Attorneys advise on checkpoints as Tenn. activists fire up dashcams

By David Tulis

Freedom-minded Tennesseans in Rutherford County are raising funds to put dashcams in more vehicles so that “bad apples” among police and sheriff’s departments can be recorded violating the rights of citizens at traffic stops.

Meanwhile, a noted Nashville attorney says that the law recognizes a difference between a traffic stop and a checkpoint, namely that checkpoint interrogations are constrained by law not to oppress the rights of citizens who, on the scene of one, have no choice but to pass through.

A video posted on YouTube on July 4 shows police harassment of a motorist, Middle Tennessee State University student Chris Kalbaugh, 21, who is confronted by Deputy A.J. Ross. Mr. Kalbaugh declines a request to lower his window more than 4 inches, and is pulled over. His car is scratched by search dogs, who apparently are prompted by the canine officer to “spot” on the car, which is thoroughly searched. He is released without charge.

The Rutherford County Libertarians, in partnership with various local pro-liberty organizations, are raising F$500 in Indiegogo.com to buy recording devices for motorists. They “are working on a plan to expose corrupt law enforcement officers, particularly with traffic stop and checkpoint interactions,” says coordinator Axl David on the fund-raising website.

“We believe the best method of doing this is to purchase as many dashcams as possible. Activists throughout the Middle Tennessee region will record interactions with police at checkpoints and traffic stops. *** We will not, in any way, provoke law enforcement. We will respectfully and lawfully exercise our rights should we find ourselves interacting with police.”

Raybin discusses checkpoints

Noted Nashville attorney David Raybin marks a distinction between a traffic stop and a checkpoint. Citizens’ Fourth Amendment protections under the federal constitution prohibits unreasonable and unwarranted searches and seizures. A user of the roads (whether a driver or a traveler) cannot be stopped unless the officer has probable cause or something akin to it.

The Tennessee supreme court holds that traffic stops are lawful because of an overwhelming public safety interest in keeping drunk drivers off the road, Mr. Raybin says in a posting.  “In State v. Downey, the Tennessee Supreme Court, relying on decisions by the United States Supreme Court, recognized that “a roadblock seizure *** is a departure from*** fundamental constitutional principles because it permits officers to stop and question persons whose conduct is ordinary, innocent, and free from suspicion.” 945 S.W.2d at 104. The court determined that the constitutionality of such seizures depends upon a balancing of the public interest and the amount of interference on the individual’s liberty. The most important attribute of a reasonable roadblock is the presence of genuine limitations upon the discretion of the officers in the field over whether and how the roadblock is imposed.

“The court concluded that the State has a compelling interest in alleviating drunk driving and that sobriety checkpoints are effective tools for detecting impaired drivers. Id. at 110. Thus, DUI checkpoints are legal and comply with the constitution if conducted in a uniform manner.”

Mr. Raybin says it is fruitless to complain about checkpoints for licenses or alcohol consumption. “It is a consequence of the freedom of driving on the roads but being subject to periodic government inspection to see if we are fit to drive further down the road. Think of it as a weight check for a truck. As long as our courts have interpreted the state and federal constitutions to permit DUI roadblocks, law enforcement agencies are free to conduct them within the permissible guidelines.”

Police authority at such checkpoints is restricted to the job at hand: Asking for a driver’s license and speaking with a motorist to determine if he has alcohol on his breath. Roadblocks are not allowed to be fishing expeditions in which the motorist is asked a whole series of questions about where he is going, who is in the car, what he is carrying, whether is has a gun in the car, or whether he is hauling narcotics. Mr. Raybin says that the motorist in the video caused an escalation of police threats and toughness by not lowering his window further as ordered.

“The officer must be allowed to engage the driver by manner, possible bloodshot eyes, and particularly odor. Liquor, beer, and pot emit an odor and, if detected on the driver or in the interior of the vehicle, afford the officer reasonable suspicion to inquire further.”

Mr. Raybin says he will not fault officer Ross. “I do not see that this officer was excessive in his contact with our YouTube citizen here. On balance, the video was expertly crafted. I did not find it misleading and it conveyed a sense of drama and reality.”

Another prominent Nashville defense attorney Roger May, in a Tennessean newspaper interview, on a single point is less forgiving of Mr. Ross, the deputy. “In this case, the alerting by the dog is questionable at best,” he says. “You’re not supposed to do it the way that officer did it.”

If you are not free to leave, you are under arrest

As Mr. Raybin says, a traffic stop gives more liberty to the police than a checkpoint. Checkpoints are intended to be a rapid form of offense against the common rights of the citizenry. The officer does not have discretion to ask probing questions of a motorist just because no other cars are behind him waiting to get through the blockade.

A traffic stop is trickier and allows greater officer discretion. The officer is required to have probable cause to stop you. That could be the failure to use your lane-change indicator. That could be because you have a light out. Perhaps you crossed the middle line inadvertently without actually changing lanes. Perhaps you made a “rolling stop” instead of a full stop. So, by silly omissions in driving procedure you open yourself to a police stop. Once he puts on his lights, you should remember several important points.

The operative question for you now is: Are free to leave? Ask this question. If you are not free to leave, you are under arrest, and need answer no questions whatsoever. Since you probably are a licensee of the state, you have agreed beforehand to show its agent your driver’s license. He will ask for that, and will run the data in his computer. As a licensee, you are the operator of a motor vehicle and subject to the demand of the licensor to show your license document.

‘I make no statement’

As for questions, don’t be ashamed about not cooperating. For the cop, you are one face in a long night. You are not causing him any trouble by not answering his queries. Neither government nor its agents can convert your exercise of your rights into a crime. The officer may look angry, upset or flustered that you are not telling him about your travels or listing the contents of your briefcase. It’s just an act, to intimidate you and make you feel awkward and noncompliant — as if you, the innocent citizen, are acting in bad faith. Don’t fall for that ruse.

Refuse to answer questions. Refuse to incriminate yourself, as you have no counsel or attorney present to advise you, according to an ACLU booklet about police encounters. Just say politely, “I make no statement” or “Officer, I have nothing to say, thank you.”

Not speaking is important. Sometimes an officer without any probable cause to stop you wants you to give him probable cause by opening your mouth. He will fish for indications that you have an illegal gun under the seat, are carrying narcotics, are eating cheese that escaped customs tax or have a corpse in your trunk of which you are trying to dispose in another state. Very often, intimidated motorists will yield their ground and give him cause for a search.

Sources: David Raybin is a partner at Hollins, Raybin & Weissman and he heads up the criminal defense section of the firm. He has more than 35 years of experience. His comments come from his blog.