Checkpoints Violate the Fourth Amendment and Normalize the Police State
by Rockero Thursday, Dec. 24, 2009 at 5:59 PM
rockero420@yahoo.com
For all the controversy surrounding so-called “DUI checkpoints,” many of the commentators are missing the mark entirely. Checkpoints violate our right to freedom from unreasonable search and seizure, a fundamental freedom guaranteed by the Fourth Amendment of the Bill of Rights.
In Michigan, checkpoints were challenged on these grounds. The Michigan court found that the checkpoints did, indeed, violate the Fourth Amendment. The police appealed the decision , and the case reached the United States Supreme Court.
The Rehnquist Court narrowly overturned the Michigan decision in 1990 (Michigan v. Sitz), arguing that the public benefit of getting drunk drivers off the road outweighed the “minor” infringement on civil liberties. It acknowledged, however, that the use of checkpoints constituted a violation of the Bill of Rights. Dissenting opinions argued that the amendment does not provide for any exceptions, that the court did not adequately balance the interests of the government and those of the individual, as well as pointing out several other crucial flaws in the ruling.
The Court also reasoned that in order to avoid excessive intrusion on the part of the government, guidelines must be established. They left it to the states to determine what those guidelines would be. In California, our state Supreme Court (Ingersoll v. Palmer) said that checkpoints must meet the following requirements:
•Supervisors (and not field officers) must decide when and where to hold checkpoints
•“A neutral mathematical formula, such as every driver, or every third, fifth, or tenth driver should be used in determining who to stop at the roadblock.” (This is to avoid arbitrariness and profiling on the part of the officers.)
•Warning lights and signals must be highly visible, for the safety of motorists
•Locations and times of checkpoints must be reasonable The “officialness” of checkpoints must be clearly indicated
•Drivers should not be detained longer than necessary to determine whether they are impaired. If they show no signs of impairment, they should be released immediately.
•Advance public notice of checkpoints must be given. (This is designed to increase the deterrent effect, minimize intrusiveness, and to help establish the “officialness” of the checkpoint.)
The California ruling also held that motorists should not be stopped for simply attempting to avoid the checkpoint, and that if officers do not follow these guidelines, the evidence they obtain is not admissible in court.1
One would think that, given the slim majority in the Supreme Court ruling, along with the strict guidelines established by our own state's court, law enforcement would be very careful in its use of sobriety checkpoints.
However, even the mainstream media's reporting on the checkpoints shows us that this is not the case.
Just last week, the Modesto Bee reported that in Turlock, California, police use "chaser cars"2 to pursue motorists who seek to exercise their freedom to avoid checkpoints.
Another problem is the de facto use of checkpoints as dragnets. While the California Supreme Court approved the use of checkpoints as a deterrent to drunken driving, it was careful not to approve their use to actually gather evidence for use in prosecutions. This is one of the reasons checkpoints initially passed Constitutional muster.
However, police are now using checkpoints, which some of the more savvy agencies are referring to as "traffic safety" checkpoints, for all manner of inspections, including everything from simple vehicle code violations such as cracked windshields and burned-out bulbs, to the more serious driver's license and insurance inspections, and even inquiries into potential warrants, for drivers and passengers alike.
It begs the question: Is it legal for police to use a tactic approved to combat drunk driving to persecute unlicensed drivers, when said approval mentions nothing about licensing?3
Now we have to face another reality: In today's California, “unlicensed driver” tends to be synonymous with “undocumented immigrant.” In many letters to the editor of local mainstream newspapers, writers who are apparently ignorant of the law's limitations defend the tactic on the grounds that people without papers should not only not be driving, but should not be in the country. This argument, which highlights the arguments of the immigrant advocates that the checkpoints are a civil rights violation, does nothing do justify the agencies' use of checkpoints to discover unlicensed drivers when the law only permits them to detect impairment.
This is to say nothing of the effects of impoundment on immigrants—the cost, inconvenience, and heartache of having to pay a heavy ransom to a towing company, when they are already among our society's most exploited. It does, however, raise the question of which companies are doing the towing and impounding, as well as how they secure their exclusive contracts with the city. They didn't make any contributions to the campaigns of city councilmembers or mayors, did they? The question merits investigation.
So while anti-illegal immigration activists may clamor for law enforcement at the border, their disregard for respect of the law at these checkpoints belies their true motives.
Finally, I would like to address what I believe to be the most sinister aspect of police checkpoints. Despite all the rhetoric about public safety, their primary result is the normalization of an intrusive police presence in our daily lives. We see police action so often that we don't even question it, much less protest in defense of our most essential rights. We put up with one infringement with the belief that it is for the greater good. But where is the line? When does a “minor infringement” shift from a mere inconvenience to become a severe violation? How many people, unaware of the laws governing checkpoints, have been inconvenienced only to allow themselves to be checked for their licenses, insurance papers, criminal history, and when agencies have 287(g) agreements with ICE, their immigration status? How far into their lives will people allow law enforcement to intrude, whether on the road, at the airport, or in private communications such as e-mail and telephone conversations, as permitted by the PATRIOT Act and the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007? If the anti-immigrant activists have it their way, people will put up with any measure that stops what they term “the invasion.” But I hope that true patriots will stand up for the rule of law on the streets of their communities and against police intrusion into their privacy.
____________________________
1. Kavinoky, Darrin. "Legal Requirements of Roadblocks: The Ingersoll/Palmer factors." June 8, 2006. http://www.goinglegal.com/article_61345_18.html
2. Guerra, Patty. "As holidays near, state agency declares 'the year of the checkpoint'". Modesto Bee, December 18, 2009. http://www.modbee.com/local/story/977868.html
3. In a non-DUI-related case, the US Supreme Court has legitimated the use checkpoints to check the licensing of drivers. Nonetheless, there is also a California Vehicle Code statute that prohibits stopping motorists on the mere suspicion that they are unlicensed. This contradiction can be summed up by explaining that license checkpoints, as described by the court, are equally applicable to all motorists (that is, they are required to ask all drivers for licenses, and the probable cause requirement is much lesser when just verifying licenses), whereas it is nearly impossible to establish probable cause for not having a license, and attempts to do so would amount arbitrary stops and profiling.
The Rehnquist Court narrowly overturned the Michigan decision in 1990 (Michigan v. Sitz), arguing that the public benefit of getting drunk drivers off the road outweighed the “minor” infringement on civil liberties. It acknowledged, however, that the use of checkpoints constituted a violation of the Bill of Rights. Dissenting opinions argued that the amendment does not provide for any exceptions, that the court did not adequately balance the interests of the government and those of the individual, as well as pointing out several other crucial flaws in the ruling.
The Court also reasoned that in order to avoid excessive intrusion on the part of the government, guidelines must be established. They left it to the states to determine what those guidelines would be. In California, our state Supreme Court (Ingersoll v. Palmer) said that checkpoints must meet the following requirements:
•Supervisors (and not field officers) must decide when and where to hold checkpoints
•“A neutral mathematical formula, such as every driver, or every third, fifth, or tenth driver should be used in determining who to stop at the roadblock.” (This is to avoid arbitrariness and profiling on the part of the officers.)
•Warning lights and signals must be highly visible, for the safety of motorists
•Locations and times of checkpoints must be reasonable The “officialness” of checkpoints must be clearly indicated
•Drivers should not be detained longer than necessary to determine whether they are impaired. If they show no signs of impairment, they should be released immediately.
•Advance public notice of checkpoints must be given. (This is designed to increase the deterrent effect, minimize intrusiveness, and to help establish the “officialness” of the checkpoint.)
The California ruling also held that motorists should not be stopped for simply attempting to avoid the checkpoint, and that if officers do not follow these guidelines, the evidence they obtain is not admissible in court.1
One would think that, given the slim majority in the Supreme Court ruling, along with the strict guidelines established by our own state's court, law enforcement would be very careful in its use of sobriety checkpoints.
However, even the mainstream media's reporting on the checkpoints shows us that this is not the case.
Just last week, the Modesto Bee reported that in Turlock, California, police use "chaser cars"2 to pursue motorists who seek to exercise their freedom to avoid checkpoints.
Another problem is the de facto use of checkpoints as dragnets. While the California Supreme Court approved the use of checkpoints as a deterrent to drunken driving, it was careful not to approve their use to actually gather evidence for use in prosecutions. This is one of the reasons checkpoints initially passed Constitutional muster.
However, police are now using checkpoints, which some of the more savvy agencies are referring to as "traffic safety" checkpoints, for all manner of inspections, including everything from simple vehicle code violations such as cracked windshields and burned-out bulbs, to the more serious driver's license and insurance inspections, and even inquiries into potential warrants, for drivers and passengers alike.
It begs the question: Is it legal for police to use a tactic approved to combat drunk driving to persecute unlicensed drivers, when said approval mentions nothing about licensing?3
Now we have to face another reality: In today's California, “unlicensed driver” tends to be synonymous with “undocumented immigrant.” In many letters to the editor of local mainstream newspapers, writers who are apparently ignorant of the law's limitations defend the tactic on the grounds that people without papers should not only not be driving, but should not be in the country. This argument, which highlights the arguments of the immigrant advocates that the checkpoints are a civil rights violation, does nothing do justify the agencies' use of checkpoints to discover unlicensed drivers when the law only permits them to detect impairment.
This is to say nothing of the effects of impoundment on immigrants—the cost, inconvenience, and heartache of having to pay a heavy ransom to a towing company, when they are already among our society's most exploited. It does, however, raise the question of which companies are doing the towing and impounding, as well as how they secure their exclusive contracts with the city. They didn't make any contributions to the campaigns of city councilmembers or mayors, did they? The question merits investigation.
So while anti-illegal immigration activists may clamor for law enforcement at the border, their disregard for respect of the law at these checkpoints belies their true motives.
Finally, I would like to address what I believe to be the most sinister aspect of police checkpoints. Despite all the rhetoric about public safety, their primary result is the normalization of an intrusive police presence in our daily lives. We see police action so often that we don't even question it, much less protest in defense of our most essential rights. We put up with one infringement with the belief that it is for the greater good. But where is the line? When does a “minor infringement” shift from a mere inconvenience to become a severe violation? How many people, unaware of the laws governing checkpoints, have been inconvenienced only to allow themselves to be checked for their licenses, insurance papers, criminal history, and when agencies have 287(g) agreements with ICE, their immigration status? How far into their lives will people allow law enforcement to intrude, whether on the road, at the airport, or in private communications such as e-mail and telephone conversations, as permitted by the PATRIOT Act and the Violent Radicalization and Homegrown Terrorism Prevention Act of 2007? If the anti-immigrant activists have it their way, people will put up with any measure that stops what they term “the invasion.” But I hope that true patriots will stand up for the rule of law on the streets of their communities and against police intrusion into their privacy.
____________________________
1. Kavinoky, Darrin. "Legal Requirements of Roadblocks: The Ingersoll/Palmer factors." June 8, 2006. http://www.goinglegal.com/article_61345_18.html
2. Guerra, Patty. "As holidays near, state agency declares 'the year of the checkpoint'". Modesto Bee, December 18, 2009. http://www.modbee.com/local/story/977868.html
3. In a non-DUI-related case, the US Supreme Court has legitimated the use checkpoints to check the licensing of drivers. Nonetheless, there is also a California Vehicle Code statute that prohibits stopping motorists on the mere suspicion that they are unlicensed. This contradiction can be summed up by explaining that license checkpoints, as described by the court, are equally applicable to all motorists (that is, they are required to ask all drivers for licenses, and the probable cause requirement is much lesser when just verifying licenses), whereas it is nearly impossible to establish probable cause for not having a license, and attempts to do so would amount arbitrary stops and profiling.
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