With all the holiday DUI checkpoints that have occurred, I was asked recently about passengers’ rights. For example, what if the police made observations about a passenger during a DUI checkpoint?
As a passenger in a DUI checkpoint, you have the same rights as anyone else to challenge the legality of the checkpoint, the reasonableness of your detention, etc. If the officers spent an exceedingly long time with you (instead of focusing on the driver), your attorney may have an argument to suppress the evidence.
Here’s why: DUI checkpoints are deemed acceptable for “public safety.” It’s an exception that has developed to the ordinary requirement that the police have information about criminal activity in order to be able to detain you. For example, in an ordinary DUI stop (not a checkpoint), they would point to some violation of the law (weaving between lanes, driving without headlights after dark, etc.) to justify the stop (detention) leading to the contact. In a checkpoint, there are almost never any prior observations of “bad” driving or any violation that would legally justify the stop. Instead, the courts have allowed this brief intrusion on your freedom of movement for a quick screening. Checkpoints are supposed to have guidelines in place to allow more cars through and stop fewer if traffic backs up to avoid unnecessary delay and intrusion on people’s lives.
Once in the checkpoint, the officers can contact the driver for a quick screening conversation and based on that, should they find the driver to have been drinking or seeming impaired, it would then justify a longer detention for a DUI investigation.
But what about passengers?
Every case is unique and fact specific, but the questions are going to be: Why did the officers focus on the passenger? Did their observations of potentially under the influence come immediately? Were the officers done assessing the driver by the time they made their observations of the passenger? (If so, it could be argued that the reason for the car stop was over and any further observations and detention without reasonable suspicion did not exist, making the evidence subject to suppression). Yes, the officers can use their “plain sight” exception to at least look at the passenger, but to detain further than their observations while conducting the DUI checkpoint contact with the driver? It may go too far.
As with every search and seizure case, they really are fact specific.
Is there an argument to be made? Sounds like there may be, but the entire case will have to be reviewed by a criminal defense attorney well-versed in DUI checkpoints and Fourth Amendment (search) law.