A traffic stop in essence is a seizure because the driver is not allowed to leave after committing a traffic violation. Once detained, certain Fourth Amendment rights apply to the rider regarding search and seizure. Almost at the top of the video the officer explains that the rider is not under arrest and he is not going to receive a citation. At that point, unless the officer observed any other criminal activity, had reasonable suspicion that the rider had committed a crime or was about to commit a crime, the rider should have been free to leave.
It was clear from the onset that this stop was more about gathering information, including photographic documentation of the rider, than it was about a traffic violation. The initial stop was legal, because probable cause existed when the officer saw the cyclist fail to use his turn signal. Relevant to the traffic stop, any investigation must be reasonably related to the cause of the stop, or it violates the Fourth Amendment standard of reasonableness as articulated in Terry v. Ohio2. The police can legally photograph you at a traffic stop under something called the “public exposure doctrine.” The problem here is that photographing tattoos or other distinguishable marks had no relation to the reason for the stop in the first place. Also, the question arises about how long this photo session extended or prolonged the traffic stop.
Unlike mug-shot books that contain photos of people “arrested” for various crimes that can be used in the future to identify further offenses committed by these people, photographs at the scene of a traffic stop or other field investigation, where no crime or arrest took place, are digitalized and can be stored in some database for future use.
In September 1994 in the town of Brandt, New York, a car failed to use a turn signal and was pulled over similar to what happened in Austin. The officer in this case had been monitoring radio traffic from the Lancaster Police Department about a possible assault that took place that morning at a racetrack in Lancaster when he noticed a car without of state license plates driving away from the direction of Lancaster. There was reasonable suspicion after the traffic stop to suspect the five men in the vehicle might have been involved in the Lancaster event, based on the fact the radio transmissions talked about motorcycle club involvement and the men in the car appeared to be motorcyclists. The traffic stop progressed into a criminal investigation when weapons were seen in plain sight within the vehicle. The men were photographed as were the weapons, and all five were arrested at the scene for weapons violations.
The photographs of the five arrested in Brandt were legal because an arrest occurred. The Austin case was different in that there was no arrest made. The “public exposure” doctrine means the expectancy of privacy does not exist when a person is in the public eye. That’s why photographing motorcyclists at events or a funeral using telescopic lenses or drones is perfectly legal. That is different than using telescopic lenses to peer through windows of a home to take pictures, where there is an expectancy of privacy. The same holds true about lifting a shirt to see tattoos on a chest or back that are not exposed to the public view.
The Austin traffic stop was a seizure in that the cyclist was not free to go. Instead, he was told to submit to photographs or he would be “taken” to the police station and photographed. A reasonable person at that point would not feel that he was free to go. This was not a consensual police contact, because the rider was held against his will, thus he was seized. For this stop to be constitutional, the reason for the stop had to be justified, which it was, and the continued detention and investigation had to be reasonably related to the reason the stop happened, which it was not. Reasonable articulable suspicion is a standard of proof necessary to justify the stop under Terry v. Ohio.
Police might reason that because there has been a history of problems, including in Texas, among motorcycle clubs, it was prudent to investigate any movement or activity of motorcycle club members. The problem with that thinking is the Sixth Judicial District Court of Nevada said any investigative technique employed at a stop must relate to the immediate reason for the stop, and police could not alter the nature of the stop. If police decided to photograph and “search” the rider without his consent because of some theory about motorcycle club violence, they altered the nature of this stop and it was unconstitutional.
Although it didn’t appear to happen in this case in Austin, another consideration is whether the stop was prolonged because of the investigative techniques employed. On this, the court is somewhat unclear. No actual time limits seem to have been adopted, although there is a reference in some cases that place the reasonableness between twenty and ninety minutes, depending on individual circumstances.
In conclusion: It is unconstitutional for police to stop a vehicle or pedestrian solely for the purpose of taking photographs and establishing identity without reasonable suspicion or probable cause that a crime had been or is about to be committed. If a permissible stop takes place, any further investigation has to be relevant to the reason the stop first occurred, unless other probable cause or reasonable suspicion is discovered during the stop. Police are allowed to photograph individuals or items that are in the public view. Removing clothing to see tattoos is not public, and doing so constitutes a search and is illegal unless consent is given.
1. https://www.facebook.com/motorcycleprofilingproject/videos/1071675339635527/
2. https://en.wikipedia.org/wiki/Terry_v._Ohio
3. http://www.innocenceproject.org/understand/Eyewitness-Misidentification.php
