Unconstitutional Police Conduct
Wrongful Stop By A Law Enforcement Officer
Does It Matter Why The Police Stopped My Vehicle?
Yes. The reason the police officer stopped your vehicle is very important because if the stop was unconstitutional, the Tampa DUI case against you could be dismissed.
What is Unconstitutional Police Conduct?
A police officer’s conduct is unconstitutional when it violates the United States Constitution or the Florida State Constitution.
The Fourth Amendment to the United States Constitution was written by James Madison and became part of the United States Constitution way back in December of 1791. The first part of the amendment reads as follows:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
Though these words were written before automobiles even existed, and before Florida was even a part of the United States, the amendment applies when a Florida law enforcement officer investigates a person for DUI.
Also, Section 12 of the Florida Constitution’s Declaration of Rights contains a nearly identical provision to the Fourth Amendment. At times, Section 12 of the Declaration of Rights provides even greater protection to Floridians than does the United States Constitution’s Fourth Amendment.
When determining the constitutionality of an officer’s actions, the keyword in the Fourth Amendment (and Section 12 of the Florida Declaration of Rights) upon which the judge will focus is the word “unreasonable.”
If a judge finds that a police officer’s stop, detention, or arrest of a driver during a DUI investigation was unreasonable, the judge will rule that the officer’s actions violated both the Fourth Amendment of the United States Constitution and Section 12 of the Florida Constitution’s Declaration of Rights. This is important because when a judge finds that a police officer has violated the United States Constitution or the Florida Constitution, the general rule is that the judge will prohibit the prosecutor from using any evidence the police officer obtained as a result of the unconstitutional police conduct. This is called the “fruit of the poisonous tree doctrine.” Just as you can’t eat fruit that comes from a poisonous tree, the prosecutor can’t present evidence that comes from unconstitutional police conduct.
For example, let’s say that a police officer claims he stopped a vehicle because his radar indicated that the vehicle was driving 45 MPH on a road that the officer claims have a 35 MPH speed limit. The officer claims that as he was talking to the driver, he noticed that the driver smelled like alcohol, had glassy and bloodshot eyes and that his speech was slurred. Further, let’s assume that the officer then asked the driver to perform field sobriety exercises and that the officer claimed that the driver showed clues of impairment during any of the field sobriety exercises. The officer then arrests the driver and brings him to jail where the driver provides two breath samples, which are just above the .08 legal limit. However, if it turns out that the posted speed limit on the road where the officer stopped the driver was actually 45MPH and not 35 MPH, the driver’s defense attorney could file a Motion to Suppress Evidence, claiming that the police officer’s stop of the driver’s vehicle violated the Fourth Amendment of the U.S. Constitution and Section 12 of the Florida Constitution’s Declaration of Rights. The defense attorney’s argument would be that both the Fourth Amendment and Section 12 protect persons against unreasonable seizures and that a police officer stopping a driver for speeding when the driver was traveling at the speed limit is unreasonable. In a case like this, the judge would likely grant a Motion to Suppress and prohibit the prosecutor from using any of the evidence the officer obtained as a result of stopping the driver’s vehicle. Under these facts, that would essentially put an end to the case, as the prosecutor would not have any evidence left to use.
What Are The Three Levels Of Police Citizen Contact, And Why Do the Different Levels Matter In A Florida DUI Case?
When a police officer has contact with a person in the community, Florida courts label the interaction a “police-citizen encounter.” This designation is not entirely accurate because courts apply the term “police-citizen encounter” whether or not the person investigated is a U.S. citizen, a legal permanent resident, or a person without legal immigration status.
According to the Supreme Court of Florida, there are three types of police-citizen encounters.
The first level of police-citizen encounter is called a consensual encounter. When a person’s contact with a police officer does not involve the officer’s use of physical force or a show of police authority, the interaction is considered a consensual encounter. During a consensual encounter, a police officer might approach a person on the street and start a conversation. The person can choose to speak with the officer, or simply walk away. Because the person is free to leave, the law does not consider the person seized. Therefore, the protections in the Fourth Amendment and Section 12 of the Florida Declaration of Rights against unreasonable searches and seizures don’t apply. To begin a consensual encounter, the police officer does not need to have any level of suspicion that the person has committed, is committing, or is about to commit a crime.
For example, let’s say a driver is sitting in her car at a stoplight with the windows down when a police officer on a motorcycle drives up in the lane next to the driver’s side of the car. As the driver and the police officer wait for the light to turn green, the officer starts chatting with the driver about the weather. As the officer speaks to the driver, he is observing the driver to see if she appears to be under the influence. Because the driver is free to put up her window, ignore the officer, and drive away when the light turns green, she has not been seized and a judge would consider this a consensual encounter. The police officer would not need to have any level of suspicion that the driver was under the influence in order to start chatting with her.
The second level of police-citizen encounter is called an investigatory stop. At this level, a police officer may reasonably detain a person temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s constitutional right against an unreasonable seizure, an investigatory stop requires the officer to have a well-founded, articulable suspicion of criminal activity. Articulable means the officer can list reasons for his suspicion. Mere suspicion is not enough to support a stop.
For example, in one Pinellas County DUI case, a police officer pulled his patrol car into a mall parking lot in Clearwater, Florida. The officer noticed a legally parked car in the lot, whose engine was running. As the officer approached the car, he saw water condensing on the windows from the air conditioner. He looked inside the car and saw a woman in the driver’s seat. She appeared to him to be asleep. The officer knocked on the window to get her attention. The woman looked at the officer but did not open her door, which was locked. The officer asked the woman to get out of the car. She did not do so until the officer had asked her five times. After she unlocked the door and got out of the car, the officer gathered evidence that led to her arrest for DUI. A Florida court found that when the officer asked the woman to get out of her car, he had seized her, and that seizure was unreasonable because it was only based upon the fact she was sleeping in her car. The court stated that the woman sleeping in the car, without more, was not enough to give the officer a well-founded suspicion that she was driving under the influence and detain her. Therefore, any evidence the police officer obtained after the woman got out of the car was suppressed. This ended the case, as the only evidence left for the prosecutor was that the woman had fallen asleep in the car.
The third level of police-citizen encounters is called an arrest. Probable cause for a DUI arrest must be based upon more than a belief that a driver has consumed alcohol. In order for a police officer to arrest someone for DUI, the officer must have trustworthy information sufficient to cause a person of reasonable caution to believe that the person was driving under the influence.
For example, in one Florida DUI case, a court ruled that a police officer did not have probable cause to arrest a driver just because the driver had been in an accident and had the smell of alcohol on his breath. The court reasoned an accident and drinking alone were not enough evidence to establish probable cause for an arrest. Therefore, any evidence the police officer obtained as a result of the arrest (including the results of any breathalyzer testing) could not have been used against the driver in court.
How are Roadblocks used in DUI Investigations?
Roadblocks are a tool that law enforcement may use to look for persons that are driving under the influence. However, before the police can set up a roadblock, they must have a written set of guidelines that set out procedures regarding how they will decide which vehicles to stop. Police are not allowed to stop whichever vehicle they please.
If police can’t prove that they set up guidelines that limit the discretion of the officers running the checkpoint, or if there were guidelines in place but the officers did not strictly follow them, a judge could order the case dismissed due to an unreasonable seizure of the driver.
Are you looking for the best DUI lawyer in Tampa Florida? Contact Attorney David C. Hardy.
Tampa Attorney David C. Hardy is a former DUI prosecutor that now represents persons accused of DUI. He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. As a prosecutor and defense attorney, he has extensive experience handling all types of DUI cases.
If you or a loved one has been arrested for DUI in Hillsborough County Florida, Pinellas County Florida, or Pasco County Florida, contact Attorney David C. Hardy. He has the knowledge, skills, and experience to guide you through this process and obtain the best possible results.