Debate Forum 07/23

Debate Forum 07/23

Debate Center: The DUI checkpoint that became a checkpoint on constitutional rights

 By Alex Culpepper

 On July 4, Chris Kalbaugh, a 21-year-old college student, drove to a DUI checkpoint in Rutherford County Tennessee. He was armed with a camera, and he covertly filmed his experience at the checkpoint. He later loaded the video on YouTube, and within little time, it received more than one million views. The video shows Kalbaugh, who was sober, first being asked to roll down his window. He obliged, but lowered his window only part of the way, leaving the on-duty officer noticeably displeased. Then, after a brief exchange with the officer explaining why he did not need to further roll down his window, Kalbaugh was ordered to pull his car to the side of the road and get out. Kalbaugh then rightfully asked whether he was being detained, and if so, for what reason. The officer would not give him a reason. The police then brought a K-9 unit to sniff his car. In the video, the dog detected something, and the police searched Kalbaugh’s car. The dogs found nothing, and Kalbaugh was released without citation.

Kalbaugh is a member of the Rutherford County, Tenn., Libertarian Party, and the filming of his checkpoint stop was planned. The goal was to show evidence for Kalbaugh’s belief that DUI checkpoints violate constitutional rights. Kalbaugh’s reactions and responses were designed to reveal how the officers’ demands, and even the checkpoints, are violations of civil liberties. In particular, Kalbaugh’s efforts attempt to show violations of the Fourth Amendment regarding unlawful search and seizure and the Fifth Amendment regarding the right not to incriminate oneself and unlawful detainment. Now, millions of people have viewed the video, and the episode has certainly inspired debate.

Supporters of Kalbaugh’s actions and reactions believe his rights were trampled during this incident, and in Kalbaugh’s own words, he has “a constitutional right to travel freely without being randomly stopped and detained.” Supporters say he was polite and direct and did not have to leave his car or do anything else the officers directed him to do without reasonable suspicion. One supporter even termed this incident as an example of “soft tyranny.” Supporters note that public safety is important, but citizens’ rights should not be violated for that safety.

Opponents of Kalbaugh’s dealings with the police say his rights were not violated because the officers have a right for investigative purposes to ask for identification, check for odors of alcohol, and even detain a person. Supporters further say Kalbaugh was being defiant and confrontational, and the officer at that point can legally require a person to exit a vehicle and submit, by law, to forthcoming requests. They go on to say ignoring a police order is itself illegal. Supporters further claim a person’s rights may be infringed when safety investigation is occurring at DUI checkpoints.

People who arrive at DUI checkpoints will be stopped, they will be asked some questions and officers will look for evidence of illegal activity. The issue brought out by Kalbaugh’s video is whether people are constitutionally required to submit to these procedures. Supporters of Kalbaugh simply say, “No.” They violate rights and create problems where problems do not exist. Kalbaugh’s opponents argue officers are undertaking investigations and citizens must submit to their demands for public safety purposes.

Reach DCP forum moderator Alex Culpepper at AlexCulpepper@DaytonCityPaper.com

Debate Question of the week

A Tennessee man videotaped an interaction he had with police officers at a DUI checkpoint. The film shows him politely challenging the constitutionality of their requests, and he is then detained and his car searched. Are these checkpoints and the requests made during these stops legal and constitutionally sound in the name of public safety, or does submitting to the checkpoint procedures force people to be unlawfully detained and give up their Fourth Amendment rights regarding illegal searches and their Fifth Amendment rights regarding the right to not incriminate oneself?

 

Debate Left: The wrong tool for the right job

By Ben Tomkins

 

The Fourth Amendment is very carefully constructed to protect citizens from illegal search and seizure of personal property and their physical person. The importance of this amendment cannot be overstated, as it is perhaps the most defining limitation on the executive authority of our country.

If you look at the order of the enumerated rights in the Bill of Rights, one finds that the First Amendment regarding freedom of speech, the press, religion, etc. is the prime right in the document. The following amendments are all designed to deflect situations that would impinge upon those freedoms.

In this regard, the Fourth Amendment is crucial to a free state. If the state can randomly search our property and detain our person, the ability of a citizen to exercise their First Amendment rights diminishes with a terrifying rapidity.

The indirect implications of the Fourth Amendment, such as the limitation on broad, unprovoked invasions into the privacy of our vehicles by way of arbitrary DUI checkpoints, necessarily carry with them a tremendous burden of proof to a larger societal good.

Don’t get me wrong, I think the example of Chris Kalbaugh and his belligerence based on false impressions of his rights makes him a 21-year-aged balsamic vinegar douchebag of the first dousing. Worse still, it becomes immediately clear that he not only edited his video with all the scrupulousness of a reality TV show producer, but the unedited Tennessee Highway Patrol dashcam video reveals that the police found two beer caps and some marijuana seeds in his car. He’s nothing more than an infantile libertarian idiot who thinks that reading “Atlas Shrugged” and the Bill of Rights on Wikipedia qualifies him as a civil rights intellectual, despite his appalling ignorance of the past 250 years of statutory law.

However …

Despite the fact that he is a donkey-faced, entitled, ignorant, simpering asshole of an advocate for his cause, we are absolutely impelled to consider the principle of the situation regardless of his cranial midget-dom.

I believe the Supreme Court erred in its judgment on the issues forwarded in the relevant case, Michigan Dept. of State Police v. Sitz. The majority opinion granted an exception to the Fourth Amendment for sobriety checkpoints based on two factors: The larger public good and the minimal infringement on an individual’s solidarity in the absence of probable cause. Incidentally, right to privacy was a landmark interpretation by the Supreme Court of the Fourth Amendment, which adds a certain note of irony to the situation.

In regards to the former, I believe it would have been far more appropriate and consistent for the Supreme Court to repose their judgment on hard statistics as was done in Roe v. Wade. Evidence clearly suggests that roving police cars are far more effective at getting drunk drivers off the road. In Riverside, Calif., for instance, there were more than 8,000 DUI arrests in 2012. However, fewer than 500 came from DUI checkpoints for reasons like social media helping individuals to avoid them. Statistically, it would appear that trolling patrol cars are a far better use of police resources, and as such do great damage to the argument that checkpoints are deserving of special Fourth Amendment exceptions.

Given those statistics, minimal infringement becomes moot. There are no grounds on which to even begin the discussion of minimal infringement, as it would be occurring without a reasonable context in the first place. In effect, the state would be diminishing the Fourth Amendment for the sake of a theoretical argument.

Look, I am as intolerant and outraged by drunk driving as the next person. It causes a tremendous amount of pain and anguish to its victims and their families. However, when one is discussing a core principle of our basic freedoms, it cannot be considered in the absence of relevant data. Right or wrong, the issue is absolutely worthy of further consideration. For as douchy Chris Kalbaugh happens to be, the fact that his pathetic video is bringing the issue to the forefront again retains at least marginal worth in a free society.

 

Ben Tomkins is a violinist, teacher, journalist and critically acclaimed composer currently living in Denver, Colo. He hates stupidity, and generally believes that the volume of one’s voice is inversely proportional to one’s knowledge of the issue. Reach Ben Tomkins at BenTomkins@DaytonCityPaper.com.

Debate Right: DUI checkpoints are above board

By Rob Scott

 

DUI checkpoints can be an inconvenience and do take some time.

In Ohio, DUI checkpoints are commonly advertised with the news media weeks in advance. These checkpoints are random and normally are located in heavily traveled intersections and areas.

The goal of checkpoints is for law enforcement to protect the general public by catching those who are breaking the law. However, there are constitutional perimeters law enforcement must abide.

The Fourth Amendment of the U.S. Constitution states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment proscribes unreasonable seizure of any person, person’s home or personal property without a warrant. A seizure of property occurs when there is “some meaningful interference with an individual’s possessory interests in that property,” such as when police officers take personal property away from an owner to use as evidence or even taking of time. Also, the Amendment protects against unreasonable seizure of their persons, including a brief detention.

A seizure does not occur just because the government questions an individual in a public place. The exclusionary rule would not volunteer answers to such questions from being offered into evidence in a subsequent criminal prosecution. The person is not being seized if his freedom of movement is not restrained. The government may not detain an individual even momentarily without reasonable, objective grounds, with few exceptions. Refusal to listen or answer does not by itself furnish such grounds.

A person is seized within the meaning of the Fourth Amendment only when, by means of physical force or show of authority, his freedom of movement is restrained and, in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave. As long as the police do not convey a message that compliance with their requests is required, the courts have usually considered the police contact to be a “citizen encounter” which falls outside the protections of the Fourth Amendment. If a person remains free to disregard questioning by the government, there has been no intrusion upon the person’s liberty or privacy under the Fourth Amendment, thus there has been no seizure.

Under the 1968 U.S. Supreme Court decision in Terry v. Ohio, law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses “unusual conduct” that leads that officer to reasonably believe “that criminal activity may be afoot.” A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop.

Taking the facts in the Tennessee DUI checkpoint and applying the law as stated, Mr. Kalbaugh was acting abnormally to raise law enforcement’s suspicisions. Initially, the DUI checkpoint does pass constitutional scrutiny and the actions of law enforcement with Mr. Kalbaugh post-checkpoint are above board.

Mr. Kalbaugh was not being compliant nor answering questions from law enforcement at the checkpoint. Officers were allowed to make a brief stop to investigate, identify and check for the odor of alcohol. The stop allowed law enforcement to investigate whether Mr. Kalbaugh had in fact been drinking. Also, due to his odd actions, they used a nonintrusive use of a drug-sniffing dog to scan his car for drugs, which is common.

Mr. Kalbaugh was free not to answer questions and was briefly detained. The moment law enforcement could verify no criminal activity was afoot, Mr. Kalbaugh was able to leave.

Law enforcement’s purpose is to protect citizens and DUI checkpoints are an extension of that goal. Mr. Kalbaugh intentionally attempted to buck law enforcement.

Rob Scott is a practicing attorney at Oldham & Deitering, LLC. Scott is Chairman of the Montgomery County Republican Party and founder of the Dayton Tea Party. He can be contacted at rob@oldhamdeitering.com or www.gemcitylaw.com.

 

 

 

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