Working from home today, and the TV is on for noise. The SO was watching it, and I wasn’t paying attention. She saw something that I am now curious about.
A jurisdiction posts signs saying that there is a drug checkpoint with drug-sniffing dogs ahead. The LEOs look to see who turns around, and I presume (I wasn’t paying attention) that they then pull those cars over for suspicion of containing drugs. There is actually no checkpoint; just the sign.
Question: Is that legal? If someone turns around before coming to an announced checkpoint, whether it exists or not, does that constitute probable cause for a search?
IIRC, no. In fact, I seem to recall that at least In California, they have to allow a chance to turn to avoid a checkpoint when they post for one. Something along the lines of “refusal to allow a search is not probable cause for a search.”
Not by itself. But, going 1 mph over the speed limit, stopping an inch too far forward at a stop sign, having a taillight out, touching the center line, touching the fog line, having something hanging from your rear-view mirror…see what I’m getting at? All a reason to stop you. And since there’s bound to be a dog there right away, your vehicle is getting sniffed from the outide, which isn’t a ‘search’.
IANAL so there are probably technical reasons why this is legal but my understanding is refusing to consent to a search is not probable cause for a search.
Now some lawyer will come along and talk about administrative searches and one poster (I forget who it is) will talk about how drunk-driving is considered so heinous that the normal rules of law such as searches and evidence custody are routinely ignored by the police and courts.
I was under the impression that for all intents and purposes probable cause was thrown out the door years ago.
Almost anything can be used as probable cause. Look nervous? Probable cause. Ziplock bag from your lunch sandwich on the seat? Could be a baggie. That’s probable cause.
The situation the OP describes is a ruse or decoy checkpoint, and while no SCOTUS decision is directly on point many state courts and U.S. Circuit Courts have held that they don’t violate the 4th Amendment. It’s generally required that the turning around or taking of the exit ramp that avoids the nonexistant checkpoint be just one factor in determining reasonable suspicion to stop or probable cause to search, since turning around or taking an exit in and of itself may be entirely innocent. If you avoid a drug checkpoint they may take an interest in you and follow you until they have a reason for a pretext stop (which is what Sicks Ate is describing), like you running a stop sign or failing to signal. If you’re nervous and smell like pot or the drug sniffing dog they just happen to have tagging along hits on your car, it’s a legit stop, search and arrest. See, e.g. United States v. Rodriguez-Lopez, 444 F.3d 1020 (8th Cir. 2006); United States v. Flynn, 309 F.3d 736 (10th Cir. 2002); U.S. v. Williams, 359 F.3d 1019 (8th Cir. 2004), et. al.
You’re talking about a recent episode of Alpha Dogs, I think. I was wondering the same thing as I watched it. When they stopped the car on camera, one of the LEOs mentioned to the driver they were being pulled over for a moving violation of some sort (I don’t remember if they specified exactly what it was or not since it was a week ago that I saw it).
I imagine it’s not that hard to find some reason to pull a vehicle over, and it seems that’s what they do. Or at least that’s what they do when there’s a film crew on hand. That doesn’t really answer your question though, but it seems that a few more knowledgeable members have gotten to that already.
This is correct. California courts have found that it is not permissable to force a person to enter a checkpoint with no avenue of escape, nor to pursue a person who appears to avoid a checkpoint.
Further, In State v. Binion, 900 S.W.2d 702 (Tenn. Crim. App. 1994) in Footnote number 2, the court said that failing to allow the driver space to turn and avoid the checkpoint “may” be unconstitutional.
I was driving my family around Arizona one time and came up to a checkpoint. I turned away from it, not because I wanted to avoid it but just because that road wasn’t the direction I wanted to travel. My father-in-law (who, ironically, is from California) freaked out. He thought that we should continue travelling on the same road, even though it was in the wrong direction, because the Border Patrol would hunt us down for evading their checkpoint. If they pursued everyone who appeared to avoid the checkpoint, then they would obviously end up stopping people who turned for completely innocent reasons.
Essentially, yes. As long as the police officer knows enough about the law to cite a legally permissible reason, then it’s easy to justify a search of anyone at any time. For example, I have found that a popular reason for pulling someone over is that the license plate light was not working. There is no way to challenge that in court, because even if you prove that the light was working after the stop, the judge says it might have gone out while you we’re driving and then fixed itself. The bottom line is that as long as cops are willing to lie and judges are willing to believe them, we have no rights.
Cuddy had only been a guard for a few days, but already he had absorbed one important and basic fact: it is almost impossible for anyone to be in a street without breaking the law.
Wow, I was all ready to answer, but you nailed it in one. In summary, the police are not supposed to stop you simply for avoiding a checkpoint (a ruse checkpoint or a real one) but they may follow you and stop you on a pretext.
Years ago I was driving on 95, heading north out of Florida. There was heavy traffic. I saw a sign stating “drug checkpoint 5 miles ahead”. I wondered how they could possibly do something like that on such a busy highway, plus I wondered why we weren’t already experiencing congestion.
There were more signs every half mile or so. About a mile before “the checkpoint” there was an exit for a little town. Anyone exiting there was being pulled over.
A friend and I fell for that at Gauleyfest a couple years ago. We’d had about three beers apiece at the takeout but there were a lot of people in our group that had been “tailgating” at our truck and we were afraid that a bunch of empties may have been left in the back so we pulled off to check and blundered right into thier trap. My buddy passed the roadside test and they let us go. There were no empties in the back.
I assume this was West Virginia. We still have no open container law (statewide, most municipalities do) so don’t worry about empties in the back. You can’t get cited for them.
ETA: or even “fullies” in the back or the front. Just make sure the driver is under .08 or is not otherwise impaired.
Yay! I got hassled once (in PA) over an empty can on the floor. Eventually the cop backed off when I pointed out the rust, and explained that I cleaned up someone else’s litter. But I coulda been busted. In PA.