Recording at the Traffic Stop: First Amendment, Frisk, and Consent
At 2:15 a.m., you stop a sedan on Georgia Avenue NW for a broken taillight and a failure to signal. The driver, 28, is calm and keeps his hands on the wheel. The passenger, 24, is holding a phone and recording the stop. The driver produces a valid license and registration; the car is registered to the passenger. You smell burnt marijuana, but you see no smoke, no paraphernalia, and no sign of impairment. The passenger says, 'You can't search, and you can't make me stop recording.' The driver says, 'It's not my car; I don't care.' While you are talking, the passenger twice reaches toward the glovebox, then stops when you look at him. You have not seen a weapon. You want to frisk the passenger and search the car. A second unit is nearby but not on scene. The passenger's phone is in his hand, not concealed.
1. Can you order the passenger to stop recording or take the phone? Explain.
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No. The passenger is recording from a lawful vantage point and is not physically interfering. The First Amendment generally protects the right to observe and record police performing public duties, and the District has no statute that makes recording a stop a crime. MPD policy does not authorize seizing a phone merely because it is recording. I may ask him to keep the phone steady or to step back for safety, but I cannot order him to stop recording or take the phone without a warrant, consent, or a genuine exigency such as the phone being used as a weapon or to coordinate an attack. If he refuses to comply with a lawful safety order, I should articulate the specific safety concern and use the least intrusive response. The recording may actually protect everyone; my report should note that he was recording and that I did not seize the phone. I should avoid turning a traffic stop into a First Amendment confrontation.
2. Do you have reasonable suspicion to frisk the passenger? What can you do?
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A frisk of the passenger requires reasonable suspicion that he is armed and dangerous, not just that he is nervous or reaching. The two reaches toward the glovebox are specific and repeated, and the glovebox is within his reach. That may justify a protective search of the passenger compartment for weapons under Michigan v. Long if I can articulate that he poses a danger: late hour, dark road, unknown occupants, repeated movement toward a compartment that can hold a weapon, and the driver's and passenger's conflicting statements about the car. I would order him to keep his hands on the dashboard, ask him to step out, and frisk him only if the totality supports it. The frisk is limited to weapons; if I feel an object that is immediately identifiable as contraband, I may seize it. A protective search of the glovebox is also limited to weapons and must not become a full evidence search. If the frisk and protective search are negative, the odor of burnt marijuana alone should not be treated as automatic probable cause to search the whole car, because adult possession of small amounts is lawful in DC; I need additional facts.
3. The driver says, 'It's not my car; I don't care.' The passenger is the registered owner and objects. May you search based on the driver's consent?
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No. The driver is not the registered owner and says he does not care, which is not the same as voluntary consent. Consent must come from a person with common authority over the vehicle, and even then the passenger, as the registered owner and present co-occupant, can object and limit the search. The passenger has already said 'you can't search.' The driver's ambiguous statement cannot override the owner's objection. I could ask the passenger for consent, but he has refused; I should not argue or threaten. If I develop independent probable cause, the automobile exception may allow a search, but I must be able to articulate it. Otherwise, I should finish the traffic stop and document the refusal. If I search anyway, the evidence may be suppressed and the stop may become a civil-rights issue. The report should quote the driver and passenger accurately and note who had authority.