In our last post, we began speaking about the legality of checkpoints in general, and of a particular checkpoint permitted by Hartford County Sheriff Jeffrey Gahler last November. One of the points we wanted to highlight in this discussion is that police officers participating in drunken driving checkpoints do have the right to ability to enforce other criminal laws, but only incidentally.
What we mean by this is that police officers, in the course of conducting a legal drunk driving checkpoint—meaning a checkpoint aimed at getting unsafe drivers off the road—may end up discovering evidence of criminal activity in the course of the checkpoint. There are a variety of ways this can happen.
One common possibility is that an officer may be stopping vehicles in a systematic manner and notice suspicious behavior from a driver or suspicious items in plain sight within the vehicle. When this occurs, the officer then has the right to further the investigation to determine whether there may be illegal activity occurring. If the officer obtains probable cause in the course of the investigation and the driver ends up being arrested, the officer may then conduct a search incident to that arrest and discover evidence of criminal activity.
It should be understood that, even within the context of sobriety checkpoints, motorists have rights that officers may not infringe. In addition to following the rules for conducting legal sobriety checkpoints, officers must abide by search and seizure rules. Failure to do so can later be used as a basis for legal protection in a criminal case. Defendants who have been subjected to an illegal investigation, whether in the context of a sobriety checkpoint or not, should work with an experienced criminal defense attorney to protect their rights.
Alertnet.org, “Maryland Sheriff’s Heroin Checkpoints Skirt the Edge of Legality,” Phillip Smith, Nov. 27, 2015.
Governors Highway Safety Association, “Sobriety Checkpoint Laws,” Jan. 2016.