Search and Seizure at Traffic Stops and DUI Checkpoints – Know Your Rights!
Posted on May 24, 2019 in Criminal Defense, DUI/DWI, NOPD, Uncategorized
If you are pulled over for a traffic stop, or at a DUI checkpoint, it’s important to know your rights in order to protect yourself and your property. You have the right to refuse to offer any information that may incriminate you. This is often referred to as the right to remain silent.
Additionally, the Fourth Amendment protects you from illegal search and seizure. You have the right to refuse a search of your person and property. In most cases, law enforcement need a search warrant in order to search you or your belongings.
However, there are a few exceptions that allow an officer to search you and your property without a warrant.
Consent and the Plain View Doctrine
If you give consent, then a police officer can conduct a search without a warrant. If you have nothing to hide then it may be best to consent to a search, let the officer go through the motions, and be on your way.
There is also what is known as the Plain View Doctrine. This exception, written into the Fourth Amendment, allows for law enforcement to conduct a search if they see something illegal or incriminating out in plain sight either on your person or in your vehicle.
For example, if you are pulled over for a traffic stop, and there is a bag of marijuana on your passenger seat, the police have the right to conduct a search in order to find more evidence.
The police also have the legal right to conduct a search in accordance with an arrest. So if you are being arrested, police do not need a warrant to conduct a search and seizure. The reasoning here is twofold. Law enforcement’s search is intended to locate and seize any evidence which may be relevant to your arrest or crimes committed. Additionally, this search is to protect the officer from any dangerous weapons or persons in the vicinity.
How to Refuse a Search of Your Vehicle or Person
You are legally within your rights to refuse an unwarranted search of your person or property.
Always remain calm and courteous to the officer or officers, even if they do not return the sentiment.
If you are asked to step out from the car, an officer may begin patting down or frisking you. You are legally within your rights to refuse this type of search. Speak calmly and say something like “Officer, I do not consent to this search.” Never resist physically or touch the officer, as you may be putting yourself in danger.
Police are well aware of the consent rule, and may often attempt to gain your consent without your knowledge. They may say something like, “Mind if I take a look around your vehicle?” Or even phrase it like a command: “I’m going to look around your vehicle.” However, they cannot legally do so until you give your consent. Be careful what you say, and if they ask, calmly and politely indicate to them that you are not comfortable with them searching your vehicle.
What Happens If I Refuse a Search?
Unless you have been arrested or detained, you are free to go. Law enforcement must have probable case that a crime has been committed in order to detain or arrest you. Ask the officer directly if you are being detained or if you are under arrest. If the answer is no, then ask if you are free to go.
In some cases, after you refuse a search, the officer may try to play hardball with you. They may say that they will are going to get a search warrant or have the drug dogs brought out. However, again, if you are not detained or under arrest, the police officer cannot make you stay at the traffic stop.
That said, you should never attempt to flee a traffic stop or law enforcement. Even if you are within your constitutional right to do so, you are putting yourself and your freedom at risk. You could be charged with resisting arrest, or other various charges.
Instead, calmly continue to ask the officer if you are under arrest, and if you’re not, if you’re free to go. Eventually the officer should let you go if they have no legal recourse to keep you there.
Some Officers Have Search Warrants Faxed To Them
We have seen a number of instances where individuals have refused a sobriety test, or a search of their property, and officers have had search warrants faxed out to them at traffic stops. This practice is most common among state troopers performing traffic stops further out from New Orleans. However, it is technically a legal practice, and can be shocking to many people.
Effectively, a trooper can call up a judge, have them draft up and sign a warrant, and have it faxed out to their car right there at the traffic stop. At which point the individual is legally compelled to submit to a test and/or search.
Search and Seizure At Drunk Driving Checkpoints
Drunk driving checkpoints are another place law enforcement may attempt to search you or your vehicle. These checkpoints get set up regularly around the city. Police officers usually set them up at popular intersections, or along primary roadways in an attempt to proactively prevent drunk driving.
When you pull up to a sobriety checkpoint you will be required to stop. Police officers in Louisiana are required by law to stop everyone, in order to protect Fourth Amendment rights. In theory, this is to prevent discrimination and the officers’ own biases from determining who gets stopped or not. However, the line here is fine.
Once stopped, it is still up to the officer to make a judgement call as to whether the driver might be intoxicated or under the influence of drugs. They will then likely request to administer a breathalyzer or field sobriety test. They may also ask to search your person and/or vehicle.
If you feel that you were singled out or treated unfairly or differently than others at a traffic stop, you should call a New Orleans drunk driving attorney to discuss your options.
It should be noted that if you refuse to take a breathalyzer test in Louisiana, you will be charged with a DUI and arrested, and your license will be suspended. A New Orleans DUI lawyer may be able to dispute these penalties and charges later.
As with a traffic stop, you also have the right to refuse an unwarranted search at a sobriety checkpoint. Know your rights, remain calm and courteous, and you should be okay.
Have You Been the Subject of Illegal Search and Seizure?
If you believe you have been searched illegally or targeted unfairly at a traffic stop or sobriety checkpoint, contact the experienced criminal defense lawyers at Bloom Legal. We can help you get out of jail, and will do everything in our power to not only get your belongings returned to you, but also to get your charge reduced or thrown out.
Remember, police officers must have a good reason for pulling you over or conducting a search in the first place. They must have reason to believe that you are breaking the law in some way. This is what is known as probable cause. Any gathered evidence or charges instigated without probable cause are not permisable in a court of law. However, since it is your word versus the police’s, you need an experienced and capable New Orleans attorney on your side.
Give us a call today for a free consultation and let us get started working for you!