Without getting into lengthy case law discussions, it is safe to say that the Fourth Amendment to the Constitution of the United States is lost, either it ran away on it's own, or somebody took it, I don't think it ran away. Ok so where did it go, and really what was it anyway? Most people say to me, "they invaded my right to privacy" ok well if we want to be technical about this, some would say a literal interpretation of the Constitution, then there really is no right to privacy, you will not find that in Constititution. It is a right derived from the Fourth Amendment, but not really mentioned.
Ok so the right to privacy is old, right? No, it was born out of a case decided only a few decades ago. We started with a right to privacy, and since that time have continued to erode it. I have said before, it is generally understood that you have a lesser expectation of privacy in your car, so Tennessee DUI, Tennessee Drug searches of your car have less Constitutional protections for you, Why is that? The Supreme Court of the United States has said it is a balancing test between freedom from unreasonable searches, (IE privacy) and public safety. From this the gate swung open the erosion of the Fourth Amendment.
So your driving down I-24 in Tennessee heading to Chattanooga, you are pulled over by a White GMC Blazer type vehicle, and an officer approaches your car, he tells you that you have violated a traffic law in some way, maybe a Tennessee DUI violation or maybe tail light out, but then he asks you, Can I search your car? What does a traffic stop have to do with him searching your car? If your not intoxicated and their is no DUI charge, or you do have a tail light out and agree to ticket, and get it fixed, why should that be a reason to ask to search your car?
The Supreme Court of the United States has said that pre-textual stops are ok, ie if you break a traffic law it is ok for the police to stop you, even though their real intent is to ask you about drugs. Should the police officer inform you that you have the right to say no to the search? If we protect the 5th Amendment with the Miranda warnings, why don't we protect the 4th Amendment with a warning that you have the right to say no?
Few people know that you have a right to say no to the search, but what if you say no? In short it works like this, the clock starts ticking, meaning if you say no, and the police are running your drivers license and writing you out your ticket, they can call for a drug sniffing dog, and if you are stopped by a large White Blazer type vehicle, chances are they have the drug dog in the back of their car, surprise.
Lets say there is no dog with the police when they pull you over, but they call for a drug dog from another officer who must drive to the scene, then the clock is ticking on what a reasonable time is that they can hold you for the traffic ticket they are writing you. If the courts decide it is unreasonable, then any evidence they find is supressed, however if the amount of time they hold you for a speeding ticket is 25 minutes and drug dog arrives, and makes a positivie hit on your car, probably the Tennessee Courts will not supress any evidence that the police find.
So the real question is this, Why should the police be allowed to ask to search your car when they only stop you for a traffic violation or a Tennessee DUI that is unfounded, and have no probable cause to believe that you are doing anything wrong?
If we carried probable cause to the next phase of a traffic stop to protect the Fourth Amendment, what would be wrong with that? To protect the Fourth Amendment like we do the Fifth with Miranda Warnings, all we would have to do is this, if it takes probable cause to believe you broke a traffic violation to pull you over, then why not require that there be probable cause to ask to search your car? It would simply be a two pronge test to protect the Fourth Amendment in regards to traffic stops. Add in a simple reading that you have the right to say no to a search, and the erosion of the Fourth Amendment might slow down.
Posted by Daniel L. McMurtry
Nashville DUI Lawyer, Tennessee Criminal Lawyer Daniel L. McMurtry, located in Nashville, Tennessee representing clients in Tennessee on Criminal Matters. Nashville Criminal Lawyer with jury trial experience in Tennessee and Mississippi. Mr. McMurtry can be found at, Nashvilledui.info
