Tennessee DUI checkpoint, police allegedly search vehicle without consent

Murfreesboro. TN - A video of Rutherford County deputies stopping a Middle Tennessee State University student at a DUI checkpoint, then asking him to pull over and searching his car after he wouldn’t roll the window all the way down, is nearing 2 million hits on YouTube.

Chris Kalbaugh, 21, checked in and got the go-ahead for such a demonstration before he stopped at the checkpoint and encountered Rutherford County Sheriff’s Deputy A.J. Ross.

"Tennessee State Trooper AJ Ross orders me to pull over and get out of my car, bullies me around, gets the drug sniffing K-9, lies about me having "Illegal Drugs" in the car, searches without consent, and tells me that it's ok to take away my freedom. All while not being detained. All this harassment because my window was not lowered enough to his preference. I broke no laws whatsoever. All of this on a day that we are supposed to be celebrating freedom and liberty."

Kalbaugh claimed the drug dog’s handler prompted it to give false alerts on the outside of the car to justify looking inside, although it’s tough to tell from the video.

“I looked at the video later on when I got home, and I noticed that every time the officer said, ‘check here,’ the dog scratched my car,” Kalbaugh said.

“Contrary to what many people think, having rights is not disrespectful" Kalbaugh said .
http://www.tennessean.com/article/20130706/NEWS01/307060072?gcheck=1&nclick_check=1


Are DUI/drug checkpoints legal?

According to several federal appeals court decisions, the stops may not be, depending on how much evidence police have in addition to the apparent evasion of a phony checkpoint.

In the 2002 case United States v. Yousif, the U.S. Court of Appeals for the 8th Circuit deemed unconstitutional a Missouri Highway Patrol scheme that involved stopping every car taking the next exit after signs announcing a drug checkpoint on Interstate 44. Since all cars taking the exit were stopped, the Eighth Circuit viewed this fake drug checkpoint as little different from the real drug checkpoint rejected by the Supreme Court in the 2000 case City of Indianapolis v. Edmond.

The Eighth Circuit considered a modified version of the Missouri Highway Patrol operation in the 2006 case United States v. Carpenter. Instead of stopping every car using the exit after the checkpoint signs, troopers followed nonlocal cars, looking for reasons to stop them. The defendant in that case, who was driving a car with out-of-state plates, made a U-turn and pulled onto the side of the road after seeing the patrol car. The Eighth Circuit said that maneuver, combined with the driver's decision to get off the highway after seeing the checkpoint signs, made him "readily distinguishable," giving rise to the "reasonable, articulable suspicion" required for a stop. It said the "act of exiting just after the checkpoint signs may be considered as one factor in the totality of circumstances, although it is not a sufficient basis standing alone to justify a seizure."

Last year the U.S. Court of Appeals for the 10th Circuit cited those 8th Circuit cases in United States v. Neff, which rejected a Kansas Highway Patrol stop of a driver with plates indicating he lived in another county who exited Interstate 70 after passing checkpoint signs, pulled into the driveway of a home where he did not seem to live, looked startled when he noticed the patrol car following him, and backed out of the driveway, heading back to the highway. "These facts, when taken together, do not fairly suggest that Neff was attempting to evade police," the 8th Circuit concluded. "Neff’s exit from the interstate after seeing the drug checkpoint, even when coupled with the additional evidence the trooper observed, was insufficient to support a finding of reasonable, articulable suspicion to stop Neff's vehicle."

Another relevant appeals court decision, deals with the question of whether the intent of police in pulling over a car affects the constitutionality of the stop. In the 2011 case Webb v. Arbuckle, the U.S. Court of Appeals for the 5th Circuit approved an operation in which the DeSoto Parish, Louisiana, sheriff's office stopped cars exiting Interstate 49 after passing signs announcing a drug checkpoint, but only if the drivers committed traffic offenses. The woman who brought the case, a doctor who was nervous about controlled substances she was carrying, was stopped for failure to signal as she left the highway. The 5th Circuit said it did not matter if drug law enforcement was the real purpose of the stop, as long as there was an independent legal justification for pulling the car over.

Can the cops create the scenario that gives rise to the actions or reactions that create the appearance of reasonable suspicion where none otherwise exists?  Given the Supreme Court's approval of pretextual stops in Whren, it would appear they can. The standard is purely objective, whether the conduct can be justified without regard to any subjective belief or purposes on the part of the cops.

The bottom line is that the police can use lies in order to get people to give them what they're looking for. And the courts are more than willing to embrace this as a necessary weapon in the war on whatever war they are fighting today.

Lawprof Jonathan Turley appears to suggest that this is abusive and unlawful: I would challenge any such stop. There are ample reasons for citizens to want to avoid police abuse, which is what the signs are promising since police cannot engage in such action.

It strikes me that Turley is half right. While I agree that pulling such stunts on people driving down the highway is abusive and deliberately intended to undermine their constitutional rights, I fear there is nothing unconstitutional about it. That doesn't make it right, any more than the horrific Whren decision, which reflects constitutional doctrine that rewards police for being liars.  Our courts allow such abuse to happen under the guise of small inconveniences for the greater good of the War on whatever.

The best thing to remember is that drug checkpoints, at least, are unconstitutional, so should you see a sign alerting that a checkpoint is up ahead, drive on, dude. Drive on. 
http://reason.com/blog/2013/07/02/the-fake-drug-checkpoint-may-be-legal-bu