4-1
CHAPTER 4
SEARCH AND SEIZURE
I. GENERAL POINTS
§4:01 William Pitt Quotation
§4:02 Evaluate the Detention Systematically
§4:03 The Fourth Amendment
II. THE BASIS FOR THE STOP
A. Reasonable Suspicion of a Violation
§4:10 General Points
§4:11 Did the Officer Personally Observe a Violation?
§4:12 Pretext Stops
§4:13 Weaving
§4:14 Driving Too Slowly
§4:15 Equipment Violations
§4:16 Squealing Tires
§4:17 Registered Owner of the Vehicle Had a Revoked License
B. Tipsters
§4:20 Did a Tipster Observe Improper Driving?
§4:21 Anonymous Informants
§4:22 Identified Informants
C. Roadblocks
§4:30 Eliminate Other Reasons for Detention
§4:31 Constitutionality of Checkpoints—Sitz
§4:32 Constitutionality of Checkpoints—Edmond
§4:33 Constitutionality of Checkpoints—Lidster
§4:34 Sample Questioning at Suppression Hearing
D. Community Caretaker Doctrine
§4:40 The Basic Doctrine
§4:41 Implementation of the Doctrine
§4:42 Limiting the Doctrine
E. Search of Vehicle Incident to an Arrest
§4:44 Historical Rule for Search of Vehicle
§4:45 Clarification of Rule
F. Mistaken Arrest Warrants
§4:47 No Deterrence for a Mistake
SEARCH AND SEIZURE
Attacking and Defending Drunk Driving Tests 4-2
SEARCH AND SEIZURE
III. MISSOURI V. MCNEELY AND BIRCHFIELD V. NORTH DAKOTA
A. McNeely Facts and Procedural History
§4:60 The Facts of the Case
§4:61 The Procedural History
B. The Holding in McNeely
§4:70 The Natural Dissipation of Alcohol Does Not Constitute an Exigency
C. Birchfield Facts, Procedural History, and Outcome
§4:80 The Facts and Procedural History of the Three Birchfield Petitioners
§4:81 The Three Outcomes for the Three Birchfield Petitioners
D. The Key Birchfield Holdings
§4:90 Birchfield and Implied Consent Laws
§4:91 Breath Tests (But Not Blood) May Be Taken as a Search Incident to an Arrest
§4:92 Civil and Evidentiary Consequences Can Remain
§4:93 Criminal Penalties for Failing to Take a Blood Test Are Unconstitutional
E. Consent, Implied Consent and McNeely and Birchfield
§4:100 Consent - The Great Question
§4:101 Consent Must Be Voluntary
§4:102 Implied Consent
§4:103 The Unconstitutional Conditions Doctrine
§4:104 Implied Consent Laws Cannot Deem Consent Into Law
F. Retroactivity, Davis v. U.S., And The Exclusionary Rule
§4:110 Is McNeely Retroactive?
§4:111 Did McNeely Change the Law?
§4:112 Applying Davis v. United States to McNeely
G. Unconscious Warrantless Blood Draws
§4:116 Mitchell v. Wisconsin
§4:117 The Implied Consent Issue Remains Unresolved
IV. THE CONSTITUTIONAL REQUIREMENTS FOR TAKING A BLOOD SAMPLE
§4:120 Blood Must Be Drawn Pursuant to Accepted Medical Practices
§4:121 Factors To Consider In Evaluating A Blood Draw
§4:122 Cuevas Checklist
§4:123 Sample Blood Draw Cross-Examination
V. MAXIMIZING PROSPECTS OF WINNING
§4:130 File the Motion
§4:131 Focus on the Officer’s Testimony
§4:132 Determine Speed in Feet per Second
§4:133 Know the Statute
§4:134 Remain Positive
§4:135 Checklist for Suppression Motions
VI. WEAVING RESEARCH
§4:140 Research Explanation and Acknowledgement
§4:141 United States Weaving Cases
4-3 Search and Seizure §4:11
SEARCH AND SEIZURE
I. GENERAL POINTS
§4:01 William Pitt Quotation
-
ance to all the force of the Crown. It may be
frail; its roof may shake; the wind may blow
through it; the storm may enter; the rain may
enter; but the King of England may not enter;
all his force dare not cross the threshold of the
ruined tenement.
—William Pitt, The Elder (in Parliament circa 1763)
§4:02 Evaluate the Detention
Systematically
Evaluating the legitimacy of your client’s initial
detention is a good place to start your assessment of
the case. Basically, the question is how the case became
a case. For the most part, if there was not an initial
Since there is an initial detention in almost every
drunk driving case, it is worth developing some type
of systematic approach to evaluating the lawfulness of
that detention.
§4:03 The Fourth Amendment
The Federal Constitutional provision governing
detentions, the Fourth Amendment, is only one sentence
long. The Amendment reads:
The right of the people to be secure in their
unreasonable searches and seizures, shall not be
violated, and no warrants shall issue but upon
-
tion, and particularly describing the place to be
searched, and the persons or things to be seized.
[U.S. Const. amend. IV.]
Note well, the brevity of the phrase is no barometer
PRACTICE TIP
Read the actual language of the Fourth
Amendment once in a while.
All of the cases involving automobile stops
ultimately turn on the Fourth Amendment’s
prohibition against unreasonable searches and
seizures. As much or more than any motion,
suppression motions turn on the facts. The
defense lawyer should always be looking for
ways in the hearing to present facts to the court
on the issue of the unreasonableness of the
police conduct. Tug at the judge’s gut as much
as at the judge’s mind.
[§§4:04-4:09 Reserved]
II. THE BASIS FOR THE STOP
A. Reasonable Suspicion of a Violation
§4:10 General Points
While there are an almost unlimited number of
a motor vehicle stop, experience has shown there are a
few regularly recurring reasons for enforcement stops.
In some instances, state constitutional protections
may provide broader protections than does the Federal
Constitution.
This chapter includes selected cases that deal with
constitutes a violation of law.
of what is reasonable.
PRACTICE TIP
Facts are paramount.
The law is important, but it is the facts
that allow distinctions to be made in what
would otherwise seem to be a controlling case.
Ultimately, it is the facts that determine rea-
sonableness. It is the facts that will carry the
day. And if necessary, it is the facts that will
make law on appeal. Develop the facts. Then
§4:11 Did the Officer Personally
Observe a Violation?
-
fulness of the stop of a motor vehicle is whether or not the
