, email info@flaherty-law.com, or schedule a consultation with one of our experienced Wisconsin lawyers today. You can also fill out our confidential contact form and we will get back to you shortly.  

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