Are Field Sobriety Tests a Search?

Posted on February 24, 2019 in Field Sobriety Tests

I have an appeal pending that addresses, in part, the State's ability to comment upon the Defendant's right to refuse a warrantless search. Georgia has well-established case law that precludes the State from commenting upon a Defendant's refusal to submit to a warrantless in "traditional" criminal cases, and I thought, perhaps naively that this rule should be extended to DUI suspects who are asked to submit to field sobriety tests. I was rather taken aback that it was suggested that field sobriety tests may not be a search. (The Justices of the Georgia Supreme Court did not appear to be so sure that field sobriety tests are a search.) If you are confronted with this issue, some case law that may help you is below. The overwhelming majority of states that have considered this issue held that field sobriety tests are a search:

• Hulse v. State of Montana, Dep't of Justice, Motor Vehicle Division, 289 Mont. 1, 19, 961 P.2d 75 (1998):

For these reasons, we hold that field sobriety tests are not "merely observations" of a person's physical behavior, but, rather, constitute a search under the Fourth Amendment to the United States Constitution and, independently of the federal constitution, under Article II, Section 11 of the Montana Constitution because an individual's constitutionally protected privacy interests are implicated in both the process of conducting the field sobriety tests and in the information disclosed by the tests. See Nagel, 880 P.2d at 458. Consequently, Purdie, 209 Mont. 352, 680 P.2d 576, and any other Montana case that has held that field sobriety tests are "merely observations" of a person's physical behavior are hereby overruled to that extent.

• Blasi v. State, 167 Md. App. 483, 504-05, 893 A.2d 1152 (2004):

In the case sub judice, the State contends that "field sobriety tests differ in no meaningful way from the myriad of other observations made in the course of a routine DUI stop except that the former are administered in a standardized manner." The Fourth Amendment, according to the State, does not prohibit a police officer from making "non-standardized" observations (e.g., observing a driver's gait, speech, ability to follow instructions, etc.), and to differentiate between these permitted observations and field sobriety tests would be an "arbitrary distinction" under the Fourth Amendment. We disagree.

The State overlooks the rationale underlying the Fourth Amendment's protection of an individual's personal or physical characteristics. The Fourth Amendment provides no protection for "[w]hat a person knowingly exposes to the public," Katz, 389 U.S. at 351, 88 S.Ct. 507, which includes physical characteristics that are constantly exposed to the public, see Dionisio, 410 U.S. at 14, 93 S.Ct. 764. Thus an individual's physical characteristics or behaviors, such as speech, height, weight, gait, appearance, or smell, observed by a police officer during a valid traffic stop, do not constitute a search under the Fourth Amendment. See Hulse, 961 P.2d at 85; Carlson, 677 P.2d at 316.

On the other hand, as appellant properly notes in his brief, the field sobriety tests

are not, by any means, the sort of normal physical activity that one displays to the public. One just does not see an individual standing at a streetcorner [sic], sitting on a park bench, or riding in an elevator, while touching an index finder to the nose, attempting to balance while walking in a straight line in a heel to toe fashion with arms at the sides, or reciting the alphabet backwards.

Moreover, the field sobriety tests may reveal private facts about an individual's physical or psychological condition. See Nagel, 880 P.2d at 457–58.

We agree with the Montana Supreme Court in Hulse, and the Oregon Supreme Court in Nagel, that the administration of field sobriety tests by a police officer during a valid traffic stop intrude into an area of an individual's reasonable expectation of privacy because: (1) the process of conducting field sobriety tests exposes certain aspects of an individual not otherwise observable by the public; and (2) the information disclosed by the field sobriety tests may reveal private facts about an individual's physical or psychological condition. Therefore, we hold that the administration of field sobriety tests by a police officer during a valid traffic stop constitutes a search within the meaning of the Fourth Amendment to the U.S. Constitution.

• People v. Walter, 374 Ill. App.3d 763, 771 (2007):

[I]t appears that there is ample authority to support a holding that submission to a field sobriety test converts an encounter into a seizure (or search) under the fourth amendment.

• Ackerman v. State, 774 N.E.2d 970, 980 (Ind. App. 2002):

[The threshold question is whether FSTs are searches governed by Section 11. We do not hesitate to answer this question in the affirmative. "In the law of searches and seizures, the term ‘search' implies prying into hidden places for that which is concealed." Moran v. State, 644 N.E.2d 536, 540 (Ind.1994) (citation omitted). FSTs are designed to uncover hidden evidence of impairment that the OWI suspect seeks to conceal. Quite simply, FSTs allow police to discover impairment in some persons who are not obviously impaired. Because they may reveal that which is concealed, FSTs are clearly searches governed by Section 11.

See, State v. Lamme, 19 Conn.App. 594, 563 A.2d 1372, 1374 (1989), aff'd, 216 Conn. 172, 579 A.2d 484 (1990); State v. Taylor, 648 So.2d 701, 703 (Fla. 1995); State v. Wyatt, 67 Haw. 293, 687 P.2d 544, 550–54 (1984); State v. Ferreira, 988 P.2d 700, 705 (Idaho App. 1999); State v. Stevens, 394 N.W.2d 388, 390–91 (Iowa 1986), cert. denied,479 U.S. 1057, 107 S.Ct. 935, 93 L.Ed.2d 986 (1987); State v. Little, 468 A.2d 615, 617 (Me.1983); Commonwealth v. Blais, 428 Mass. 294, 701 N.E.2d 314, 316–17 (1998); Dixon v. State, 103 Nev. 272, 737 P.2d 1162, 1163–64 (1987); People v. Califano, 255 A.D.2d 701, 680 N.Y.S.2d 700, 701 (1998); State v. Gray, 150 Vt. 184, 552 A.2d 1190, 1193–95 (1988); State v. Superior Court, 149 Ariz. 269, 718 P.2d 171, 176 (1986); People v. Carlson, 677 P.2d 310, 316–17 (Colo.1984).

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