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Friday, November 18, 2016

USA - A Checkpoint Primer

The Fourth Amendment  states: “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 paragraph seems straight forward enough and courts have ruled that to detain a person is to “seize” him. So if you are stopped and detained you are seized and your seizure must be reasonable. But there is also a significant body of case law that authorizes police to set up roadblocks and detain drivers and riders in states that do not have laws forbidding checkpoints and roadblocks.
Here is a brief primer on how the meaning of how the meaning of reasonable has evolved.

People v. De la Torre

The grandfather of all roadblock court decisions is a California appeals court case from 1967 titled People v. De la Torre. The California legislature passed a law, Vehicle code 2814, which said: “Every driver of a passenger vehicle shall stop and submit the vehicle to an inspection of the mechanical condition and equipment of the vehicle at any location where members of the California Highway Patrol are conducting tests and inspections of passenger vehicles and when signs are displayed requiring such stop.”
Fernando De la Torre was out on a Saturday night. He was tipsy and he was arrested for driving under the influence. He was convicted  and he appealed on the grounds that the traffic stop was an unconstitutional dragnet. The stop was, in fact, a defacto sobriety checkpoint. A lower court agreed with De la Torre and dismissed his case.
The state appealed and the appeals court ruled ‘‘Upon holding Vehicle Code section 28141 unconstitutional on its face the trial court granted defendant’s motion to dismiss the action. Thus our task is strictly limited. We are not called upon to determine the guilt or innocence of the defendant, nor whether the Vehicle Code section was being used as a subterfuge by the police, nor whether an otherwise constitutional statute was being unconstitutionally applied to this defendant. We determine and hold only that Vehicle Code section 2814 properly used in accordance with the in¬tent of the Legislature expressed therein is constitutional.”
That obscure, state court decision was the hole in the dike

United States v. Martinez-Fuerte

The leak became noticeable in a U.S. Supreme Court case titled United States v. Martinez-Fuerte. Martinez-Fuente was stopped at a border patrol checkpoint on the San Diego Freeway in San Clemente, California. The checkpoint is about 73 miles north of the Mexican border and it is still there. Legally the Border Patrol is authorized to conduct searches in a border zone that extends 100 miles inland from international borders and at virtual borders, like international airports, no matter where they might be. The defendant was transporting two Mexican nationals north to Los Angeles. They admitted they were in the country illegally and he was charged with two counts of illegally transporting aliens.
Martinez-Fuente wanted his passengers statements suppressed. The Supreme Court ruled seven to two that the checkpoint did not violate the fourth amendment because it wouldn’t be practical to get search warrants for all the cars that passed through the checkpoint and that the inconvenience to motorist was “minimal.” It is legal, under Martinez Fuerte, to use profiling and to detain someone for further questioning because they look suspicious.

Delaware v. Prouse

Both of the above cases, were cited in 1979s Supreme Court decision, Delaware v. Prouse. In Prouse, the Court ruled that police could stop anybody for any reason as long as they treated everybody equally and did not arbitrarily decide to stop some people and let others continue on their way. It was a curious decision and it referenced People v. De la Torre, the California decision from a dozen years before. Justice Byron “Whizzer” White, a former All American football player, cautioned that “people are not shorn of all Fourth Amendment protection when they step from the sidewalks into their automobiles.” And then he wrote it would be alright to stop people and check their vehicle registrations at a “checkpoint,” like the one that caught De la Torre driving drunk. Police couldn’t set up sobriety checkpoints but they could stop you, make you roll down your window and hand over your papers.
The state had the right, the court ruled, to enforce roadblocks that promoted traffic safety as long as they didn’t search the stopped vehicles without probable cause.

Michigan Dept. of State Police v. Sitz

The Court decided that sobriety checkpoints were legal in 1990 in a case titled Michigan Dept. of State Police v. Sitz.
Michigan had started setting up roadblocks to catch drunk drivers. Drivers had to stop, roll down their windows and converse with police. If the cop smelled alcohol or detected slurred words or some other impairment, the driver could be detained and given a field sobriety test.
Justice John Paul Stevens thought that stopping 126 cars to find two drunk drivers was unreasonable but the rest of the court disagreed. Most of the court sought a balance between the rights of citizens to be let alone and the “interest” of government. The Court decided that the Michigan State Police had a preexisting “substantial government interest,” that the impact on sober drivers was “negligible” and that a brief interrogation to try to find reasonable suspicion of driving drunk was not unconstitutional.

City of Indianapolis v. Edmond

The Supreme Court took another look at checkpoints in 2000 in City of Indianapolis v. Edmond.
That case finally put a limit on what police could do at checkpoints. In a nutshell, that decision said that after De la Torre, Martinez-Fuerte, Prouse and Sitz the police could stop you, compel you to produce your papers, make you talk to them and even profile you based on your appearance or other intangible factors but they couldn’t greet everybody with a drug sniffing dog.
That was the bright and shining line between freedom and tyranny. On the free side of the line they couldn’t greet you with a drug sniffing wonder dog, which, as everyone knows, only “alerts” if you are actually in possession of drugs. On the free side of the line they can’t so that to you unless you are at a border crossing. Or in an airport.
The way American police get around Edmond is by putting up signs that say “Drug Checkpoint Ahead.” If you voluntarily pull over they can ask to search your car. Legally, there is no checkpoint, just a sign. You don’t have to consent to a search. You don’t have to roll down your window or talk to police. You don’t even have to stop but most people think they do. And if you make an illegal U-turn or you throw something away they can stop you for that. And, then they can contrive to have a dog sniff you.
You might have to explain all this to your public defender sometime.