DUI checkpoints: another example of how they can be abused

[sigcurious]

This

All I need is a reasonable belief that a person is armed.

does not equal

If I can articulate a reasonable suspicion of criminal conduct,

Your original statement lacked the context and specificity of the terry decision, which I pointed out. You orignal statement would indicate, armed even if legal, would constitute RAS for a terry stop. Which it does not.

[OuTcAsT]

All I need is a reasonable belief that a person is armed.

Are you saying that the act of being armed is, in and of it's self, RAS of a crime ?

[johnelmore]

If a person is armed then the officer has the right to do a Terry stop. The officer is making sure that person is legally carrying a firearm. There are people, even in friendly states, who are not legally carrying a firearm such as convicted criminals. There is also officer safety and the officer may want to make sure the firearm is not loaded around them.

If you are carrying anything which might harm the officer or others then a Terry stop can be performed.

Pawpaw is an experienced law enforcement professional and he knows what he can and cant do in his particular locality.

[teeroux]

Are you saying that the act of being armed is, in and of it's self, RAS of a crime ?

I would say so. The act of carrying a concealed handguns is a crime in my state unless you otherwise have a permit. So is carrying knives longer that 3.5in concealed. Again reasonable suspicion also falls on the officer's own experience.

[sigcurious]

Just to be clear...
State v Ferrand

We granted certiorari to consider whether the police, without knocking, requesting permission, or announcing their identity and purpose, may enter a private residence without a warrant and without probable cause and exigent circumstances, to investigate a person's non-threatening possession of a handgun on the porch of his own home...There was nothing to suggest that Ferrand had been or was engaged in the commission of any crime. State v. Moreno, 619 So.2d 62 (La.1993); State v. Belton, 441 So.2d 1195 (La.1983). Moreover, when they rushed across the threshold, the officers had no reason to suspect that anyone inside the apartment, including Ferrand, needed help, that any suspect was about to flee, or that any other course of action would create a grave risk of endangering their own lives. See Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782 (1967). Finally, the primary illegality of the entry tainted Ferrand's subsequent consent 398*398 to the search of his apartment moments later and required suppression of all of the evidence found in the home.

Concealed may be different depending on state laws(as it is typically more regulated and specifically defined), but one cannot categorically say that possession of a firearm/being armed is RAS. I used this example because its from LA. However, in similar cases, courts across the country have ruled in the same fashion.

This is relevant to the checkpoints because the fourth amendment issues remain the same. In that each step of the sequence of events is critical. Just because one step is legal, does not make the subsequent ones also legal. Just because the initial stop is legal, does not automatically make the rest of the officers commands legitimate. So just as legally possessing a firearm does not automatically create RAS, how would not rolling down a window far enough to the officers satisfaction be a crime or cause suspicion of a crime?

For those advocating just complying etc, these questions are unlikely to to be answered by the courts if that is the only course of action that people take. Some people are willing to take these things to court, that doesn't mean you have to, but neither should you disparage them for it. Issues like this are murky, but that is not a reason to remain in the mud and put your faith in all officers actions being legitimate.

"good faith on the part of the arresting officer is not enough." . . . If subjective good faith alone were the test, the protections of the Fourth Amendment would evaporate, and the people would be "secure in their persons, houses, papers, and effects," only in the discretion of the police.

Beck v Ohio

[OuTcAsT]

johnelmore worte;

If a person is armed then the officer has the right to do a Terry stop. The officer is making sure that person is legally carrying a firearm. There are people, even in friendly states, who are not legally carrying a firearm such as convicted criminals. There is also officer safety and the officer may want to make sure the firearm is not loaded around them.

If you are carrying anything which might harm the officer or others then a Terry stop can be performed.

teeroux wrote;

I would say so. The act of carrying a concealed handguns is a crime in my state unless you otherwise have a permit.

So, using that same logic, merely driving an automobile is also RAS for a Terry Stop at any given time ?

IE: "He was driving an automobile, since it requires a "permit" I have a right as a LEO, to stop any vehicle, at random, minus any other infraction, simply to check his license"

Is this really the way you perceive the "Terry Stop" works ?

[johnelmore]

I do agree with you but it doesnt matter what we think or believe. What matters is how a judge or jury thinks and believes. So a judge or jury in Pawpaws area of operation is ok with searching any armed person.

[Glenn Dee]

In my opinion the driver was correct, and the police were wrong. After all it was a DUI check point. Never did the Officer's suggest the driver may have been intoxicated. A clear case of the police using a DUI checkpoint to allow for a fishing expidition. Wrong as two left feet. Never did the Officer request a drivers license, registration, or proof of insurance. Any or all would have been reasonable, and the driver would have had to produce these documents. Never did the officer ask if the driver had used alcohol, or other intoxicants. Refusal to answer this question would have given the Officers (in most states) the option of field intox test. Refusal of that may have resulted in an arrest. In the vidio it seems the police were focused from the beginning on searching the car...

My department used very similar enforcement tools. We call them "SAFETY CHECK POINTS" We'd pull every fifth car into a staging area and do a safety check of the vehical. Most of the violations were "Uninsured vehical" Next was "Unlicensed Operator" , then unregistered, uninspected, and forged inspection sticker. We'd get a few intox also. We did clear a lot of outstanding warrants. Using the number of every 5th car we were able to maintain some degree of random. All vehical documentation, and all license documentation was demanded, but any other information was by request. If a passenger refused to give his or her name... That was the end of it.

[OuTcAsT]

johnelmore wrote;

it doesnt matter what we think or believe. What matters is how a judge or jury thinks and believes

Quite the contrary, What matters is what the Law dictates. Primarily, the Constitution of the U.S. and established case law.

So a judge or jury in Pawpaws area of operation is ok with searching any armed person.

He has not answered that question yet but, I suspect that is not the "norm"

[sigcurious]

So a judge or jury in Pawpaws area of operation is ok with searching any armed person.

You continue to make uninformed blanket statements, directly in the face of evidence to the contrary.

[bikerbill]

I've been stopped three times in the past few years (no tickets issued) and the interaction with law enforcement was nothing but pleasant, smooth and quick. That said, this seems to be a case of an officer a bit too full of himself who decides to make this guy's life miserable because he wouldn't roll down the window.

A Chicago Tribune story a few years ago said drug sniffing dogs are right about 44 percent of the time, and only 27 percent of the time when a Hispanic driver was involved. I wouldn't want to spend the night in jail based on that level of accuracy. The story said that in many instances where the dog was wrong, he was reacting to a cue from his handler, not a drug scent.

Investigators at the University of California at Davis assessed the accuracy of 18 drug and/or explosive detection dog/handler teams in a four-room church. No drugs or target scents were present in any of the rooms, but handlers were falsely told that contraband was present in two of the rooms, each marked by a piece of red construction paper. Authors reported 225 incorrect responses overall, but found that dogs were more likely to provide false alerts in rooms where their handlers believed that illicit substances were present.

I haven't read every post on this topic; did they ever do a breath or blood test on this guy? It WAS a DUI checkpoint, after all.

[glh17]

bikerbill,
The sheriff's deputy is a member of a drug task force that works I-24 in Rutherford County, just outside of Nashville going toward Chattanooga. This force has worked that section of I-24 for 20 or so years. A friend of mine's son is on the force. Rumor is that a lot drug trafficking passes through that section of the interstate.

Normally, they don't operate checkpoints. They look for speeders, bad tail lights, etc... in order to make stops. They've made some big drug busts over the years and have a reputation and it's not for adhering to the 4th amendment. They definitely "profile." A Hispanic would be crazy to try the stuff this kid did.

I think the deputy just got ticked off at the kid for not rolling his window down all the way. Not sure, but my guess is that state troopers were also working the DUI checkpoint and this guy messed with the wrong person.

[bikerbill]

Interesting .. thanks for the clarification ...

[zincwarrior]

The thing I find troubling is that we are arguing over how we should behave at police checkpoints in a free country.

We should be ashamed that we accept the presence of such checkpoints as compatible with our liberty.

Musher wins the thread. We have already given up too much.

[PawPaw]

Originally Posted by OuTcAsT

Are you saying that the act of being armed is, in and of it's self, RAS of a crime ?

No, not saying that at all. I live in Louisiana, which is a very gun-friendly state. I assume that 25% the people I interact with are armed. That doesn't make them criminals. I also assume that half the cars I stop have firearms inside. That doesn't indicate criminal activity. Not at all.

The thing I find troubling is that we are arguing over how we should behave at police checkpoints in a free country.

We should be ashamed that we accept the presence of such checkpoints as compatible with our liberty.

I agree with that as well. I'm no fan of checkpoints. Don't like them at all.

Originally Posted by johnelmore

So a judge or jury in Pawpaws area of operation is ok with searching any armed person.

Nope, I didn't say that either. Most folks would be horrified, and rightfully so. I personally would never do such a thing. It would be unethical, and probably unlawful.

[OuTcAsT]

Nope, I didn't say that either. Most folks would be horrified, and rightfully so. I personally would never do such a thing. It would be unethical, and probably unlawful.

I had a feeling that was the case, thanks for clearing that up !

[Kreyzhorse]

They generally don't like legal lessons from civilians in my expierence.

And that is part of the problem.....

Clearly this kid wanted to push their buttons that night, but a lot of these officers think that above the society they serve by using terms like "civilians."

I'm not saying that all officers have that mentality but clearly some do.

[glh17]

Why is it that the deputy would not respond to the driver's question about being free to go or am I being detained?

I've notice a few you tube videos dealing with the questioning of someone who has not committed an apparent crime and the police seem to never want to answer these questions. Why is this? Seems some sort of game is being played and I wonder what it is.

[csmsss]

Why is it that the deputy would not respond to the driver's question about being free to go or am I being detained?

I've notice a few you tube videos dealing with the questioning of someone who has not committed an apparent crime and the police seem to never want to answer these questions. Why is this? Seems some sort of game is being played and I wonder what it is.

Because they don't want to say "Yes" and because saying "No" would open up the door to false arrest suits. They are not, however, required to answer questions, so they stand mute. They hope you will infer from their silence that you are not free to go, when, in reality, you are.

[iraiam]

I have been detained for refusing to answer questions, like "Where are you going?" and "Where are you coming from?"

I absolutely will not answer any questions of this nature and simply state that I will not discuss my whereabouts or answer any further questions. This has never really gone over very well in the few instances it's come up, but that's the way it is.

I did have one officer get quite irritated with me for politely refusing to answer his questions, he became obviously irritated and began raising his voice at me, when he asked me again "WHERE ARE YOU GOING?" I answered with "Anywhere I GD well please!" Fortunately there were other officers there who were much more professional and apparently of higher rank than this guy.

Most of this comes from legal advice that I have paid actual $$ for, basically I was told to never, ever, answer police questions, no matter how meaningless or insignificant you think your answer is, ANYTHING you say at any time can and will be used against you.

[Koda94]

Because they don't want to say "Yes" and because saying "No" would open up the door to false arrest suits. They are not, however, required to answer questions, so they stand mute. They hope you will infer from their silence that you are not free to go, when, in reality, you are.

Does this mean that if they don't answer your question ('am I being detained') you can just drive off?

How much of the checkpoint process is one required to comply?

I'm assuming here they can only detain you if they have probably cause to suspect driving under the influence and would be required to tell you that if they answer yes. So the minimum requirement is to satisfy that query by engaging the officer verbally and visually from within your car, anything beyond that without being detained would be unreasonable and a violation of your rights!

[teeroux]

State vs Ferrand was not a case involving illegal carrying of a concealed handgun or other dangerous weapons. Terry Stop does not usually apply to people in their own residence or curtlage.

IE: "He was driving an automobile, since it requires a "permit" I have a right as a LEO, to stop any vehicle, at random, minus any other infraction, simply to check his license"

I never said that at all. Probable cause is need to stop a vehicle other than D.W.I. check points of course. There is no reasonable suspision to stop a vehicle to check a drivers license alone. You don't have any reason to suspect the license is bad.

I was speaking of carrying concealed handguns or dangerous weapons. It is a crime to carry a concealed handgun not withstanding a permit. If you see what you have a reasonable belief to be a hangun butt in a persons waistband you have a reasonble suspision that a crime is occuring. This is different from your example of driving in that the act of driving itself is not a crime. Carrying a concealed weapon is.

[sigcurious]

State vs Ferrand was not a case involving illegal carrying of a concealed handgun or other dangerous weapons. Terry Stop does not usually apply

Although I wasn't responding to you, that's exactly the point. johnelmore was attempting to state that any weapons possession was RAS of a crime and that the local case law supported that. Also, I already noted that CCW is a special case, subject to different rules.

Does this mean that if they don't answer your question ('am I being detained') you can just drive off?

How much of the checkpoint process is one required to comply?

To the first, probably not a wise idea, if you read the michigan decision cited earlier in this thread, you are being detained/seized, and it is lawful/reasonable.

To the second part that is the $64,000 question, because they failed to define it in the michigan decision. This would come down in large part to your local laws, but even then it would could be fuzzy. This would also relate to the first question, how long is the seizure lawful? They're pretty clear about only covering the initial stop and questioning, along with it being "brief". But again, this wasn't even close to defined.

[jimpeel]

So what if, after being ordered to exit the vehicle, the kid had locked the doors and left his keys in the ignition? Would they have broken his window to effect the search based on Fido's nose; which in this case proved to be quite fallible?

In such a case, would they be required to attain a warrant?

What if the person had done as above but has an external keypad on the door. Can the police order them to enter the code to open the doors? Can one refuse? Knowing the code, but stating you don't, would be taken as providing false information to a police officer -- an arrestable offense.

[OuTcAsT]

teeroux said;

There is no reasonable suspision to stop a vehicle to check a drivers license alone. You don't have any reason to suspect the license is bad.

I agree, however then teeroux said;

It is a crime to carry a concealed handgun not withstanding a permit. If you see what you have a reasonable belief to be a hangun butt in a persons waistband you have a reasonble suspision that a crime is occuring. This is different from your example of driving in that the act of driving itself is not a crime. Carrying a concealed weapon is.

These two statements do not "jive" together. It is not a crime [in Tennessee] to carry a concealed handgun unless you do not have a permit, just as it is not a crime [in Tennessee] to operate a motor vehicle on public roads unless you do not have a permit.

Again;

You don't have any reason to suspect the license is bad.

I do not see a distinction between the two and, in fact, there is none.