It makes no sense to argue that the law is bad by using examples of the law being broken. I’m sure somewhere there’s a prohibition against a policeman summarily executing you. But that’s a silly law, because if he “fears for his safety” in some abstract way he can shoot you for his “own protection.”
Horses <> cars. It’s also generally not wise to invoke the Framers with regards to these types of issues because our modern concepts of privacy and freedom from searches arose much later than their direct input. Heck, at that time the doctrine of incorporation wasn’t even a glimmer in the Constitution’s eye, so as long as the actors are state or local forces, you wouldn’t have been deemed to have had any Constitutional protection from searches.
The Constitution protects you from unreasonable searches. Unreasonable. What aspect of a uniformly imposed block that asks you for identification and proof of registration, two items you are required by law to have with you while driving, is unreasonable? Vehicles, especially ones driven under the influence, are deadly items that can cause untold damage and suffering. Yes, in Constitutional analysis the potential severity of harm can come into play. That is one reason they are treated differently from walking and horse riding.
Two general questions:
Does anyone know/can anyone point to a cite that says that during a checkpoint the police are allowed to demand identification? Of more than the driver?
Does anyone know what the identification requirements are in states that have open carry laws? That is, if a policeman sees a person with an exposed weapon but showing no signs of illegality, are they permitted to ask for identification and a carry permit?
If you’re looking for Supreme Court, Muehler v. Mena is the most recent case about requests for identification. The Court quoted it in an earlier case, stating:
““[E]ven when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search his or her luggage.”
Finally, there is Hiibel v. Nevada, which dealt with requests for identification at a Terry Stop. The case can be found here. It was a 5-4 decision.
Thanks. No time to give them a close read, but it seems the first cite was located in a vehicle. The stop itself (and extra time held during the stop) were not unreasonable. That there was consent to a search is predicated on permissibility of asking for identification. No info on the driver and whether the police can demand idenfification.
The second cite is in more a more protected environment (i.e., not in a car) but in elevated circumstances – the court accepts that the initial stop was based on reasonable suspicion.
If I had to choose a side to write a brief for, I would think it much easier to argue that a law allowing a demand for license and registration in connection to a lawful DUI roadblock is Constitutional.
“Ordinarily, an investigating officer is free to ask a person for identification without implicating the [Fourth] Amendment. Beginning with Terry v. Ohio, the Court has recognized that an officer’s reasonable suspicion that a person may be involved in criminal activity permits the officer to stop the person for a brief time and take additional steps to investigate further. Although it is well established that an officer may ask a suspect to identify himself during a Terry stop, it has been an open question whether the suspect can be arrested and prosecuted for refusal to answer. The Court is now of the view that Terry principles permit a State to require a suspect to disclose his name in the course of a Terry stop.” [citations removed].
Just out of curiosity, what sort of person goes through a DUI checkpoint carrying illegal drugs anyway? It’s not like the checkpoint’s a surprise. If you have meth, or pot, or an open container, why not just dump it before you get there?
Right, but there’s a couple distinctions – a request versus a demand, and the purely administrative (or some such) context of a DUI checkpoint versus the pre-existing reasonable suspicion of the Terry Stop. Not that these wouldn’t flow right into a brief in support, but if these were the only case law available (not that it is, but imagine some bizarre Bar exam question) then there’s at least a hint of room as to whether or not a DUI checkpoint demand for identification is Constitutional.
These are fun nits, but nits nonetheless.
Michigan v. Sitzseems to be the controlling law for checkpoints, though that’s just the result of a few minutes on Google (and Wiki, no less, so beware accuracy!). I don’t know if it touched on/overlapped with the demand for identification/registration beyond the question of whether the stop in the first place was Constitutional.
I was a three or four-day-old 1L and the professor kept using this term that I’d heard before, but wasn’t really sure what it meant. So I raised my hand and in what turned out to be the last moment of naivete in my life, I asked “Professor, what’s does due process mean?”
Sure. Go to law school for 3 years and you’ll begin to be able to figure it out.
Seriously, it’s one of the basic overriding principles/distinctions in all law - it’s the gray area that makes legal argument, analogy, and distinction possible.
One of the things that always cracks me up (in a “ha, this is rather unfortunate way”) is that criminals/people who choose to violate laws don’t even take 35 seconds to bone up on search & seizure law.
I always thought that Florida v. Bostick was a bunch of hooey - that no one in their right mind would not consent to a search on a common carrier vehicle, in a closed space, with two cops breathing down your neck. Apparently some old white people disagreed and thought that a person is fully capable of rejecting such a request for a search.
But then again, I always thought that if you know that you possess drugs, how can refusing the search be any worse? And it can certainly be better. better yet, if you’re going to be committing crimes, at least learn a bit about what the cops can and cannot ask of you. it doesn’t take that much.
basically, getting busted for marijuana possession (if you’re actually stoned, well then the checkpoint did it’s job, yeah?) at a checkpoint when they aren’t using sniffing dogs is weaksauce. darwinism for the criminals among us, perhaps.
One other case I found while poking around is Stufflebeam v. Harris. Found here (warning PDF), which was a civil case of a guy who was a passenger in a car during a traffic stop, suing a police officer who arrested him for not showing his identification. The Court found that the suit could go forward because the guy was not required to show his identification (barring a law to the contrary) and the arrest may have violated his rights.
If you’re not doing anything wrong, then who cares? And if you are doing anything wrong then I, and most of the rest of society, am on the side of the law.
Are you opposed to random checks at airports or ports of entry too? The chance that you may get searched is a huge deterrent for illegal activities at these places, all in the name of public safety: just like on the roadways.
I don’t think that DUI checkpoints are constitutional either, although it is my understanding that the Supreme Court has ruled otherwise.
Here in Connecticut, not only do the police officers force you to stop, they shine a flashlight in your face and into your vehicle looking for anything suspicious. I fail to see what the latter has to do with the stated goal of looking for drunk drivers.
What particularly irks me is the associated questioning. They always start by asking if you have had anything to drink “today.” Personally, I don’t think that the fact that I had a single glass of wine 12 hours ago is any of their business. Next, they inevitably ask where you are coming from and what your destination is. This line of questioning makes me irate. I’d like to tell them that it’s none of their business, but this would get me pulled out of line and detained, so I defer to their jack-booted authority and answer truthfully.
Also, while they do give advance notice of DUI checkpoints in newspapers in Connecticut, unless you make a point of carefully checking the newspaper on a daily basis, you are unlikely to be aware of a given checkpoint. For what it’s worth, while I have seen the notices occasionally in the newspaper, every checkpoint that I’ve ever run into was a surprise to me.
Again, here in Connecticut, checkpoints are set up so that you will not see them before you reach a point at which you cannot avoid them. Attempting to evade a checkpoint, such as by pulling a U-turn, will get you chased down by a police vehicle stationed for that purpose.
I’m no expert in constitutional law, but I think the whole thing is wrong. If the Supreme Court thinks the practice is constitutional, then I believe that Congress and the President should make checkpoints illegal. IMHO, I don’t think that it is right for the police to be running any type of checkpoint on the public right-of-way, whether or not we’re talking about the sidewalk or the roadway.
Because any encroachment or requirement to comply with a government order in this realm must be justified and balanced with the inherent affront of forced government interaction. Not that there isn’t a vast spectrum that would satisfy that balance, of course, but “if you’re not doing anything wrong” carries no weight in that calculation.
Note, however, I agree with your other justifications.
You could say the same thing about any other search. By this line of reasoning, you would have no problem with routine warrantless house-to-house searches, or being rounded up for questioning, or DNA dragnets. After all, if you’re not doing anything wrong, then who cares?
The issue is the infringement upon our liberties.
I have no issue with non-random, universal screening at airports and ports of entry, because I can choose to avoid these.
I cannot reasonably choose to avoid public streets and roadways.
I don’t know about the constitutionality of such stops (don’t we have 9 experts who still debate this issue?) but I can feel the wrongness when I can’t get into or out of my neighborhood without showing my papers. Any interaction with the police can result is a huge hassle, or worse, for even the tiniest of mistakes. Look at the officer funny - they can make you sit there forever. Don’t want to let them search you car - OK then, have a half- hour wait while they run a “background check.” Stumble in your speech - get out of the car and take a test.
I actually don’t object to sobriety test that much, it’s the huge discretion the police have to do basically anything they want and the requirement that we, the people, silently suck it up or else that bothers me.
As a matter of general principle, I believe the police should have some degree of evidence before making any citizen subject to investigation. They should not be able to just stop random people and then question them to find out if they’ve committed any crimes.
Correct me if I’m wrong but the ability to make immigration sweeps centers around businesses and not individuals. An officer cannot walk up to someone on the street and demand legal status.
This is a debate misnomer. People absolutely have a right to drive just as they have a right to fly an airplane or own a house. The states involvement in issues of safety mandate licensing of operators (in the case of a car or plane) or the certification of construction standards (in the case of a house).
In the event that laws governing safety are breached states can take away the right to drive in the same way it can incarcerate people for other laws broken.
http://www2.potsdam.edu/hansondj/DrivingIssues/1103163004.html Nope, they are not. Several states rejected them including Michigan. There are constitutional reasons to reject them.
They are slow. I was in one that was dragging before we quit having them. I walked up and asked the cop to check me then, because I had to go to the bathroom. He did not care .
