The following article appeared in Volume 2, Issue 4 of the NMA Newsletter.
By William Pangman, a past president and founder of the Wisconsin Association of Criminal Defense Lawyers.
What is a motorist obliged to do when confronted with a police roadblock?
The United States Supreme Court arrived at an answer to this question in Michigan Department of State Police v. Sitz, 110 S.Ct. 2481 (1990). In Sitz, a group of Michigan motorists challenged the constitutionality of a highway sobriety check-point utilized by the Michigan State Police. The only check-point operated in Michigan was in Saginaw County. The operation lasted for an hour and fifteen minutes and every vehicle passing through the designated location was stopped for approximately 25 seconds. When officers believed that the drivers stopped at the check-point might be under the influence of an intoxicant, those vehicles were asked to pull over to the side of the road and drivers were requested to perform field sobriety tests.
Out of the 126 motorists which passed through the check-point, only three motorists were asked to pull over. These facts were apparently important to Supreme Court Chief Justice Rehnquist, who wrote the opinion for the majority. The Court determined that the Michigan check-point, under the facts and circumstances presented, did not create an overwhelming intrusion on individual’s privacy under the Fourth Amendment.
Rehnquist applied a three-point balancing test to determine whether sobriety check-points in general are reasonable under the Fourth Amendment. This test involved balancing the State’s interest in preventing accidents caused by drunk drivers, the effectiveness of the sobriety check- points in achieving the goal, and the level of intrusion on an individual’s constitutional right to privacy caused by the check-points.
The Chief Justice reasoned that no one could seriously dispute the magnitude of the drunken driving problem or the State’s interest in eradicating it. Moreover, Rehnquist found that a 25 second delay in travel was minimally intrusive on motorist’s rights, especially considering the fact that traveling motorists could turn off the road when they saw the roadblock, or make U-turns to avoid passing through it. As to the effectiveness of the sobriety check-point, the court held that the procedure was effective, even though only 1 of the 126 drivers stopped was arrested.
In the final analysis, it is now the law that from a narrow Fourth Amendment standpoint, nondiscriminatory sobriety check-points in general are not unreasonable. Bear in mind that other Fourth Amendment problems with sobriety check-points may exist when individual drivers passing through the check-point are asked to pull over.
Police do not have the right, per se, to check driver’s licenses or registrations when the stop is not initiated by a violation. However, where the police have a reasonable suspicion of illegal conduct, even though there is not actual violation of the law they may examine drivers’ licenses or registration.
In the Sitz case, officers were not allowed to make a driver pull over and show his/her license or check the driver’s registration unless the officer noticed signs of intoxication. Moreover, a driver never has to consent to a police search of his or her person or vehicle, but, the police may make such a search even without the driver’s consent when either: 1) they have probable cause to believe the vehicle contains contraband or the fruits or instrumentalities of a crime; 2) when the driver has been placed under arrest; or 3) they may make a visual inspection of the inside passenger compartment from the officer’s position outside the vehicle, to observe illegal articles in plain view.
As to the extent of motorists rights; when citizens are faced with roadblocks, they should be cooperative. If they do not roll down their window it seems that the officer’s suspicion would be heightened and, at minimum, may give the officer grounds to require the driver to pull over to the side of the road.
Upon initial contact with the roadblock, citizens may politely refuse to answer any of the officer’s questions. The following is an example of an assertion of rights that can be reproduced and handed to an officer at a roadblock:
Assertion of Rights:
Officer, please understand:
- I refuse to talk to you until I consult with my attorney. I also refuse to consent to any search of these premises or any other premises under my control, or in which I have a possessory, proprietary, or privacy interest, including my car, my body, or effects. I hereby demand to immediately be allowed the reasonable opportunity to obtain the advice of my attorney by telephone.
- I desire to exercise all my rights guaranteed by the Constitution of the United States and the Constitution of this State, to be free from your interference with my person or affairs.
- If you attempt to question me, I want my lawyer present. I refuse to participate in any line-up or to perform any physical acts, or to speak or display my person or property at your direction, without first conferring with my lawyer.
- If I am under arrest, I wish to invoke and exercise my Miranda rights. If you ignore my exercise of these rights and attempt to procure a waiver, I want to confer with my lawyer prior to any conversations with you.
- If I am to be taken into custody, removed from my present location, or separated from my property, I request a reasonable opportunity to make arrangements to secure my own property. I do not consent to any impoundment or inventory of my property. I do, hereby, waive any claim of liability for loss, theft, or damage against you, your superiors or any other authority, and agree to hold all harmless therefrom, if I am afforded the reasonable opportunity to arrange for the safekeeping of my own property. If this reasonable opportunity is denied or is unavailable, I demand that only such intrusion occur as is minimally necessary to secure such property, hereby waiving any claim of liability for your failure to scrutinize the property or its contents prior to it being secured.
- If I am not under arrest, I want to leave. If I am free to leave, please tell me immediately so that I may go about my business.
We advise our clients to hand this card to the officer along with their license when stopped or contacted by police. However, drivers need not even present their license during the initial contact with the officer in a roadblock situation.
Drivers may also refuse to perform field sobriety tests. This does not prevent the officer from arresting the driver. However, the arresting officer will have substantially fewer factors to support the arrest when it is challenged later in court.
Generally, by the time the officer has requested a driver to perform these roadside agility tests, the officer already believes the driver is intoxicated. Citizens should think long and hard before deciding whether or not to provide the officer with additional “evidence” of intoxication by performing the field sobriety tests.
If the motorist does not wish to comply, the police, in absence of an articulable reason to believe a crime has been or is being committed, must allow the driver to proceed. In the face of police inquiries based on less than probable cause, the citizen has the right to remain silent and move on without fear of retaliation in the form of further detention. The “right not to respond” permits motorists to refrain from engaging in alphabet recitations or other “command performances” of verbal and physical exercises.
The Supreme Court of Oregon observed:
“I know of no law that obliges a driver to answer an officer’s questions or perform ‘field tests’ directed at determining whether the driver has committed the crime of driving under the influence of intoxicants. Reluctance to inform the detained driver that such cooperation is voluntary can only demonstrate the state’s willingness to take advantage of those of its citizens who are ignorant of their rights though it must respect the rights of those who know them.”
Merely recognizing that a motorist is not obliged to cooperate with a police investigation, however, grants the citizen little security given the setting within which the questioning occurs. Understandably, the average motorist will hesitate to invoke this “right not to respond” to police questions and “requests” to perform so-called coordination tests. A late-night confrontation with an armed police officer will normally induce cooperation from all but the boldest citizens whose main concern is to appease the officer and avoid “trouble.”
Indeed, the consequences of non-cooperation are undoubtedly understood to be further coercive detention. While this is, unfortunately, not unlikely to occur, it is, nevertheless, often advisable that the motorist insist on invoking his or her rights.