Pubdate: Tue, 05 Sep 2000
Source: San Diego Union Tribune (CA)
Copyright: 2000 Union-Tribune Publishing Co.
Contact:  PO Box 120191, San Diego, CA, 92112-0191
Fax: (619) 293-1440
Website: http://www.uniontrib.com/
Forum: http://www.uniontrib.com/cgi-bin/WebX
Author: James J. Kilpatrick, Universal Press Syndicate

ARE CHECKPOINTS ILLEGAL SEARCHES?

Alarge roadside sign alerts the driver: Police checkpoint ahead! Sure 
enough, there are the red cones and the bubblegum lights. The driver 
obediently stops and reaches for his driver's license. While this is being 
produced and inspected, a drug-sniffing dog ambles around the vehicle.

Question: Is this familiar procedure constitutional?

Answer: Yes, no, and it depends.

During the term that begins Oct. 2, the Supreme Court will attempt to 
provide a more satisfactory answer. Lower federal courts are sharply 
divided on the issue.

The case at hand comes from Indianapolis, where motorists James Edmond and 
Joell Palmer brought a class action to enjoin the city's checkpoint 
program. Once in the past they had been stopped at a checkpoint. They had 
not enjoyed the experience. In 1998 the city set up six pullovers with the 
avowed intention of catching drug offenders. Police stopped 1,161 cars. The 
inspections resulted in 55 drug-related arrests and 49 arrests for other 
offenses. Officers regard such a 9 percent hit rate as hugely successful. 
The question before the district court was whether the program could be 
continued.

At trial, the city defended its program as well within the boundaries of 
Fourth Amendment jurisprudence. Under the city's protocol, fixed 
checkpoints were determined by crime statistics and by the degree of 
inconvenience imposed upon drivers. Only a predetermined number of cars 
were stopped at one time. Uniformed officers checked documents and looked 
for signs of drunk driving. If everything appeared to be in order, 
motorists were detained for no more than two to five minutes, a minimal 
intrusion.

U.S. District Judge Sarah Evans Barker agreed with the city that the 
program met constitutional requirements and refused to shut it down. The 
objecting motorists, supported by the Indiana Civil Liberties Union, 
appealed successfully to the 7th U.S. Circuit Court of Appeals. Chief Judge 
Richard Posner and Judge Diane P. Wood voted to reverse. Judge Frank 
Easterbrook dissented. Because of the conflicting opinions in lower federal 
courts, the Supreme Court agreed to hear the case. It presents a close 
question.

As a general proposition, the Fourth Amendment requires police to have (1) 
"probable cause" or at least (2) "an articulable suspicion" before they 
stop and search anyone. In Indianapolis they had neither justification for 
calling out Rover the sniffing dog. They were tossing a net and hoping a 
few fish swam into it.

There are exceptions to the general rule, as Posner acknowledged. "We may 
assume that if the Indianapolis police had a credible tip that a car loaded 
with dynamite and owntown Indianapolis, they would not be violating the 
Constitution if they blocked all the roads to the downtown area even though 
this would amount to stopping thousands of drivers without suspecting any 
one of them of criminal activity."

The Constitution tolerates other exceptions. Roadblocks may be justified, 
for example, to intercept illegal immigrants or to catch a fleeing 
criminal, but in the court's view the Indianapolis checkpoint program could 
not be justified under any exception.

Posner was unwilling to suggest any bright-line rules: "When urgent 
considerations of the public safety require compromise with the normal 
principles constraining law enforcement, the normal principles may have to 
bend. The Constitution is not a suicide pact. But no such urgency has been 
shown here."

Judge Easterbrook took a different view. He believes that the Indianapolis 
program is "objectively reasonable given its minimal intrusion and 
substantial success." The invasion of privacy at a roadblock is slight. 
Detention is short, the search superficial, and the use of a drug-sniffing 
dog is not a "search" at all. Easterbrook professed to be puzzled by his 
colleagues' concern with the motivation for a search. Everyone agrees that 
routine license-and-registration checkpoints are valid. Why is it different 
if the primary purpose is to check for illicit drugs?

I would side with Judge Easterbrook on this one. There is a very real 
distinction between homes and automobiles. If federal agents proposed to 
search every 10th house in a randomly chosen block, their proposal would be 
greeted with howls of derision and scorn. But the expectation of privacy is 
much diminished in the case of a person driving a car in a drug-infested 
neighborhood. In such combat zones, every 10th vehicle carries an 
"articulable suspicion" that the driver is peddling drugs. I would set up 
the checkpoints and whistle for Rover to get on the job.
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