# Amicus Curiae Brief — Illinois v. Lidster > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0632%3A15 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2004 - **Citation:** 540 U.S. 419 ## Text 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 (accessed August 6, 2003) ..........sscssseseseeesesenennnsnnsnenennsnennnenannanenes 25 (accessed August 6, 2003)............-.-+++. 21 (accessed August 6, 2003) ..........c:scsscsssssseesnenseneetesnenensnennennannaennes 21 (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. — (accessed August 6, 2003). ” Statistics compiled by the Pennsylvania DUI Association, available at (accessed August 6, 2003). “* Statistics reported by the National Highway and Traffic Safety Association (NHTSA), available at (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,” (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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0632%3A15. Public record. Not legal advice.