There has been quite a bit of buzz lately about a video illustrating a Florida attorney’s creative advice on handling DUI roadblocks / checkpoints. The video suggests you hang your ID and other documentation outside of your rolled up car window in a zip-lock bag along with a note stating “I remain silent. No searches. I want my lawyer….” In the video, this approach works like a charm, but that does not mean it is good advice for drivers to follow in the real world? Can a driver at a checkpoint be legally ordered to roll down his or her window? What about refusing to verbally communicate with the police. Let’s take a look at the first of these questions. We will consider the second question is a later post.
The reasoning for hanging a baggie out a closed window is to prevent officers from justifying further detention based on their interaction with the driver. Officers often use their subjective observations of drivers during a roadblock encounter to further detain them, which could lead to a DUI or other arrest. For example, an officer my claim he or she smelled the odor of alcohol coming from inside the vehicle or that the driver’s speech was slurred. These types of observations are highly subjective and prone to abuse by unscrupulous officers.
If you don’t speak and you remain behind closed windows, an officer could not credibly testify that your speech was slurred or that you smelled of alcohol. However, the question remains, is the citizen required to roll down a window at a roadblock at the request of an officer?
Regarding the first question, the law seems is a bit ambiguous. There are two Supreme Court case that may shed some light on the situation though neither is directly on point. The first case is Pennsylvania v. Mimms, 98 S.Ct. 330 (1977). In Mimms the court held that: it does not violate the 4th Amendment for an officer who is making a routine traffic stop to order that the driver step out of the vehicle during the encounter, even when there is no reason to suspect the driver of any criminal activity beyond what he is being ticketed for. The Supreme Court weighed the intrusion into the driver’s liberty against the safety of the officer. The Court found the officer’s interest in his safety “legitimate and weighty” and while the intrusion into the driver’s liberty was minimal.
The second U.S. Supreme Court case is Maryland v. Wilson, 117 S.Ct. 882 (1997), which extended the holding in Wilson by holding that police making a traffic stop may order passengers to get out of the car pending completion of the stop. While Mimms and Wilson involved a traffic stops and not a checkpoints. A court very well could extend their reasoning to checkpoint stops as well. If so, then officers could force the driver to exit, which would negate the benefit of not rolling the window down.
Another issue is that the behavior of not rolling one’s window down could arguably give officers a reasonable suspicion to further detain the driver for a DUI investigation. Further, an overzealous officer might also arrest the driver under the particular state’s obstructing governmental operations/administration statute – a vague catchall statue. See, e.g., Alabama Code 13A-10-2. While the driver might well prevail in the ensuing prosecution, the cost, hassle and risk involved are a high price to pay to prove a point.
In a future post I hope to consider the question of whether you are required to verbally interact with officers at a roadblock / checkpoint stop.
