We all understand the general idea there are good guys and bad guys, right? We grew up watching Superman and Batman save the world from Lex Luthor and the Joker. Or Wyatt Earp taking down the outlaws? But in reality it is not always so black and white. Even the "law" has to follow the "law" thanks to our Constitution.
How does that work? Does an officer have free reign to seek out and stop criminal activity at all cost? The answer is an emphatic no. In saying this, please understand that you should have the utmost respect for law enforcement as they are tasked with one of the most difficult jobs in our society. They must protect and serve us which often leads to placing their lives in danger but in doing so they must abide by the numerous safeguards our Constitution provides. However, on occasion and for whatever reason, if they overstep those boundaries or "rules", then despite the criminal activity or offense they seek to stop they risk winning the battle but losing the war.
Let me explain. In State v. Wascher, the Tennessee Court of Criminal Appeals recently reversed and dismissed a DUI conviction based on the following facts. An officer received a BOLO to be on the lookout for a possible intoxicated driver. He was given a description of the vehicle and within minutes found the vehicle that exactly matched the description given. The vehicle was parked with 1 person, a female, in the driver's seat and another, a man, standing next to driver's side door. Seems to be good so far?
The man was clearly intoxicated and the officer asked him who was driving upon which he replied that the female was driving. And she corroborated the story by stating she had been driving for quite some time. Eventually, the officer took the female's license. Now this is what you call a "suppression point", "red flag" or "potential issue" in criminal defense. Regardless of what it is called when an officer takes your license he has to have some sort of reasonable suspicion that you have done something wrong or that you are about to.
In State v. Daniel, 12 S.W.3d 420 (Tenn. 2000) the Tennessee Supreme Court has held that a consensual encounter may evolve into a seizure when the officer retains the citizen's driver's license because a reasonable person would not leave without his or her identification. But remember, in order to "seize" someone the officer has to have "reasonable suspicion" an offense has been committed or is about to be. Does he have RS this woman had done anything wrong at the moment he took her license?
Clearly the guy that is with her was intoxicated, but does that mean she is guilty? If so then all designated drivers would be subject to an illegal detention. What about the call that she was driving recklessly? Does that count? Well, it does if it would have stated more specifically how she drove. In this case the call from dispatch to the officer just says "be on the lookout for an impaired driver." Well here comes that dang constitution again!
Officers can use other individuals' reliable information to develop reasonable suspicion. However, in this case, although the officer confirmed details provided by the caller including the type, color, area of travel, and license plate number, these are factors that tend to identify a person, not illegal activity. In other words, the information provided by the caller and corroborated by the officer was merely a description of the truck and its general location.
So how reliable was the tip she was recklessly driving? There was no description of how she was recklessly driving. Nothing that referenced swerving, crossing the lines, running off the road, etc. And because of the lack of information about the tipster, we don't know if the caller had firsthand information that this lady was driving recklessly at all.
However, even if the tip was bad, the officer could still develop reasonable suspicion based upon his own observations once he arrived. In this case within a minute he had taken her license which constituted a seizure. So what RS did he develop within 1 minute? Well, the Appellate court said….none. Had the officer not taken her license at this point, no seizure would have taken place and he could have continued his investigation based upon her consensual contact. He then may have been able to develop the proper reasonable suspicion.
The bottom line is that the officer did what he thought was right in trying to get an intoxicated driver off the road (because he did arrest her that night and she pled guilty to the DUI and only had the case dismissed at a later time). However, fortunately for our society, officers must follow the rules just like everyone else. Our Constitution protects everyone from unlawful seizures, even people who make mistakes, and that same Constitution helps us to strike a balance between the "Law" and the "Law".
If you have a question about your rights please call our office immediately at 615-956-7938.