There’s been a lot of discussion lately about motorcycle only checkpoints, DUI checkpoints, intimidation by the TSA and questionable border security checkpoints that are nowhere near a border.
Americans citizens are protected from unreasonable search and seizure under the Fourth Amendment of the Constitution. But there has been a continued encroachment and reinterpretation of Fourth Amendment protections, especially at checkpoints and during traffic stops. So exactly what are your rights and how can you invoke them?
In 1968, there was a case heard by the U.S. Supreme Court (Terry v. Ohio) that said police officers deal with dangerous situations on the street, therefore they should be allowed to stop a person and conduct a field investigation, without an arrest or seizure of that person. Before such a stop can be made, the person must be exhibiting some reasonable suspicion that he has committed or is about to commit a crime.
If that suspicion includes the person might be armed and dangerous, the police can also conduct a “pat down” of the person.
If during the field investigation the officer believes there is probable cause that the person is guilty of something, then an arrest can be made and the person can be searched beyond just a pat down. Technically, a stop is a seizure of a person. This can be accomplished by physical means where an officer physically handles a person, or it may be by a show of authority, whereby the officer’s tone in his commands makes a person believe he is seized and must comply.
Acting nervous or suspicious, attempting to run from the police, matching the description of a suspect or just being in the vicinity of a crime can justify police in stopping or detaining you. These criteria for a justified stop can also justify a frisk or pat down of a person. A frisk is usually done to satisfy an officer’s concern for safety. A frisk does not include going into pockets or reaching into clothing. But, if a weapon or other questionable article is felt during a pat down, the officer can then reach into a pocket or clothing to retrieve the item. This is known as the “plain feel” doctrine, but the item in question must be obviously similar in feel to some type of contraband or weapon.
CHECKPOINTS
Checkpoints usually come under the heading of DUI, US Border, Motorcycle Only and TSA checkpoints.
DUI Checkpoints are a form of roadblock where a number of vehicles are filtered into an investigation zone. The stops are supposed to be brief and while checking for license and registration, the officers are also checking for signs of intoxication. They are not allowed to search your vehicle unless there is probable cause you are intoxicated, or if you foolishly allow them to if you are asked. If detained, you have no legal obligation to answer questions or admit to breaking any laws. The Fifth Amendment is a protection against self-incrimination. Use it. During DUI checkpoint activities, law enforcement cannot select which vehicles to pull over but rather must channel all vehicles in a string into the investigation zone.
There have been instances where law enforcement has placed signs on the roadway advising that a drug checkpoint is ahead. Random checkpoints for drugs are unconstitutional and are not supposed to be used. The signs may be a decoy and vehicles making an abrupt U-turn or suddenly pulling off the road will be regarded as suspicious, raising the bar to reasonable suspicion to stop that vehicle.
Motorcycle Only Checkpoints have been used in several states, utilizing federal grant money to finance those operations.
Outside of commercial vehicles, which can be legally stopped to check loads, weights, log books, etc., motorcycles are the only vehicles that have been singled out for a checkpoint. This practice has been met with a deluge of complaints from the motorcycle community and rights organizations and two federal bills, HR 1861 and S2078 would prevent the federal DOT from issuing grants for motorcycle only checkpoints. It’s expected that these bills will be rolled into the new highway spending bills in congress.
US Border Checkpoints come under the jurisdiction of the Department of Homeland Security, and agents can search you and your vehicle any time you cross a U.S. border without needing probable cause or a search warrant. If it’s suspected that you have contraband on your person, border agents can search you using a pat down, strip search, body cavity or involuntary x-ray search. Recently, a question arose about searching electronic devices by border agents. Unlike most police agencies, border agents do not need a warrant to search electronic devices but they must have reasonable suspicion that there is something of an illegal nature or evidence of a crime on the devices, according to the Ninth Circuit Court of Appeals.
A bigger problem with border checkpoints is the expanding geographical area agents are allowed to conduct stops in. Some of these checkpoint stops have been as far as 100 miles away from any border. You are not legally obligated to answer any questions, like if you’re an American citizen, and you do not have to consent to any searches of your person or vehicle. Again, acting in a calm manner and invoking your right to be left alone is the best way to avoid an agent claiming reasonable suspicion that you did or are about to do something illegal.
Refusing to answer questions is not a basis for reasonable suspicion, even if the agent tells you it is. You should say out loud that you want to leave and ask if you are under arrest. Remaining silent and ignoring an officer’s questions is not the same as refusing to consent to a search and demanding to leave.
TSA Checkpoints account for numerous complaints every day. These agents can legally search you and your belongings any time you pass through a security point. They do not need probable cause or a warrant to conduct these searches.
If you thought the TSA was only at airports, think again. Ever hear of VIPR? That’s the acronym for Visible Intermodal Prevention and Response squads. These heavily armed agents can be found at train stations, sporting events, festivals, weigh stations and more. VIPR was established in 2005, and although the goal is to prevent terrorist attacks at various venues that offer a tempting target, the rights of citizens are being trampled and the possibility of profiling individuals in crowds is real.
What does a terrorist look like? There’s a perception, but that could be a far cry from what the actual terrorist might look like. The reviews on VIPR are mixed and the teams are undergoing new training to address some of the concerns.
The bottom line is, since September 11, 2001, America is not the same place Norman Rockwell depicted in his magazine cover art. The balance between safety and rights is continuously being weighed in the streets and in the courts.
For further insight about your rights during vehicle stops and at checkpoints, visit www.flexyourrights.org or search Flex Your Rights on YouTube for videos dealing with these subjects.
Opinions in this article are those of the author and should not be construed as legal advice.
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