Amicus Curiae Brief — Illinois v. Lidster

No. 02-1060 ~~ "

In The

Supreme Court of the Anited States

+

ILLINOIS,

Petitioner,

Vv.

ROBERT S. LIDSTER,

Respondent.

+

On Writ Of Certiorari To The

Supreme Court Of Illinois

¢

BRIEF AMICUS CURIAE OF NATIONAL

COLLEGE FOR DUI DEFENSE

IN SUPPORT OF RESPONDENT

S

BARRY T. SIMONS

Counsel of Record

W. TRoY MCKINNEY

NATIONAL COLLEGE FOR

DUI DEFENSE

2000 Smith Street

Houston, Texas 77002

August 7, 2003 (713) 654-3055

——— — — — — — —_ i lS lS

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ...............c0cc0ecce00s 1

SUMMARY OF ARGUMENT..................:ccceeeecseeeeeeees 2

PTET IIIIIITEN ‘cchuiciitiidapinnpsiimnisineinnieinenensnemtiemeninenserses 4

I. Law Enforcement Roadblocks Are Contrary To

The Framers’ Intent Manifested In The Bill Of

II. Michigan v. Sitz Misapplied The Brown uv.

Texas Balancing Test In Determining The Con-

stitutionality Of Transient Law Enforcement

IITs nishidisieindiinaincamclinninbeniaianbianiemieueiennion 13

A. The Gravity of the Government Interest.... 18

B. The Degree to which the Seizure Advances

the Government Interest..................:::00eeeeee 19

C. The Degree of Interference with Individual

SETI acidilsicshditinthicipdtainieisinneneentanmmeseneeineienees 23

1. The Objective Intrusion Is Constitu-

CROMER TRITIOORS, 20 cccccccccccccscccccesescesecee 23

2. The Subjective Intrusion Is Constitu-

tionally Significant ..................:.ccccceeeeees 27

GSO RAEIEEED scceccenessserccensccsesosssenssscessesonecsssonsossonese 30

ii

TABLE OF AUTHORITIES

Page

CASES

Ascher v. Commissioner of Public Safety, 527

IN.W.230 123 (iGleam. 1605) ..cccccccccccescossccssoscsccnssscsssenieinennn 3

Boyd v. United States, 116 U.S. 616 (1886).............00+ 6, 7,8

Brown v. Texas, 443 U.S. 47 (1979) ........cccceseeesseeneeees passim

Cady v. Dombrowski, 413 U.S. 433 (19738) ........cccceeeeeeeeeees 27

Camara v. Municipal Court, 387 U.S. 523 (1967).....passim

Chandler v. Miller, 520 U.S. 305 (1997)............cccceeeesseeeeee 15

City of Indianapolis v. Edmond, 531 U.S. 32

+ En 2, 3, 18, 20

City of Seattle v. Mesiani, 755 P.2d 775 (Wash.

1998) ....cccccccccesncocescncssosesssossonsnensensteeninnnennnnnnnnnnnnnnnn 3, 26

Davis v. Mississippi, 394 U.S. 721 (1969)............cccceeeeeeeees 14

Delaware v. Prouse, 440 U.S. 648 (1979)...15, 16, 19, 23, 27

Dunaway v. New York, 442 U.S. 200 (1979) ........ccccceeeeeeees 26

Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng.

Rep. 807 (IB. 1765) .......ccccccsccosssssesosescoonessssnenseensnnnnnnt 19

Ex Parte Milligan, 4 Wall. 2, 18 L.Ed. 281 (1866)............. 10

Ferguson v. City of Charleston, 532 U.S. 67 (2001)........... 15

Florida v. J.L., 529 U.S. 266 (2000)........:ccccccccseseseeeesererenes 19

Florida v. Royer, 460 U.S. 491 (19838)............cccecceeeeeeeeeeeees 17

Kylo v. United States, 533 U.S. 27 (2001)........::cccceeerereeees 22

Leach v. Three of the King’s Messengers, 19 How. St.

Te. 1001 (17GB) ..ccocoscsoccoscocssccosscnosesesscesenssnnneuanuaa 6

Maryland v. Wilson, 519 U.S. 408 (1997)........ 25, 26, 28, 30

-=-> —_—_—e

iil

TABLE OF AUTHORITIES — Continued

Page

Michigan v. Sitz, 496 U.S. 444 (1990) ...........cccccceee passim

Michigan v. Sitz, 506 N.W.2d 209 (Mich. 1993) ................. 3

National Treasury Employees Union v. Von Raab,

a 24

Paxton’s Case, Quincy 51 (Mass. 1761) ................cccccceeees 5, 8

Pennsylvania v. Mimms, 434 U.S. 106 (1977)..............060.. 28

Pimental v. Department of Transportation, 561 A.2d

ii crccrrctnnncsnsntncsnseconenest 2,3

Richards v. Wisconsin, 520 U.S. 385 (1997) ............ccccc0000. 18

Stanford v. State of Texas, 379 U.S. 476 (1965) ................. 6

State v. Henderson, 756 P.2d 1057 (Idaho 1988)................ 2

Terry v. Ohio, 392 U.S. 1 (1968).................00000 14, 15, 18, 19

United States v. Almeida-Sanchez, 413 U.S. 266

a ce nntnsccnaseenncnenseosooncooorece 17

United States v. Brignoni-Ponce, 422 U.S. 873

EEE 16, 17, 19, 22, 26

United States v. Carroll, 267 U.S. 132 (1925) ...............00. 26

United States v. Henry, 361 U.S. 98 (1959)... 15

United States v. Martinez-Fuerte, 428 U.S. 543

AE passim

United States v. Montoya De Hernandez, 473 U.S.

ETT 16

United States v. Ortiz, 422 U.S. 891 (1975)............ccccccceees 28

Whren v. United States, 517 U.S. 806 (1996) .................... 17

Wilkes v. Wood, 19 Howell’s St. Tr. 1153 (1763)............. 7, 23

Wilson v. Arkansas, 514 U.S. 927 (1995) ...........ccccccccceceeeees 4

iv

TABLE OF AUTHORITIES — Continued

Page

STATUTES

NE 8 (°F 18

eS en passim

th Ol SS nr 3

OTHER AUTHORITIES

Alcohol Involvement in Fatal Crashes 2001, Na-

tional Highway Safety Administration, DOT HS

BBD STD Chapel BOOT). ....ecccccecccccsccccseccsccccsscccsscesseossccossees 20

CARL L. BECKER, THE DECLARATION OF INDEPEND-

mI TTT csnsrcrnneietenntinninianimnentianl 8, 11, 13, 18

Davip A. THATCHER, Michigan v. Sitz: A Sobering

New Development For Fourth Amendment Rights,

20 Cap. U.L. REV. 279 (1991).........ccsscesereererrrrerrerereeees 3

DEBATES ON THE FEDERAL CONSTITUTION, VOL. III

588 (JONATHAN ELLIOT, ED. 1836) ................cccccceeeeeeeeeees 10

Drunk Driving Roadblocks, 104 HARV.L.REv. 266

TTT <x:cssercrssetsenintassiamemeniicestaiaiaaltataatitiainemsaiiaeehiemaieiniemnaaiia 3

DWI DETECTION AND STANDARDIZED FIELD SOBRIETY

TESTING, NHTSA STUDENT MANUAL, 2000 Ses-

sion V, Vehicle In Motion, HS178 R2/00...................000++ 16

FRANCIS N. THORPE, THE CONSTITUTIONAL HISTORY

OF THE AMERICAN PEOPLE 21 (1898)................cccccseeeeeeeees 8

JOHN LOCKE, THE SECOND TREATISE OF CIVIL

GOVERIOEEIEE, C. TT (16GB) ......cccccesecccccccccccccscsesscccesscecceses 8

JOSEPH STORY, COMMENTARIES ON THE CONSTITU-

TION OF THE UNITED STATES 648 (1905)..................00c0e0es 8

May’s CONSTITUTIONAL HISTORY OF ENGLAND ...............000+ 6

Vv

TABLE OF AUTHORITIES - Continued

Page

NADINE STROSSEN, Michigan Department of State

Police v. Sitz: A Roadblock to Meaningful Judi-

cial Enforcement of Constitutional Rights, 42

IN 3

NELSON B. LASSON, THE HISTORY AND DEVELOPMENT

OF THE FOURTH AMENDMENT .................cccceccceeeeseeee 5, 9, 10

PAULINE MAIER, AMERICAN SCRIPTURE: MAKING THE

DECLARATION OF INDEPENDENCE 165-167 (1997) ........... 1l

Respondent’s Brief in Michigan Department of

State Police v. Sitz, 1989 WL 429002 (Appellate

Brief) (U.S.Mich.Resp.Brief Dec. 28, 1989),

BRIEF FOR RESPONDENTS (No. 88-1897)................ 24

Roark, State v. Jackson: Warning — Roadblock Ahead!

Louisiana Creates Log Jam of Search And Sei-

zure Analysis, 46 Loy.L.REV. 1341, 1358 (2000)........... 12

Theresa A. O’Loughlin, Guerillas In The Midst: The

Dangers Of Unchecked Police Powers through the

Use Of Law Enforcement Checkpointsi, 6 SUuF-

FOLK J. TRIAL & APP. ADVOC. 59 (2001)............ccccccceeeeeees 3

THOMAS M. CooLey, A TREATISE ON THE CONSTITU-

TIONAL LIMITATIONS WHICH REST UPON THE LEG-

ISLATIVE POWER OF THE STATES OF THE AMERICAN

ea tcnesnttcntnnnnnteniniteetninntsnnniomniinninnmepinieninesel 6,7

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS

OF ENGLAND, VOL. IV, 288 (1765)................... 7, 12, 13, 26.

WORKS OF JOHN ADAMS, VOL. X ............cccccccceeeeeeseeeeneeeeees 5,7

WRITINGS OF JAMES MADISON, VOL. V...............ccceceeeeeeeeeees 11

WRITINGS OF GEORGE WASHINGTON, VOL. XI.................00+. 11

vi

TABLE OF AUTHORITIES -— Continued

Page

INTERNET

Examiner.net, “Legislature Got An Earful About

Sobriety Checkpoint,” <http://www.examiner.net/

stories/062403/gov_062403009.shtml> (accessed

August 6, 2003) ..........sscssseseseeesesenennnsnnsnenennsnennnenannanenes 25

<http//www.nhtsa.dot.gov/nhtsa/whatis/regions/region

03/webreport.cfm> (accessed August 6, 2003)............-.-+++. 21

<http://www.nhtsa.dot.gov/people/injury/alcohol/july

4planner-03/July4crash_statistic.html> (accessed

August 6, 2003) ..........c:scsscsssssseesnenseneetesnenensnennennannaennes 21

<http://www. padui.org/1999data.html> (accessed ‘i

August 6, 2003) .........cccccscsessseesensnnenensneseensensnansnnennennenes

1

STATEMENT OF INTEREST

OF AMICUS CURIAE

The National College for DUI Defense’ is a non-profit

professional organization founded in 1995. The mission of

the College includes assisting its members in the defense

of their clients charged with drinking and driving offenses

and the advancement of liberty through constitutional

advocacy. The College has over 525 members throughout

the United States and presents at least two major continu-

ing education programs specializing in issues relating to

the defense of persons charged with driving under the

influence. The College’s Summer Program has been

continuously presented at the facilities at Harvard Law

School since 1996. Winter Sessions have been given every

year since 1997. The College also co-sponsors training and

educational seminars with organized Bar Associations

including the National Association of Criminal Defense

Lawyers.

The National College for DUI Defense believes that

Michigan v. Sitz, 496 U.S. 444 (1990), should be aban-

doned, not expanded, because it misapplied the balancing

test for determining the reasonableness of criminal inves-

tigatory seizures articulated in Brown v. Texas, 443 U.S.

47, 50-51 (1979), thereby causing millions of innocent

motorists to be subjected to mass suspicionless criminal

investigatory seizures. Since an analysis of the instant

case must necessarily draw from the authority of Sitz,

* Consents to file this Brief Amicus Curiae have been obtained

from counsel of record for both Petitioner and Respondent and filed

with the Clerk of this Court. No counsel for any party has authored any

part of this brief. No person or entity has made any monetary contribu-

tion for the preparation or submission of this brief, nor has its counsel

received any compensation from any source for the efforts extended in

the preparation of this Amicus Brief.

2

Amicus has focused on the infirmities and fallacy of Sitz,

grounded in an historical perspective, and invites this

Honorable Court to consider the constitutional merits

counseling against transient law enforcement roadblocks.

¢

SUMMARY OF THE ARGUMENT

Justice Thomas’s dissent in City of Indianapolis v.

Edmond, 531 U.S. 32, 56 (2002), was a prophetic insight

worthy of a new sequel to the hit movie “Back to the

Future.” This Court’s roadblock decisions have not in-

cluded a critical analysis of either the original meaning or

intent of t. s Fourth Amendment in the context of mass

suspicionless seizures of law abiding citizens. State courts

considering the constitutionality of t ansient law enforce-

ment roadblocks by the light of history have determined

their unconstitutionality. Pimental v. Department of

Transportation, 561 A.2d 1348, 1352 (R.I. 1989) (“[I}t

would shock and offend the framers of the Rhode Island

Constitution if we were to hold that the guarantees

against unreasonable and warrantless searches and

seizures should be subordinated to the interest of efficient

law enforcement.”); State v. Henderson, 756 P.2d 1057,

1058 (Idaho 1988). That same analysis applies in the

federal context. The Framers took to heart the “petty

indignities” suffered by those in England and colonial

America under writs of assistance and general warrants,

enacting the Fourth Amendment as an impenetrable

barrier between the citizen and unjustified government

action threatening the fundamental right of liberty.

Sitz has been the source of widespread criticism,

originating with the dissents and continuing through

A A a

3

today in law review articles,’ state court opinions,’ and

legislation barring the use of sobriety roadblocks.‘ The

Court misapplied the balancing test enunciated in Brown

in three significant respects. First, it departed from the

fundamental precept in Camara v. Municipal Court, 387

U.S. 523, 533 (1967), that public safety cannot justify

creation of an exception to the Fourth Amendment’s

individualized suspicion requirement unless the govern-

ment can demonstrate that its legitimate ends cannot be

met absent an exception. Second, it yielded an inappropri-

ate degree of discretion to law enforcement to determine

whether transient roadblocks serve highway safety. This is

the fallacy of Sitz — the past thirteen years have revealed

that transient law enforcement roadblocks bear no nexus

with highway safety. Finally, in balancing the intrusion of

mass suspicionless criminal investigatory seizures, Sitz

did not consider the societal intrusion.

As illustrated by the case sub judice and City of

Indianapolis v. Edmond, 531 U.S. 32 (2000), Sitz has been

* Strossen, Michigan Department of State Police v. Sitz: A Road-

block to Meaningful Judicial Enforcement of Constitutional Rights, 42

HASTINGS L.J. 285, 370 (1991); Thatcher, Michigan v. Sitz: A Sobering

New Development For Fourth Amendment Rights, 20 Cap. U.L. Rev. 279

(1991); Drunk Driving Roadblocks, 104 Harv.L.Rev. 266 (1990);

O'Loughlin, Guerillas In The Midst: The Dangers Of Unchecked Police

Powers through the Use Of Law Enforcement Checkpoints, 6 SUFFOLK J.

TRIAL & App. ADvoc. 59.

* E.g., Ascher v. Commissioner, 519 N.W.2d 193 (Minn. 1994)

(characterizing Sitz as a “radical departure” from the proper application

of Brown balancing test). States rejecting roadblocks prior to Sitz on

independent state grounds have not reversed themselves. See City of

Seattle v. Mesiani, 755 P.2d 775 (Wash. 1988); Pimental v. Department

of Transportation, 561 A.2d 1348, 1352 (R.I. 1989); Michigan v. Sitz, 506

N.W.2d 209 (Mich. 1993) (rejecting sobriety roadblocks on remand).

* E.g., N.H. Rev. Stat. Sec. 265:1-a.

4

received by law enforcement as creating a “roadblock

exception” to the Fourth Amendment where the roadblock

serves a worthy interest. For as long as history has docu-

mented the duals between government and citizens, the

government has argued that its interests justify the

sacrifice of certain liberties. Sitz indulged the govern-

ment’s argument, loosely applying the constitutional

balancing test, thereby giving law enforcement the weapon

of mass suspicionless seizures to combat the scourge of

drunk driving. In light of our present awareness that it is

no more than a blunt instrument, the time has come for a

considered analysis of the case sanctioning the prolifera-

tion of mass suspicionless criminal investigatory seizures,

that the experiment may finally be put to rest.

+

ARGUMENT

I. LAW ENFORCEMENT ROADBLOCKS ARE

CONTRARY TO THE FRAMERS’ INTENT

MANIFESTED IN THE BILL OF RIGHTS.

The Fourth Amendment's provision for the security of

the individual is unequivocal in its command and guar-

anty, not of creating a right, but of securing a preexisting

right, “[t]he right of the people to be secure in their person

... against unreasonable . . . seizures [which] shall not be

violated.” The constitutional question presented by war-

rantless seizures is whether the seizure was reasonable.

The focal point of that analysis is an assessment of the

perimeter of the rights the Framers intended to safeguard

when the Bill of Rights was drafted, for it is through an

historical lens that “reasonableness” draws its meaning.

Wilson v. Arkansas, 514 U.S. 927, 931 (1995) (“Although

the underlying command of the Fourth Amendment is

always that searches and seizures be reasonable, our effort

to give content to this term may be guided by the meaning

5

ascribed to it by the Framers of the Amendment.”). Accord-

ingly, it is necessary to recall the impetus for the Fourth

Amendment.

It was during the winter of 1761, when a young John

Adams intently listened to arguments on behalf of sixty-

three Boston Merchants in the Massachusetts Bay Writs

of Assistance Case. Paxton’s Case, Quincy's Reports 51

(Mass. 1761) (See also pgs. 469-82). Writs of assistance

were a breed of general warrants and were issued to

customhouse officers charged with collecting duties im-

posed upon the colonies by England as a method of gener-

ating revenue. NELSON B. LASSON, THE HISTORY AND

DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED

STATES CONSTITUTION 51-53 (1937). In Paxton’s Case,

Boston Merchants had petitioned for a hearing on the

propriety of writs of assistance issuing after King George

II died, since under a statute of Anne, all writs of assis-

tance expired six months after the death of the sovereign.

Id. at 51-53. The nameless writs, issued by superior court

judges, gave customhouse officers unrestrained authority to

search and seize any items for which duties had not been

paid. Jd. John Adams recounted the indelible arguments of

the merchants’ celebrated lawyer, James Otis Jr., to wit:

I do say in the most solemn manner, that Mr.

Otis’s oration against the Writs of Assistance

breathed into this nation the breath of life. ...

Every man of a crowded audience appeared to me

to go away, as I did, ready to take arms against

Writs of Assistance. Then and there was the first

scene of opposition to the arbitrary claims of

Great Britain. Then and there the child Inde-

pendence was born. In 15 years, namely in 1776,

he grew to manhood and declared himself free.

WORKS OF JOHN ADAMS, VOL. X, 247-248.

A writ of assistance allowing the indiscriminate

investigation and seizure of goods for which duties had not

6

been paid, however, differed from England’s infamous

general warrant because it did not, of itself, authorize the

arrest of any individual. THE HISTORY AND DEVELOPMENT

OF THE FOURTH AMENDMENT TO THE UNITED STATES CON-

STITUTION at 54. Presumably, that is because the general

warrant was used by the office of England’s Secretary of

State to enforce licensing laws forbidding libelous publica-

tions by the press, laws which it does not appear were

prosecuted by the Crown in the colonies. See generally

Stanford v. State of Texas, 379 U.S. 476, 482-483 (1965);

Boyd v. United States, 116 U.S. 616, 626-627 (1886).

However, while James Otis Jr. argued against the custom-

house officers’ writs of assistance in colonial America, the

battle against general warrants ensued in England, where

charges were levied against Lord Halifax for issuing a

general warrant commanding the seizure of persons

responsible for, and papers relating to, an alleged libelous

publication, No. 45 of the North Briton. THOMAS M. Coo.

LEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS

WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES

OF THE AMERICAN UNION 300, fn 1 (1878), quoting May’s

CONSTITUTIONAL HISTORY OF ENGLAND, c. 11.

Lord Halifax, being without any evidence of the

identity of the authors and publishers of No. 45, issued a

general warrant, not against any individual, but against

the crime. Four messengers, emboldened by their roving

commissions, traversed the populace in search of unknown

offenders, “[hJolding in their hands the liberty of every

man whom they were pleased to suspect.” Id. See also

Leach v. Three of the King’s Messengers, 19 How. St. Tr.

1001, 1008 (1765) for text of general warrant commanding

the messengers “to make strict and diligent search for the

authors, printers, and publishers of . .. The North Briton,

No 45.” In three days, the ardent messengers arrested

forty-nine people, most of whom were innocent. A TREATISE

ON CONSTITUTIONAL LIMITATIONS 300, fn 1. Ultimately, the

- ————= = ee -_———— eee -

———-

7

messengers received information that Wilkes was the

author for whom they had been searching, whereupon they

set out to arrest him and seize his papers under authority

of the general warrant. See Wilkes v. Wood, 19 How. St. Tr.

1153, 1161 (1763) (reporting that Lord Halifax admitted on

cross-examination that the warrant was issued three days

before receiving any information identifying Wilkes).

Wilkes, upon being presented with the nameless warrant,

declared it “a ridiculous warrant against the whole Eng-

lish nation,” and refused to go with the messengers. A

TREATISE ON CONSTITUTIONAL LIMITATIONS 301. Not to be

~ re the messengers carried Wilkes away in his chair.

Id.

Wilkes brought an action against Mr. Wood, the

under-secretary of state who personally superintended the

warrant, as well as both secretaries of state, Lord Egre-

mont and Lord Halifax, for false imprisonment. Wilkes v.

Wood, 19 How. St. Tr. 1153 (1763). Lord Chief Justice Pratt

declared the warrants illegal, stating that they were

“totally subversive of the liberty of the subject,” id. at

1167, echoing James Otis Jr.’s pronouncement of writs of

assistance being “the worst instrument of arbitrary power,

the most destructive of English liberty and the fundamen-

tal principles of law, that ever was found in an English law

book, [placing] the liberty of every man in the hands of

every petty officer.” A TREATISE ON CONSTITUTIONAL

LIMITATIONS 303, quoting WORKS OF JOHN ADAMS, VOL. II,

pgs. 523-524.

Ultimately, the House of Commons passed resolutions

condemning the general warrant. WILLIAM BLACKSTONE,

COMMENTARIES ON THE LAWS OF ENGLAND, VOL. IV, 288

(1765). The demise of the general warrant was applauded

both in England and colonial America, as recognized in

Boyd:

As every American statesman, during our revolu-

tionary and formative period as a nation, was

8

undoubtedly familiar with this monument of

English freedom, and considered it as the true

and ultimate expression of constitutional law, it

may be confidently asserted that its propositions

were in the minds of those who framed the

Fourth Amendment to the constitution, and were

considered as sufficiently explanatory of what

was meant by unreasonable searches and sei-

zures.

Id. at 626-627. See also JOSEPH STORY, COMMENTARIES ON

THE CONSTITUTION OF THE UNITED STATES 648 (1905)

(noting that the Fourth Amendment “was doubtless

occasioned by the strong sensibility excited, both in Eng-

land and America, upon the subject of general warrants

almost upon the eve of the American revolution.”).

Back in Colonial America, the flame of indignation

ignited by Paxton’s Case matured to an inferno with the

Declaration of Independence in 1776, a ringing indictment

of the Crown. Included among the charges was a tacit

reference to suspicionless searches and seizures. CARL L.

BECKER, THE DECLARATION OF INDEPENDENCE 12 (1922)

(“He has sent hither swarms of officers to harass our

people and eat out their substance.”). One by one, the

colonies began enacting their own bills of rights reflecting

the concept of natural rights implicit in the Declaration of

Independence, i.e., rights which man is entitled to enjoy by

virtue of his divine creation, a concept originating with

Thomas Aquinas in the Thirteenth Century and carried

forward through Montesquieu and Locke to scholars such

as Blackstone. THE DECLARATION OF INDEPENDENCE 37;

FRANCIS N. THORPE, THE CONSTITUTIONAL HISTORY OF THE

AMERICAN PEOPLE 21 (1898). See, e.g., JOHN LOCKE, THE

SECOND TREATISE OF CIVIL GOVERNMENT, c. II (1680) (“To

understand political power aright, and derive it from its

original, we must consider what state all men are natu-

rally in, and that is, a state of perfect freedom to order

9

their actions . . . as they think fit, within the bounds of the

law of nature, without asking leave, or depending upon the

will of any other man.”).

George Mason drafted the first so-called bill of rights

for Virginia in June of 1776. The Virginia Convention

adopted Mason’s Bill of Rights, but added two additional

provisions, one of which was a prohibition against general

warrants. HISTORY AND DEVELOPMENT OF THE FOURTH

AMENDMENT 79-80. Pennsylvania’s provision securing the

right to be free from suspicionless searches and seizures

resembles what would become the Fourth Amendment,

insofar as it contains every element of the Fourth Amend-

ment, while Massachusetts’ Declaration of Rights was the

first to use the phrase “unreasonable searches and sei-

zures.” Id. at 79-82. The Declarations of Rights of Mary-

land, North Carolina, Vermont, and New Hampshire

provided similar safeguards against unreasonable

searches and seizures, while Connecticut forbade arrests

and seizures unless “clearly warranted” by the laws of the

state. Id. 81-82.

The Framers, however, did not include a bill of rights

with the Constitution it sent to the colonies for ratifica-

tion. The Convention considered a bill of rights, but

rejected the idea, largely because it was believed that the

Constitution would not repeal the states’ bills of rights and

that the rights were so fundamental that it would be

dangerous to list them and thereby exclude others by

implication. See id. at 83-85. Thus in the fall of 1787, the

Constitution was presented to the Continental Congress.

There, Richard Henry Lee advocated for a declaration of

rights providing, inter alia, that “the Citizens shall not be

exposed to unreasonable searches, seizure of their persons,

houses, papers, or property.” Id. at 87, n.32. Though

unsuccessful in his quest for a declaration of rights, the

absence of a declaration of rights was significant enough

that Congress submitted the Constitution to the States

10

without an expression of approval. Jd. at 87-88. Most

assuredly, the absence of a bill of rights was the primary

impediment to the States’ ratification of the Constitution.

Fierce debates over ratification ensued; of significant

importance was the lack of protection from overzealous

government agents, as articulated by Richard Henry Lee

(author of Letters of a Farmer):

I feel myself distressed, because the necessity of

securing our personal rights seems not to have

pervaded the minds of men; for many other valu-

able things are omitted: — for instance, general

warrants, by which an officer may search sus-

pected places, without evidence of the commis-

sion of a fact, or seize any person without

evidence of his crime, ought to be prohibited.

Id. at 94, quoting DEBATES ON THE FEDERAL CONSTITUTION,

VoL. III 588 (JONATHAN ELLIOT, ED. 1836) (Italics in

original.).

Massachusetts, South Carolina, and New Hampshire

ratified the Constitution with statements indicating that

powers not expressly delegated were reserved, thereby

insuring the rights protected by way of their respective

state bills of rights. New York ratified but referred a

lengthy Declaration of Rights and amendments to a

proposed second general convention, the assembling of

which was superseded by passage of the Bill of Rights.

Significantly, neither North Carolina nor Rhode Island

would ratify the Constitution until after the Bill of Rights

was passed by the First Congress. HISTORY AND DEVELOP-

MENT OF THE FOURTH AMENDMENT 96-97, n.62.

In Ex Parte Milligan, 4 Wall. 2 (1866), Justice Davis

noted the general view that the Constitution never would

have been ratified but for the tacit understanding ‘hat it

would be amended so as to embody the customary guaran-

tees of personal liberty. Jd. at 120. And so it was. Washing-

ton spoke of the necessity of amendments in his inaugural

ll

address to both houses of Congress. WRITINGS OF GEORGE

WASHINGTON, VOL. XI 385-386. James Madison raised the

subject of amendments in the First Congress four days

later. The significance he gave the issue is reflected in his

correspondence to George Eve, written prior to Washing-

ton’s inaugural address:

It is my sincere opinion that the Constitution

ought to be revised, and that the first Congress

meeting under it ought to prepare and recom-

mend to the states for ratification the most satis-

factory provisions for all essential rights,

particularly the rights of conscience in the fullest

latitude, the freedom of the press, trials by jury,

security against general warrants, etc.

WRITINGS OF JAMES MADISON, VOL. V, 320.

Thus, whether original meaning or original intent is

considered, it is clear that the Fourth Amendment was

fundamental to the colonists’ security and peace of mind in

its assurance that they would not be subjected to suspi-

cionless searches and seizures. It was essential to the

government charter and considered axiomatic that suspi-

cionless searches and seizures exceeded the scope of the

“consent of the governed.” THE DECLARATION OF INDEPEND-

ENCE 8. This was not a radical concept, but one that had a

foundation in centuries of scholarly reasoning.

The genesis of the concept of natural rights has been

traced to the writings of Thomas Aquinas in the Thir-

teenth Century and was elaborated upon by Eighteenth

Century philosophers. THE DECLARATION OF INDEPENDENCE

37-40. See also PAULINE MAIER, AMERICAN SCRIPTURE:

MAKING THE DECLARATION OF INDEPENDENCE 165-167

(1997). Sir William Blackstone’s Commentaries on the

Laws of England devoted significant discussion to natural

or “absolute rights.” He contended, without dispute, that

the principal aim of society is to protect individuals in the

enjoyment of their absolute rights vested in them by the

12

immutable laws of nature, and hence, that the “first and

primary end of human laws is to maintain and regulate

these absolute rights of individuals.” COMMENTARIES ON

THE LAWS OF ENGLAND, VOL. I, 120 (1765) (Emphasis in

original). Included amone the panoply of man’s absolute

rights protected by the !a» s of England was the personal

security of individuals, viz. “the power of loco-motion, of

changing situation, or removing one’s person to whatso-

ever place one’s own inclination may direct; without

imprisonment or restraint; unless by due course of law.” Id.

at 130 (emphasis added). These concepts of liberty resided

deep within Thomas Jefferson who echoed Blackstone:

“(TJhere is a circle around every individual human being,

which no government is allowed to overstep, that there is,

or ought to be, some space in human existence thus

entrenched around and sacred from authoritarian intru-

sion... .”* Blackstone further maintained that the right of

personal security was a natural right that was not

abridged without sufficient cause, not even by a magis-

trate absent the explicit cession of the law. Blackstone

illustrated this principle by citing statutes providing that

no freeman could be detained or imprisoned without cause

shown. Id. at 131. So jealously guarded was the right to

personal security, that imprisonment was defined to

include “arresting or forcibly detaining [a man] in the

street.” Id. at 132. Blackstone’s treatise reflects the great

monument of English freedom that a general warrant to

apprehend “all persons guilty of a crime therein specified,”

without naming or describing any particular person, is

illegal and void for its uncertainty, “for it is the duty of the

magistrate, and ought not be left to the officer, to judge of

* Roark, State v. Jackson: Warning - Roadblock Ahead! Louisiana

Creates Log Jam of Search And Seizure Analysis, 46 Loy.L.REvV. 1341,

1358 (2000).

13

the ground of suspicion.” COMMENTARIES ON THE LAWS OF

ENGLAND, VOL. IV 288-289.

Thus the concept of liberty has been consistently

woven through the ages, originating in the Thirteenth

Century with the principle accepted as fundamentally true

by the great philosophers and scholars, that man, by his

uniquely divine combination of blood coursing through his

veins with the will of his heart and mind, should be ever

free to move about society. This is why the Declaration of

Independence stated as axiomatic that “these truths are

self-evident, that all men ... are endowed by their creator

with certain unalienable rights.” THE DECLARATION OF

INDEPENDENCE 8. The wholesale abridgement of the right

of personal liberty entailed by law enforcement roadblocks,

however, is inimical not only to the social compact between

the American government and its citizens, but to the

English common law and centuries upon centuries of

reason giving rise to the formation of the United States of

America.

Mass suspicionless criminal investigatory seizures of

innocent citizens at transient law enforcement roadblocks

resuscitates the despised general warrant. If we could “go

back” and bring James Otis Jr. into the “future” he would

stand before this Court and denounce seizures of innocent

citizens without cause as he did in 1761. Jefferson, Adams,

and Madison would look at the roadblocks in this case and

ng and remind us that this is not the liberty they fought

or.

II. MICHIGAN v. SITZ MISAPPLIED THE BROWN

v. TEXAS BALANCING TEST IN DETERMIN-

ING THE CONSTITUTIONALITY OF TRAN-

SIENT LAW ENFORCEMENT ROADBLOCKS.

Sitz upheld a Michigan drunk driving roadblock

program based on the authority of United States v. Marti-

nez-Fuerte, 428 U.S. 543 (1976), applying the balancing

14

test discussed in Brown, 443 U.S. at 50-51. Sitz is wholly

unique in Fourth Amendment jurisprudence because it

created an exception to the reasonable suspicion require-

ment attached to criminal investigatory seizures by

allowing law enforcement to conduct mass suspicionless

criminal investigatory seizures of citizens at interior

roadblocks.

The Fourth Amendment standard of reasonableness

applies to criminal investigatory seizures. Davis v. Missis-

sippi, 394 U.S. 721 (1969).* The principle of judging the

constitutionality of crimiral investigatory seizures by

balancing the public interest against the violation of

individual liberty originated with Terry v. Ohio, 392 U.S.

1, 20-21 (1968).’ There, the Court carved an exception to

the probable cause requirement for seizures, establishing

“a narrowly drawn authority” allowing the “stop and frisk

of an apparently armed and dangerous suspect upon

reasonable suspicion where the exigencies of officer safety

and prevention of impending crime counterbalanced the

limited intrusion on the suspect’s liberty. Id. at 26-27.

* Recognizing the imperative that the Fourth Amendment apply to

investigatory seizures, the Court stated:

Investigatory seizures would subject unlimited numbers of

innocent persons to the harassment and ignominy incident

to involuntary detention. Nothing is more clear than that the

Fourth Amendment was meant to prevent wholesale intru-

sions upon the personal security of our citizenry, whether

these intrusions be termed ‘arrests’ or ‘investigatory deten-

tions.’

Davis, 394 U.S. at 726-727 (Emphasis added). a

’ Camara v. Municipal Court, 387 U.S. 523 (1967), marked

Court’s first consideration of balancing in the context of regulatory

safety inspections, and was cited by the Court in Terry.

—<—- e —

15

In Sitz, the Court applied the synthesized jurispru-

dence resulting from Terry’s exception to the predicate of

probable cause, discussed in Brown, 443 U.S. at 50-51, to

consideration of whether the suspicionless criminal inves-

tigatory seizures entailed by law enforcement roadblocks

were constitutionally permissible. 496 U.S. at 450. How-

ever, the Court erred in its application of the balancing

test at the inception by not placing the appropriate burden

on the government to demonstrate the need for the in-

credible exception it created. Camara, 387 U.S. at 533

(noting that the government’s interest in ensuring public

safety was not, in and of itself, sufficient to justify excep-

tion).

Prior to Sitz’s remarkable exception to individualized

suspicion for mass criminal investigatory seizures, the

Court consistently rejected arguments that a seizure for

ordinary criminal law enforcement could be justified on

less than individualized suspicion. Brown, 443 U.S. at 52

(holding that officer could not detain suspicious looking

individual to require production of identification); Prouse,

440 U.S. at 648 (holding that officer could not detain

individual to check driver’s license and registration

without cause); Henry v. United States, 361 U.S. 98, 103-

104 (1959) (invalidating search because seizure of suspects

was not reasonable). Despite the significance of the needs

in Terry — protection of officers’ lives and the community

from armed robbery — the Cov +t did not elevate the needs

above the constitutional requirement for individualized

suspicion. Cf. Ferguson v. City of Charleston, 532 U.S. 67

(2001); Chandler v. Miller, 520 U.S. 305 (1997). It is an

unwarranted anomaly that the government must demon-

strate necessity for the criminal investigative seizure of an

individual by articulating reasonable suspicion, but not for

mass suspicionless criminal investigatory seizures.

The Court’s abolition of the individualized suspicion

requirement was marked by its departure from Camara’s

16

precept that public safety cannot justify creation of an

exception unless the government can demonstrate that its

legitimate ends cannot be met absent the exception. 387

U.S. at. 533. However, when the appropriate burden of

justification was placed on the states, it is clear that the

exception created by Sitz is unnecessary to the govern-

ment’s interest.’ Unlike Martinez-Fuerte’s undocumented

aliens, drunk driving is outwardly manifested and readily

observable’ to both trained police officers and lay people.

Brignoni-Ponce, 442 U.S. at 883 (noting that requirement

of reasonable suspicion struck the balance between the

government’s interest and the public’s interest in being

free from suspicionless seizures since, “the characteristics

of smuggling operations tend to generate articulable

grounds for identifying violators”); Camara, 387 U.S. at

537 (“(TJhe public interest demands that all dangerous

conditions be prevented or abated, yet it is doubtful that

any other canvassing technique would achieve acceptable

results. Many such conditions . .. are not observable from

outside the building and indeed may not be apparent to

the inexpert occupant himself.”); Prouse, 440 U.S. at 659

* Martinez-Fuerte cannot provide the basis for the Sitz exception

because of the “qualitatively different balance of reasonableness”

inherent in an immigration checkpoint. United States v. Montoya De

Hernandez, 473 U.S. 531, 538 (1985). Notably, the Court dismissed

Justice Brennan’s “unwarranted” concern that the checkpoint permitted

would be expanded because its holding was “confined to permanent

checkpoints.” Martinez-Fuerte, 428 U.S. at 566, n.19. Moreover, the

result in Martinez-Fuerte was dictated in part by the presumption of

constitutionality accorded relevant federal enactments and the federal

government’s constitutional authority to regulate immigration and

protect our borders.

* See DWI DETECTION AND STANDARDIZED FIELD SOBRIETY TESTING,

NHTSA STUDENT MANUAL, 2000 Session V, Vehicle In Motion, HS178

R2/00 (correlating traffic infractions with likelihood that a driver is

impaired).

17

(“Given the alternative mechanisms available ... we are

unconvinced that the incremental contribution to highway

safety of the random spot check justifies the practice

under the Fourth Amendment.”).

It is not enough to argue, as does the Govern-

ment, that the problem of deterring unlawful en-

try by aliens across long expanses of the national

boundaries is a serious one. The needs of law en-

forcement stand in constant tension with the

Constitution’s protections of the individual

against certain exercises of official power. It is

precisely the predictability of these pressures

that counsels a resolute loyalty to constitutional

safeguards.

United States v. Almeida-Sanchez, 413 U.S. 266, 273

(1973); cf. Martinez-Fuerte, 428 U.S. at 557 (A requirement

that stops on major routes inland always be based on

reasonable suspicion could be impractical because the flow

of traffic tends to be too heavy to allow the particularized

study of a given car that would enable it to be identified as

a possible carrier of aliens.”).

The state cannot demonstrate any deficiencies in its

ability to stop and detain drivers it reasonably suspects of

drunk driving, nor can it demonstrate that roadblocks are

necessary to removing drunk drivers from the public

roads. The only justification is the amorphous interest in

highway safety; there was not, nor could there be, any

showing of necessity. In Florida v. Royer, 460 U.S. 491, 500

(1983), the Court affirmed Brignoni-Ponce’s holding that

an officer may stop a driver reasonably suspected of

criminal activity on less than probable cause. In Whren v.

United States, 517 U.S. 806 (1996), the Court held that an

officer may constitutionally stop and detain any driver for

violating one of hundreds of traffic infractions and further,

that the courts need not engage in the balancing of com-

peting interests inherent in such potentially pretext stops.

Law enforcement’s existing arsenal, coupled with the

18 -

outward and observable manifestation of drunk driving, is

sufficient to combat the crime of drunk driving — draco-

nian dragnet techniques are not needed to catch drunk

drivers.

In Sitz, the State did not seek an exception to the

requirement of particularized suspicion because it was

unable to detect and apprehend drunk drivers, rather, the

State sought a “pass” on the requirements of Terry and the

Fourth Amendment. Thus, the difficult question becomes,

can a laudable purpose override the explicit text of the

Fourth Amendment, written with the blood of those who

believed “that all men. . . are endowed by their creator with

certain unalienable rights; that among these are life,

liberty, & the pursuit of happiness; [and] that to secure these

rights governments are instituted among men, deriving their

just powers from the consent of the governed.... ”? THE

DECLARATION OF INDEPENDENCE 8 (emphasis added). The

answer to this question lies in the balancing of competing

interests articulated in Brown v. Texas. These factors, as

applied to law enforcement roadblocks, will be addressed

seriatim.

A. The Gravity of the Government Interest.

While the government’s interest in the detection and

apprehension of drunk drivers is undisputed, the interest

in public safety cannot justify violation of citizens’ Fourth

Amendment right to be free from suspicionless seizures no

more than the government’s interest in curbing the stag-

gering numbers of deaths caused by guns may justify

infringing citizens’ Second Amendment right to own a gun.

See Camara, 387 U.S. at 533; Edmond, 531 U.S. at 42

(“But the gravity of the threat alone cannot be dispositive

of questions concerning what means law enforcement

officers may employ to pursue a given purpose. [Emphasis

added.]”). Cf. Richards v. Wisconsin, 52) U.S. 385, 392-394

(1997) (rejecting argument that government interest for

19

officer safety and preservation of evidence justified excep-

tion to knock and announce requirement for felony drug

cases); Florida v. J.L., 529 U.S. 266, 272-273 (2000)

(rejecting argument that inherently dangerous nature of

firearms justified firearm exception to Terry’s particular-

ized suspicion requirement). Allowing any significant

government interest to justify suspicionless criminal

investigatory seizures clearly departs from the “original

meaning” of Fourth Amendment “reasonableness,” since it

would mark a return to the nameless general warrant,

which found its justification in the severity of the crime.

Entick v. Carrington, 19 How. St. Tr. 1029, 1063-1064

(K.B. 1765). :

Analyzing the constitutionality of mass suspicionless

criminal investigatory seizures by simply juxtaposing the

government interest against the individual intrusion, as

the Court did in Sitz, would result in the Fourth Amend-

ment’s proscription of unreasonable seizures being swal-

lowed by exceptions, since the government’s interest in

apprehension of criminals is always significant, while a

Terry type investigative seizure is, by definition, minimally

intrusive. Accordingly, the second prong of the balancing

test — the degree to which the seizure advances the gov-

ernment’s interest — is pivotal to a meaningful analysis.

B. The Degree to which the Seizure Advances

the Government Interest.

The degree to which suspicionless seizures advance

the public interest is gauged by the effectiveness of the

method at issue and the absence of other alternatives.

Prouse, 440 U.S. at 661 (noting that “the marginal contri-

bution to roadway safety” did not justify suspicionless

seizures); Brignoni-Ponce, 422 U.S. at 881 (allowing stops

based on reasonable suspicion, the Court considered “the

20

absence of practical alternatives for policing the border.”);

Camara, 387 U.S. at 537.

The justification for roadblocks in Sitz was the “obvi-

ous connection between ... highway safety and [road-

blocks].” Edmond, 531 U.S. at 39. Notably, Sitz cited the

death toll caused by drunk drivers in assessing the public

interest. 496 U.S. at 451. However, thirteen years after

Sitz, the benefit of hindsight reveals the absence of any

nexus between roadblocks and highway safety. The nine

States with the highest alcohol related deaths average

1.01 deaths per 100 million vehicle miles, while the nine

States with the lowest alcohol related deaths an average

.41 deaths per 100 million vehicle miles.” If there was a

nexus between highway safety and roadblocks, the states

with the lowest rates of alcohol related deaths would be

those that allowed roadblocks, while the states with the

highest death rates would not; however, in both instances,

eight of the nine states in the two categories allow road-

blocks.

Statistics from the National Highway Traffic Safety

Administration for the period of 1992-2001 disclose that

60% of the states that do not employ roadblocks” experi-

enced a reduction in alcohol related traffic fatalities in

2001 when compared with 1992. A similar comparison to

” Alcohol Involvement in Fatal Crashes 2001, National Highway

Safety Administration, DOT HS 809 579; Table A-24 (April 2001).

States with the lowest alcohol related deaths: Utah .29, Vermont .36,

New York .38, Minnesota .42 (no roadblocks), New Jersey .43, Massa-

chusetts .44, Maine .45, Virginia .46, and Indiana .47. States with the

highest alcohol related deaths: Alaska .91, New Mexico .92, Wyoming

.94 (no roadblocks), Arizona .96, South Dakota .98, Washington D.C.

1.01, Montana 1.04, Louisiana 1.08, South Carolina 1.27.

" Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas,

Washington, Wisconsin, and Wyoming.

A Le i a ema mean teen ay -_—-+-

21

states using roadblocks demonstrates that 62.5% experi-

enced an increase in alcohol related fatalities in 2001 when

compared to 1992.” Clearly, there is no nexus between

roadblocks and highway safety.

Empirical data supports the premise that there are

effective suspicion based methods of combating drunk

driving. For example, Pennsylvania’s local police agencies

seized 112,617 citizens at roadblocks to make 730 drunk

driving arrests in 2002 (arrest rate of 0.6%). During the

same year, roving drunk driving patrols made 687 drunk

driving arrests as a result of 9,838 stopped vehicles,

yielding an arrest rate of 6.98%, over ten times greater

than that for roadblocks.” Similarly, in 2002, Checkpoint

Strikeforce, a regional program in Delaware, Maryland,

Pennsylvania, Virginia, West Virginia, and the District of

Columbia, roadblocks yielded an arrest rate of 0.46%,

while saturation patrols produced an arrest rate of 10.7%,

over ten times greater than that for roadblocks."

Considered together, the foregoing data not only

reveals that there is not a nexus between highway safety

and roadblocks, but also that roadblocks are the least

effective method of addressing the interest in highway

safety. Sitz, however, considered neither the ineffective-

ness of the newly minted law enforcement method of

roadblocks, nor “the absence of practical alternatives.”

* Statistics reported by the NHTSA, available at <http/www.nhtsa.

dot.gov/people/injury/alcohol/july4planner-03/July4crash_statistic.html>

(accessed August 6, 2003).

” Statistics compiled by the Pennsylvania DUI Association,

available at <http://www.padui.org/1999data.htm> (accessed August 6,

2003).

“* Statistics reported by the National Highway and Traffic Safety

Association (NHTSA), available at <http://www.nhtsa.dot.gov/nhtsa/whatis/

regions/region03/webreport.cfm> (accessed August 6, 2003).

22

Brignoni-Ponce, 422 U.S. at 881. Rather, the Court dis-

counted the Michigan Court of Appeals’ analysis of

Brown’s effectiveness prong, giving unparalleled deference

to law enforcement stating that, “this passage from Brown

was not meant to transfer from politically accountable

officials to the courts the decision as to which among

reasonable law enforcement techniques should be em-

ployed ... for purposes of Fourth Amendment analysis,

the choice among such reasonable alternatives remains

with [law enforcement].” 496 U.S. at 453-454.

The Court’s deference to law enforcement was unjusti-

fied. The decision to employ roadblocks is not an “on the

spot” decision made by an officer in the heat of the mo-

ment (the cases in which the Court has given due defer-

ence to law enforcement), but a considered decision by a

local police agency to conduct mass suspicionless criminal

investigatory seizures. No executive or legislative domestic

law enforcement method is immune from judicial review

when the choice is challenged as constitutionality flawed.

While law enforcement may choose which constitutional

methods to employ, the power to choose from alternatives

does not render each alternative constitutionally reason-

able. Cf. Kylo v. United States, 533 U.S. 27 (2001) (invali-

dating infrared surveillance of homes without deference to

law enforcement’s decision that it was an effective crime-

fighting tool). The very purpose of balancing is to assess

the constitutionality of the method employed, yet that

analysis ceases to be meaningful when the Court abdicates

an element of balancing to the unrestrained judgment of

law enforcement. The dangers inherent in relegating

judicial review to law enforcement were recognized at

common law by Lord Chief Justice Pratt, to wit:

[TJhough their intentions were very pure ... it

often happens that to this ignorance of the law

they add a contempt for it, and a disposition to

disregard its restraints, and overleap the limits

23

it prescribes to their authority, which they are

apt to consider as narrow pedantic rules which it

is below their dignity to submit to. ... They are

therefore fond of the doctrines of ‘reason of state,

and state necessity, and the impossibility of pro-

viding for great emergencies and extraordinary

cases, without a discretionary power in the crown

to proceed sometimes by uncommon methods not

agreeable to the known forms of law,’ and the like

dangerous and detestable positions, which have

ever been the pretence and foundation for arbi-

trary power.

Wilkes v. Wood, 19 How. St. Tr. 1153, 1169 (1763).

C. The Degree of Interference with Individual

Liberty.

The degree to which investigatory seizures interfere

with individual liberty is measured both objectively and

subjectively. Camara, 387 U.S. at 530-533; Prouse, 440

U.S. at 657. This prong of the Brown balancing test, as

applied by Sitz, does not encompass the broad range of

considerations unique to mass suspicionless criminal

investigatory seizures of the innocent motoring public.

1. The Objective Intrusion Is Constitu-

tionally Significant.

The objective intrusion on individual liberty entailed

by a seizure is measured by the duration of the seizure

and the intensity of the investigation. Sitz, 496 U.S. at

452. Camara established that there is an appreciable

difference in the objective intrusion of a criminal search,

as compared to an administrative or regulatory search,

a distinction equally applicable to seizures. The Court

noted the heightened “hostility” of the intrusion implicated

by “the typical policeman’s search for the fruits and

24

instrumentalities of crime.” 387 U.S. at 530. Ultimately,

one of the three factors it cited to support its conclusion

that area search warrants were a reasonable mode of

enforcing state health and sanitation laws, was that the

inspections were “neither personal in nature nor aimed at

discovery of a crime.” 387 U.S. at 537. Accord National

Treasury Employees Union v. Von Raab, 489 U.S. 656, 666-

668 (1989). Sitz, however, did not consider the distinction,

as evidenced by the Court’s statement that, “[w]e see

virtually no difference between the levels of intrusion on

law-abiding motorists from the brief stops necessary [in

Sitz and Martinez-Fuerte], which to the average motorist

would seem identical save for the nature of the questions

the checkpoint officers might ask.” Sitz, 496 U.S. at 451-

452.

Realistically, the intrusion inherent in sobriety

roadblocks’ criminal investigatory seizures is much greater

than the intrusion of a border checkpoint where the

overwhelming majority of vehicles are waved through. The

intensity of the seizure is greater because of its criminal

investigatory character, as opposed to the border

checkpoint where “all that is required of the vehicle’s

occupants is a response to a brief question or two and

possibly the production of a document evidencing a right

to be in the United States [e.g., a valid driver’s license].”

Martinez-Fuerte, 428 U.S. at 558. Conversely, drivers

seized at drunk driving roadblocks are not only required to

submit to a brief interrogation regarding their conduct and

whereabouts for the evening (in addition to being required

to produce a driver’s license and registration), but are also

questioned at an intimate range, which allows the officer

to smell the driver’s breath, inspect the driver’s clothing,

examine the driver’s complexion, and shine a flashlight in

the driver’s face to examine the driver’s eyes. See generally

Respondent’s Brief in Sitz, 1989 WL 429002, *33. Thus,

while an immigration checkpoint stop is neither personal

—~

25

in nature nor designed to discover evidence of a crime

( like the regulatory searches in Camara), criminal

investigatory drunk driving roadblock seizures have an

intensely personal focus.

The objective intrusion is also measured by the

duration of the seizure. In gauging this intrusion, Sitz

considered the duration of an individual seizure, said to

last twenty-five seconds. 496 U.S. at 448. While it is true

that the initial citizen contact at a roadblock may be brief,

the overall detention is often significantly prolonged while

innocent citizens wait to be interrogated. Data on overall

delays in checkpoint cases is conspicuously absent, though

there is some anecdotal evidence. For example, on Memo-

rial Day, 2003, in Jackson County, Missouri, a roadblock

“stopped 2,286 cars and created a delay of 40 minutes to

an hour. At one point, traffic was backed up two miles.”

The roadblock resulted in seven drunk driving arrests and

significant public outcry."

Sitz’s analysis of the objective intrusion was flawed

because it pitted the dramatic interest of “mutilation on

the Nation’s roads” against the intrusion suffered by a

singular individual, rather than considering the societal

intrusion. In Maryland v. Wilson, 519 U.S. 408, 415 (1997),

Justices Stevens and Kennedy dissented from the holding

that an officer may order passengers out of a vehicle

stopped for a traffic infraction, troubled by the “separate

and significant question concerning the power of the State

to make an initial seizure of persons who are not even

suspected of having violated the law.” In balancing the

interest of officer safety against the individual intrusion,

* Examiner.net, “Legislature Got An Earful About Sobriety Check-

point,” <http://www.examiner.net/stories/062403/gov_062403009.shtml>

(accessed August 6, 2003).

26

the dissent recognized that, “the aggregation of thousands

upon thousands of petty indignities has an impact on

freedom that I would characterize as substantial, and

which in my view clearly outweighs the evanescent safety

concerns pressed by the majority.” Id. at 419. See also City

of Seattle v. Mesiani, 755 P.2d at 778 (“The easiest and

most common fallacy in “balancing” is to place on one side

the entire, cumulated “interest” represented by the state’s

policy and compare it with one individual’s interest in

freedom from the specific intrusion on the other side. A

fairer balance would weigh the actual expected alleviation

of the social ill against the cumulated interest invaded.”).

Innocent citizens have the “right to free passage

without interruption” on the public highways. United

States v. Carroll, 267 U.S. 132, 154 (1925); see also

Dunaway v. New York, 442 U.S. 200, 213 (1979) (“Hostility

to seizures based on mere suspicion was a prime motiva-

tion for the adoption of the Fourth Amendment{.]”). This is

a fundamental right deeply engrained in the rubric of

American life. Multi-tasking Americans today, more than

ever, value their liberty, their “power of loco-motion.””

This right and the privacy it affords is so highly valued

that the overwhelming majority of Americans would

rather get up earlier in the morning and return home later

at night than take public transportation or participate ina

car pool. Yet, the motoring public’s right of free passage

was not considered as part of its interest in Sitz, despite

125 innocent individuals’ course of travel being delayed,

nor was the intrusion of being subjected to interrogation

considered by the Court. See, e.g., Brignoni-Ponce, 422

U.S. at 883 (“We are not convinced that the legitimate

COMMENTARIES ON THE LAWS OF ENGLAND, VOL. I, 130.

27

needs of law enforcement require this degree of interfer-

ence with lawful traffic.”).

The practical effect of Sitz is the erosion of society’s

exercise of its right of free passage and its reasonable

expectation of privacy in exercising that right, as evi-

denced by the proliferation of law enforcement road-

blocks.” This intrusion cannot honestly be characterized

as “slight.” Sitz, 496 U.S. at 451.

2. The Subjective Intrusion Is Constitu-

tionally Significant.

. The subjective intrusion on liberty entailed by a

seizure is measured by the degree of officer discretion and

the fear and surprise the roadblock may generate. Sitz,

496 U.S. at 452-453; Martinez-Fuerte, 428 U.S. at 558.

Officer discretion is limited in the context of permanent

immigration checkpoints and in the type of administrative

“license and registration” roadblocks alluded to in Prouse

because of the concrete laws being enforced, that is, a

driver is validly licensed or not; an individual has a right

to be in the United States or not. Martinez-Fuerte, 428

U.S. at 562. However, transient law enforcement road-

blocks do not have the same inherent limitations upon

officer discretion.

f While it is true that an individual’s expectation of privacy in a

car is not equivalent to one’s expectation of privacy in a home, that

principle applies to searches based upon reasonable suspicion, which

are justified by the mobile nature of the vehicle, not to suspicionless

seizures. E.g., Cady v. Dombrowski, 413 U.S. 433, 441-442 (1973); ef.

Prouse, 440 U.S. 662 (noting individuals’ expectation of privacy in an

automobile, stating “[wlere the individual subject to unfettered govern-

mental intrusion every time he entered an automobile, the security

guaranteed Me the Fourth Amendment would be seriously circum-

scribed. . . . ”).

28

It is not illegal to drink and then drive in any state in

our country. Accordingly, the officer conducting the initial

criminal investigatory seizure of drivers passing through a

roadblock must exercise a significant degree of discretion.

As the record in Sitz revealed, officers conducting the

initial seizures send drivers to a secondary investigation

area based on factors ranging from the smell of alcohol on

the driver’s breath to the driver’s shirt not being properly

buttoned.

In United States v. Ortiz, 422 U.S. 891, 895 (1975), the

Court determined that the low percentage of vehicles

singled out for search by border patrol authorities (fewer

than 3%) evidenced the “substantial degree of discretion”

exercised by the officer determining which cars would be

searched. This same level of discretion is exercised in

roving roadblocks where, as in Sitz, a small percentage of

drivers are referred to a secondary area for further inter-

rogation and field sobriety tests. Sitz, 496 U.S. at 448

(1.6% of drivers referred to secondary).

Finally, in measuring discretion, the Court considers

the potential for abuse. Unlike the permanent checkpoints

in Martinez-Fuerte, decisions concerning the location of

roving roadblocks are not made by distant high-ranking

officials, but by officers within local police agencies, who

then conduct the transient roadblocks in the neighbor-

hoods they patrol. There is substantial potential for abuse

exercised by the “officer in the field” conducting criminal

investigatory seizures of the citizens he may know from

his daily patrols. He may lawfully order the driver out of

the vehicle and proceed to frisk the driver. Pennsylvania v.

Mimms, 434 U.S. 106, 111-112 (1977). Additionally, he can

order the passengers to step out of the vehicle. Maryland

v. Wilson, 519 U.S. 408 (1997). Drivers referred to the

secondary investigation area will feel the stigmatization of

’ 29

being labeled a drunk driver, rightly or not, as they per-

form field sobriety tests along the side of the road as their

neighbors watch from their cars.

Sitz erred in its analysis of the “fear and surprise”

generated by transient law enforcement roadblocks in two

respects. First, while noting that this inquiry considers the

fear and surprise of the law abiding motorist as opposed to

the concern about the prospect of being stopped felt by the

driver who has been drinking, the Court failed to consider

that transient roadblocks generate fear and surprise in the

heart of every innocent driver who had a glass of wine

with dinner, not because the driver is impaired, not for

fear of being “caught,” but for fear that of being subjected

to an unwarranted criminal investigation for driving

under the influence.

Second, Sitz rests on the premise that where the

Fourth Amendment violation is en masse, the intrusion is

minimal since “the motorist can see that other vehicles are

being stopped, he can see visible signs of the officers’

authority, and he is much less likely to be frightened and

annoyed by the intrusion.” 496 U.S. at 453. This philoso-

phy is fundamentally flawed and overemphasizes the

Fourth Amendment’s protection from discriminatory

seizures while minimizing its assurance against unjusti-

fied intrusions. The Fourth Amendment guards the “right

of the people to be secure in their persons,” as opposed to

the right of a singular individual. It is anomalous to posit

that its protections protect the lone citizen, but not society.

Colonists took no comfort in knowing that writs of assis-

tance justified the search of everyone’s home and business.

The resentment engendered by general warrants was not

assuaged by their character of being warrants against a

nation. To the contrary, it was precisely the regularity

attendant to writs of assistance and general warrants,

executed with the calculated sanction of law, which led

colonists to demand that a bill of rights be enacted to

30

assure the citizenry that such investigatory practices

would not be sanctioned by the government, that their

natural right of liberty would not be abridged. As recog-

nized by Justice Kennedy, “Liberty comes not from officials

by grace, but from the Constitution by right.” Maryland v.

Wilson, 519 U.S. at 424.

¢

- CONCLUSION

Michigan v. Sitz should be overruled and the judg-

ment of the Illinois Supreme Court should be affirmed.

Respectfully submitted,

BARRY T. SIMONS

Counsel of Record

W. TROY MCKINNEY

NATIONAL COLLEGE FOR

DUI DEFENSE

2000 Smith Street

Houston, Texas 77002

(713) 654-3055

August 7, 2003