OFF THE WIRE
By Simon Davis-Cohen
Cops are using roadside traffic stops to throw the Fourth Amendment out the window.
Checkpoints occupy a unique position in the American justice system.
At these roadside stations, where police question drivers in search of
the inebriated or “illegal," anyone can be stopped and questioned,
regardless of probable cause, violating the Fourth Amendment’s
protection against “general warrants” that do not specify the
who/what/where/why of a search or seizure. Though the Supreme Court
agrees that checkpoints skirt the Fourth Amendment, the Court has been
clear that the “special needs” checkpoints serve, like traffic safety
and immigration enforcement, trump the “slight” intrusions on motorists’
rights.
We have checkpoints for bicycle safety, gathering witnesses, drug
trafficking, “illegal” immigration and traffic safety. Many states, like California,
require cops to abide by “neutral” mathematical formulas when choosing
which drivers to pull over (like 1 in every 10 cars). In reality, these
decisions are left to the discretion of individual police officers,
which results in a type of vehicular stop and frisk.
That’s why people in Arizona have sued
the Department of Homeland Security for its wanton deployment of
immigration checkpoints in their state. Among their complaints are
racial profiling, harassment, assault and unwarranted interrogation, and
detention not related to the express “special need” of determining
peoples’ immigration status.
A key legal detail about checkpoints is that they cannot be used for
crime control, as that would require individualized probable cause. But
legal scholars argue
that non-criminally-minded checkpoints are also illegal. They point out
that the Fourth Amendment protected the colonists from being searched
for non-criminal “wrongdoing.” Doing nothing wrong at all, they
argue, is not grounds to be searched or have your property seized.
Regardless, unlike DUI checkpoints, these immigration checkpoints, expanded by the 2006 Secure Fence Act, are only allowed within 100 miles of the continental United States’ border. But that’s a big perimeter.
Nine of the country’s 10 largest cities, entire states and some two
thirds of the US population reside within this constitutionally exempt
zone.
At these checkpoints—some of which have become permanent
fixtures on the highway—people are forced to stop when flagged down,
again regardless of probable cause. But the extent to which people are
legally obliged to answer officers’ questions is unclear and seemingly arbitrary. Not surprisingly, the military's immigration checkpoints have garnered outspoken criticism from across the political spectrum. Legalized by the Supreme Court in 1976, these checkpoints seem to have taken on a new momentum in the post-9/11 era. (Private militias have even taken to setting up their own versions.)
DUI checkpoints, on the other hand, deemed constitutional in 1990, monitor roadways in 38 states. But they have been outlawed by 12 others that have invoked states’ rights to increase federal civil liberty protections. In the Court’s 1990 opinion,
Chief Justice William Rehnquist wrote that states’ interest in
eradicating drunk driving is undisputable and that this “interest”
outweighed “the measure of the intrusion on motorists stopped briefly at
sobriety checkpoints,” which he described as “slight.”
In the dissent, William Brennan reminded the Court that, “some level
of individualized suspicion is a core component of the protection the
Fourth Amendment provides against arbitrary government action.” In
pulling people over at random, checkpoints remove this individualized
component.
Today, the practice seems to be experiencing a renaissance of sorts.
With the help of local police, private government contractors have used
the tactic to collect anonymous breath, saliva and blood ( DNA) samples of American motorists for the federally funded National Roadside Survey of Alcohol and Drugged Driving.
Participation in the survey is voluntary, despite the confusion that
may come with uniformed police asking for bodily fluids. Motorists are
offered $10 for cheek swabs and $50 for blood samples. These practices
have sparked considerable public outrage; law enforcement officials in St. Louis, Missouri and Fort Worth, Texas have stated their intent to limit their future participation in the study.
