The Not So Gradual Erosion of the 4th Amendment at the Hands of Well Intentioned Laws

[George Costanza]

Also, there is no law in California stating that a legal turn off option must be present. in fact the California Supreme Court ruling in Ingersoll vs. Palmer simply states that a motorist may not be detained simply for avoiding a checkpoint unless they violated a traffic code while doing so (IE illegal U turn) , that is common practice in all jurisdictions, and a main reason why you see sobriety checkpoints set up in such a way as to make a legal evasion pretty much impossible, which is the plan and perfectly legal.

Yes, there is. It is found in the language of the very case you quote here, Ingersoll v. Palmer, 43 C3 1321 at Page 1327. In validating the checkpoint in question, the California Supreme Court listed the following factor as one of the factors which made the checkpoint legal:

"A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint."

(Language taken directly from the Ingersoll decision at Page 1327.)

The Ingersoll case sets forth a list of all the factors that must be present in order for a sobriety checkpoint to be legally operated in California. When a checkpoint stop is being attacked, the Ingersoll factors are always utilized to test the legality (or lack thereof) of the checkpoint. Giving motorists the opportunity to avoid the checkpoint by turning away is one of those factors.

As you are no dobut aware, case law is every bit as viable and enforceable as statutory law when there is no statutory law on the point. Hence, giving motorists the opporunity to avoid the checkpoint IS required according to law in California.

 

[lawbuff]

And again , as to sobriety checkpoints. they MUST provide minimal intrusion to motorists, meaning LEO can't detain you for 10 minutes while he scopes your car out. The SCOTUS ruling is very clear and very definitive in what LEO may an may not do. Rifling through your car would clearly be a violation, unless of course they have probable cause. Pretty common around here for a K9 unit to be involved in sobriety checkpoints because we have a serious meth problem. Dog barks probable cause.

Probable cause to search may not be necessary in some limited areas. In Michigan v. Long, the SC extended Terry to permit a limited search for weapons in the passenger compartment (emphasis added). Or if the officer notices the driver/passenger make a "furtive gesture", it could give rise to a reasonable suspicion a weapon was being hidden.

Also some jurisdictions permit a "limited in scope" search of the passenger compartment IF the driver can not or will not produce his registration/proof of insurance. Arturo, I believe was a CA case??

This all can be done with investigative detention guidelines.

 

[lawbuff]

You know too much. Are you in law school?

Why thanks.

No, but as I said, I took Criminal Law as my major in College, so I attempt to keep up with it, but as you know, the case law is quite vast.

 

[ConHog]

Also, there is no law in California stating that a legal turn off option must be present. in fact the California Supreme Court ruling in Ingersoll vs. Palmer simply states that a motorist may not be detained simply for avoiding a checkpoint unless they violated a traffic code while doing so (IE illegal U turn) , that is common practice in all jurisdictions, and a main reason why you see sobriety checkpoints set up in such a way as to make a legal evasion pretty much impossible, which is the plan and perfectly legal.

Yes, there is. It is found in the language of the very case you quote here, Ingersoll v. Palmer, 43 C3 1321 at Page 1327. In validating the checkpoint in question, the California Supreme Court listed the following factor as one of the factors which made the checkpoint legal:

"A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint."

(Language taken directly from the Ingersoll decision at Page 1327.)

The Ingersoll case sets forth a list of all the factors that must be present in order for a sobriety checkpoint to be legally operated in California. When a checkpoint stop is being attacked, the Ingersoll factors are always utilized to test the legality (or lack thereof) of the checkpoint. Giving motorists the opportunity to avoid the checkpoint by turning away is one of those factors.

As you are no dobut aware, case law is every bit as viable and enforceable as statutory law when there is no statutory law on the point. Hence, giving motorists the opporunity to avoid the checkpoint IS required according to law in California.

Right, but a careful reading of that decision shows that no requirement is made that a legal turn off point be provided. For instance the State Hwy could post a sign 1/2 mile from the checkpoint, that is plenty of time to turn off, BUT if there is nowhere to legally turn off, too bad, LEO do not have to make sure there is. therefor your options are A) go through the checkpoint or B) risk an illegal turnoff. This is done quite often. In fact, I would say always.

 

[George Costanza]

Right, but a careful reading of that decision shows that no requirement is made that a legal turn off point be provided. For instance the State Hwy could post a sign 1/2 mile from the checkpoint, that is plenty of time to turn off, BUT if there is nowhere to legally turn off, too bad, LEO do not have to make sure there is. therefor your options are A) go through the checkpoint or B) risk an illegal turnoff. This is done quite often. In fact, I would say always.

No - once again, here is the Ingersoll language:

"A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint."

That means exactly what is says. "Permitting motorists to turn aside" means, giving motorists the opportunity to AVOID the checkpoint by "turning aside," or taking an alternate route.

Also note the latter part of the Ingersoll language with expressly says "no motorist was (is) to be stopped merely for choosing to avoid the checkpoint."

 

[George Costanza]

But yes, the real reason for the checkpoints is to get a look inside your car.

You know, I could have said that in the OP and left the rest out. That's the essence of it.

Well played.

On further review, I am going to have to modify this statement. I do not think that checkpoints are put there for the purpose of skirting the 4th Amendment.

Having said that, however, I will also say that while that may not be their express purpose, the NET EFFECT is to do exactly that. I guess you could say that "expanding the potential scope of car searches" is a "welcome side effect" for law enforcement in the case of sobriety check points (as well as seat belt laws and cell phone laws).

 

[ConHog]

Right, but a careful reading of that decision shows that no requirement is made that a legal turn off point be provided. For instance the State Hwy could post a sign 1/2 mile from the checkpoint, that is plenty of time to turn off, BUT if there is nowhere to legally turn off, too bad, LEO do not have to make sure there is. therefor your options are A) go through the checkpoint or B) risk an illegal turnoff. This is done quite often. In fact, I would say always.

No - once again, here is the Ingersoll language:

"A sign announcing the checkpoint was posted sufficiently in advance of the checkpoint location to permit motorists to turn aside, and under the operational guidelines no motorist was to be stopped merely for choosing to avoid the checkpoint."

That means exactly what is says. "Permitting motorists to turn aside" means, giving motorists the opportunity to AVOID the checkpoint by "turning aside," or taking an alternate route.

Also note the latter part of the Ingersoll language with expressly says "no motorist was (is) to be stopped merely for choosing to avoid the checkpoint."

George, you're putting words in there that aren't there. Yes you can't be chased down for iegally turning off to avoid the checkpoint, but you CAN be chased down if you commit a traffic violation to avoid a checkpoint. There is no wording in either Ingersoll or Sitz on a national level which requires that checkpoints have an area where a driver can turn off legally on either side though. if that was what the Court had meant, that is what they would have said. Now it is true that in most jurisdictions it is permissible to turn onto the shoulder in order to make a U turn there is no requirement that a turn off road must be located within the signed areas so that motorists can avoid the checkpoint.

Around here anyway MOST people who are chased down when they avoid a checkpoint are chased down because they failed to signal when either pulling onto the shoulder or when pulling back onto the highway. Those are traffic violations and absolutely open you up to being pursued by the police if you avoid a checkpoint otherwise the ruling about avoiding a checkpoint is the same in Arkansas and actually I believe that is pretty standard.

 

[ConHog]

But yes, the real reason for the checkpoints is to get a look inside your car.

You know, I could have said that in the OP and left the rest out. That's the essence of it.

Well played.

On further review, I am going to have to modify this statement. I do not think that checkpoints are put there for the purpose of skirting the 4th Amendment.

Having said that, however, I will also say that while that may not be their express purpose, the NET EFFECT is to do exactly that. I guess you could say that "expanding the potential scope of car searches" is a "welcome side effect" for law enforcement in the case of sobriety check points (as well as seat belt laws and cell phone laws).

and on that point you would be correct. A quick glance inside your vehicle , a few minutes to run your plate, not to mention your DL, many a scum are taken off the road by sobriety checkpoints when they weren't even drunk and it is legal.

 

[lawbuff]

Having said that, however, I will also say that while that may not be their express purpose, the NET EFFECT is to do exactly that. I guess you could say that "expanding the potential scope of car searches" is a "welcome side effect" for law enforcement in the case of sobriety check points (as well as seat belt laws and cell phone laws).

Some cities in Ohio have what are called "Full time and attention" Ordinances. It implies just what the Catchphrase says, no person may operate a motor vehilce without giving it thier full time and attention.

If an officer witnesses a woman putting on makeup while driving she is in technical violation of the Ordinance.

These are catch all laws to make sure the operator is NOT distracted.

If an officer sees some jive turkey bouncing up and down and swaying to the music, are they giving the road thier FTA??

 

[George Costanza]

George, you're putting words in there that aren't there. Yes you can't be chased down for iegally turning off to avoid the checkpoint, but you CAN be chased down if you commit a traffic violation to avoid a checkpoint. There is no wording in either Ingersoll or Sitz on a national level which requires that checkpoints have an area where a driver can turn off legally on either side though. if that was what the Court had meant, that is what they would have said. Now it is true that in most jurisdictions it is permissible to turn onto the shoulder in order to make a U turn there is no requirement that a turn off road must be located within the signed areas so that motorists can avoid the checkpoint.

Around here anyway MOST people who are chased down when they avoid a checkpoint are chased down because they failed to signal when either pulling onto the shoulder or when pulling back onto the highway. Those are traffic violations and absolutely open you up to being pursued by the police if you avoid a checkpoint otherwise the ruling about avoiding a checkpoint is the same in Arkansas and actually I believe that is pretty standard.

In the first place, Ingersoll is a California case. It is not binding in other states. It is binding in California.

You say: "There is no wording in either Ingersoll or Sitz on a national level which requires that checkpoints have an area where a driver can turn off legally on either side though."

OK, then what do you think Ingersoll IS saying, with the language: ""A sign announcing the checkpoint . . . sufficiently in advance of the checkpoint location to permit motorists to turn aside"? That the motorist be given the opportunity to pull over to the side of the road (no illegal u-turns, you said) and then . . . what? Just sit there until the checkpoint closes down?

What DO you think the Ingersoll court is saying here? BTW, I KNOW what they are saying for two reasons: (1) I have the ability to comprehend what I read and (2) I have argued the Ingersoll case several times in court cases involving sobriety check points. Not even DA's put the twist on that portion of the Ingersoll language that you are attempting to do here.

I think you are focusing too much on the "traffic violation" aspect and not enough on the "turn aside" aspect.

 

[George Costanza]

Having said that, however, I will also say that while that may not be their express purpose, the NET EFFECT is to do exactly that. I guess you could say that "expanding the potential scope of car searches" is a "welcome side effect" for law enforcement in the case of sobriety check points (as well as seat belt laws and cell phone laws).

Some cities in Ohio have what are called "Full time and attention" Ordinances. It implies just what the Catchphrase says, no person may operate a motor vehilce without giving it thier full time and attention.

If an officer witnesses a woman putting on makeup while driving she is in technical violation of the Ordinance.

These are catch all laws to make sure the operator is NOT distracted.

If an officer sees some jive turkey bouncing up and down and swaying to the music, are they giving the road thier FTA??

Interesting. Has the Constitutional validity of that particular law been tested for possbly being a trifle vague?

 

[lawbuff]

Interesting. Has the Constitutional validity of that particular law been tested for possbly being a trifle vague?

Here is an example. I don't live in Hubbard, but it popped up with others.

City of Hubbard | Codified Ordinance 331.34 FAILURE TO CONTROL; WEAVING; FULL TIME AND ATTENTION.

They are still on the books in many cities across Ohio.

That does mean they are still active though?

Ohio still has a law on the books making it a crime to burn the Flag.

I don't know if one has ever been challenged, but I don't know if it would be decided under intermediate scrutiny or rational basis?

 

[ConHog]

George, you're putting words in there that aren't there. Yes you can't be chased down for iegally turning off to avoid the checkpoint, but you CAN be chased down if you commit a traffic violation to avoid a checkpoint. There is no wording in either Ingersoll or Sitz on a national level which requires that checkpoints have an area where a driver can turn off legally on either side though. if that was what the Court had meant, that is what they would have said. Now it is true that in most jurisdictions it is permissible to turn onto the shoulder in order to make a U turn there is no requirement that a turn off road must be located within the signed areas so that motorists can avoid the checkpoint.

Around here anyway MOST people who are chased down when they avoid a checkpoint are chased down because they failed to signal when either pulling onto the shoulder or when pulling back onto the highway. Those are traffic violations and absolutely open you up to being pursued by the police if you avoid a checkpoint otherwise the ruling about avoiding a checkpoint is the same in Arkansas and actually I believe that is pretty standard.

In the first place, Ingersoll is a California case. It is not binding in other states. It is binding in California.

You say: "There is no wording in either Ingersoll or Sitz on a national level which requires that checkpoints have an area where a driver can turn off legally on either side though."

OK, then what do you think Ingersoll IS saying, with the language: ""A sign announcing the checkpoint . . . sufficiently in advance of the checkpoint location to permit motorists to turn aside"? That the motorist be given the opportunity to pull over to the side of the road (no illegal u-turns, you said) and then . . . what? Just sit there until the checkpoint closes down?

What DO you think the Ingersoll court is saying here? BTW, I KNOW what they are saying for two reasons: (1) I have the ability to comprehend what I read and (2) I have argued the Ingersoll case several times in court cases involving sobriety check points. Not even DA's put the twist on that portion of the Ingersoll language that you are attempting to do here.

I think you are focusing too much on the "traffic violation" aspect and not enough on the "turn aside" aspect.

No George, re read what I said. I of course don't know California traffic laws but I'm assuming that a U turn on a hwy is not illegal. It certainly isn't here in Arkansas unless marked, and certainly LEO can't temporarily make U turns around a checkpoint illegal. SO a person could pull over to the side of the road and make a perfectly legal U turn, which is completely different than you saying a turn off must be provided, no it mustn't.

By the way, as you well know Sitz supersedes Ingersoll. Not that that matters, because they essentially say the same thing in this case, but for the sake of argument let's be clear, the SCOTUS can and often does over rule both state constitutions and state Supreme Court rulings.

 

[ConHog]

Interesting. Has the Constitutional validity of that particular law been tested for possbly being a trifle vague?

Here is an example. I don't live in Hubbard, but it popped up with others.

City of Hubbard | Codified Ordinance 331.34 FAILURE TO CONTROL; WEAVING; FULL TIME AND ATTENTION.

They are still on the books in many cities across Ohio.

That does mean they are still active though?

Ohio still has a law on the books making it a crime to burn the Flag.

I don't know if one has ever been challenged, but I don't know if it would be decided under intermediate scrutiny or rational basis?

Every jurisdiction has strange laws on the book and a good DA certainly will choose not to prosecute for stupid violations.

 

[logical4u]

I know someone that was stopped for minor traffic infraction, maybe speeding 5 miles over, something like that. When the police asked if he minded if he searched his vehicle, he asked the policemen if he could search the police vehicle while the policeman was searching his. The police let him go.

 

[George Costanza]

No George, re read what I said. I of course don't know California traffic laws but I'm assuming that a U turn on a hwy is not illegal. It certainly isn't here in Arkansas unless marked, and certainly LEO can't temporarily make U turns around a checkpoint illegal. SO a person could pull over to the side of the road and make a perfectly legal U turn, which is completely different than you saying a turn off must be provided, no it mustn't.

All right - I see where you are coming from on this. I guess the point is that there has to be some opportunity for the motorist to legally avoid the checkpoint. I have never seen that aspect of the Ingersoll decision discussed or argued in any context other than a turnoff street or road. I think U-turns in the middle of the highway are illegal in California. I am assuming they are for purposes of my argument here. Once again, Ingersoll used the phrase, "turn aside." That clearly means, "a way in which to avoid the checkpoint." If U-turns are illegal, that would pretty much leave only one other option - a turnoff street or road, providing an alternate route around or away from the check point.

By the way, as you well know Sitz supersedes Ingersoll. Not that that matters, because they essentially say the same thing in this case, but for the sake of argument let's be clear, the SCOTUS can and often does over rule both state constitutions and state Supreme Court rulings.

The U.S. Supremes can overrule whatever the hell they want - and then some. I haven't read Sitz in some time. Are you contending that Sitz removes the "turn aside" requirement established in Ingersoll? Just because a U.S. Supreme Court case comes after a state supreme court decision does not necessarly mean it overrules the state decision, you know.

I do know this - that Ingersoll is still very much the law in California, in spite of the Sitz decision, so I would suspect that, at least with regard to the "turn aside" aspect of Ingersoll, Sitz did not overrule Ingersoll.

 

[lawbuff]

By the way, as you well know Sitz supersedes Ingersoll. Not that that matters, because they essentially say the same thing in this case, but for the sake of argument let's be clear, the SCOTUS can and often does over rule both state constitutions and state Supreme Court rulings.

True, as long as there is a federal question involved.

As an example, in State v. Robinette, the OSC ruled that the federal constitution mandates an officer say "you are free to leave" before ending an investigatory stop. This was the ONLY reference to the federal constitution, otherwise it was predicated on Ohio law.

It was appealed and the US SC remanded.

Robinette 2 modified the Syllabus.

 

[George Costanza]

I know someone that was stopped for minor traffic infraction, maybe speeding 5 miles over, something like that. When the police asked if he minded if he searched his vehicle, he asked the policemen if he could search the police vehicle while the policeman was searching his. The police let him go.

You owe me for one keyboard! Coffee all over the sonofabitch! Flipping HILARIOUS! I LOVE IT.

 

[lawbuff]

Every jurisdiction has strange laws on the book and a good DA certainly will choose not to prosecute for stupid violations.

Just as an FYI, in Ohio, minor traffic cases are handled in Traffic court with Referees/Magistrates.

 

[George Costanza]

This just in from the California Driver's Handbook:

"U-turns are strictly forbidden on freeways and most highways."