On occasion a police officer will write in his police report that the reason he initiated an enforcement stop is based on a dispatch call that a car matching the description of the stopped car was reported stolen or involved in a crime.
More often then not, once a police officer makes contact with the driver, he will verify that the car is not the car from the dispatch call. Yet, once the police officer makes contact with the driver, if he notices any “objective signs of intoxication”, he will commence a DUI investigation that can often culminate in a DUI arrest.
So, what can a person arrested for a DUI do in a situation like that? (aside from requesting copy of the dispatch calls to verify that the dispatch in fact made such a call to the patrol unit). Is there a mechanism to protect the public from impermissible police intrusions? Will a motion to suppress achieve a desired outcome – a dismissal?
For guidance, please take a look at United States v. Hensley 469 U.S. 221 (1985). There, the United States Supreme Court held that “police officers may stop and briefly detain a person who is a subject of a wanted flyer while they attempt to find out whether an arrest warrant has been issued”.
Hensley was detained based on a “wanted flyer” from another police department because he was suspected of being a get-away driver in an aggravated robbery. Hensley was described as “armed and dangerous” on that flyer. During this “brief” police detention, the detaining police officers observed a gun in “plain sight” and eventual search of the vehicle revealed two more guns. Although Hensley was not prosecuted for the robbery and cleared of the gun charges in the State courts, he was prosecuted and convicted of an “convicted felon in possession of firearm” in the Federal court and was sentenced to two years in the federal prison.
Similarly to Hensley, a stop for an unrelated investigation could result in an arrest of the driver for a DUI or any other crime.
Hensley expanded “Terry v. Ohio” ruling that it does not apply only to ongoing crimes – the crime Hensley was suspected off happened two weeks prior to the stop.
A DUI arrest that starts as a police investigation of an unrelated crime is not uncommon and often based on inaccurate information. For example, in a recent case handled by our office, a police officer remembered a dispatch call about a stolen vehicle. He then observes a vehicle matching the description of the stolen vehicle and pulls it over. Within minutes he realizes that this is not a stolen vehicle, however, by then he smells alcohol odor emitting from the car and eventually arrests the driver for a DUI.
One way our office can defend against such police intrusion is by relying on U.S. v. Grigg 498 F.3d 1070 C.A.9 (Idaho),2007, a case criticizing Hensley where the underlying offense was a completed non-dangerous misdemeanor (such as a DUI).
Call our office for a free consultation anytime to talk to an attorney directly at (877) 940-4440. We will help you get the best results possible during plea bargain negotiation or seek a dismissal through motions or trial.