On Traffic Checkpoints, Part Two, Or, When Does Safety Become Siege?

We gathered yesterday, Gentle Reader, for a discussion of the constitutionality of highway sobriety checkpoints.

In yesterday’s episode we learned that the Fourth Amendment, according to the Supreme Court, can be ignored if the challenges of enforcing the law seem too burdensome for the Government...and we learned that despite a history stretching all the way back to the 1700s and the British case Entick v. Carrington, the Court was, for the first time, willing to allow general search warrants on American soil.

Today we take the history a bit further...and then we talk about what happens when freedom is given away...and sadly, we need look no further than a few miles from the Capitol Building, in Washington DC itself, to see exactly what happens when freedom is suddenly gone and a community is placed under siege by the police—all, we suppose, for the community’s own good.

We have a lot of ground to cover, so we best get out on the proverbial road—and let’s see if we can avoid our own roadblocks along the way.

In yesterday’s conversation we described how the Supreme Court, in United States v. Martinez-Fuerte, 428 U.S. 543, had authorized the use of an “area search warrant” (a form of general search warrant) to authorize the stopping and searching of all vehicles passing the Customs and Border Protection immigration checkpoint at San Clemente, California.

This occurred despite the fact that there was no “probable cause”, as required by the Fourth Amendment, before any of the vehicles were searched—and despite the precedent of a recent similar case, United States v. Ortiz, 422 U.S. 891, in which the Court stated:

The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol.

The Government had argued that it was impractical to find probable cause before conducting this type of search; therefore they were justified in ignoring the Fourth Amendment and establishing this checkpoint.

The Court agreed, and justified this conclusion by deciding that the searches were not “unreasonable”, and therefore a warrant was not required. Justices Brennan and Marshall, in dissent, reminded the majority that the inconvenience of the Government was no excuse for ignoring the clear language of the Constitution.

"Tyrant! You are a tyrant!"

--Washington State Supreme Court Justice Richard Sanders, to Attorney General Richard Mukasey, November 20, 2008

But that’s the old business.
Now it’s time to fast forward to Michigan, and a 1990 case, Michigan Department of State Police v. Sitz, 496 U.S. 444.

In 1986, Saginaw County, Michigan decided to set up a sobriety checkpoint in their County, and they had the advice of a State-level Sobriety Checkpoint Committee to assist them in planning an operation that would (hopefully) pass legal muster.

The day before the checkpoint went into operation, a lawsuit was filed seeking to shut the program down, and that lawsuit was successful. (The checkpoint did operate on one occasion, however, and we’ll discuss that evening in a moment.) On appeal, the suit was again upheld, and it was upheld again by the Michigan State Supreme Court.

Each Court agreed that the controlling authority for the decision was the ruling in Brown v. Texas, 443 U.S. 47, which said that in order to justify an intrusion by Government upon an individual’s privacy, the Government’s action had to pass a “three-prong test”.

In this instance the test required balancing the State’s interest in preventing these accidents, how effective sobriety checkpoints are in reducing the accidents, and how intrusive the checkpoints are upon the citizens.

The Michigan Courts held that the checkpoints were ineffective—and critical to that finding were the results of the one night the checkpoint did operate. Of the 142 cars stopped in the checkpoint’s 75 minutes of operation, only two drivers were cited for DUI.

(As a comparison, the Washington State Patrol was able to reduce traffic deaths 13%, in one year, by increasing enforcement on the highways. Checkpoints are not allowed in the State.)

Beyond that, it was further ruled that the stops were “subjectively” too intrusive to be justified under the Fourth and Fourteenth Amendments to the US Constitution.

The US Supreme Court agreed to hear the case—and they did not agree with the Michigan Supreme Court’s thinking.

The Majority Opinion notes that the average motorist stop was 25 seconds, which they felt was a minimal degree of “objective” intrusion (an opinion shared by the State Court)...but they found no substantial “subjective” intrusion.

This is because, in their opinion, the average motorist should have no “fear or surprise” regarding a checkpoint. An examination of the ruling shows no recognition of any other factor as contributing to a subjective intrusion, including motorist annoyance or resentment.

Further, the Majority felt that stopping the 98.5% of the innocent motorists to catch the other 1.5% was, in fact, effective in ”advancing the public interest” in stopping drunk drivers (the controlling language from Brown v. Texas).

The case was remanded back to the Michigan State Supreme Court so that they might reconsider...and for the rest of the Nation, sobriety checkpoints had the Supreme Court’s seal of approval.

Ironically, in Michigan checkpoints are not allowed to this very day. The State Supreme Court, upon further review (as the referees like to say...), found that the checkpoint program violated the State Constitution’s search and seizure provisions; and does not permit them within the State.

There are other States that bar the checkpoints for similar reasons—we’ve mentioned Washington and Michigan; Louisiana (sort of) and Texas (for the moment) are others.

So that’s the history.
Now let’s talk about what’s happened since then.

“...for there is nothing as short sighted as a Politician unless it is a delegation of them.”

--Will Rogers, “Letters of a Self-Made Diplomat to His President”

What began as a tool to identify drinking drivers—and what was supposed to have no other purpose—has developed into a multi-purpose enforcement dragnet...exactly as Justices Brennan and Marshall predicted it would in Martinez-Fuerte.

In addition to sobriety checkpoints, we now have “seatbelt” checkpoints, proposed driver’s license checkpoints in Texas that apparently are actually intended to identify illegal immigrants...and, in an interesting new twist, we have checkpoints that exist to gather information about crimes that were recently committed at a location. The argument is that questioning everyone who passes by a location is not a stop or a search—even though the police are stopping people and...well, searching them.

Let’s stop for a quick “Checkpoint Bonus”.

If you would like to see exactly what happens when an individual refuses to cooperate with a CBP agent at an immigration checkpoint, have a look at this fascinating video, where the driver refuses to answer any questions...and in return, the CBP agent tries to avoid answering the questions “am I being detained?” and “am I free to go?”...and as it turns out, Terry Bressi’s lawsuit seeking to stop checkpoints had a hearing November 20th before the Ninth Circuit Court of Appeals.

And with that, let’s return to how checkpoints are used today.

Surprise!

The enforcement seems to be often directed at minority and poor communities...and the vast majority of arrests at the “sobriety checkpoints”, in many locales, are non-DUI/DWI related...and for some agencies, the goal seems to be the seizure of property rather than the original goal of stopping drunk driving.

According to some of the comments I received after Part One of this story was posted, being the guy with a Grateful Dead sticker on your car might be enough to guarantee you “special treatment”, regularly, no matter if you appear drunk or not. (Sound familiar to anyone?)

Which brings us to Pomona, California.

In Pomona, there is a strong perception that the Police’s traffic checkpoints target illegal immigrants and low-income Blacks and Hispanics.

The local newspaper, the Inland Valley Daily Bulletin, agrees, pointing out that 90% of the City’s checkpoint operations occur in low-income South Pomona...and, according to the paper, 99% of vehicles seized at the checkpoints are from drivers who were not charged with DUI.

Checkpoints may also have unintended side effects.

The paper points out that Pomona Police only solve 44% of their murder cases...while the State average is closer to 70%. It is suggested the hostile feelings between the community and the Police, caused by the checkpoints, are at the heart of this problem.

The checkpoints in Pomona, the paper reports, have involved as many as 70 officers, and at least one involved the “cordoning off” of a local market, presumably in an effort to snare a large group of shoppers. The paper wonders if criminals are taking advantage of this concentrated Police presence to strike in other parts of the City during the checkpoint operations.

In an effort to “start a dialog” with the community, several off-duty Pomona officers attended a community meeting regarding the checkpoints...and despite what the Supreme Court might think, apparently the “subjective” impact of the checkpoints was strong enough that the on-duty Police had to be called to extricate the off-duty Police from the meeting, according to attendees writing for the “Americans for Legal Immigration” Political Action Committee’s blog.

Similar complaints are being heard in the San Diego area as well.

Our next stop on the “Checkpoints Gone Wild Tour”: Illinois.

In order to “secure” an apartment complex in Rolling Meadows, the local police decided to set up a checkpoint on one of the complex’s 13 entrances—and then they blocked off all access to the other 12.

The checkpoint has been staffed every day from Noon to 8PM.

The 2,000 residents are thus required to submit to police scrutiny each and every time they wish to enter or leave their own homes and go anywhere in a car beyond the parking lot during those hours. (We are surprised, frankly, that the police only operate during those hours; we always thought that a lot of crime takes place at night....but what do we know?)

In Washington, Illinois, the local police closed off an entire neighborhood, demanded ID that proves drivers reside in the area, and did not allow outsiders to enter without what they consider to be a “legitimate reason” to be in the area, according to the local chapter of the ACLU.

In an effort to bring this sort of law enforcement to every State, the Federal Government, in the form of the National Highway Traffic Safety Administration, is now pushing the remaining States that don’t allow checkpoints to...reconsider...something the Governor of my own State, Washington, is trying to make happen...even though the State Supreme Court has already ruled the practice violates the State Constitution.

And finally, as promised, a quick visit to Washington, DC...theoretically, the world’s “Freedom Captiol”.

The City has successfully defended, before a US District Judge, a program that seals off the Trinidad neighborhood after a series of shootings. The Police are also turning away those they feel should not be in the area, and that was the source of the complaint. The ACLU’s reaction:

"My reaction is, welcome to Baghdad, D.C.," said Arthur Spitzer, legal director for the ACLU's Washington office. "I mean, this is craziness. In this country, you don't have to show identification or explain to the police why you want to travel down a public street."

And that, very neatly, describes the problem of checkpoints.

What began as a rare and unusual—and frankly, poorly justified—exception to the Fourth Amendment has morphed into a legal principle that allows law enforcement to choose to seal off entire communities, if they wish, to target populations based on no “particularized suspicion” (which often seems to be a low-income or minority population), to develop ever more creative and tortuous justifications for the targeting—and to do all of this because of our fear of crime, which has apparently overridden our trust in freedom...and because of our unwillingness to tackle the root causes of the problems that checkpoints can never really solve.

On Traffic Checkpoints, Part One, Or, Freedom? That's So...Inefficient

The holidays are in full swing…or at least they are in the US…which means your days—and nights—are full of running around like crazy. There’s a million things to do, a thousand errands to run, and…are you kidding me?!

A police sobriety roadblock?
Now?

That’s right: there’s a crowd of officers all around you, there’s no way to avoid it…and even though you’ve committed no crime whatsoever, you get to talk to the police…and if they decide it’s acceptable, you may continue on your way.

How can this be legal in America?
Does it actually serve any purpose?
And what happens when the police decide to blockade your neighborhood--for your own good?

Believe it or not, it’s my job today and tomorrow to answer those questions…and beyond that, to defend the simple right of Americans to go somewhere if we feel like it, without having to explain it to the police…and in today’s discussion, I intend to set the stage through an examination of history.

Sobriety checkpoints are an effective law enforcement tool involving the stopping of vehicles or a specific sequence of vehicles, at a predetermined fixed location, to accomplish two goals: raise the public’s perception of being arrested for driving while impaired (DWI ), and detection of drivers impaired by alcohol and/or other drugs.

--National Highway Traffic Safety Administration, “Low-Staffing Sobriety Checkpoints”

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.

--The Fourth Amendment to the Constitution of the United States

So, you might ask, how is it that the Fourth Amendment is interpreted to allow searches that are not based upon any probable cause whatever—in fact, that aren’t directed toward any particular individual, but instead, against anyone and everyone that can be processed through a location?

Oddly enough, this whole story, you could say, starts at Customs and Border Protection’s (CBP) San Clemente Station, an immigration checkpoint located roughly 60 miles north of the Mexican Border near San Diego, California (and the home of the famous “running family” traffic signs), where all northbound traffic on the Interstate 5 Freeway is required to stop for an inspection by CBP officers.

If an officer chooses, he can order any vehicle, for any reason, or for none at all, to pull over for a “Secondary Inspection”. That inspection can lead to a search of the vehicle, and possibly the arrest of its occupants.

A Mr. Amado Martinez-Fuerte was arrested at the checkpoint, after such an inspection, for illegally transporting aliens (the two passengers in his car), and when he got to trial his attorney moved to suppress all evidence based on a Fourth Amendment claim, specifically that absent any particular probable cause, the stop and search of his vehicle were illegal. That claim was denied at trial, but upheld upon appeal to the Ninth Circuit Court of Appeals.

His claim and a case with similar context but a differing result from the Fifth Circuit were eventually consolidated and reconciled by the United States Supreme Court in 1976 in United States v. Martinez-Fuerte, 428 U.S. 543.

"The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.

And in making that assessment it is imperative that the facts be judged against an objective standard . . . . Anything less would invite intrusions upon constitutionally guaranteed rights based on nothing more substantial than inarticulate hunches, a result this Court has consistently refused to sanction…

… This demand for specificity in the information upon which police action is predicated is the central teaching of this Court's Fourth Amendment jurisprudence. "

--Terry v. Ohio, 392 U.S., at 21-22

The Fourth Amendment [is] held to forbid Border Patrol officers, in the absence of consent or probable cause, to search private vehicles at traffic checkpoints removed from the border and its functional equivalents, and for this purpose there is no difference between a checkpoint and a roving patrol.

--United States v. Ortiz, 422 U.S. 891

And with those inspiring words to guide them, the Court’s majority decided to completely ignore the text of the Fourth Amendment and established precedent and uphold the right of Government agents to search you, even if you’re not suspected of anything at all (and in fact, upholding the “inarticulate hunch” standard)…because the Court felt it was really inconvenient to have to have a reason to search people:

To require that such stops always be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car necessary to identify it as a possible carrier of illegal aliens. Such a requirement also would largely eliminate any deterrent to the conduct of well-disguised smuggling operations, even though smugglers are known to use these highways regularly.

In order to justify this line of thought, the majority adopted a line of logic that suggested that the Government had an overriding need to stop the smuggling of aliens, that this is an effective way to prevent the smuggling of aliens…and that you would find the fact that you have to be stopped and searched as you go about your day—even though you’ve done nothing wrong—so minimal of an intrusion that a warrant would be unnecessary. From the majority opinion:

While the need to make routine checkpoint stops is great, the consequent intrusion on Fourth Amendment interests is quite limited. The stop does intrude to a limited extent on motorists' right to "free passage without [428 U.S. 543, 558] interruption," Carroll v. United States, 267 U.S. 132, 154 (1925), and arguably on their right to personal security. But it involves only a brief detention of travelers during which

"`[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States.'" United States v. Brignoni-Ponce, supra, at 880.

Strangely enough, what the majority finds concerning is that citizens might object to being stopped and searched because the people running the operation might be some sort of fake police—not the fact that we’re being stopped and questioned in the first place:

"[T]he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving-patrol stop. Roving patrols often operate at night on seldom-traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion." 422 U.S., at 894-895…

… The regularized manner in which established checkpoints are operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest….”

Beyond that, the majority felt that there is a justification for certain forms of “general search warrants”, based on a prior building inspection case (Camara v. Municipal Court, 387 U.S. 523)…meaning that a magistrate can legally issue an “area warrant” permitting the search of any vehicle passing a particular place.

Is this “checkpoint search” technique effective?

According to the record in the case, only 1 in 1,000 vehicles stopped and questioned at the checkpoint contained any deportable aliens, and more than ¾ of the vehicles stopped for Secondary Inspection were in fact unconnected with any smuggling activity.

My guess is that the police could simply choose vehicles that contain Mexican-looking drivers randomly and achieve similar results—and that guess is based on the fact that, at the checkpoint, that’s basically what they do, as the record reveals.

We are going to wrap this up in a minute, but I want to offer a few salient quotes from the dissent in this case:

Today's decision is the ninth this Term marking the continuing evisceration of Fourth Amendment protections against unreasonable searches and seizures… the Court's decision today virtually empties the Amendment of its reasonableness requirement by holding that law enforcement officials manning fixed checkpoint stations who make standardless seizures of persons do not violate the Amendment. This holding cannot be squared with this Court's recent decisions in United States v. Ortiz…

…This defacement of Fourth Amendment protections is arrived at by a balancing process that overwhelms the individual's protection against unwarranted official intrusion by a governmental interest said to justify the search and seizure. But that method is only a convenient cover for condoning arbitrary official conduct…

…The motorist whose conduct has been nothing but innocent - and this is overwhelmingly the case - surely resents his own detention and inspection. And checkpoints, unlike roving stops, detain thousands of motorists, a dragnetlike procedure offensive to the sensibilities of free citizens. Also, the delay occasioned by stopping hundreds of vehicles on a busy highway is particularly irritating…

… Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today's decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists…

… Finally, the Court's argument fails for more basic reasons. There is no principle in the jurisprudence of fundamental rights which permits constitutional limitations to be dispensed with merely because they cannot be conveniently satisfied.”

So that’s today’s Part One: the sobriety checkpoint that has you ensnared and irritated—again—is only Constitutional because our Government feels that when it comes to catching criminals it’s just too big a pain to follow the rules we set out for them…and all of this is based on an immigration control checkpoint ruling.

When we return, we’ll examine another ruling, Michigan Department of State Police v. Sitz (496 U.S. 444), which specifically authorized sobriety checkpoints…then we’ll see how checkpoints have morphed into something that, at its worst, allows authorities to literally lay siege to a neighborhood, as is happening even today in the Nation’s Capitol…and, finally, we’ll examine the efforts by the Federal Government to spread checkpoints to the states that today ban them.