Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

Drunk Driving Case Ignites Legal Fight On Search And Seizure

The issue of Search and Seizure is in the news again today. While the case itself is not based in Boston, it is of interest to lawyers, police officials and drivers anywhere. Why? Because it involves the United States Supreme Court, which seems split on the subject.

The case actually hails from Virginia and the conviction of Joseph A.M.H.,Jr (hereinafter, the “Defendant”) for drunk driving. It seems that the Defendant was pulled over by the police before they saw him break any traffic laws. That conviction has been overturned on appeal by Virginia’s Supreme Court.

And that is the issue. Did the police have the right to pull over the Defendant before they saw him commit any crimes?

According to Chief Justice John Roberts of the Supreme Court, a majority of lower courts have said it doesn’t violate the Fourth Amendment protection against unreasonable search and seizure to pull over drunk drivers based on anonymous tips from programs like the “Drunk Busters Hotline.” However, other courts, including Massachusetts, have agreed with Virginia in saying that police must see a traffic violation before pulling over a suspected drunk driver based on an anonymous tip
The case began on the morning of December 31, 2005, when an anonymous call was made to the police which described the Defendant and his vehicle. A police officer then saw the Defendant drive slowly through an intersection where he didn’t have to stop and put on his brake lights well in advance of a red light. He was pulled over, given field sobriety tests and arrested.

The officer had not seen him break any traffic laws.

Because of the Constitutional issue, all eyes then looked to the United States Supreme Court to review the ruling. The Court, as a whole, has decided not to review the decision. Some of the Justices, however, are not too happy about that.

Chief Justice Roberts spoke out against the Virginia ruling and wanted the Supreme Court to review it. Frustrated that they would not do so, Justice Roberts explained that he feels that the ruling will “grant drunk drivers ‘one free swerve”‘ that could potentially end someone’s life. He and Justice Antonin Scalia wrote a dissent which argues that the Virginia court’s decision will put people in danger.

“The decision below commands that police officers following a driver reported to be drunk do nothing until they see the driver actually do something unsafe on the road – by which time it may be too late,” Roberts wrote.

Attorney Sam’s Take:

We have spoken many times in the past about “tips” given to the police, both anonymous and otherwise. There are problems with them…particularly in today’s criminal justice system. First of all, people can make mistakes during their “people-watching”. Sometimes, however, the calls can be made as part of a vendetta or to gain an “upper hand” in an ongoing battle such as a messy divorce.

“But, Sam, the Defendant was drunk, wasn’t he?”

So it would seem.

“So all’s well that ends well if the conviction stood, right?”

As much as I am a fan of William Shakespeare…no. You see, in the criminal justice system, we look at more than simply an individual case when making and defending laws. We also look at the so-called “slippery slope” that rulings can create. Already, in many kinds of cases, we have given virtual police authority to some perceived victims to have someone thrown in jail. In cases such as domestic violence, for example, where a restraining order has been allowed, the holder of that Order now simply needs to call the police and say their opponent has come by the house or otherwise been too close and the defendant is likely to be arrested and potentially held.

“Well, if the defendant did that, shouldn’t he or she be arrested?”

Sure. But what if it is not true? Shouldn’t there be greater scrutiny given to such reports? What if someone had a vendetta against someone they knew was on probation and made a call alleging some wrongdoing? In that case, the probationer is generally arrested…no questions asked.

“Well, again, if he committed the crime, shouldn’t he be? After all, if there is really no evidence, he will probably not be convicted, right?”

Maybe. But, by then, it is too late. It is a violation of probation to simply get arrested. Long before the new allegation sees a trial date the probationer will likely be surrendered by probation and sent back to jail. That will not be undone.

In drug and gun cases, we often see the use of informant testimony, for example. However, in order to be enough to provide probable cause, say for a search warrant, that confidential informant has to pass certain tests of reliability.

Why shouldn’t that be the case here?

Justice Roberts decries as part of his reasoning the high level of fatalities we suffer because of drunk drivers. I am not a fan of drunk driving, believe me. On the other hand, there are far too many drug crimes, murders, rapes and other such crimes as well. Do we throw out society’s Constitutional safeguards in those cases as well? This is the “slippery slope” to which I referred.

Another lesson that this matter brings home is the need for an experienced criminal defense attorney when you are charged with a crime. Someone without experience would likely not have successfully fought the matter on appeal and his client would still stand convicted.

If you wish to review my profile, click on the Attorney Sam’s Take, above. Should you wish to discuss a criminal matter with me, please feel free to call me at (617) 206-1942.

For the full article upon which today’s blog is based, go to http://www.cbsnews.com/stories/2009/10/20/national/main5402947.shtml

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