WAS THE STOP IN YOUR CASE A "BAD" OR UNLAWFUL STOP? The Fourth Amendment to the United States Constitution and Art. II, ? 8, of the Arizona Constitution prohibit unreasonable searches and seizures by government officials in all cases, including DUI cases. The usual remedy for an illegal search is suppression of the illegally acquired evidence. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961). Specifically, evidence derived from an illegal search and seizure should be suppressed as "fruit of the poisonous tree." Wong Sun v. United States, 371 U. S. 471, 83 S.Ct. 407 (1963). In a DUI case, this means if the search and seizure was unreasonable, all of the evidence discovered must be suppressed (or not permitted to be admitted as evidence against you in your DUI case).
DID LAW ENFORCEMENT SEIZE YOU? In the leading case of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 (1968), the Supreme Court made it clear that the Fourth Amendment applies to detentions of persons which are not nearly as intrusive as a formal arrest. However, to justify a "Terry" stop, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop.
A street encounter between police officers and citizens becomes a seizure where there is some "meaningful interference, however brief, with an individual's freedom of movement." United States v. Jacobsen, 466 U.S. 109, 109 S.Ct. 1652 (1984). In a DUI case, this could occur in a number of different ways, but by far the most common seizure in a DUI case is when a law enforcement vehicle turns on its emergency lights to commence a traffic stop.
The United States Supreme Court has indicated that there is no per se rule to render such a finding, but that a "particularized factual determination" must be made in each case. United States v. Gonzales, 979 F.2d 711 (9th Cir. 1992) citing Florida v. Bostick, 111 S.Ct. 2382 (1991). The crucial question to be asked by each court is: whether, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. Bostick, supra.
Although the Supreme Court has indicated that police officers are permitted to approach individuals in public places to ask them questions, the confrontation must still pass the above-referenced test to avoid the requirements of Terry or the Fourth Amendment. Bostick, supra. (Bostick does not hold that any inquiry or request to search a passenger's baggage in a routine bus sweep is permitted by the Constitution.) See Gonzales, supra.
Several cases have articulated when a seizure exists. In United States v. Horne, 970 F.2d 728 (1992), the Court, following a long line of cases, held that any traffic stop constituted a seizure and had to comply with at least the requirements outlined in Terry v. Ohio. The Fourth Amendment is implicated when an individual stops in response to the police's show of authority. See Michigan v. Chesternut, 108 S.Ct. 1975 (1988); United States v. Wood, 981 F.2d 536 (D.C. Cir. 1992); State v. Saia, 302 So.2d 869 (La. 1974).
DID LAW ENFORCEMENT HAVE REASONABLE GROUNDS TO STOP (SEIZE) YOU? The Fourth Amendment's protection against unreasonable searches and seizures restricts police who do not have a reasonable, articulable suspicion that criminal activity is afoot from stopping a suspect for questioning. State v. Wyman, 197 Ariz. 10, 13, 3 P.3d 392, 395 (App. 2000) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed. 2d 889 (1968); State v. Richcreek, 187 Ariz. 501, 930 P.2d 1304 (1997)). Reasonable suspicion is a "totality of the circumstances" test. Id. A person cannot be detained even momentarily without reasonable, objective grounds for doing so. Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319(1983).
In State v. Stricklin, 191 Ariz. 245, 955 P.2d 1 (App.1996), a police officer observed a black male standing next to a Texaco station while peering around the corner looking as if he was trying to hide and possibly avoid detection from oncoming traffic. Based on these observations, the police officer made contact with the defendant. The Court held that the officer did not have reasonable and articulable facts to believe that defendant had committed or was about to commit a crime. The Court further held that reasonable suspicion could not be based on the fact that it was 1:00 a.m. and the defendant's behavior might have appeared "peculiar or even suspicious." A key factor in the Court's holding was that no crime had been reported or observed.