Tuesday, 9. July 2013
The following piece was written by Criminal Defense attorney Melvin Welch in response to the video titled “4th of July DUI Checkpoint”. Below, Mel provides a history of suspicionless stops in the United States at the national and state levels, discusses the actions of the police officer in the video, and reacts to the notion that the person in the video should have simply forfeited his rights if he had nothing to hide. We have also embedded the video below in case you are unfamiliar with the case in question.
A History of Suspicionless Stops in America
The Constitution of the United States of America requires police to have a reasonable, articulable suspicion to stop an individual (or motor vehicle). Any violation of a traffic law will suffice, but it must be on an objective basis. A stop of a motor vehicle is a “seizure” under the Fourth Amendment, and therefore must be reasonable.
In Delaware v. Prouse, a U.S. Supreme Court case in 1979, the Court stated that random, suspicionless stops of motor vehicles are a violation of the Constitution’s prohibition against unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution. The Court held that police must have “at least” an articulable, reasonable suspicion that the motorist is unlicensed, or that the vehicle is not registered, or that the vehicle or occupant is subject to a seizure for violation of the law, or that stopping the vehicle and detaining the driver to check his/her license & registration is reasonable.
However, the Supreme Court reversed course in Michigan Dept. of State Police v. Sitz (1990), where it distinguished Prouse and held that DUI checkpoints were not an unreasonable seizure. The Supreme Court distinguished Prouse, which advanced no empirical evidence to support the random stops of [1 of every 4] vehicles, whereas in Michigan police stopped every vehicle at a checkpoint and statistically resulted in a 1.6% apprehension rate of individuals committing a DUI crime. The Court in Michigan stated the temporary, suspicionless seizure of innocent motorists was reasonable because it advanced the State’s interest in the safety of its roadways.
Minnesota, however, declined to follow the U.S. Supreme Court in Michigan, and held that police roadblocks to stop all motorists without individual indicia of suspicion to investigate potential DUI crimes is a violation of the Minnesota constitutional prohibition against unreasonable seizures. In Ascher v. Commissioner of Public Safety, a 1994 case, Burnsville police and Minnesota State Patrol set up roadblocks near Nicollet Avenue and Highway 13 in Burnsville from 10:00 p.m. to 2:00 a.m. The area was known as a “high accident area” and a location where there are “high incidence of DWI violations.” The purpose of the roadblock was for apprehension and deterrence based on the proposed justification of increasing roadway safety (much like many state prosecutors are now seeking to justify the seizure of evidence without a warrant in DUI cases, claiming it is necessary for road safety).
Furthermore, the police showed that the rate of apprehension was approximately the same as in Michigan - a 1.4% apprehension rate of DUI motorists. The Minnesota Supreme Court struck down the temporary seizures as violative of the Minnesota Constitution, holding that the Minnesota Constitution requires police to have an individualized suspicion of the individual/motor vehicle they are stopping.
Minnesota has reaffirmed this holding in subsequent Minnesota Supreme Court cases and it remains the current law. This is not the law in Tennessee, which has specifically addressed the Minnesota Constitutional protections of an individual against unreasonable searches and seizures and decided to apply the protections under the U.S. Constitution to their own (i.e., not extending additional protections under the TN constitution).
-Note that a State has the right to provide additional protections under its constitution than may be available under the U.S. Constitution. Minnesota traditionally has been more protective of an individual’s rights under its constitution (art. I, section 10) than other states – including Tennessee which does not provide that level of protection (See State v. Downey, 945 S.W.2d 102 (Tenn. 1997)). Tennessee does allow DUI roadblocks.
Issues in the Video
Right away, some 4th Amendment issues that arise in this video include:
- The officer’s removal of the driver from the vehicle (lawful under Pennsylvania v. Mimms if the police have a right to stop the vehicle, also lawful under Minnesota law as decided in State v. Ferrise & State v. Askerooth when police have lawfully stopped the vehicle and applicable to all occupants of the vehicle);
- The police officer’s use of a canine to do a dog sniff of the vehicle (a “non-search” is lawful under the U.S. Constitution as determined in Illinois v. Caballes (2005); requiring a reasonable, articulable suspicion of drug-related criminal activity in Minnesota as determined in State v. Wiegand (2002)): and
- The police officers’ warrantless search of the individual’s vehicle when he has not given consent (unlawful under the U.S. Constitution as interpreted in Arizona v. Gant (2009) unless police have probable cause to believe that illegal contraband of a crime is contained within the vehicle)
In Minnesota, if police have a lawful reason to stop a motor vehicle, they may remove the occupants of the motor vehicle pursuant to the limited investigatory stop (whatever the initial reason for the stop is). Here, the police expanded the scope of the stop to include a dog sniff of the vehicle and a warrantless search of the vehicle.
For a dog sniff of a vehicle, police must have a reasonable, articulable suspicion of drug-related conduct to justify the dog sniff. Minnesota Courts will look at what the officer states he observed or perceived (e.g., furtive movements within the vehicle – as if something being hidden, numerous air-fresheners within the vehicle, “baggies” lying about the vehicle, narcotics paraphernalia visible to the officer, large amounts of money visible, etc.) in order to determine whether the proffered basis to conduct a dog sniff was justified. If it is not justified by a reasonable suspicion, the consequences of that search may be suppressed. If officers smell the odor of marijuana in a vehicle, that alone may provide them probable cause to search the vehicle for the source of the odor.
A dog sniff that indicates to the presence of narcotics within the vehicle provides officers a probable cause basis to enter the vehicle and search it without a warrant pursuant to Minnesota law. As illustrated in the video, dog sniffs may be very suggestive (“indicating” to the presence of narcotics at the direction of the canine handler). Additionally, police must show that the canine has had proper training, has responded reliably to proper training, and has not been influenced by the canine handler – otherwise, the reliability of the “indication” by the canine may be suspect and unable to meet the probable cause standard, possibly resulting in the suppression of evidence subsequently found.
In order to search a vehicle without a warrant, police must have either:
- Probable cause (e.g., as in an indication by a canine, or the odor of marijuana within the vehicle)
- Police may search the area around a suspect “incident to arrest.” Previously, courts interpreted this phrase “incident to arrest” to mean that police were able to search the entire vehicle if a person within the vehicle was arrested. However, the Supreme Court revisited that argument in Arizona v. Gant and held that police are able to search a vehicle “incident to arrest” when the occupant is going to be arrested (i.e., probable cause to arrest the suspect exists), the suspect is not in custody, and the suspect is within reaching distance of the passenger compartment of the vehicle such that they could grab contraband or a weapon – in these cases, police may search the area accessible to the suspect “incident to arrest.”
In the video, we see the police searching the vehicle without the individual anywhere near it. Absent the dog sniff – which was a questionable “indication” that happened only when the handler prompted the dog – police could search this vehicle only if they had consent of the male, probable cause to believe contraband was within the vehicle, or incident to an impoundment of the vehicle.
Standing Up For Individual Constitutional Protections
The more interesting aspects of this case to me are:
- The officer’s perception, assertions, and actions when the individual asserts his constitutional rights (to not acquiesce to the police orders when he does not have to and question the officer’s actions when he has a right to); and
- The comments from the viewers to the video.
First, the officer here acted as police officers will act when their authority is challenged – Lord Acton’s admonition that “power corrupts and absolute power corrupts absolutely” is not an axiom without reason – here, law enforcement took it as a signal the male was committing a crime and they were going to ferret out that, or some other, crime no matter the cost to the male’s constitutional protections. After all, if there’s no crime he’s hiding, then there’s no remedy for the officers’ violation of his constitutional rights (other than lowered faith by The People in police responsibility to uphold the law).
What is forgotten is that the Constitution was not created to give government, and by extension law enforcement, carte blanche authority to pursue whatever “gut instincts” they may have in the zealous pursuit of their duties, but was created to specifically identify and limit the powers of the Federal Government, reserving those unenumerated powers to the State and to The People. While law enforcement provide a necessary and welcome function, it is important – especially in this time of unparalleled intrusion [invited or otherwise] into the individual’s life by the government – to remember that not all “security-providing measures” can be justified to circumvent the restrictions on law enforcement’s power.
The second issue that arose was based on my reading of the viewer’s comments. Many – MANY – found it reprehensible that this male would stand up for his rights in the face of lawful, or unlawful, assertion of State prerogative. It is a thin line between Police Authority and Police Authoritarianism – here, that line was crossed and the subsequent actions of law enforcement show that they were willing to use all the tools at their possession to put the male into a legally compromised position. That citizens – who so thoughtlessly enjoy the same constitutional protections that this male asserts and defends in the face of impatient, police assertion of right – would find pleasure and righteousness in the police abrogation of those shared rights, is troubling.
Related sources: Youtube, LiveLeak
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