View Full Version : Justification
I have a couple of scenarios that are perplexing myself and a friend of mine.
Your approaching an OUI checkpoint. Youv'e been drinking and decide you shouldn't go through. As you put your vehicle in reverse to go back and turn around, a patrol car pulls up behind you. You stop and remove your keys from the ignition, roll up your windows, and refuse to even look at the officer ordering you out of your vehicle.
What would you do as the officer? What point of law would you use to justify your actions?
Also, what are the required components for a vehicle search? Can you search a vehicle based on a speeding stop and is a refuse to consent to search PC for a search?
The first part of this really happened and I'll post the outcome later.
Good luck!
Originally posted by JSavage
Can you search a vehicle based on a speeding stop and is a refuse to consent to search PC for a search?
If refusal to consent to a warrantless search were enough PC for a warrantless search, then you wouldn't have to ask for consent, now would you?? ;)
In regards to the first part of the question I as the officer can testify I observed the operator operating the vehicle and if he/she is DUI then I would arrest them for the violation. As far as not rolling down the window I personally would call a supervisor and let them make a decision as what to do to get the operator out of the vehicle. If consent is not given and you are not placing the individual into custody then you can't search without a warrant or something in plain view. :bounce:
Mo Trooper
08-20-2001, 09:35
As far as your first scenario, like Birky said, arrest them for DWI, if you have enough proof of it, and if they refuse to come out, they can pay for a new car window. On the other hand, if you cannot prove that they are DWI, and they just sit there looking straight ahead, I think you would be justified to break a window to check their well-being. Who knows, they could be in shock from low or high blood sugar, which will make a person appear as if they were drunk anyway.
As far as vehicle searches, you need to either have consent from the driver/owner of the vehicle, PC, search warrant, or a search incident to custodial arrest. Anything else would be an illegal search.
I have to agree with the answers already given. I have a assumption that maybe wrong because I'am Canadian and do not know US laws and not a officer yet.
Due to the refusal to roll down the window and chat with police, would that not make you wonder, maybe they are hiding more than being drunk?????Therefore I'm assuming that this would be enough PC to search the car without consent or warrant.
Koenig
Ranger337
08-20-2001, 16:53
I tend to disagree with most of the posts. Remember you can only use the MINIMUM amout of force necessary to gain compliance. Breaking the window out unless you can justifibly prove that the person or you are in immediate danger is opening yourself, and your department to lot of liablity.
If there is a medical problem such as a diabetic coma there are signs, the scenerio did not say he was acting drunk. It only said he was looking forward and refusing to look at you.
As for the search, you cannot search unless you have P.C. i.e. something in plain view, a warrant, or consent. Also you can search after arrest. But if you work for a department that is fortunate enough to have access to a K-9 and the K-9 "picks up" on something that is enough P.C. to do a search. Your sense of smell is good enough P.C. too!
Ranger337
OK. This is waht took place. The driver of the vehicle just sat there and refused to open the window or unlick the doors. And officer hit the window once with a MagLite and the subject screamed "what the F..." the cop stopped, looked at him, and then smashed the window, unlocked the door, pulled him out and instantly arrested him for OUI. The intoxalizer revealed a BAC of .05%, well under the limit here in Maine. The officer can't articulate what lead him to believe the subject was drunk or in need of medical assistance. He just keeps sayimg "I just knew he was drunk..."
As far as PC, on a different occassion, the same subject in question had an open container in a paper bag, closed and covered. An officer asked to see inside the bag and the subject complied. He was ticketed for open container in a MV. In court he claimed it was an illegal search. He won based on the fact that the officer had his drivers license in his hand and that he felt that that meant he was under the control of the officer and was not free to go nor was he free to deny the officer the search. The officer could not see inside the bag, which negated his plain view argument.
Just food for thought.
No, this guy is a friend of a friend, not my friend. I don't play with people like that.
This is really interesting! It sounds like someone found a loophole in the system & is spreading it around. It appears that all a person has to do is not acknowledge the officer's existence until that officer gets tired & goes away to get out of a ticket.
Someone brought up a similar scenario from an oral board where it was an old lady who refused to acknowledge the officer after being pulled over for a traffic violation, & most opinions seemed to be that there wasn't much action that the officer should take that would ensure her getting the ticket.
If you compare these two scenarios without any age/gender bias, the old lady was more deserving of having the officers take action in response to her noncompliance; the officer actually witnessed her commit a violation, whereas in the case above the man had not committed any actual violations but instead rose suspicion that he was drunk & was trying to avoid detection when he turned around.
Don't get me wrong, I don't plan on getting my jollies from bashing in an old lady's windshield & giving her a heart attack because she ran a red light, but I am curious as to what steps an officer should take to enforce compliance while trying to access whether or not someone is a danger to themselves or others after having witnessed actions which may suggest this.
Midtncop
08-20-2001, 23:59
In Tn if someone will not sign a citation they are subject to a custodial arrest. This person may have been subject to a citaton for an illegal u-turn or improper backing. If they had not committed any offense and did not want to aknowledge the officer that is thier right and the officer has no legal recourse. Remember "pissing off the police" is not a crime. Officers rarely get succesfully sued using force that was justified. The succesful suits come from when an officer gets his or her ego brusied when someone does not "respect thier auhtoriti" and makes an unlawfull arrest not based on probable cause.
Here's my question..........is the fact that the operator chose not to go through the checkpoint enough PC to justify a traffic stop? Now according to the original post, the subject began to back up. I am assuming this is on a roadway. In Pennsylvania, that would be a traffic violation (Limitations on Backing). Therefore the officer would be justified in initiating the traffic stop. When the subject refuses to acknowledge the officer's presence, that would rise to the level of a Misdemeanor 2 (Obstructing Administration of Law or Other Governmental Function). The officer would be authorized in using any force necessary, short of deadly force, to effect the legal arrest.
Originally posted by midtncop
.........someone does not "respect thier auhtoriti" and makes an unlawfull arrest not based on probable cause.
Hey now........this wasn't a reference to the quote under my name, was it??????????
The first part of the scenario has to be based on PC to stop the vehicle in the first place. Once this PC has been established, the driver is required to produce a driver’s license on demand by an officer. And, more PC would have to be established to justify breaking the window. Once the subject is out of the vehicle, PC would have to be established for OUI by conducting field sobriety tasks, or other observations if the subject refused to do field sobriety tasks. The officer or prosecuting attorney not setting out the above PC in court flawed the OUI case. I know for a fact, my county attorney wouldn’t even go into court with an OUI if I merely stated, “I just knew he was drunk..." I’m surprised the judge didn’t read the riot act to the officer, who I think needs to be recycled!!
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The same goes for the 2nd scenario. If the officer had laid out some PC for questioning what was in the bag, I doubt there would have been a problem. That is, the odor of an alcoholic beverage being present or the fact that from his experience, people drink alcoholic beverages from a brown paper bag.
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What if you ask a driver if they have been drinking and they say, "Yes". Without any other PC, is that legal grounds to conduct a further investigation into whether or not they are legally under the influence??
Ok, I swear I'm not being a smart-a$$ here; I just want to understand what everyone is saying. If I get pulled over for a minor traffic violation, I can just sit there with my window rolled up and the officer can do nothing?
Did I over simplify the issue?
Midtncop
08-21-2001, 13:42
Bravo8
I didnt see that under your name untill you pointed it out. I was trying to make a semi sarcastic Gen x example of what will get an officer succesfully sued the quickest. If you dont give a good cartoon example some of these guys dont understand. LOL
Okay, so the officer was probably wrong in pulling the guy over unless there was some traffic violation he committed when turning around, right? But could he have followed the guy until he did commit some kind of violation further down the street & then been justified in pulling him over & investigating the DUI issue further?
Quote from DelC: "What if you ask a driver if they have been drinking and they say, "Yes". Without any other PC, is that legal grounds to conduct a further investigation into whether or not they are legally under the influence??"
In reference to DelC's question, if there was no PC as she described can you even ask that question? If he answers "Yes" & there was no PC to justify asking it other than the officer had a gut feeling, can the court throw out the case?
I'm just curious because throwing out the previous case because the officer still had the guy’s license in his hand when he asked the guy if he could look inside the bag sounds pretty lame to me. Are you saying that if he had handed the guy his license back before he asked to see inside the bag that it would have stuck?
Mo Trooper
08-21-2001, 17:12
In response to the case where the officer did not give the license back, there was case law stating that the person had to feel "free to go" before asking consent to search a motor vehicle. Which meant giving their license back. That no longer applies, and you can now ask for consent before giving the license back.
FedAgent
08-22-2001, 08:59
In the mid 90's we were notorious for roadblocks/DUI checkpoints in Georgia. We also used to go after "turnarounds" just because they turned around. That was until a case was contested and the defendant won. The judge stated that a "U" turn or "backing" wasn't P/C if no other traffic was endangered or unless there was specifically a "No U-Turn" sign posted. We usually did the checkpoints very late at night on a state highway, hence, very light traffic.
Stay safe!
RoscoeRuhl
08-23-2001, 06:45
In the first instance, the driver simply declined to be part of the checkpoint. It's not against the law. If there's a violation present, the driver would be resisting by failure to provide his/her license (required upon demand). I think that breaking the window, though accomplishing getting the drivers attention would present a major problem with excessive force! Sometimes you've got to make concessions. If you have a violation and want to issue a citation based on the circumstances, consider this: Take a picture of the driver, run the tag and later verify the identity of the driver (it's not hard). Obtain a warrant for the individual and tell it to the judge!
Without probable cause, you can't search except with consent. The court was correct in their decision. Until the drivers license was returned to the operator, there was no reason the driver didn't have reason to think they were no longer "detained". Once you're done with your enforcement action and you've provided the driver with his/her license, you then can ask for consent. If given, it's voluntary and there you go! You can always search and always ask for consent, however if you don't have PC, anything siezed is considered "fruits of the poisonous tree"!
I just knew he was drunk doesn't cut it!!!
Have a great day!
Gotabeme_d
08-29-2001, 12:48
Dwight6...Also not in CA. In my academy we had a community relations class and half the class were given cards telling them how to act. The other half are the officers and the scenario was to get the driver to sign the ticket without having to escalate the situation.
All kinds of interesting scenarios that I am sure every PO, here, has gone through. One was this very instance with a slight difference...Subject gets pulled over for a traffic violation. Officer approaches the vehicle, the driver pulls the keys out of the ignition, drops them on the floorboard, crosses their arms and stares straight ahead ignoring the officer, with the windows up-not even acknowledging if he can or can not hear the officer.
Here is what we were told. This is a legal detention for a valid Vehicle Code violation. During a detention every person must comply with officers instructions. Failure to do so is a misdemeanor commited in the pressence of an officer. At which, arrest with necessary force to overcome resistance is warranted. However...we were ADVISED to break a window as far away from the operator as possible and warn the operator at least 1 second before shattering the glass .:D
anthony38
08-31-2001, 09:16
Well here is what I would do in that situation....
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First of all I would have stoped him for something like "Changing course of travel when unsafe" or any other reason for stopping a vehicle.
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then when I found out the operator was not going to cooperate, a back up unit would be palced in front of his car and my unit would be driven very close behind him. This would make it imposible for him to leave.
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I would then go to my unit and write a summons for whatever I stoped him for. When I went back to the vechile and asked him to sign his summons and he refused. well then, now he has commited the wonderful class "E" crime of Failure to sign a Uniform or Violation summons and complaint form
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Now guess what. now Mr. smart ass is going to be arrested. I will advise him of such and if he still does not open the window I would do one of two things. While one person is watching him I would have another try and "slim jim" his passenger door open. or I would bust out the window and arrest his dumb ass.
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then I would bring him to the station, I would try to get clues of intoxication (odor, eyes, speach, many other things) then if I felt he was intoxicated I would conduct Field sobriety on him. if he failed I would have him take the intoxilyzer. If he refused well then he will be losing his license for a long long time. his vehicle toed, and him spending a wonderful night or two in jail.
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Hope that helped. got to love Maine laws... (sometimes)
Ok gang, I'm going to put a New York spin on this question.
If the driver is on a roadway and begins to back up regardless of whether its one way or two way, to me that's unsafe backing which is a ticketable offense. In the city, that's an easy one to write.
So now that he is stopped, In New York, as in many states, driving is considered a privilage. As such, the driver is required to produce upon demand a valid drivers license. If they don't have a license on them, they are required to provide their name and date of birth for purposes of checking to see if they have a license.
If they refuse to provide their information, that is keeping you from doing your duty. So now we can add a charge of Obstructing Governmental Administration which is a misdemeanor. If he doesn't want to come out, you have to get creativewith some people. I would have a tow company come with a slim jim and open the door. Or tell him his car has to be towed and you'll tow it with him in it. That may not be the truth unless you have a valid reason to tow it (suspended registration, uninspected motor vehicle) but they don't have to know that. Contrary to popular belief we can lie to people about certain things and they are none the wiser.
Some people have already mentioned it, but PC would need to be established for DWI. If he was out of the car and under arrest for Obstructing I would use my senses to pick up on clues that the subject may be intoxicated. This also brings up a point made by someone else I believe. Can I ask somone if they have been drinking? Why not? I can ask them where they are going, where they came from, and pretty much anything under the sun. If he answers yes to that question, he is coming out and getting field tested. I can't tell you how many times I've asked that question and the driver will say yes but only one or two and by the end of my sobriety tests its more like 10 or 12. Are we to take peoples words for it when they say yeah only a couple and then let them go and find out later on they were blitzed and get into an accident and hurt or kill someone? Not me man. I don't want that hanging over my head. Even if they admitted to one, they have admitted to drinking and that I think is fair game. Of course, you need to use your senses to help you develop PC as well. Cops know this to be true. Just because someone says no they haven't been drinking doesn't mean we don't pick up on other things. Anyway, if this guy is in custody for obstructing we are allowed to give sobriety tests back at the station and that is what I would do if I had PC to believe he was intoxicated.
As for the other question, everyone is right on with their answers. Hope this helps. Also, laws are different in each state. What may apply one place might not be true in another.
Ohh, and as for breaking a window to get the guy out, let a supervisor make that call. I don't know too many that are willing to let you smash a guys car because he's getting over on you. There are ways around it. You always have to be one step ahead of the stepper. I agree that you may want to pull him through the vent window, but that probably isn't the way to go.
TRY163
CTMarshal999
08-31-2001, 19:54
As I'm sure it's taught in all academies around the country........
IF YOU DON'T GOT SOMETHING, LET IT GO!!!!!!!!!!
If you start trying to "find " s**t to justify your actions, then your going to end up making yourself look like an A**.
If there is LAWFULL reason to stop the car then do so. Write the ticket based on the plate since usually in most states the owner of the vehicle is responsible for their vehicle when someone else is driving and it is not possible to ID the driver.ie parking tickets or the above scenario.
Remember, contempt of cop is not a crime and can get an inexperienced officer in a world of S**t if he doesn't know where to draw the line.
If you try and write a ticket for unlawful baking or such, you better be able justify to a prosecutor that you always write tickets for that kind of thing, not just to cover your A**.
You are setting up a "portfolio" for yourself every time you write a ticket that goes to court, and attorny's will try to use it against you in court.
We all bust our A**es daily to do a good job and be fair and impartial, unfortunately we now have to play games to keep from getting into trouble for doing our jobs.
I disagree, CTMarshall999. As a police officer, you have the right and duty to use necessary force to effect a legal arrest. And "Contempt of Cop" is not a crime, but obstruction of justice/administration of law, or whatever you call it, IS a crime. And it Pennsylvania, it's a criminal offense, not a traffic. Therefore, I'm not going to break the window and write him a citation......he's going to jail.
I agree that we all work hard to do a good job, and to be fair and impartial. But the nature of police work dictates that sometimes we are going to piss people off. It IS a shame that we have to "play games" to keep from getting in trouble for doing what's right, but if we allow this fear to prevent us from doing our jobs, are we any better for it?
lightemup
09-03-2001, 11:09
This is a very interesting topic. But I have a question that I thought of and I thought in my criminal law class this was brought up. Isn't turning around at a ouil checkpoint enough reasonable cause for the officer to check the subject and perform searches of the vehicle for any alcohol or narcotics. I mean granted there is the amendments and all but to me that seems reasonable if a subject turns around on you at a checkpoint. I am not too familiar with these checkpoints since we don't have them here in MI as far as I know so we don't study the procedures of them too much.. So if someone could answer my question for me that would greatly be appreciated.
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