Pubdate: Wed, 29 Nov 2000
Source: New York Times (NY)
Copyright: 2000 The New York Times Company
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Author: Linda Greenhouse

SUPREME COURT BARS TRAFFIC ROADBLOCKS INTENDED TO CHECK FOR DRUGS

WASHINGTON, Nov. 28  Police roadblocks aimed at discovering drugs violate
the Constitution, the Supreme Court ruled today in an important decision
reaffirming the Fourth Amendment prohibition against searches and seizures
that are not based on a suspicion of individual wrongdoing.

"Without drawing the line at roadblocks designed primarily to serve the
general interest in crime control, the Fourth Amendment would do little to
prevent such intrusions from becoming a routine part of American life,"
Justice Sandra Day O'Connor wrote for the 6-to-3 majority.

The dissenters were Chief Justice William H. Rehnquist along with Justices
Antonin Scalia and Clarence Thomas.

The majority agreed with a ruling last year by the federal appeals court in
Chicago, holding that the City of Indianapolis had violated the Fourth
Amendment rights of motorists whom the police stopped at drug-interdiction
checkpoints that were set up on city streets six times in 1998.

Pulling over cars in sequence, the police would check a driver's license and
registration and then walk a specially trained dog around the car to sniff
for drugs. The police stopped more than 1,100 cars and made more than 100
arrests. More than half were for drug-related crimes, and the rest were for
license problems or other offenses.

The Indianapolis case was closely watched by cities and law enforcement
agencies around the country. The National League of Cities told the Supreme
Court in a brief that other cities were ready to adopt the Indianapolis
program if the court upheld it.

In a case from Michigan 10 years ago, the Supreme Court upheld sobriety
checkpoints as a means of protecting public safety by getting drunken
drivers off the road.

The court had also ruled in the past that a sniff by a drug-detecting dog,
which is commonly used at airports, is so minimally intrusive as not to
constitute a search.

Taking those precedents together, Indianapolis argued that adding a
drug-sniffing dog to a checkpoint could not convert a lawful police practice
into one that was unconstitutional.

But Justice O'Connor said the purpose of the checkpoint made all the
difference. While sobriety checkpoints served to protect the public from an
"immediate, vehicle-bound threat to life and limb," she said, roadblocks for
drug detection primarily served the ordinary law enforcement interest in
crime control.

"We cannot sanction stops justified only by the generalized and ever-present
possibility that interrogation and inspection may reveal that any given
motorist has committed some crime," Justice O'Connor said, adding, "We are
particularly reluctant to recognize exceptions to the general rule of
individualized suspicion where governmental authorities primarily pursue
their general crime control ends."

In his dissenting opinion, Chief Justice Rehnquist said that because the
Indianapolis checkpoints could be used validly to check for alcohol use or
license irregularities, it was "constitutionally irrelevant" that the city
"also hoped to interdict drugs."

In a separate dissent, Justice Thomas said he doubted that the
Constitution's framers would have regarded any roadblocks as acceptable but
that since the court's precedents were not open for re-examination in this
case, "I believe that those cases compel upholding the program at issue
here."

The majority today might well have been influenced by the analysis of the
issue contained in the lower court's opinion by Judge Richard A. Posner,
whose views often carry particular weight among the more conservative
justices.

Judge Posner said in his opinion for the United States Court of Appeals for
the Seventh Circuit that the logic of the Indianapolis position could
justify "totalitarian" police methods, even setting up metal detectors in
front of people's homes to detect illegal weapons.

Indianapolis had argued that the severity of the drug problem justified the
roadblocks.

Granting that drugs create "social harms of the first magnitude," Justice
O'Connor said, "the gravity of the threat alone" was not sufficient to
justify dispensing with individual suspicion.

Justice O'Connor said that only in "limited circumstances" had the court
been willing to set aside the requirement of individual suspicion. The
examples she offered included drug-testing of customs agents, transportation
workers and student athletes, which the court's precedents have justified as
serving "special needs, beyond the normal need for law enforcement."

Kenneth J. Falk, who brought the case against Indianapolis as legal director
of the American Civil Liberties Union's Indiana affiliate and who argued the
case last month, said today that the decision was an important reaffirmation
of the Fourth Amendment principle that "the police cannot conduct a criminal
investigation without cause."

In an interview, Mr. Falk said that "the concern of civil libertarians was
that the court had appeared to be drifting away" from that view of the
Fourth Amendment and toward a general balancing of law enforcement needs and
personal privacy concerns.

The court has been deferential to the police in defining the type of
suspicion necessary to justify police action, an approach that this opinion
does not change.

Last term, for example, the court ruled that flight at the mere sight of a
police officer can be suspicious enough to justify an officer in chasing and
frisking the person.

There were also these other developments today.

Court Broadcasts

With a growing list of news organizations continuing to press for television
coverage of Friday's argument in the Florida election case, the court
maintained its television ban but announced that it would make an audio
recording available as soon as possible after the 90-minute session.

The recording will be given to a network pool for immediate broadcast.

The modest step was a considerable breakthrough for the court. Audio tapes
of arguments are normally available through the National Archives a year or
more after the arguments take place.

Meanwhile, two senators who have sponsored a bill to open all federal courts
to television wrote to the justices to ask that cameras be permitted at
Friday's session.

Senators Charles E. Schumer, Democrat of New York, and Charles E. Grassley,
Republican of Iowa, co-sponsors of the "Sunshine in the Courtroom" bill,
told the court that it should follow the model of the Florida Supreme Court.

Senator Schumer said the court's decision to release the audio transcript
was "a great first step toward televising court proceedings."

Arbitration Upheld

The Court voted 9 to 0 to uphold an arbitrator's decision reinstating a
truck driver whom an employer wanted to dismiss for failing two drug tests.
The decision, with an opinion by Justice Stephen G. Breyer, affirmed a
ruling by the United States Court of Appeals for the Fourth Circuit, in
Richmond, Va.

The employer, a coal company, argued that although the union contract
provided for binding arbitration, the reinstatement of a drug-using truck
driver violated "public policy."

But Justice Breyer said that the policy in this situation was set by
Congress and the Transportation Department, which had detailed rules on drug
use in the transportation industry that did not require dismissal in this
case. The decision was Eastern Coal Corp. v. United Mine Workers, No.
99-1038.
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