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  1. #1
    Join Date
    Sep 2016

    Default Wrongful Arrest and Search at a DUI Checkpoint

    A Mississippi driver was stopped at a DUI checkpoint. The officer asked if she could search his car and he said "no". She responded by arresting him and searching the car anyway, and found a controlled substance. Can he get the search thrown out because the officer had no legal basis to arrest him or search his car?

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Wrongful Arrest and Search at a DUI Checkpoint

    He will need to discuss the details of the case and the incident report with a criminal defense lawyer.

    His mere refusal of a search is not grounds for an arrest or a subsequent search of his vehicle, so if the officer agrees that's all that happened he has a very good shot of getting the evidence suppressed. But it is highly unlikely that the officer will agree to those facts. It's more likely that she will assert that there were reasons to suspect his intoxication, that he was somehow improperly obstructing her investigation of his possible intoxication, that she could see the drugs in plain view in the car, or even that he gave consent, or another justification for the search -- or some combination of explanations -- and it will be necessary to consider any legal basis stated for the search when determining how to bring a motion to suppress.

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