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An analysis of this case must begin with the well established principle that “…searches and seizures without a warrant are presumptively unreasonable. . .”   Arizona v. Hicks, 480 U.S. 321, 327, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347, 355 (1987). When the people of the United States decided to include the Fourth Amendment in the Bill of Rights, they did so for a reason. They wanted to place constraints on the power of the police to conduct searches and seizures based on no more than a general warrant, because they knew that such unchecked power could lead to serious abuses. Because so many Fourth Amendment cases involve searches of motor vehicles and buildings, we sometimes lose sight of the fact that the Fourth Amendment protects the legitimate expectations of privacy of persons, not places.

            Georgia case law also makes it abundantly clear that the burden is on the State to demonstrate that consent to search is voluntary and not the result of duress or coercion, express or implied. E.g.Lombardo v. State, 187 Ga. App. 440 (1988). Following Florida v. Bostwick, 501 U.S. 429,111 S. Ct. 2382, 115 L. Ed. 2d 389 (1991)our Court of Appeals has held that,“ Whether a person is ‘free to leave’ is not the sole basis for determining whether a defendant’s consent to search was freely and voluntarily given. ‘The more appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request (to search) or otherwise terminate the encounter.’ ”   Weeks v. State, 206 Ga. App. 431 (1992).

Any examination of a person with a view to discovering evidence of guilt to be used in a prosecution of a criminal action is a search. State v. Superior Court, 149 Ariz. 269, 718 P.2d 171 (1986). The field sobriety tests conducted at roadside constitute a search. Id. at 274. When confronted with the question of whether field sobriety tests are a search, the Indiana Court of Appeals observed, “We do not hesitate to answer this question in the affirmative.” Ackerman v. State, 774 N.E.2d 970, 980 (Ind. App. 2002). The court went on to explain that in the law of search and seizure the term “search” implies prying into hidden places for that which is concealed. “FST’s are designed to uncover hidden evidence of impairment that the OWI suspect seeks to conceal. Quite simply, FST’s allow police to discover impairment in some persons who are not obviously impaired.” Id.

Similarly, it has been held that FST’s constitute a search because police conduct that significantly impairs an individual’s interest in freedom from scrutiny constitutes a search. State v. Nagel, 320 Or. 24, 880 P.2d 451 (1994). The court also observed that when administering field sobriety tests an officer creates an unusual situation in which he can obtain evidence that is not otherwise subject to scrutiny either by a police officer or by private individuals. Id. At 30.

Clearly, the officer wanted to examine the Defendant with a view to discovering evidence of guilt to be used in a prosecution of a criminal action. Just as obviously, he wanted the Defendant to engage in exercises designed to uncover hidden evidence of impairment that a DUI suspect would ordinarily seek to conceal. It is also evident that the arresting officer tried to create an unusual situation in which he could obtain evidence that was not otherwise subject to scrutiny either by a police officer or by private individuals. Therefore, this Court should rule that the administration of field sobriety tests, including a preliminary breath test, constitutes a search. Courts throughout the country have issued similar rulings. E.g.Blasi v. State, 893 A. 2d 1152 (Md. App. 2006); Hulse v. State, 289 Mont. 1, 961 P. 2d 75 (1998).

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Ben Sessions, Attorney at Sessions Law Group
Ben Sessions

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