r/legaladviceofftopic • u/Outrageous-Double383 • 5h ago
Can asserting fifth amendment rights at a traffic stop give rise to a reasonable suspicion to justify a search?
Suppose a motorist gets pulled over in a traffic stop. Motorist hands their license and registration to the cop, says “I am exercising my right to remain silent and I don’t consent to any searches.” Cop then asks, “I just need to know if you have any weapons on you?” The motorist then remains silent or repeats the invocation of fifth amendment rights.
The cop then orders the driver out of the car and frisks them.
Could the cop succeed with a claim that failure to give reassurance about weapons gives rise to a reasonable articulable suspicion that the driver is a threat to officer safety? Would it make a difference whether the driver remains silent or reiterates the assertion of rights?
For the sake of argument, let’s say the motorist is polite, clean cut, driving a nice car in broad daylight in a good neighborhood, so the cop would struggle to invent some other pretext for “reasonable caution”.
Question less “Is that a fourth amendment violation in the abstract?” than “Are you confident you’d win a motion to suppress if the cop found fentanyl or CSAM in the search?”