What is the legal basis to stop a driver in Georgia?
The United States is a country founded on ideas of freedom. Freedom of the press, freedom of speech, freedom of religion...the rights of the people, the limits on power of the government...these ideas lay at the very core of American idealism. They are what make us fundamentally American.
There is also an unwritten freedom; an understood right...the right to be left alone. This coupled with the right to not be subject to unreasonable searches and seizures create a legal construct that limits the rights of law enforcement officers in everything that they do.
The Courts throughout the United States have created an extensive and sometimes changing landscape of rules and guidelines a law enforcement officer must follow in order to be able to invade your privacy. Most courts guard against unreasonable searches and seizures zealously; protecting our citizens from over-reaching by State agencies around the nation, admonishing law enforcement officers and dismissing cases that violate these sacred liberties.
History of the 4th Amendment of the United States Constitution:
Before the founding of our nation, colonists were regularly subjected to searches of their homes and property by members of the King's militia and customs officials. If authorities got wind that a person or particular group of people were engaged in activities designed to foster independence from England, they were often the subject of limitless intrusions into their homes; subject to destruction of property and seizure of goods and personal belongings which had no real connection to any illegal activity.
Years of this mistreatment led the colonists to adopt and hold dear the strictures outlined in the Fourth Amendment to the Constitution of the United States, mentioned previously relating to unreasonable searches and seizures.
In the landmark Supreme Court Case, Terry vs. Ohio, 392 U.S. 1, 27 (1968), The Supreme Court of the United States (SCOTUS) held that a person can be stopped and briefly detained by a police officer based on a reasonable suspicion of involvement in a punishable crime. If the officer has reasonable suspicion that the person is armed and/or dangerous, the officer may perform a search of the person's outer garments for weapons. Such a detention does not violate the Fourth Amendment prohibition on unreasonable searches and seizure, though it must be brief.
Reasonable Suspicion or Articulable Suspicion is a guiding concept that limits the power a police officer has to invade your privacy; to stop you in your vehicle, to come into your home, to look into your trunk. Without this the police would be free to stop anyone or everyone, randomly searching for real or imagined contraband. We would be subject to the police state in its very worst form.
As it applies to DUI cases, 'Articulable Suspicion' essentially embodies the idea that a police officer must have a valid reason to stop your vehicle. They cannot stop motorists at random (except within limited sets of circumstances), without any hint that some crime has been committed.
There is no question that law enforcement officers have the powers of search and seizure. The investigation of crimes would be impossible without them. The ability of a police officer to enter into an alleged crime scene or any place where evidence of a crime may be found, and then remove evidence from the location or even the person is essential to law enforcement in general.
But these powers are limited in scope by the United States Constitution, State Constitutions, the Constitution of Georgia, and case law. In fact, while the powers of search and seizure are in and of themselves great, the restrictions placed upon them by various laws and legal opinions are in many cases greater and limit those powers to protect the individual and his or her freedoms quite effectively.
Keep in mind that the general rule is you have a right to be left alone from government intrusion. The cases that allow limited searches are exceptions to the general prohibition against unreasonable search and seizure.
As a result, our Courts walk a fine line between protecting citizen freedoms and giving law enforcement enough leeway to effectively investigate crime. No one wants to live in a police state, while no one wants crime unpunished.
Let's take a DUI stop as an example:
The time is 1:00 am. The place is just across the street from a local bar. An officer sits across the street in a parking lot of a hardware store watching the door to the bar open and close, keeping an eye on the patrons as they smoke their cigarettes, wander around talking and sometimes yelling and once in awhile, getting into their cars and driving.
He sees a group of 20-30 something year old men exit the bar. They say their goodbyes and one of them walks over to his car, gets in, sits for a very long moment and finally puts his car in reverse and pulls out of the parking lot. He drives by the officer, who pulls out of the hardware store and follows him.
The officer follows at a reasonable distance, looking for any signs that this driver might be under the influence of alcohol. This officer has been in the traffic unit for more than 10 years. He has seen it all, and while there are no overt traffic violations that he sees with the guy in front of him, he also notes that his driving seems just a little too perfect.
Absolutely no weaving within the lane, driving at exactly the speed limit, stopping completely at stops signs, even though it's 1:00 am and there is no one else on the road.
The officer follows him for a distance of over a mile and then sees him swerve ever so slightly, not leaving the road, or even his lane of traffic, but definitely swerving. He activates his lights and sirens and stops the vehicle.
The officer calls in the license plate, advises dispatch that he is conducting a stop and possible DUI investigation, asks for backup and exits his car, approaching the suspect.
The driver has his window down when the officer approaches. There is a strong odor of alcohol coming from inside the vehicle. The driver looks disheveled, his eyes are bloodshot and watery, and his speech is slightly slurred. He has trouble producing the documents the officer asks for (i.e. license, registration and proof of insurance).
The officer asks if he's been drinking, to which he gives the time-honored drunk driver answer: "yes, I've had two beers."
Now this officer has been on the force for over ten years, as I've mentioned. He knows that 90% of DUI suspects, no matter how 'falling down drunk' that are, always answer with 'two beers.' He asks the driver to exit the vehicle and continues his DUI investigation, later joined by two other officers who were in the vicinity and not really doing anything, anyway.
No matter how this DUI investigation ends, a defense attorney looking at these facts will note this is a case that could potentially be solved before trial in what is known as a motion to suppress. This is why people need to hire an attorney because on its face the arrest may look perfectly valid to a lay person. However, to a trained lawyer, this arrest example is fundamentally flawed.
A motion to suppress is an evidentiary hearing, or a legal hearing in front of a judge, wherein defense counsel is usually objecting to some legal peculiarity in the way in which the investigation was conducted, the case has been handled, or some other legal problem that could result in a dismissal or suppression of evidence before the case goes to trial.
An evidentiary hearing is requested by defense counsel through the filing of what is known as a 'Motion.' A motion is a request by one of the parties to the proceeding asking the court to do some particular thing. There are 'Motions to Continue,' which mean a party is asking the court to reset a court date at a later time.
There are 'Motions for Discovery,' which mean that a party is asking the court to order the other side to produce some piece of evidence. And we also have 'Motions to Dismiss,' and 'Motions to Suppress,' which are cases where the defense is asking the court to either dismiss a case entirely, or to suppress (or not allow the State to use) certain pieces of evidence.
We will revisit the differences between Motions to Dismiss and Motions to Suppress later in this article. At this point we can be sure that a defense attorney will be filing a motion based on the potentiality of an illegal stop, (i.e. that the officer had no legal reason to stop the driver in this case).
The doctrine of articulable or reasonable suspicion comes from a long line of cases decided by state and federal courts all the way up to the Supreme Court of the United States. Because it comes into play in nearly EVERY criminal investigation, it has been widely litigated. Unfortunately, this also means that sometimes the law isn't as 'bright line' as one would wish.
Reasonable suspicion is a legal standard that does not rise to the level of probable cause and yet constitutes enough evidence to allow a stop, or a 'stop and frisk.' Probable Cause is the level of evidence that must be collected in order for an officer to make an arrest....that standard is much higher than reasonable suspicion.
Articulable suspicion requires that an officer has some evidence that is able to be articulated, that would lead a reasonable person to conclude that a crime may have been committed. There, isn't that clear? Of course it isn't.
Let's use another DUI stop as an example:
If an officer observes a driver weaving all over the road, running through a stop sign and driving 15 miles below the speed limit...this is a pretty good indicator that the driver is under the influence of alcohol, or at least an unlicensed driver (also illegal). In this case it is REASONABLE to assume the driver is committing a crime, and there are ARTICULABLE pieces of evidence the officer can list that point to that belief.
Drivers in the United States share the protections given to them by the Fourth Amendment to the Constitution:
It has been held, by courts across the Nation and by the Supreme Court of the United States, that a random traffic stop is an unreasonable infringement upon these rights. It is therefore the law that a police officer cannot stop a motorist unless he has a reasonable suspicion that the driver has been or is involved in some sort of criminal activity or if he has probable cause to believe the driver has committed a traffic violation.
"Reasonable Suspicion" must be based on specific and articulable facts, i.e. not just a mere hunch or feeling on the part of the police officer, along with 'reasonable inferences from those facts.' The facts that an officer testifies to in order to establish whether he had reasonable suspicion to make a stop, when being reviewed by a court are looked at in the light of not what the officer believed or thought, but what a reasonable person in the same situation would believe.
In other words, the actual beliefs of the officer who stopped you are irrelevant, as that officer may be paranoid, but what matters is what a reasonable person would have believed in those same circumstances. For example, let's assume you stop next to a police officer at a red light. You come to a complete stop and look over at him, smile and nod. He then pulls you over.
He can testify that he believed that you smiled and nodded because you were nervous about the fact that there is a dead body in the trunk of your car. He states clearly that people do not just smile and nod at police officers unless they have something to hide.
While that may be true in that particular officer's case, no reasonable person would reach that conclusion given those facts and so there would be no reasonable suspicion for the stop, even though the officer believed you had just committed a murder. This is a ridiculous example, but cases like this do happen.
An officer can also stop you if he has probable cause to believe you have committed a traffic violation. Probable Cause is a higher standard than reasonable suspicion and is derived from what this particular officer saw and observed. The result must be likely that you have committed a traffic violation, such as speeding, or running a stop sign.
Exceptions to the 4th Amendment:
A police department may set up a DUI Checkpoint or DUI Roadblock under certain circumstances. The United States Supreme Court allows DUI checkpoints, carving out an exception to the Fourth Amendment in the cases of Michigan vs. Sitz and Ingersoll vs. Palmer.
The Georgia Court of Appeals has held in Baker v. State, 252 Ga. App. 695 (2001), that compliance with all prongs previously set forth in State v. Golden, 171 Ga. App. 27 (1984) and LaFontaine v. State, 269 Ga. 251 (1998) must be established in order for the checkpoint to pass constitutional scrutiny. It must be shown:
- That the decision to implement the roadside checkpoint as well as the procedures for carrying it out were made by supervisory personnel, rather than officers in the field; and
- That the roadside checkpoint served a legitimate purpose; and
- That all passing vehicles were stopped as opposed to random stops; and
- That the delay to motorists was minimal; and
- That the roadblock was well identified as a police checkpoint; and
- The screening officers' training and experience was sufficient to qualify the officers to make a determination of which drivers should be investigated for impairment.
- The decision to implement the roadblock must be made at the programmatic level for a legitimate purpose. The decision must be made by a police officer not in the field. See Brown v. State S12G1287. (2013)
- The roadblock must be established for a lawful primary purpose other than ordinary crime prevention and control. See Williams V. State S13G0178 (2013)
The above listed factors only seem to make the issue of whether a particular checkpoint is valid more complicated. While there is no bright line rule, an attorney who is experienced in DUI law can easily analyze any particular case in order to determine whether the checkpoint at which you were stopped was valid or a violation of your rights. The above analysis must also be viewed in the light of local custom, as well.
In some jurisdictions, leniency is given to police officers at DUI checkpoints, while in others, it is not. Certain judges also view checkpoints as necessary in DUI detection and so give law enforcement considerable leeway in setting them up and conducting them how they see fit.
Should you find yourself facing a checkpoint, it's best to keep in mind the following points:
- If an officer approaches you and asks for your license, proof of insurance and registration, you must provide those documents to him. You have every interest to provide your documentation so you can move on as soon as possible.
- If he begins to question you, politely tell him that you choose not to answer any questions, as it is your right under the United States Constitution. You are not obligated in any way to provide him with answers to his questions, and doing so will only work against you both in his investigation and later in court.
- If the officer asks to search your vehicle, tell him you do not consent to a search of your vehicle. If he asks you to step out of the vehicle, lock it behind you and reiterate that you do not consent to a search of your vehicle.
- If the officer searches your car anyway, do not resist. Cooperate after noting your objections.
- Do not answer any additional questions once he begins his DUI investigation. Ask to speak to an attorney.
- If he asks you to perform field sobriety tests, politely decline. These tests are voluntary and will only lead to your arrest and will furthermore aid the State in acquiring a conviction against you.
- Ask repeatedly and politely to speak to an attorney.
- If you are placed under arrest, ask again to speak to an attorney, if you have not done so already.
- If you have been placed under arrest, you are legally obligated to perform a breath, blood or urine test. If you refuse your license may be suspended for a minimum of one year.
- Once you submit to the State-administered chemical test, request an independent test of your blood at the hospital of your choice and at your own expense.
Once you have been placed under arrest and have taken the blood, breath or urine test, the officer will generally release you, provided you have someone willing to come pick you up. You will first have to bond out of jail.
Now, let's look at the case we originally outlined above. We have an officer (or two or three) with a driver on the side of the road in the middle of the night, collecting evidence from him in order to place him under arrest for DUI. The officer based his decision to stop the driver on the fact that he swerved within his lane and seemed to be paying too much attention to traffic laws, driving at exactly the speed limit and stopping completely at stop signs, whether there is traffic present or not.
Your defense attorney should immediately file a motion to suppress the evidence in this case. If a judge rules the officer did NOT have reasonable suspicion to make the stop, the punishment for the State is to have him suppress (or throw out) all of the evidence gained subsequent to the unlawful stop.
In most DUI cases, if all of the evidence gained after the stop is suppressed, the State has no choice but to dismiss the charges. They cannot proceed to trial on a DUI with the only evidence being that the driver swerved within his lane and followed traffic laws. No matter what the driver's blood alcohol content ended up being, it would be prosecutorial misconduct to move forward with that case.
So the Motion to Suppress results in a dismissal, and could just as easily have been viewed as a Motion to Dismiss. In either case, the motorist we followed from the bar ends up having his case thrown out and his driver's license (if it had been suspended) restored.
As you can see, a motion based on lack of reasonable suspicion can be a powerful weapon in the hands of a competent defense attorney. Avoiding the need to proceed to trial is one of the best outcomes for which a client can hope.
There is hope if arrested for DUI in Georgia:
As you can see, challenges to the reasonable articulable suspicion to stop the vehicle of someone suspected of DUI can be an affective defense to DUI in Georgia and you need a skilled Georgia DUI Lawyer to file the appropriate challenges to the stop in your case. Act now and contact our office. We are hearing 24 hours a day, 7 days a week to protect your rights. Your best defense begins here!