FAIR POLICING

Hindsight Is No Probable Cause For Arrest

On a September night in 2001, Martin Matthew Dobrin was pulled over on
South Atlantic Avenue by a Daytona Beach Shores police officer. The
officer -- who said in court records that Dobrin was weaving and
speeding -- began ticketing him for failure to stay in his lane. Court
records show that as he was writing the ticket, the officer noticed
that Dobrin's eyes were bloodshot and that he smelled of alcohol.
Dobrin failed a field sobriety test and was arrested on
drunken-driving charges. When Dobrin refused to take a breath test,
his license was automatically suspended.

Dobrin challenged the suspension. The police paperwork, he pointed
out, didn't specify that he'd weaved between lanes, didn't establish
that he was speeding (the officer did not note the posted speed limit)
or that he'd been stopped because he looked ill or tired. It said only
that he was drunk -- which the officer determined after the traffic
stop. So there would have been no documented probable cause to pull
Dobrin over for drunken driving.

The system doesn't work that way, Dobrin's attorney argued in court. A
circuit court agreed. The Fifth District Court of Appeal didn't. And
last week, the Florida Supreme Court ruled that the district court was
wrong to speculate about what the officer thought might have been the
right reason to pull Dobrin over. Probable cause must be documented.
It wasn't.

Dobrin may very well have been driving in a way that suggested he was
drunk (which his field sobriety test bore out). But the Fourth
Amendment to the U.S. Constitution doesn't make exceptions for such
judgment in hindsight. It addresses the here and now of an arrest.
Florida law requires that those reasons be documented so judges don't
later have to guess what an officer was thinking.

Unreasonable searches and seizures are against the law. In simpler
terms, no police agency has the right to arbitrarily arrest someone,
then come up with a rationale for the arrest -- even if the arrest
might turn out to be justified. Otherwise (and without impugning
Daytona Beach Shores for this), police agencies may go trawling for
suspects based on vindictive tips or hunches based more on harassment
than legitimate police work.

Nationally, the U.S. Supreme Court has been eroding protections
against unreasonable search and seizures with frightening consistency.
Police, for instance, may arbitrarily pull over a driver and ask
questions about the driver's destination, the driver's cargo, the
driver's state of mind -- so long as the driver consents to the
questioning. The officer may even request to search the vehicle. The
driver has every right to refuse, but most don't know that, and most
officers don't tell individuals that they have a choice.

It isn't clear what the U.S. Supreme Court would have decided in
Dobrin's case.

Yet five of the Florida Supreme Court's seven justices made clear that
the arrest report failed to document that the officer had stopped
Dobrin on probable cause of drunken driving. (One judge dissented with
the ruling only in part; another recused himself.) The incomplete
report showed that Dobrin's arrest for DUI failed the fundamental
principle of fair and reasonable policing.