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The Fourth Amendment to the United States Constitution 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."

Courts have held that temporarily detaining an individual during an automobile stop amounts to a "seizure" which raises Fourth Amendment protection issues. However, brief investigatory stops, not resulting in an arrest, are permitted when officers have reasonable suspicion of ongoing unlawful or criminal activity. Once an officer begins an investigation sparked by reasonable suspicion, the detainment can only continue if the officer forms reasonable articulable suspicion that the individual is involved in criminal or unlawful activity.

When does a stop become an arrest? Courts have identified a short list of factors including the degree of fear and humiliation the police conduct causes the motorist. The recent New Jerseycase, State v. Bernokeits, tackled the question of whether field sobriety testing is the equivalent of an arrest and there fore must be supported by a higher standard of probable cause. Despite the defendant's contention that they are, the New Jersey appellate panel refused to find the administration of a field sobriety test to be the equivalent of an arrest.

To date there is no New Jersey authority that imposes a probable cause requirement for the administration of roadside sobriety tests. Courts continue to hold that officers need only reasonable, articulable suspicion of driver intoxication.

- Stefanie L. DeMario, Esq.

Admitted to the New Jersey Bar; New York Bar-Admission Pending

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