Interviewer: I am speaking with Attorney Kevin Leckerman and we are discussing constitutional rights. Specifically, he will be explaining the rights that people have if they are accused with DUI or DWI.
We’re talking about fourth amendment, search and seizure, what is the truth of your rights under the fourth amendment, and how do they apply, for instance, in a DWI traffic stop?
The 3 of Levels Search and Seizure By the Police
Kevin: The courts have divided the search and seizure issues into three different levels.
The first level is what’s known as a “mere encounter.” The second level is known as “an investigative detention,” and the third level is known as “an arrest.”
Mere Encounter: Police Questions
The way that the Supreme Court has defined each level begins with a mere encounter.
Essentially, a mere encounter is when a police officer simply walks up to a citizen and begins a conversation. The first step of the process is the “mere encounter.” If a police officer walks over to a civilian and simply asks that person questions, that is considered a “mere encounter.” There has to be some more coercive circumstances surrounding the police officer’s interaction, which elevate it to a seizure situation.
During a mere encounter, a citizen can just say nothing and walk away. There is no obligation for any person to respond to a police officer during this mere encounter.
Conversely, a police officer doesn’t need any evidence of criminal wrongdoing to simply walk up to somebody and ask questions.
The Investigative Detention: Being Pulled Over or Given a Verbal Request Not to Leave
Then, you get to the second level of a search and seizure scenario called “the investigative detention.” There are more coercive elements to this that will raise the encounter from a “mere encounter” to the “investigative detention.”
One of those elements includes a command from a police officer. In other words, if you’re walking on the street and an officer says, “Hey, you. Stop!” That is classically an investigative detention scenario.
If you are driving a vehicle and a police officer puts on his overhead lights, then that becomes an investigative detention or what is known as “a car stop.”
Another scenario would be if you’re parked and a police officer positions his vehicle in such a way that you couldn’t leave by driving away. That creates an “investigative detention,” as well.
Or, if you’re in your vehicle and a police officer walks up to your vehicle and tells you to roll down the window or tells you to get out of your vehicle; that potentially is an investigatory situation.
Investigative Scenario: The Police Are Looking for Reasonable Suspicion to Make an Arrest
When the officer walks up to the vehicle and tells you to roll down your window, requests driving documentation or questions why you are in this particular location or what you are specifically doing inside the car, then the scenario elevated to an investigatory scenario.
Interviewer: What does that mean for someone if they’re under an investigatory scenario?
Kevin: That means that they do have an obligation to remain in the area. In other words, if an officer commands you to stop on the street, you have the obligation to remain until the officer releases you from this detention.