By Scott Carter
Recently, the Department of Public Safety and the Oklahoma Highway Patrol have come under fire because of their ERAD card reader program. On June 17, Gov. Mary Fallin asked DPS Commission Michael Thompson to stop the program until better policies could be developed.
However, even with the suspension of the program, the standards of probable cause and reasonable suspicion remain.
“Oklahomans should fully understand just what ‘reasonable suspicion’ and ‘probable cause’ mean,” said Ryan Kiesel, executive director of the American Civil Liberties Union of Oklahoma. “It’s a pretty low bar.”
Because those standards often come into play during a seizure action, the ACLU of Oklahoma reached out to Professor Joseph Thai, a professor of Constitutional Law at the University of Oklahoma College of Law to help explain them.
Question: The OHP says they are using the ERAD card reader program to fight identity theft and drug trafficking. OHP officials say they don’t ask for this information unless they have a ‘reasonable suspicion’ of illegal activity. Can you tell us what they mean by ‘reasonable suspicion’?
Professor Thai: It's a low bar, just above a bare hunch. The Supreme Court requires "specific and articulable facts" to support an officer's suspicion. Any officer with an iota of imagination can come up with reasonable suspicion in most encounters. For example, "unnaturally prolonged eye contact" is a fact that officers cite to construct "reasonable suspicion," but "unnaturally avoiding eye contact" is also used to satisfy the standard. And a few facts may suffice. One case held that unprovoked flight at the sight of officers in a "high crime area" constitutes reasonable suspicion--never mind that residents of poor neighborhoods, including minorities disproportionately subject to aggressive stops and frisks, may have good reasons for avoiding encounters with officers. So basically, in a poor neighborhood, the bar even is lower and one fact on top of "high crime area" may be all an officer needs to forcibly detain someone for investigation.
Question: So just what is the difference between the ‘reasonable suspicion’ standard and the ‘probable cause’ standard and how does that apply to me when I’m driving down I-35?
Professor Thai: Probable cause is a "fair probability" that a crime (e.g., a traffic infraction) has been committed. Probable cause is not much higher than reasonable suspicion. It is below the civil liability standard of "preponderance of the evidence" (i.e., more than a coin toss), and worlds away from the criminal conviction standard of "beyond a reasonable doubt." Probable cause gives an officer the legal authority not just to stop someone to investigate, but moreover to arrest and jail someone.
On the highways, if an officer witnesses someone going over the speed limit by as little as one mile per hour, or forgetting to signal before changing lanes, or encroaching into another lane for a second, or not keeping a safe distance from another car, then the officer has probable cause to stop the driver and--at the officer's discretion--give a warning, issue a citation, or escalate to a full-blown arrest.
Because anyone who drives commits traffic infractions, anyone who drives is fair game and an easy target for an officer who wants to pull them over. So it is hardly reassuring for OHP to say that it won't pull someone over or use the card readers without "reasonable suspicion."
Question: If the OHP say they have a ‘reasonable suspicion’ that I’ve done something illegal can they arrest me?
Professor Thai: Not based on reasonable suspicion, but with probable cause, an officer has complete discretion whether or not to arrest someone pulled over. And as explained above, witnessing someone committing a minor traffic infraction--even one that is punishable only by fine--suffices to establish probable cause.
Question: Am I required to answer a law enforcement officer’s questions if they tell me they have ‘reasonable suspicion’ that I’ve have done something illegal? I thought I had the right to an attorney.
Professor Thai: Some older case law suggests that someone stopped does not have to answer any investigatory questions, but more recent precedent permits states to make it a crime not to identity yourself upon request at a lawful stop. But beyond identification, you can invoke your 5th Amendment privilege against self-incrimination to refuse to respond to investigatory questions.
Of course, the officer holds all the cards because you can be arrested if the officer already has probable cause (say, if you were pulled over for speeding). So asserting your right to silence can come at a high cost. It may be unconstitutional for an officer to arrest you for invoking your constitutional rights, but as long as the officer can cite some crime that you've committed, the arrest would be legal.
Question 5: So if I’m stopped and an OHP officer says he had a 'reasonable suspicion' that I’d done something illegal, what should I do?
Professor Thai: Be polite, but do not waive your constitutional rights. Provide identification and insurance, which an officer can request, but do not consent to a search and be aware that you can also invoke your right to silence to further questioning.
Once the officer gives back your documents, you should be free to leave. Ask if you in fact are. An officer may later claim that you stuck around "voluntarily" if you do not get express confirmation.
Record the entire encounter. You have a 1st Amendment right to do so as long as it does not interfere with the officer's investigation. (If the officer asserts that it does, ask how you may do so without interfering, and if the officer persists in demanding that you stop recording, lock your phone so that the recording of that demand cannot be erased.)