Violation of your rights?

Great Debates
1

I was watching the news and they were showing a new device that is available to law enforcement personel. It looks and works like a flashlight but contains a system to determine whether or not a driver has been drinking.

After pulling you over the officer simply has to shine his flashlight in your window and the unit will give it’s verdict after about 4 seconds. If you have been drinking you will be asked to exit your car and take a normal breathalizer test to determine whether or not you are in any shape to be driving.

I thought this was a great idea in that anyone drinking and driving will be easily identifiable to police even if they don’t appear to be inebriated.

They have started using this device in Virginia and there have been people stating that this device is an infringement on a persons civil rights.

What do the teeming masses think of this?

2

Which rights, exactly, are said to be being violated?

3

My off the cuff opinion is that it isn’t an infringement of our rights. The flashlight is merely helping weed out those believed to be drinking and driving from those that haven’t. As long as it is not being used in place of a breathalizer, there’s no problem.
If it is used in place of a breathalizer, especially if it’s used as the basis of an arrest, then they’re taking infomation without your permission. It’s infringing on your rights.
Right now, it’s like an electronic drug sniffing dog.

Of course, for me to be certain of this opinion, I’d have to know more about this flashlight. Do you have a link?

4

I think it’s another infringement on citizens’ rights by the government.

Shall we review the fourth amendment?

Use of the “flashlight” could reasonable be considered to be a “search”. Just because a police officer has pulled you over does not mean he can make a warrantless search of your car or your person. The search has to be “reasonable”. The problem always seems to be that police officers think anything they do is “reasonable”, regardless of the rights of the suspect. So they will use this device all the time, and after the fact claim that its use was “reasonable” in the event of a DUI charge, and if they don’t get a positive response from this thing, well, what do you have to complain about?

Personally, I would suspect the device to begin with. How would anyone know if the durn thing wasn’t just a regular flashlight, and the police were merely using it as an excuse to make people take breathalyzer tests?

One of the problems with fourth amendment issues is the claim that “only guilty people have anything to hide”. I maintain that everyone has the right to not be searched without probable cause, and I’ll be damned if I’m going to consent to any of my rights being taken away.

As for the DUI issue, I’ve always wanted to be a traffic court judge so I could throw the book at DUI offenders, but I still don’t support the loss of any of our rights under the fourth amendment.

5

2nd Law:

I’m not too sure this is so unreasonable. After all, the device only works if you’ve already been pulled over. How many troopers are going to pull someone over, and then not preform some sort of search. The trooper already has to have “reasonable cause” to be able to pull someone over in the first place.

In fact, I could see that the “flashlight” device might actually cut down on breathalizer tests. It’s a fair assumption that, if you’re pulled over during the night, you’re going to be breathalized (even if it’s because you’re speeding or have a busted light–at least that was the case in PA). If the “flashlight” device tells the cops they’re not dealing with a DUI, they might well skip the test.

6

IANAD, but I think that they already do this with a regular flashlight. I have been pulled over for a DUI stop (long story), and the cops just shined a regular mini-flashlight in my eyes. I asked about it later, and they said that by the rate at which your pupils dilated, they could guesstimate how much you’d had to drink. I don’t know if this is medically sound, but they believed it worked.

7

Amen. I don’t think any such device exists. It sounds like a crock for getting people to take breathalyzers without cause.

8

It exists.

Actually, that’s not true. You can be pulled over in a roadblock. And, as 2nd Law mentioned, just because you have been pulled over, doesn’t mean there is probable cause for a search.

9

Hmmm let’s apply some real constitutional law to the subject. 2ndLaw, shame on not being more complete.

When an officer pulls you over for suspected violation of the law, he is entitled to do certain things. He is entitled to ask for your license and registration. He is entitled, having pulled you over, to look inside your car from the outside and see what can be seen. He is not entitled without further evidence, unless you give him permission, to search the interior of your car or the trunk thereof.

The device in question samples the ambient air inside the car near your head, in an attempt to determine if your exhaled breath contains detectable amounts of alchohol. This is, of course, a ‘search’. The question is, is it akin to the limited search of inspecting the interior of the car from outside the car to see what is in ‘plain view’, or is it more akin to the sort of search that requires probable cause to conduct, such as opening the trunk of the car?

One could argue that all the device is doing is the same thing the officer does when he smells your breath. Clearly, if I open the window of my car, and the officer detects the odor of alchohol, I’m on my way to further investigation of whether I have violated the law. This is nothing more than a nose with a better sense of smell.

On the other hand, we now have an attempt to reach inside the car, drag out something from within (the air the device takes in) and subject that to analysis. That sounds pretty intrusive. If I refuse to open the window of the car, the officer isn’t entitled to break the window to sample the air inside; that would be a violation of the Fourth Amendment (or the Fourteenth, if it is a state officer, as it likely is). So which do we have here?

At a guess, the police will use the device, the defense attorneys will move to dismiss the charges, the courts will slowly build up decisions one way or the other, and, eventually, the Supreme Court of the United States will be required to advise whether such an action is or is not a violation of your rights under the Constitution.

10

Well, if an officer uses a flashlight at night to look inside a dark vehicle, even if just to question a fdriver that he has pulled over and sees a stash of cocaine on the passenger seat that he could not have seen without the light, is that an illegal search?

11

Duke, just because the cops have stopped you doesn’t mean they can search for anything they might find without either probable cause or consent. If your taillight is out, should a cop automatically get to look in your trunk? Glove compartment? Briefcase? If a cop comes to your door with a complaint about your barking dog, can he rifle through your closets? And what if, unknown to you, your teenager has a baggie of pot in his closet. Or one of his friends disn’t put out a roach in the back seat ashtry when he borrowed the car last night. Sure, you have a reduced expectation of privacy in a car than in your home, but how reduced do you want it to be.

Unfortunately, IMO, our current S.Ct. seems to downplay the coercive effect of a policeman’s “request” for consent.

The coke is in plain view. Same as if you kee[p your bong in the front window of your living room. No warrant or consent required.

12

Please ignore that anomalous “disn’t”.

13

DSYoung, mea culpa, mea maxima culpa. I always have the problem between going on too long and not going on long enough.

The problem I often have is that police officers may stop a car without probable cause, and “go fishing” for violations such as DUI or drug possession. One has to wonder how often there is a stop and after the fact the officer comes up with a reason to stop the car.

The USSC recently decided that police checkpoints violate the Fourth Amendment because they constitute unreasonable searches, in a case where Indianapolis was stopping cars to search for drugs using drug sniffing dogs.
http://www.cnn.com/2000/LAW/11/28/court.roadblocks.sc.reut/

That decision surprised me, seeing as most of the law regarding vehicle searches in the past 30 years has been going in the direction of allowing pretty much any kind of vehicle search.

Dinsdale, whenever I talk with anyone about police searches, I always tell them to refuse consent on general principles. I’m certainly not going to voluntarily go through my car, not because I’m concealing anything, but simply because what’s in my car is none of their damn business. Like I would want anyone to see all those White Castle boxes under the seat…

14

More to the point, though, while we may have some idea of who has been in our car, we don’t necessarily know what they may have dropped, left etc. (that friend of your kids in the back seat? that garage mechanic leaning in? etc).

Plus, laws vary from jurisdiction to jurisdiction, so, that hunting knife you carry in your glove compartment may just be a “concealed weapon” in another city.

THe latter happened to a friend of mine, the former has happened to me (of course I was transporting clients - offenders, at the time, but I once found a homemade ‘capsule’ of something or other some visitor to my home dropped).