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The Perfect Pretext for Illegally Stopping People: Unconfirmed Insurance

The Coffey Firm - Experienced DWI Attorneys and Criminal Defense Lawyers > Mimi's Blog  > The Perfect Pretext for Illegally Stopping People: Unconfirmed Insurance

The Perfect Pretext for Illegally Stopping People: Unconfirmed Insurance

A traffic stop based only on unconfirmed insurance lacks the reasonable suspicion required for a search and seizure. The 4th amendment of the Constitution protects citizens from unlawful search and seizure. This protection comes to life in Texas under the Texas Constitution, Article 1, section 9.  This is a wide net.  This means that the “ends do not justify the means.”  The police cannot break the law to enforce the law. For example, they can’t illegally enter into a house to search for illegal drugs. They must follow due process. They must have a warrant. For people who are driving, the police must abide by the same laws. They can stop a motorist for probable cause for a traffic violation. If after the stop, the police encounter further illegal activity due to the stop, then they may continue investigating. There are other categories which open the door to police investigation including a voluntary encounter, community caretaking, and reasonable suspicion of a crime. These “catch all” categories justify warrantless arrests, but they are not rubber stamps for the police to engage at will. A voluntary encounter is when a citizen, by their own free will and volition, engage the police.

Image result for police stopping a car creative commons

Community caretaking is not law enforcement code for a free for all investigation. Rather, it requires consideration of four factors in Texas[i]:
 
(1) the nature and level of the distress exhibited by the individual;
 
(2) the location of the individual;
 
(3) whether the individual was alone and/or had access to help independent of that offered by the officer;  and
 
(4) to what extent the individual, if not assisted, presented a danger to himself or others.
 

Courts are to weigh the circumstances to determine if a stop or intervention by law enforcement is justified.

Constitutional considerations

unconfirmed insurance

Even if you have insurance, it may show up as “unconfirmed” if the system has not updated yet!

The Declaration of Independence states, “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”  The colonists despised the British abuses of power. They added the Bill of Rights to the Constitution to protect our citizens from such abuses, including the government seizing and invading at will without due process. The legal process mandates that when violations of law occur, we throw out the evidence resulting from the violation. This means, at times the “guilty” go free. This is necessary to ensure protection for all. It was Ben Franklin who said, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”

What is the problem with ‘unconfirmed insurance?’ What is it?

The problem with “unconfirmed insurance stops” is that there is no proof.  An officer can allege that the sole basis for the stop was that their computer system showed a motorist’s insurance to be “unconfirmed.” Also, these systems can be unreliable. For example, an insurance company’s website can go down. This is so problematic that in Texas DPS’s July 2004 newsletter[ii] , they warn officers, “It is important to note that DPS does not believe the law allows the database to be used for probable cause in stopping a vehicle. The vehicle would first have to be pulled over for a separate traffic violation.

The Court in Contreras[iii] ruled that standing alone, an insurance check of ‘unconfirmed’ would not provide reasonable suspicion for a stop. There must be some foundation for the conclusion of unconfirmed insurance to justify a stop Evidence that clarifies the ambiguity of an ‘unconfirmed’ return, such as the definition of unconfirmed, the source of the information in the system, or showing the accuracy and timeliness of the system, must first be presented to justify the stop It is important that Courts continue to recognize that allowing the police to stop a vehicle on alleged “unconfirmed insurance” is carte blanche for lawless stops. We should not tolerate this.

Mimi Coffey – Experienced DWI Defense Lawyer in Dallas County

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[i] Wright v State, 7 S.W.3d 148 (Tex. Ct. Crim.App. 1999)

[ii] TexasSure Cracks Down on Insurance Violaters, The Chaparral, July 2004, pp. 1, 4.

[iii] Contraras v. State, 309 S.W.3d 168, 172-3 (Tex. App.-Amarillo 2010, pet. ref’d)