Can you break a window to remove a non-compliant driver?
This question comes from an officer in Indiana. First of all, I’ve got to apologize. This officer submitted the question a long time ago and it dropped off my radar. That’s all on me. I usually try to get back to officers much quicker and try to be a resource. So Captain, I apologize.
The situation
Officers made a legal stop and smelled burnt marijuana. This is Indiana, and burnt marijuana is going to be a problem anywhere, because it indicates you’re driving and smoking. So it’s a DUI issue.
The subjects refused to get out of the car, rolled the windows up from the inside, and started using their phone to video record. A young officer breaks the window and pulls them out.
A deputy prosecutor says there is a Supreme Court case that ruled that this is passive resistance, and that you can’t use that kind of force to take him into custody.
Can I get some direction on this?
I don’t know of a case that prohibits it
Look, I’ve got to tell you, I’m unaware of any case saying this is per se prohibited. I just don’t have it.
I’m sure there’s something out there. And if there is, do me a favor, my viewers: let me know what it is. Put it in the comments if you have any case law on this. But I don’t have it.
What’s the alternative?
Here’s the way I look at this. What is the alternative?
If courts say, and they wouldn’t, but if courts say oh, you can never break a window to get a driver out. Well, isn’t that the person’s free pass?
Then I guess they just eventually leave. Are we going to stay out there for 48 hours while they sleep in the car? Maybe they’ve got some munchies with them. They’ve got enough water for a month.
What are we going to do? What if they’re in an RV? They’re out there taking a shower, rubber ducky time, while we’re standing outside going, oh, we can’t use any force to enter that vehicle.
That doesn’t sound right to me.
Force against the vehicle is not force against the person
The other thing is this. I understand the concern about using a lot of force against a person for passive resistance. Absolutely.
But in my view you’re not really using force against the person. You’re using force against their vehicle. Against the container that they’re in.
How to do it without it going badly
So use good judgment.
Don’t break windows right next to their face, where glass can go in their eye and cause permanent damage. Use the other side. Give them warnings. Obviously we want to de-escalate. We want to drag this out a little bit, and hopefully they come to their senses. All these things are in play.
I would not want to see an officer losing their coolness, bashing the window out, people getting hurt, and it looking really bad on camera.
I want to see de-escalation. Hey look, this is not what we want, it’s not what you want, it’s a very minor crime we’re talking about here.
But can you do it?
At the end of the day, do I believe officers can break out a window in order to open up the car?
Absolutely. Absolutely, if it comes down to that. If everything else adds up and it comes down to it.
Otherwise the alternative is we let them go, or we stay out there for 40 hours until they finally smoke all their weed and use it all up so you can’t have it as evidence.
The alternatives just don’t make sense to me.
That’s what I have for you. Again, apologies for not answering sooner. Hopefully you have more on this since that time, so if you do, put that in the comments as well.
Stay safe, thank you guys.
Related from Blue to Gold
- Illinois Courts on Marijuana Odor and Probable Cause
- When Can Police Force Entry on a Suicidal Subject Call?
- Is Florida’s Plain Smell Doctrine Getting Vaporized?
This article is an edited transcript of Roadside Chat Ep. #289. It is legal training, not legal advice. Check your state law and your agency policy, because both can be more restrictive than the Fourth Amendment.
