Interviewer: How about if you’re not driving, and the police approach you? Let’s say you’re standing around on the street corner or waltzing around. How is reasonable suspicion, probable cause different? Are they harder to establish?
Court: First of all, when it comes to DUIs, its part of the statute that you have to be in actual physical control of the car. So, if you’re outside of the car, then the officer can have a number of other problems establishing that you were actually driving the car. When it comes to possession, it’s not necessarily illegal to be drunk on the side of the road. I think that’s if they can charge you with being drunk in public or something like that, but that’s pretty rare.
You Can Face a Drug-Related Charge When You Are Outside in a Public Area
But when it comes to another type of charge, for example, possession for marijuana, it’s going to be similar in terms of how the officer develops reasonable suspicion. He might walk past you, and he might smell the odor of burnt marijuana or something like that. So that gives him one clue. Then he might look at your eyes, and if they’re bloodshot and watery, he’ll go through a similar calculus.
It’s such a common occurrence to be charged while someone is in a car because it’s sort of a field sobriety test in itself. He can watch how you’re driving, and he can use anything that you do wrong as a clue to say, “Well, it made me suspicious that this person was impaired.” Or even if you’re driving cautiously sometimes in drug possession cases, officers will try to base reasonable suspicion in the fact that you were driving with undue caution when you saw them.
Or that you didn’t make eye contact with them when they passed by, and it seemed strange. Or you were really observant of the speed limit. It’s sort of a funny way of how being a super careful driver can somehow give the officer reasonable suspicion that you were doing something wrong because you were being super careful.
If you’re just standing on the side of the street, there’s not really anything that you can be doing that gives them suspicion, unless you’re acting really crazy or talking about hallucinations or taking your shirt off. Those kinds of behaviors can serve to give them suspicion, but if you’re just standing there, there’s not really anything that they have to go on.