Nervousness Can Attract, Heighten Police Suspicion

Two men suspected of involvement in an identity fraud ring were arrested by officials with the Transportation Security Administration at the Fort Lauderdale-Hollywood International Airport, after officials say the men were “acting nervous.” selfportrait1.jpg

Officials refused to say what exactly the men were doing that drew suspicion, but said they were clearly exhibiting behaviors that increase when trying to suppress high stress levels. As a result, the men were searched and TSA officials found envelopes containing numerous debit cards and lists that contained hundreds of names, birth dates and Social Security numbers.

Our Fort Lauderdale felony defense lawyers know that nervousness is almost status quo when folks encounter police officers or those who hold some position of authority. While these two may have had reason to be fearful of discovery, a display of fear alone should not be considered the sole probable cause for a search.

Of course, different rules apply to individuals who are boarding a plane versus someone on the street. Even when we are in public, we can expect a certain degree of privacy. However, individuals who enter an airport to board a plane should expect that their property and persons will be thoroughly searched as a condition of getting on the aircraft. Trained dogs also routinely patrol airport facilities in order to sniff out drugs, weapons and explosives.

When you are on the street, however, you do have the right to refuse a search. That doesn’t mean an officer won’t follow through anyway if he or she believes there is probable cause to do so, but it will give your attorney some leverage in court if that probable cause is later found to be faulty.

Nervousness displayed on the part of a person being stopped is often a key factor for police in deciding whether someone has something to hide. It’s often pointed out in arrest reports and affidavits.

Aside from the fact that perceptions of a person’s nervousness are highly subjective, the definitions of it can vary greatly among agencies and between officers. It could be sweating, fidgeting, your lack of cooperation, hands shaking or voice wavering. But again, there could be many other reasons for this (it’s hot, you have a medical condition, etc.)

An appellate court in North Carolina recently ruled that nervousness alone is not enough of a basis for officers to initiate a traffic stop. In North Carolina v. Canty, the court of appeals determined that an officer can’t determine a person’s degree of nervousness when they are traveling 65 miles per hour.

In that case, deputies set up a speed trap along the highway when a green minivan passed. The vehicle was initially traveling at 73 miles per hour in a 70 miles per hour zone, though it slowed to 65 miles per hour, presumably when the driver spotted the officer. Two officers testified that in addition, both the driver and passenger stared straight ahead and appeared nervous as they passed.

Officers stopped the van and later said that the occupants would not make eye contact. The officers would later say that the vehicle drove left of center, though dash cam video proved that account false and didn’t reveal any indication of unsafe driving.

The driver was given a warning and then consented to a search, at which time officers discovered two firearms in a suitcase that belonged to the passenger. He was then arrested and convicted for being a convicted felon in possession of a firearm.

However, that conviction was subsequently tossed because the officers’ entire basis for the stop – that the driver and passenger were “nervous” – was not something they could have judged in a vehicle that was zooming past them. Given that the defendant’s attorney never raised this issue during the first trial, the court ordered a new trial during which another attorney would likely be successful in filing a motion to suppress the evidence.

Because this case happened in North Carolina, it doesn’t have any direct effect on us here, but the same logic could be applied in a number of traffic stop arrests here in Florida.

The bottom line is it’s normal to be nervous if you are approached by an officer of the law. There is an inherent imbalance of power, with the officer having the power to ticket or even arrest you.

In general, here are some things to keep in mind the next time you encounter law enforcement:

1. Don’t talk. You may have to provide the basics: Your name, your date of birth, your license and insurance card. Beyond that, you don’t need to answer any questions. Doing so usually just makes it worse. Be polite, but firm.

2. Do not run away. This is considered the epitome of nervous behavior, and it will usually result in you facing additional charges. Follow officer instructions. Building a defense can be tougher if you run or resist arrest.

3. Don’t believe what the police are telling you. It’s legal (and common) for police to lie to you in order to get a confession. They will tell you that your friend has already confessed to your role. Simply refuse to talk until you have had the opportunity to confer with your defense attorney.

4. Don’t look in areas where you don’t want police to look. They will pick up on that glance you gave to the console or trunk. Look down and stay quiet.

5. It’s natural to be nervous. Accept that. Take a deep breath. Don’t let your nerves cause you to try to talk your way out of a situation. Let us do that for you.

If you are charged with a crime in Palm Beach or Broward counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.

Additional Resources:
TSA: Nervous actions tip screeners to suspected fraudsters, Feb. 28, 2013, By Linda Trischitta, Sun Sentinel
More Blog Entries:
Police Testimony Requires Tough Scrutiny, Feb. 20, 2013, Fort Lauderdale Criminal Defense Lawyer Blog

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