Section 107

interestingly, or rather ironically and in true Catch-22 fashion, at sobriety checkpoints telling the officer you are exercising your right to remain silent and you want an attorney can become the basis of the probable cause for detention.

One is required to provide driver's license, registration and proof of insurance when requested. But speaking or even just rolling down the window to hand over your documents gives the officer the opportunity to say "I detected the odor of alcohol or slurred speech" and then ruin your day.

There are some humorous videos of some dudes that have figured out a way around this problem - they hang their documents in a plastic bag outside the window (which is closed) with a note explaining here are my documents when you are done checking them I will be on my way. This way the cops are provided the information they request without giving them the opportunity to smell or hear. jolly good fun.

DeafBlonde

Serious question: Could one simply place their documents against the window to let the LEO view them, or does the LEO actually have to have them in hand?

petaluma1

That's because they often use flashlights with the ability to detect alcohol.

Flashlight

Kagehitokiri

questioning is about finding 'evidence' of crime

custodial questioning = counsel

RandomNobody

United States v. Fuentes: "Mere refusal to consent to a stop or search does not give rise to reasonable suspicion or probable cause. People do not have to voluntarily give up their privacy or freedom of movement, on pain of justifying forcible deprivation of those same liberties if they refuse."

Think about it. It would be a catch-22 if it were otherwise. Then the police could search anyone they wanted. They either get a "yes" for consent, or could manufacture PC from the "no", making all searches constitutional. That's why a simple "no" and going about your business normally doesn't rise to PC or RAS. Running/fleeing, on the other hand, is right out. That's not "normal business".

MaxBuck

The State of Ohio has solved the problem of uncooperative motorists at sobriety checkpoints by passing ORC 4511.191, Implied Consent. Specifically,

I'm not aware of any challenges to arrests at checkpoints that are based purely on refusal to roll down the window and chat with the officers, though.

RandomNobody

Read the penalty for refusing consent. They just revoke your driving privileges.

On top of that, the officer still has to build RAS for the sobriety test.

CMK10

North Carolina does something similar under the theory that driving is a privilege, not a right.

MaxBuck

I shouldn't have interjected the extraneous discussion here. But having done so, I'll offer this: that's coincidentally essentially the same penalty as for DUI.

Section 107

I don't know for certain but I guess there is also the potential for incarceration and monetary fines - e.g. deprivation of freedom and property which are criminal penalties that are quite different from having one's license (privilege) to drive suspended or revoked (which is only an administrative/civil penalty).

Section 107

Correct in general but not correct with respect to operating a motor vehicle. These things have to be parsed very carefully. Your rights not to consent to a search in general are not the same as requirements when operating a motor vehicle.

An operator of a motor vehicle must, when asked, provide evidence of a license to operate the vehicle, and in many states also the registration and also proof of insurance. Operating without a license or operating without having in ones possession proof of licensure/registration/insurance are all separate offenses. Therefore, when stopped at a sobriety checkpoint the operator must provide that information. Requiring an operator to provide those documents is not considered a search and one does not have the right to withhold consent.

In most (all?) states one cannot be stopped and checked for "sobriety" without reasonable suspicion or probable cause to believe the operator is under the influence. What makes stopping an operator at a sobriety checkpoint without reasonable suspicion/probable cause legal is that ALL drivers and not just any one particular driver, are stopped not for sobriety but under the pretext of a "safety and document" check for licenses, registration, insurance and other safety items (inspection stickers, taillights, etc.). Again, these safety stops do not require reasonable suspicion nor probable cause and are not considered searches so one cannot refuse.

The tricky part is that typically providing that information to an officer requires the operator to open the window to audibly speak to the officer and to hand the officer the appropriate documents. The open window allows the officer the opportunity to declare reasonable suspicion or probable cause based on hearing "slurred speech" or detecting the "odor of alcohol."

So yes, it IS Catch-22. Unless you know the rules of the state you are in and are prepared.

halls120

Correct. At the border, law enforcement has far greater search authority. But they can't make you give up your other Constitutional rights. When harrassed by an overzealous CBP officer, I simply utter the magic words - "I'd like to speak to your supervisor, please."

Works every time.

exerda

Pretty much all of them. And CBP agents are AFAIK sworn LEOs under the 1811 GS series, just like FBI agents, DEA agents, US Marshalls, etc,

essxjay

Correct.

Furthermore, SCOTUS in recent years has clarified the right to remain silent:

• Berghuis v. Thompkins, 560 U.S. 370 (2010) The right to remain silent does not exist unless a suspect invokes it unambiguously.
• Salinas v. Texas, 570 U.S. ___ (2013) The Fifth Amendment's protection against self-incrimination does not protect an individual's refusal to answer questions asked by law enforcement before he or she has been arrested or given the Miranda warning. A witness cannot invoke the privilege by simply standing mute; he or she must expressly invoke it.

Back to the specifics of raised in Blogndog's kickoff post, the instinct to limit self-disclosure wasn't at all out line but calling an attorney during an administrative search prior to detention was likely viewed by CBP as invoking the nuclear option.

Not criticizing the OP at all nor siding with The Man here. Just an observation from a fellow traveler who's learned through much trial and error when to speak up and when it's in my best interests to keep my thoughts to myself.

Kagehitokiri

https://en.wikipedia.org/wiki/Custodial_interrogation
re status of CBP, odd CBP dont seem to routinely charge people for lying... maybe they realize negative publicity possibilities and only do it sometimes?