Category: 4th amendment

Warrantless DUI Arrest

Can police make a warrantless DUI arrest if they did not observe the suspect driving?

Yes. Police can make a warrantless DUI arrest even if they did not observe the suspect driving.

Observation of Crime Usually Required

Generally, police must observe a crime before they can make a warrantless arrest. (see Penal Code § 836) However, a peace officer with probable cause could arrest a person for misdemeanor driving under the influence of alcohol or drugs not committed in the officer’s presence where evidence could be destroyed unless the person was immediately arrested.

Observation of Driving Not Required for Warrantless DUI Arrest

Vehicle Code § 40300.5(e) created an exception to the presence requirement of Pen C § 836, because evidence could be destroyed by the simple passage of time unless the person was immediately arrested. However, this does not authorize a peace officer to forcibly enter a residence to effect such an arrest. People v. Schofield (Cal. App. 2d Dist. 2001), 90 Cal. App. 4th 968.

Police can also make a warrantless arrest if:

  • The driver is involved in a traffic crash.
  • The driver is observed in or about a vehicle that is obstructing a roadway.
  • The driver will not be apprehended unless immediately arrested.
  • The driver may cause injury to themselves or damage property unless immediately arrested.

Specific Examples

In Shaffer v. Department of Motor Vehicles, the warrantless DUI arrest of the driver was valid even though the arresting officer did not see plaintiff drive. In that case, a citizen complained and the officer observed visible paint transfer on the driver’s car and that the driver was intoxicated to the point of incompetence. The 1st District Appellate Court ruled that under Vehicle Code § 40300.5, when there has been a traffic accident, an officer having probable cause to believe that an involved driver “had been driving while under the influence of intoxicating liquor…” may make an arrest without a warrant. 

Similarly, in People v. Burton, 219 Cal. App. 4th Supp. 9, the warrantless arrest for misdemeanor driving under the influence was proper where a civilian witness observed defendant driving erratically and an officer then located defendant standing near his truck, noticed signs of intoxication, and confirmed that he had been driving the truck.

If Police arrested you for DUI but did not observe you drive, contact RBX Law to discuss your case!

Can Police Follow a Suspect for No Reason?

Yes, police can follow a suspect for a reasonable period of time even if they have no reason to believe the suspect committed a crime.

Police do not need reasonable suspicion to follow a suspect in California if the encounter remains consensual. Under California law, consensual encounters between law enforcement and individuals do not trigger Fourth Amendment scrutiny. A consensual encounter occurs when a reasonable person would feel free to disregard the police and go about their business. For example, officers may approach someone in a public place and converse with them without any suspicion of criminal activity. However, the encounter becomes a detention if the individual is not free to leave or terminate the interaction.1

If the police action escalates to a detention, reasonable suspicion is required. A detention occurs when an officer restrains an individual’s liberty through physical force or a show of authority, and a reasonable person would not feel free to leave. Reasonable suspicion must be based on specific, articulable facts that suggest the person is involved in criminal activity.2

How Long can Police Follow a Suspect?

Continued police surveillance violates the 4th Amendment if it is unreasonable. Surveillance is unreasonable if it infringes upon an individual’s reasonable expectation of privacy or is conducted in a manner that is excessive or unjustified under the circumstances.3 There is no bright line on when continued surveillance becomes unreasonable. However, to violate the 4th amendment, the surveillance must be more than following a suspect for a short time. Ultimately the reasonableness of the surveillance depends on the specific facts of the case.

Additionally, California statutes clarify that law enforcement personnel may follow or surveil individuals. Officers can follow suspects as a part of their duty to investigate suspected illegal activity or misconduct. Their surveillance must be supported by articulable suspicion.4 This aligns with the principle that reasonable suspicion is necessary for more intrusive actions, such as detentions or searches, but not for mere observation or following in public spaces.

  1. People v. Kidd, 36 Cal. App. 5th 12, People v. Linn, 241 Cal. App. 4th 46. ↩︎
  2. Arburn v. Department of Motor Vehicles, 151 Cal. App. 4th 1480, People v. Bennett, 17 Cal. 4th 373. ↩︎
  3. United States v. Martin, 753 F. Supp. 454, 463. ↩︎
  4. Cal. Civ. Code section 1708.8. ↩︎

Can Local Police Stop Cars on the Freeway?

Yes. Local police can stop cars on the freeway or highway. In fact, any member of California law enforcement can generally enforce the laws anywhere in the state. This includes sheriffs, park rangers, harbor patrol, railroad police, and many other branches of law enforcement.

Why Can Police Stop Cars on the Freeway?

In California, almost all state and local law enforcement agencies have authority throughout the entire state. This means they can stop a vehicle on the freeway and can arrest persons for whom they have probable cause. For an exhaustive list, see Penal Code § 830-832.18.

Some of the better known state agencies are:1

  • California Highway Patrol
  • University of California Police
  • Cal State University Police
  • Department of Corrections and Rehabilitation
  • Department of Fish and Game
  • Department of Parks and Recreation
  • Department of Forestry and Fire Protection
  • Department of Alcoholic Beverage Control
  • California Exposition and State Fair Marshalls
  • Department of Cannabis Control

There are, however, many many more state agencies that have police authority throughout the state:

  • Department of Consumer Affairs2
  • Department of Motor Vehicles3
  • California Horse Racing Board4
  • Department of Housing and Community Development5
  • Department of Financial Protection and Innovation6
  • Department of Justice7

There are also many local agencies that have police powers anywhere in the state of California:

  • All county sheriffs and city police officers8
  • Community College Police9
  • Housing Authority Patrol Officers10
  • Municipal Security Officers11

Local agencies have some limits on their policing. Fore example, local police can only police:

  • Public offenses in their jurisdiction;
  • With permission from other law enforcement;
  • To prevent danger to person or property or escape of the perpetrator.

Three agencies from other states have limited police power to stop cars a freeway. They are the Oregon State Police, the Nevada Department of Motor Vehicles and Public Safety, and the Arizona Department of Public Safety. These agencies have police powers up to 50 miles inside California if:

  • The California Highway Patrol requests their help, or
  • Law enforcement services are necessary to preserve life 12
  1. Penal Code § 830.2 ↩︎
  2. Penal Code § 830.3(a) ↩︎
  3. Penal Code § 830.3(c) ↩︎
  4. Penal Code § 830.3(d) ↩︎
  5. Penal Code § 830.3(j) ↩︎
  6. Penal Code § 830.3(l) ↩︎
  7. Penal Code § 830.1(b) ↩︎
  8. Penal Code § 830.1 ↩︎
  9. Penal Code § 830.32 ↩︎
  10. Penal Code § 830.31 ↩︎
  11. Penal Code § 830.34 ↩︎
  12. Penal Code § 830.39↩︎

Can Police Order You to Exit Your Car?

The answer is yes. Police can order you to exit your car when they pull you over.

Why Can Police Order You to Exit Your Car?

The reason police can order you to exit your car is for officer safety. Police can make this order under any circumstances:

  • Police can order people out of a car even if they do not have probable cause or reasonable suspicion to believe a crime has committed.
  • Police can order people out of a vehicle even if they do not believe those people are armed or dangerous.
  • Police can order all occupants out of the car.

Why do Police Have This Power?

In 1977, Harry Mimms was driving in Philadelphia when he was stopped for having an expired license plate. One of the officers asked Mimms to exit his vehicle. When Mimms exited, the driver noticed a bulge in Mimms jacket. The officer patted Mimms down and discovered a loaded firearm in his waistband.

Mimms claimed that the officer’s order for him to exit the vehicle violated his 4th Amendment right to be free from unreasonable search and seizure. The United States Supreme Court reviewed the case and ruled that the officer had not violated Mimms’ 4th Amendment rights. (see Pennsylvania v. Mimms (1977) 434 U.S. 106)

The Supreme Court noted that the officer had no reason to believe Mimms was committing a crime. However, the officer claimed it was his usual practice to order all drivers out of their vehicle during a traffic stop. The prosecution argued that the officer’s practice was meant to ensure officer safety during a traffic stop.

The Supreme Court ruled that officer safety outweighs the minor 4th Amendment intrusion of having a driver or passenger exit a vehicle. According to one study, 30% of police shootings occurred when an officer approached a person seated in a vehicle. A significant percentage of murders of police officers occurs when the officers are making traffic stops. In addition, police can be hit by passing traffic when standing outside the driver window. The 4th Amendment intrusion of having a passenger exit a vehicle is minimal by comparison.

What if You Refuse to Exit Your Car?

If you refuse to exit, you could be charged with resisting or delaying arrest under Penal Code § 148. This offense is a misdemeanor punishable by a maximum of 364 days in jail.

Advice

If an officer asks you to exit your vehicle, you should clarify whether he is giving you an order or merely asking you to exit. While you should follow a police order, you do not have to comply with a voluntary request.

Do you think this law gives police too much power? You should raise your concerns with your state representative or senator.

Probable Cause

Probable cause is an exception to the warrant requirement under the 4th Amendment. In other words, police do not need a warrant to arrest a person as long as they have probable cause.

Definition

Probable cause means that the facts known to the officer warrant a reasonable belief that a crime has occurred or that evidence of a crime is located in a specific place. Probable cause is based on the totality of the circumstances and does not need to rely on any one fact. It does not have to be certain and can be based on probabilities and common sense conclusions. (United States v. Martin (2010) 613 F.3d 1295.)

Probable cause requires more than mere suspicion but does not necessitate facts sufficient to establish guilt. (United States v. Munoz-Nava (2008) 524 F.3d 1137.)

What Can Police Do if They Have Probable Cause?

Police arrest a person if they reasonably believe that person committed a crime. Police can search an area if they have reason to believe there is evidence of a crime in that area.

Specific Examples

An officer may arrest a person when multiple witnesses identify the suspect as the shooter in a homicide. (Moorer v. City of Chicago (2024) 94 F.4th 715.)

An officer may arrest a felon for unlawfully possessing a firearm after they observe a firearm in their car. (Young v. City of Chicago (2020) 987 F.3d 641.)

An officer may arrest a person when they observe facts consistent with drug transportation based on their previous experience with drug transportation. (United States v. Munoz-Nava (2008) 524 F.3d 1137.)

Insufficient Probable Cause

An officer cannot arrest a person based on their presence at a suspected stash house and traveling in an indirect route to their location. (United States v. Cervantes (2012) 678 F.3d 798.)

An officer cannot arrest a person for being near a crime without indications that the person is involved in the crime. (Williams v. City of Chicago (2013) 733 F.3d 749.)

An officer cannot arrest a person for possessing marijuana unless there is some indication the marijuana is being possessed or sold unlawfully. (People v. Lee (2019) 40 Cal.App.5th 853.) If you believe officers arrested you without probable cause, you should consult an attorney. You could contest your arrest in court and ask the judge to suppress evidence obtained unlawfully by police. You can also file a complaint or sue the police for their unlawful arrest.

Reasonable Suspicion

Reasonable suspicion is an exception to the warrant requirement under the 4th Amendment. In other words, police do not need a warrant to stop, detain, or investigate a person as long as they have reasonable suspicion.

Definition

Reasonable suspicion means that the facts known to the officer warrant a reasonable belief that a crime has been committed or some other criminal activity is afoot. (Terry v. Ohio (1968) 392 U.S. 1.)

Reasonable suspicion is less than probable cause, but it cannot be mere speculation or hunch. (People v. Rodriguez (2006) 143 Cal.App.4th 1137.)

What Can Police Do if They Have Reasonable Suspicion?

Police can stop, detain, and investigate persons they suspect of being involved in criminal activity. They may detain persons long enough to determine whether the suspicious activity is criminal activity. (Florida v. Royer (1983) 460 U.S. 491.) In addition, police can pat down (“frisk”) the person for weapons for their safety. However, police cannot arrest a person unless they have probable cause.

Probable cause is a higher standard that requires evidence that the suspect committed a crime. In contrast, reasonable suspicion only requires suspicion of criminal activity. (People v. Celis (2004) 93 P.3d 1027.) Put another way, probable cause means a crime has occurred, while reasonable suspicion means a crime may have occurred.

Specific Examples

An officer may stop a vehicle after running its license plate and learning that the registered owner had a revoked license. (Kansas v. Glover (2020) 589 U.S. 376.)

An officer may detain a suspect based on an anonymous 911 tip of assault with a firearm if the 911 tip accurately described the suspect in detail. (People v. Dolly (2007) 40 Cal.4th 458.)

An officer may stop a vehicle for swerving within a lane for 1/2 of a mile (People v. Bracken (2000) 83 Cal.App.4th Supp 1.)

Insufficient Reasonable Suspicion

An officer may not stop a suspect based only on their presence in a high crime area. (People v. Flores (2024) 15 Cal.5th 1032.)

An officer cannot detain a vehicle for a dog sniff without specific evidence of drug involvement. (People v. Gyorgy (2023) 93 Cal.App.5th 659.)

An officer cannot pat down a suspect based only on their past criminal history. (People v. Pantoja (2022) 77 Cal.App.5th 483.)If you believe officers detained you without reasonable suspicion, you should consult an attorney. You could contest your detention in court and ask the judge to suppress evidence obtained unlawfully by police. You can also file a complaint or sue the police for their unlawful detention.

Can Police Pull You Over For Swerving?

The answer is yes. Police can pull you over for swerving, even if you do not swerve into other lanes.

Swerving Into Other Lanes

Police can lawfully pull you over for any violation of the Vehicle Code. Swerving across lanes lines is a violation of California Vehicle Code § 21658.

California Vehicle Code § 21658 requires drivers to:

  • Drive as nearly as practical within one lane;
  • Change lanes only when it is reasonably safe.

A driver violates this law by driving in two lanes at once (lane straddling), or drifting into a lane when it is not safe.

The punishment for violating section 21658 is a fine. The level of offense is infraction. This means violating this law does not result in jail or prison confinement.

Swerving Inside Your Lane

It is not a violation of the Vehicle Code to drift within one lane. (United States v. Colin (2002) 314 F.3d 439.) In fact, it is normal for a vehicle to move side to side within a lane as it travels. But police can still pull you over for drifting inside a lane. How is this possible?

Answer:

Police can pull you over for swerving because it is considered erratic driving under California case law. Erratic driving gives police reasonable suspicion to believe the driver is impaired. Therefore, police can initiate a traffic stop even though the swerving does not violate the vehicle code.

Examples of “Erratic” Driving:

Summary

Swerving over the lane line is a violation of the California Vehicle Code, punishable as an infraction. It gives police reason to initiate a traffic stop. However, even if the swerving occurs within a lane police can initiate a traffic stop to determine whether the driver is impaired (IE: under the influence of drugs or alcohol or experiencing a medical emergency).

Because vehicles seldom drive perfectly straight, police have the power to stop practically any vehicle.

Do you think this law gives police too much power? You should raise your concerns with your state representative or senator.

Field Sobriety Tests

What are Field Sobriety Tests?

Field sobriety tests are often divided attention tests (think rub your stomach while patting your head). Although they are not scientific tests, law enforcement uses them to obtain evidence of driving under the influence. The results of the tests are used by prosecutors to convict drunk drivers and to justify DUI arrests.

Refusing Field Sobriety Tests

You may refuse to do any field sobriety tests. One exception to this is that you must provide a blood, breath, or urine sample. However, you are only required to provide a sample if law enforcement arrests you for driving under the influence. Failure to provide a sample can result in further consequences.

“Standardized” Field Sobriety Tests

The following three tests are approved for law enforcement use by the National Highway Traffic Safety Administration.

Horizontal Gaze Nystagmus

field sobriety tests

Horizontal Gaze Nystagmus is an involuntary jerking of the eye that happens when the eyes move to the side from center point. Prior to the administration of this test, an officer must check a subject’s eyes for equal pupil size, resting Nystagmus and equal tracking. The officer administers the test by slowly moving his finger in front of the suspect’s eyes.

An officer administering this test will check for three clues in each eye while checking for HGN:

  • Lack of Smooth Pursuit. When the eyes jerk or bounce as they follow a smoothly moving stimulus.
  • Distinct and Sustained Nystagmus at Maximum Deviation. When the eye jerks when it remains to the side for a minimum of four seconds.
  • Onset of Nystagmus Prior to 45 Degrees. When the eye begins to jerk when it moves 45 degrees from the center.

Four or more cues indicates that the suspect probably has a blood alcohol level over .08%.

Walk and Turn (aka “Walking the Line”)

field sobriety tests

The walk and turn test is a divided attention test. It divides the suspect’s attention between physical and mental tasks. The physical task is balancing and walking on a line. The mental task is completing the test exactly as instructed. The test begins with the instruction phase, followed by the walking stage.


The instruction phase begins with the suspect standing with their feet heel to toe (right foot behind) and arms at their sides. The suspect remains in this position while the officer explains the test. Next, the officer demonstrates three heel-to-toe steps, a turn, and three heel-to-toe return steps.

For the performance part of the test, the suspect must keep their arms at their sides and take nine heel-to-toe steps, followed by a turn and nine heel-to-toe return steps. The suspect must walk a straight line and cannot pause once they start walking. While walking, the must keep their arms at their side, look down at their feet and count each step.

During the test the officer will look for a number of cues for this test, including:

  • Loses balance during instructions;
  • Starts walking too soon;
  • Stops while walking;
  • Fails to touch heel-to-toe;
  • Steps off the line;
  • Uses arms for balance;
  • Makes an improper turn;
  • Takes the wrong amount of steps.

If the officer observes two or more of these cues, it indicates the suspect probably has a BAC over .08%.

One Leg Stand

one leg stand

There are two stages to the one-leg stand test. First the officer instructs the suspect in how to perform the test. Second, the suspect performs the test. During the instruction phase, the officer will provide oral instructions on performing the test. The officer will also demonstrate part of the test. Once this is complete, the officer asks the suspect if they understand the instructions.

During the performance stage, the suspect raises one leg with their foot parallel and approximately six inches off of the ground. With their hands to the side, they count in thousands (one-one thousand, two-one thousand, etc.) while looking at their foot until instructed to stop.

During the test, the officer will look for six possible clues: swaying, using arms for balance, hopping or putting your foot down. If the officer observes two or more clues, it indicates that the suspect probably has a BAC over .08%.

Other Field Sobriety Tests

Law enforcement commonly uses other field sobriety tests including:

Modified Romberg

rhomberg

Moritz Heinrich Romberg, a German neurologist, created the Romberg test to evaluate neurological function. Although it is not approved by the NHTSA, law enforcement uses it to determine intoxication. Like many field sobriety tests, it divides the suspect’s focus between a physical and a mental task.

The basis of the test is that two of the following three functions are needed to maintain balance: vision, inner ear and spacial orientation. If an individual is unable to properly balance using two of these functions, it may be an indication of a neurological problem. When administered as a field sobriety test it is evidence of intoxication.

To administer this test, the officer asks the suspect to stand with their feet together, head tilted slightly back and eyes closed. The officer asks the suspect to estimate when 30 seconds has passed, and say “stop.”

While you are balancing, the officer will look for six clues: amount and direction of swaying, eyelid/body tremors, estimate of when 30 seconds has passed, muscle tone, sounds or statements made during the test, and ability to follow directions.

Finger to Nose

balance test

The finger-to-nose test requires the suspect to close their eyes, tilt their head back slightly and touch their nose with their index finger. The suspect repeats this action three times on each hand, for a total of six attempts. The officer will instruct and demonstrate the test first. Then the suspect will perform the test as demonstrated.

While performing this test, the officer will look for a number of clues that indicate intoxication. These include: inability to follow instructions, swaying, eyelid/body tremors, speaking or making sounds during the test and failing to touch your finger to your nose. If you exhibit several of these clues, law enforcement could arrest you for driving under the influence.

I Just Got Arrested, Now What?

After you are arrested, continue to assert your 4th Amendment right to refuse search (except when arrested for DUI) and 5th Amendment right to remain silent.

arrested

right to remain silent

It is very important to remain silent because your own statements can be used to convict you. Wait until your attorney is present before you make any statements to police.

Statements that seem innocent such as, “I didn’t mean to do it,” “I drank much earlier today,” or “he pushed me first,” are actually confessions to a crime.

Tips and Tricks to Remaining Silent

arrested

Confessions are an easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to remain silent, the police have developed strategies to get you to talk.

“if you didn’t do anything wrong, tell me what happened.”

You may be guilty of a crime even though you didn’t do anything “wrong.” For this reason, it is best to say nothing to police until your attorney is present.

waiting for you to start talking

If you start a conversation with police, you have waived the right to remain silent. Remember: “Any statements you make can be used against you in a court of law.”

“you have the right to remain silent…”

The Rule

If police do not give you this well-known Miranda warning, your confession could be excluded from criminal proceedings.

Miranda Limitation

However, the Miranda rule only excludes confessions that occur during “custodial interrogations.” Those are interrogations that occur in police custody, typically in a holding area or at a jail.

Police Strategy

Police usually follow the Miranda warning with “Do you want to waive these rights and talk to me?” You can invoke your right to remain silent by stating, “No. I don’t want to talk to you.” If you remain silent, police may continue to talk to you. You can re-invoke your right at any time by saying “I don’t want to say anything else, I want to talk to a lawyer.”

right to refuse search

It is also important to refuse search because evidence found during the search can be used to convict you. If you consent to search of your property, you waive your right to contest the search in court.

Exception: Arrested for DUI

If you are arrested for DUI, you must provide a blood, breath, or urine sample to determine you blood alcohol concentration (BAC). Failure to provide a sample can result in additional criminal charges AND further DMV action against your license.

Tips and Tricks to Refuse Search

arrested

Consensual search is any easy way for police to secure an arrest and for prosecutors to obtain a conviction. Although you have the right to refuse search, the police have developed strategies to convince you to consent.

“sign a consent to search form to get your phone back”

If police believe there is evidence of a crime on your phone, they will not return it to you unless you consent to search. We all “need” our smart phones, but you will likely be better off refusing search and picking up a temporary phone.

“if you don’t consent, we will get warrant”

You have the right to insist police obtain a warrant, except when you are arrested for DUI. Requesting a warrant will delay the police, so be polite and let them know you respect them and their job.

“if you have nothing to hide, let us search”

Your personal items are private and you have the constitutional right to refuse search.

“if you work with me, I’ll work with you”

Even if you cooperate with police, they are not legally required to help your case.

Russell Brown
Criminal Defense Attorney

Police Stops and Your Rights

tips on safely interacting with police during stops

Knowing your duties, rights, and law enforcement objectives can help you safely navigate an encounter with law enforcement. Below is a brief discussion of things to consider if the police stop you.

step 1: know your dutiespolice

police

Identify Yourself

You must identify yourself if police have probable cause to believe you committed a crime, have a warrant for your arrest, or are in violation of probation or parole.

Provide Your Driver’s License

You must provide your driver’s license if you are pulled over while driving.

Probation or Parole

You must admit that you are on probation or parole if doing so is a condition of your probation or parole.

step 2: know your rights

police

Remain Silent (5th Amendment)

Except for the duties above, you are not required to respond to questions.

Refuse Search (4th Amendment)

You do not have to allow police to search you, your possessions, or your vehicle, unless submitting to search is a condition of probation or parole.

Ask if You are Free to Leave (4th Amendment)

If you are not free to leave, law enforcement must have a reason for detaining you.

step 3: know the police

police

Authority

Authority figures do not like signs of disrespect, such as being ignored, or rude, impolite, or offensive behavior.

Crime-fighting

The modern policing focuses on crime-fighting. If police believe you are obstructing or delaying them from this objective, the could arrest you or use force against you.

Armed

Consider that most police are armed and some carry fully automatic assault weapons.

Immunity

Officers are immune to most civil lawsuit and rarely face criminal prosecution or internal discipline. Therefore, police have few if any consequences for harming you or violating your rights.

What Can I Say to Police?

  1. I respect law enforcement and the job you do.
  2. However, I am not going to consent to a search of myself, my property, or my vehicle.
  3. I will not resist you, but I will not consent to my detention, search, or seizure.
  4. Nor will I answer any questions without my lawyer present.
  5. With that being said, am I free to leave?

What Can I Do if Police Violated My Rights?

If you can prove police misconduct, the judge could dismiss your criminal case. You could also sue the law enforcement for violating your established constitutional rights.