Legal and Illegal Stop and Seizure in Traffic, DWI and Criminal Cases

In Criminal, Traffic by GWAO

The analysis of every traffic, DWI and criminal case involving a legal or illegal traffic stop begins with a review of the fourth amendment.

The U.S. Constitution’s forth amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This amendment is responsible for the exclusionary rule, and carves out exceptions for warrantless stops and seizures. Every traffic and DWI case starts with the same analysis – the stop. Your exploration should hit these topics:

  • Was there a seizure?
  • If yes, there was a seizure, was it proper based on a reasonable suspicion or other proper legal standard?
  • If yes, was the scope of the officer’s subsequent actions sufficiently limited?
  • If an arrest occurs, was there probable cause?
  • If there was a search, was it permissible based on probable cause?


If there has been no seizure, the forth amendment is not applicable. If a seizure did occur, the “free to leave” standard is invoked to determine if the person has been seized. This is a “reasonable person” standard, and an objective one.

If you have been illegally stopped or charged with a crime, contact the trial attorneys at Garrett, Walker and Aycoth, where every case is prepared for trial.