Amicus Curiae Brief — Allender v. United States

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No. 99-1030

In the Supreme Court of the United States

CITY OF INDIANAPOLIS, ET AL., PETITIONERS

Vv.

JAMES EDMOND, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

SETH P. WAXMAN

Solicitor General

Counsel of Record

JAMES K. ROBINSON

Assistant Attorney General

MICHAEL R. DREEBEN

Deputy Solicitor General

PATRICIA A. MILLETT

Assistant to the Solicitor

General

KARIN B. HOPPMANN

MICHAEL A. ROTKER

Attorneys

Department of Justice

Washington, D. C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether checkpoints at which law enforcement

officers briefly stop vehicular traffic, check motorists’

licenses and vehicle registrations, look for signs of im-

pairment, and walk a “narcotics detection” dog around

the exterior of each stopped automobile violate the

Fourth Amendment.

(I)

Interest of the United States

Statement

Summary of argument

TABLE OF CONTENTS

Argument:

Vehicle checkpoints that serve governmental in-

terests in drug-detection and license-and-registra-

tion inspection are reasonable seizures under the

Fourth Amendment

The Fourth Amendment permits vehicle check-

points where the government interests served

justify the intrusfion

A vehicle checkpoint may validly be established

to serve the government’s interests both in drug

detection and motor vehicle regulation

1. The interests served by the checkpoints are

2. The intrusion on liberty and privacy is

minimal

3. The checkpoints are highly effective .................

The court of appeals erred in holding that the

checkpoint program in this case is invalid be-

cause it serves law enforcement interests .................

The checkpoint in this case is valid because it is

objectively justified by its secondary purpose

to check driver’s licenses and registrations ...............

Conclusion

(IIT)

Page

TABLE OF AUTHORITIES

Cases:

Bond v. United States, 120S. Ct. 1462 (2000) ............. 21, 25

Brower v. County of Inyo, 489 U.S. 593 (1989) .........s0000 25

Brown v. Texas, 443 U.S. 47 (1979) .......seseseeereee 10, 19, 26, 29

California v. Ciraolo, 476 U.S. 207 (1986) .......0ssecsseeesees 14

Camara v. Municipal Court, 387 U.S. 523 (1967) ........... 29

Cardwell v. Lewis, 417 U.S. 583 (1974) 9

Chandler v. Miller, 520 U.S. 305 1997) 25

Colorado v. Bertine, 479 U.S. 367 (1987) 29

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........000 30

Delaware v. Prouse, 440 U.S. 648 (1979) .........+ 8, 14, 19, 29

Florida v. Royer, 460 U.S. 491 (1983) 13

Graham v. Connor, 490 U.S. 386 (1989) .. 25

Horton v. California, 496 U.S. 128 (1990) ........ 23, 26, 27, 30

LaFontaine v. State, 497 S.E.2d 367 (Ga.), cert.

denied, 525 U.S. 947 (1998) 14

Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ........00 9, 29

Maryland v. Wilson, 519 U.S. 408 (1997) ........ssecrssesseees 8

Massachusetts v. Painten, 389 U.S. 560 (1968) «0... 24

Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995),

cert. denied, 519 U.S. 812 (1996) 14, 23

Michigan Dep’t of State Police v. Sitz, 496 U.S.

444 (1990) passim

National Treasury Employees Union v. Von Raab,

489 U.S. 656 (1989) 11,13

New Jersey v. T.L.0., 469 U.S. 325 (1985) ......s.sssesessseseeees 8

New York v. Burger, 482 U.S. 691 (1987) 29

New York v. Class, 475 U.S. 106 (1986) 9,14

Ohio v. Robinette, 519 U.S. 33 (1996) 25

Park v. Forest Serv., 205 F.3d 1034 (8th Cir.

2000) 14

Pennsylvania v. Labron, 518 U.S. 938 (1996) .......sressees 9

Scott v. United States, 436 U.S. 128 (1978) 24-25

Skinner v. Railway Labor Exec. Ass’n, 489 U.S.

602 (1989) 21

South Dakota v. Opperman, 428 U.S. 364 (1976) ........++++ 8-9

Cases—Continued: Page

State v. Damask, 936 S.W.2d 565 (Mo. 1996) ...........:sese000 13

State v. Larson, 485 N.W.2d 571 (Minn. Ct. App.

1992) 15

State v. Rodriguez, 877 S.W.2d 106 (Mo. 1994) ..........sese00 14

Texas v. Brown, 460 U.S. 730 (1983) 29

United States v. Brignoni-Ponce, 422 U.S. 878

(1975) 29

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

(1976) passim

United States v. McFayden, 865 F.2d 1306 (D.C.

Cir. 1989) 14

United States v. Mendenhall, 446 U.S. 544 (1980) ........... 13

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

531 (1985) 11, 20

United States v. Morales-Zamora, 914 F.2d 200

(10th Cir. 1990) 14

United States v. Ortiz, 422 U.S. 891 (1975) 21

United States v. Place, 462 U.S. 696 (1983) .........ss0 11, 15

United States v. Prichard, 645 F.2d 854 (10th Cir.),

cert. denied, 454 U.S. 832 (1981) 14

United States v. Ramsey, 431 U.S. 606 (1977) ........00++ 20

United States v. Robinson, 414 U.S. 218 (1973) .......... 25, 26

Unites States v. Sharpe, 470 U.S. 675 (1985) «2... 28-29

United States v. Trevino, 60 F.3d 333 (7th Cir.

1995), cert. denied, 516 U.S. 1061 (1996) 14

United States v. Villamonte-Marquez, 462 U.S.

579 (1983) 23, 26

Vernonia Sch. Dist. v. Acton, 515 U.S. 646

(1995) 8

Whren v. United States, 517 U.S. 806 (1996) ............... 24, 25,

27, 28

Wyoming v. Houghton, 526 U.S. 295 (1999) ........srere 9, 21

Constitution and statutes: Page

U.S. Const.:

BRIBE, OY encrsisssesncniideiicainipanatebpatiamiiaciei passim

Amend. XIV 3

42 U.S.C. 1983 ohaccsinsinntaiin 3

Ind. Code Ann. (Michie 1997):

§ 9-18-2-21(b)(2) : 15

S PSS snscninnsiesniacseaniannnel 15

Miscellaneous:

Federal Highway Admin., Traffic Control Devices

Handbook (1983) 16

Forest Service Handbook 5309.11, Sec. 360 (Sept.

ROTI snscesernunessonisieipsenimenaneiielioniieebenessimeitlie 2

Memorandum of Understanding Between the Drug

Enforcement Administration and the Immigration

and Naturalization Service (Mar. 25, 1996) 1

4 Wayne R. LaFave, Search and Seizure (3d ed.

1996) sceteaeinannsaiiee 28

a0: OPT ERR

In the Supreme Court of the Anited States

No. 99-1030

CITY OF INDIANAPOLIS, ET AL., PETITIONERS

Vv.

JAMES E;DMOND, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case involves the validity under the Fourth

Amendment of a vehicle checkpoint that serves inter-

ests in drug detection, license and registration checks,

and driver sobriety. The United States maintains vehi-

cle checkpoints for a variety of purposes. Because “the

smuggling of aliens and drugs are intermingled by

criminal organizations operating at an international

level,” Border Patrol officers are cross-designated to

search for and seize illegal narcotics in their checkpoint

operations.' Border Patrol canines are trained to detect

both concealed humans and drugs. In addition, the For-

est Service sometimes operates multi-purpose check-

1 See Memorandum of Understanding Between the Drug En-

forcement Administration and the Immigration and Naturalization

Service 1, 3 (Mar. 25, 1996).

(1)

points on roads within the National Forest System,

which-ean include verification of drivers’ licenses and

registration, assessments of impairment, and the con-

duct of canine sniffs of cars’ exteriors. Forest Service

Handbook 5309.11, Sec. 360 (Sept. 1998). Furthermore,

because motor vehicle transportation plays a critical

role in the nationwide distribution of illegal narcotics,

the Drug Enforcement Administration, the Department

of Transportation’s Drug Interdiction Assistance Pro-

gram, and other federal components have 4 substantial

interest in efforts to curb drug trafficking on the public

roadways.

STATEMENT

1. From August to November 1998, the Indianapolis

Police Department operated six motor vehicle “drug

checkpoints” on public roads. Pet. App. 5la-52a. At

those checkpoints, police officers stopped a predeter-

mined number of cars, checked each driver’s license and

registration, looked for signs of impairment, and, while

examining each driver’s documentation, walked a

narcotics-detection dog around the car. Id. at 2a, 25a,

58a. Stops averaged two to three minutes; officers en-

deavored to ensure that, absent individualized suspi-

cion, no vehicle was delayed more than five minutes.

Id. at 38a, 5la.

Police officers conducted the checkpoints in accor-

dance with detailed, written procedures promulgated

by the Indianapolis Police Department. Pet. App. 26a-

27a. The time and place of each checkpoint was set by

supervisory personnel weeks in advance “based on

geographical suitability, taking into consideration area

crime statistics and the ability to locate the checkpoint

in a location which [would] minimize the interference

with normal traffic flow.” Jd. at 56a-57a. The date of

each checkpoint (but not its exact location) was then

disseminated to the public. Jd. at 37a. Motorists

approaching the checkpoint were forewarned by lighted

signs stating: “NARCOTICS CHECKPOINT __

MILE AHEAD, NARCOTICS K-9 IN USE, BE

PREPARED TO STOP.” Id. at 57a. The checkpoint

itself was identified by marked police cruisers with

flashing lights. The stopped cars were met by a team of

police officers, at least one of whom was in full uniform.

Ibid. The governing procedures required that “no dis-

cretion [be] given to any officer to stop any vehicle out

of sequence,” and that “every vehicle * * * stopped

must be examined in the same manner [with] no excep-

tions.” Id. at 27a, 54a.

The “primary goal” of the checkpoints was to detect

narcotics traffickers and thus “to interrupt the flow of

illegal narcotics throughout Indianapolis.” Pet. App.

25a. “[A] secondary purpose of the checkpoints [was] to

check driver’s licenses and vehicle registrations.” Jd. at

44a. Police stopped a total of 1,161 vehicles, resulting in

109 arrests and thus an effectiveness rate of 9.4%. Id.

at 2a-3a, 13a, 55a. Those arrests were divided almost

equally between traffic and drug offenses. Jd. at 55a.

2. In October 1998, respondents, two motorists who

had been stopped at checkpoints, filed suit under 42

U.S.C. 1983 seeking damages and an injunction on the

ground that the checkpoints violated the Fourth and

Fourteenth Amendments. Complaint 1, 8. The district

court certified the case as a class action, Pet. App. 29a-

30a, but denied a preliminary injunction because it

found no likelihood of success on the merits of respon-

dents’ Fourth Amendment claim, id. at 32a-47a. Pro-

ceeding on a stipulated factual record, the district court

found that motorists suffered “minimal” subjective and

objective intrusion at the checkpoints, id. at 37a-40a,

while the stops effectively advanced important gov-

ernmental interests in the interdiction of narcotics and

the enforcement of licensing requirements, id. at 41a-

45a.

3. A divided court of appeals reversed, holding that

the checkpoints violated the Fourth Amendment. Pet.

App. 1a-28a.

a. The majority acknowledged that the checkpoint

stops, if evaluated at the programmatic level, “probably

are legal, given the high ‘hit’ rate and the only modestly

intrusive character of the stops,” Pet. App. 3a, and

given that they “advance[] the strong national, state,

and local policy of discouraging the illegal use of

controlled substances,” id. at 4a. The majority held,

however, that, in view of “the purpose of the roadblocks

* * * to catch drug offenders,” id. at 1la, the stop of

each car must be based on individualized suspicion

because the checkpoints “related to general criminal

law enforcement, rather than to primarily civil regula-

tory programs for the protection of health, safety, and

the integrity of our borders.” Id. at 4a (citation

omitted).

The majority distinguished the Border Patrol check-

points upheld in United States v. Martinez-Fuerte, 428

U.S. 548 (1976), on the ground that Indianapolis “makes

no attempt to defend its roadblocks on the basis that it

is trying to exclude a harmful substance or dangerous

persons[,] [t]hough that may be the ultimate aim.” Pet.

App. 10a. And it distinguished the sobriety checkpoints

upheld in Michigan Dep’t of State Police v. Sitz, 496

U.S. 444 (1990), because those checkpoints “are de-

signed to protect other users of the road from the dan-

gers posed by drunk drivers,” rather than “primarily

[to] catch[] crooks.” Pet. App. 8a.

The majority recognized four exceptions to its hold-

ing that the Fourth Amendment prohibits vehicle

checkpoints aimed at law enforcement: checkpoints

“set up to catch a fleeing criminal”; checkpoints set up

when “it [is] impossible to prevent a crime without an

indiscriminate search”; checkpoints “the objective of

which is to protect a specific activity”; and checkpoints

to prevent “illegal importation whether of persons

* * *. or of goods.” Pet. App. 12a. The court sug-

gested, moreover, that if the “primary purpose” of the

checkpoints were to discover violations of the traffic

laws or drunk drivers, the addition of a narcotics-detec-

tion dog might be permissible. Jd. at 10a-11a.

b. Judge Easterbrook dissented. He criticized the

majority’s conclusion that a “law enforcement” purpose

would render a vehicle checkpoint unreasonable, noting

that “Martinez-Fuerte approved a roadblock to search

for alien smuggling, a violation of a criminal law; Sitz

approved a roadblock to search for drunk driving, a

violation of a criminal law.” Pet. App. 13a. The dissent

also disagreed that the primary purpose of a checkpoint

determines its constitutionality, noting that, under the

majority’s view, “if Indianapolis set out to find people

driving without licenses and only later added a dog to

sniff for drugs * * *, then the program would pass

constitutional muster. But if the City first decides to

search for drugs, then adds license checks * * * the

program is invalid.” Jd. at 18a-14a. Similarly, “(ilf a

program is designed primarily to search for people

using drugs in the car, and only secondarily to locate

drugs in the trunk, then it is valid; if it is designed

primarily to search for carried drugs, and only secon-

darily for ingested drugs, then it is invalid.” Jd. at 14a.

In the dissent’s view, “the reasonableness inquiry

under the fourth amendment is objective; it depends on

what the police do, not on what they want or think.”

Ibid.

SUMMARY OF ARGUMENT

1. Indianapolis’s checkpoint program is consistent

with the Fourth Amendment because the important

public interests that are effectively served by the

checkpoints outweigh the minimal intrusion imposed on

motorists using the public highways. The City’s

checkpoints serve not one, but two vital public

interests: the interdiction of narcotics trafficking and

the enforcement of license-and-registration require-

ments for motorists. Drug trafficking on the public

roadways has proven to be as formidable and intract-

able a law-enforcement problem as illegal immigration,

which this Court has held justifies a comparable Border

Patrol checkpoint program. Drug trafficking’s

attendant social costs—in lost lives, violence, crime, and

general public disorder—parallel, if not exceed, those

public-welfare concerns that sustain sobriety check-

points. Moreover, because public roadways are the

primary distribution network for illegal narcotics with-

in the country, drug traffickers, like alien smugglers,

depend upon automobile travel for their success.

This Court’s cases also have repeatedly indicated

that the Fourth Amendment permits license-and-regis-

tration checkpoints. Such checkpoints advance impor-

tant public-safety concerns by ensuring that usage of

the roadways is limited to those motorists and auto-

mobiles that satisfy the State’s licensing criteria.

Further, nothing in the actual execution of the check-

point process or in the driver’s individual experience at

the checkpoint exceeds what this Court has previously

sanctioned under the Fourth Amendment. The only

factual difference is the addition of a canine sniff of the

A OLE NG OPO ca ct

car’s exterior, but, because the sniff neither entails a

search nor lengthens the seizure, that distinction is of

no constitutional moment.

2. The court of appeals invalidated the checkpoints

because they served the needs of criminal law enforce-

ment, rather than distinct public policy needs. But so

do the immigration and sobriety checkpoints that this

Court has previously upheld. See Michigan Dep’t of

State Police v. Sitz, 496 U.S. 444 (1990); United States

v. Martinez-Fuerte, 428 U.S. 543 (1976). Indeed, this

Court has expressly rejected the imposition of a

“special needs” requirement on automobile checkpoints.

Sitz, 496 U.S. at 450.

The court of appeals also held that the primary pur-

pose of the checkpoint program’s designers was critical

to its legality. But the entire scope of the seizure was a

permissible means of implementing the checkpoints’

secondary purpose—license and registration verifica-

tion. The fact that the checkpoint program simultane-

ously advances another weighty public interest—

narcotics detection—without entailing any additional

intrusion upon motorists’ liberty and privacy should

enhance, not detract from, the checkpoint’s legitimacy.

In any event, the constitutionality of identically oper-

ated checkpoints should not turn upon post-hoc judicial

rankings of the competing public purposes subjectively

animating government officials. The Fourth Amend-

ment’s core function is to regulate what the police do in

their interactions with individuals, not what they think.

ARGUMENT

VEHICLE CHECKPOINTS THAT SERVE GOVERN-

MENTAL INTERESTS IN DRUG-DETECTION AND

LICENSE-AND-REGISTRATION INSPECTION ARE

REASONABLE SEIZURES UNDER THE FOURTH

AMENDMENT

A. The Fourth Amendment Permits Vehicle Checkpoints

Where The Government Interests Served Justify The

Intrusion

The “essential purpose” of the Fourth Amendment is

“to impose a standard of ‘reasonableness’ upon the

exercise of discretion by government officials.” Dela-

ware v. Prouse, 440 U.S. 648, 653-654 (1979). The valid-

ity of a particular practice under the Fourth Amend-

ment generally turns on balancing the governmental

interests promoted by the practice against its intrusion

on Fourth Amendment interests. See, e.g., id. at 654;

Vernonia School District 47J v. Acton, 515 U.S. 646,

652-653 (1995).

Two principles frame the inquiry into the validity of

Indianapolis’s vehicle checkpoints. First, the Fourth

Amendment does not impose an “irreducible require-

ment” of individualized suspicion. Acton, 515 U.S. at

653; New Jersey v. T.L.O., 469 U.S. 325, 340 (1985).

Rather, the “touchstone” of the constitutional inquiry is

“the reasonableness in all the circumstances” of the

practice at issue. Maryland v. Wilson, 519 U.S. 408,

411 (1997) (internal quotation marks omitted).

Second, what is reasonable “depends on the context.”

T.L.O., 469 U.S. at 387. This Court has traditionally

drawn a distinction between automobiles and homes or

offices in relation to the Fourth Amendment,” such that

“warrantless examinations of automobiles have been

upheld in circumstances in which a search of a home or

office would not.” South Dakota v. Opperman, 428 U.S.

364, 367 (1976); see also United States v. Martinez-

Fuerte, 428 U.S. 543, 561 (1976) (“[OJne’s expectation of

privacy in an automobile and of freedom in its operation

are significantly different from the traditional expecta-

tion of privacy and freedom in one’s residence.”). “The

fact that automobiles occupy a special category in

Fourth Amendment case law is by now beyond doubt.”

Marshall v. Barlow’s, Inc., 486 U.S. 307, 315 n.10

(1978). That distinction arises, in part, because of the

“obviously public nature of automobile travel,” under

which cars routinely “travel[] public thoroughfares

where both [their] occupants and [their] contents are in

plain view.” Opperman, 428 U.S. at 367-368; see also

Cardwell v. Lewis, 417 U.S. 588, 590 (1974). In addition,

automobiles, unlike homes or offices, are subject to a

“web of pervasive regulation.” New York v. Class, 475

U.S. 106, 112 (1986).

As an everyday occurrence, police stop and examine

vehicles when license plates or inspection stickers

have expired, or if other violations, such as exhaust

fumes or excessive noise, are noted, or if headlights

or other safety equipment are not in proper working

order.

Cutan eae at 368.”

Consistent with the special status of automobiles in

Fourth Amendment jurisprudence, this Court has twice

upheld vehicle checkpoints as reasonable seizures under

2 See also Wyoming v. Houghton, 526 U.S. 295, 303-305 (1999)

(passengers, as well as drivers, have a reduced expectation of pri-

vacy in cars traveling on the public thoroughfares); Pennsylvania

v. Labron, 518 U.S. 938, 940 (1996) (per curiam) (noting “the

individual’s reduced expectation of privacy in an automobile, owing

to its pervasive regulation”).

the Fourth Amendment by weighing “the gravity of the

public concerns served by the seizure, the degree to

which the seizure advances the public interest, and the

severity of the interference with individual liberty.”

Brown v. Texas, 443 U.S. 47, 51 (1979). In United

States v. Martinez-Fuerte, supra, the Court upheld the

Border Patrol’s use of permanent, fixed checkpoints on

roads leading to the interior of the country. The Court

found the “law enforcement needs served by check-

points”—controlling the flow of illegal aliens and

smuggling—to be “substantial[],” 428 U.S. at 556 &

n.12, while “the consequent intrusion on Fourth

Amendment interests is quite limited,” id. at 557. The

checkpoints’ interference with legitimate traffic was

“minimal,” and the exercise of discretion by officers was

controlled by the “regularized manner in which estab-

lished checkpoints are operated.” Jd. at 559.

In Michigan Department of State Police v. Sitz, 496

U.S. 444 (1990), the Court upheld sobriety checkpoints

at which cars were briefly stopped and drivers exam-

ined for signs of intoxication. Applying the “relevant

authorities” of Martinez-Fuerte and Brown v. Texas, id.

at 450, the Court noted that the “magnitude” of the

State’s interest in combating the problem of drunk

driving was undisputed, id. at 451. On the other side of

the ledger, the Court found, as it did in Martinez-

Fuerte, that the intrusion on motorists stopped at

sobriety checkpoints was “minimal.” Jd. at 452. While

the Court made clear that no searching examination of

the sobriety checkpoints’ “effectiveness” was required

in order to sustain them, id. at 454, the Court concluded

that the ability of the checkpoints to advance the

States’ interest was sufficient to strike the balance “in

favor of the state program.” Id. at 455.’

B. A Vehicle Checkpoint May Validly Be Established To

Serve The Government’s Interests Both In Drug

Detection And In Motor Vehicle Regulation

Applying this Court’s analysis in Martinez-Fuerte

and Sitz, the checkpoints in this case are valid under

the Fourth Amendment.

1. The Interests Served By the Checkpoints Are Sub-

stantial.

a. Indianapolis’s checkpoints serve the unquestiona-

bly vital public interest in reducing the flow of illegal

drugs, with its enormous attendant costs in human

lives, social disorder, and related criminal violence.

Like the problem of alien smuggling and immigration

violations, there is a “veritable national crisis in law

enforcement caused by smuggling of illicit narcotics,”

United States v. Montoya de Hernandez, 473 U.S. 531,

538 (1985), and “drug smugglers do not hesitate to use

violence to protect their lucrative trade and avoid

apprehension,” National Treasury Employees Union v.

Von Raab, 489 U.S. 656, 669 (1989). “[TJhe public has a

compelling interest in detecting those who would traffic

in deadly drugs for personal profit.” United States v.

Place, 462 U.S. 696, 703 (1983). The States’ “interest in

self-protection,” Von Raab, 489 U.S. at 670, from the

3 Although the state courts had found sobriety checkpoints

generally to be “ineffective,” see Sitz, 496 U.S. at 448-449, 453, this

Court held that the “decision as to which among reasonable alter-

native law enforcement techniques [to adopt] * * * remains with

the governmental officials who have a unique understanding of,

and a responsibility for, limited public resources, including a finite

number of police officers.” Id. at 453-454.

influx of illegal narcotics thus is a substantial and

weighty governmental concern.‘

The pervasive problem of drug smuggling, like alien

smuggling and other immigration offenses, has a close

nexus to the usage of public roadways. Whether illegal

drugs initially arrive in this country by boat, airplane,

or foot, they at some point end up on the public road-

ways for national distribution. Cf. Martinez-Fuerte,

428 U.S. at 552 (“Once within the country, the aliens

seek to travel inland * * * frequently meeting by

prearrangement with friends or professional smugglers

who transport them in private vehicles.”).° Like alien

smugglers, drug traffickers are lured by the speedy

distribution that highways and interstates offer, and

they are known to have preferred routes for transport-

4 The court of appeals stated (Pet. App. 10a) that “Indianapolis

makes no attempt to defend its roadblocks on the basis that it is

trying to exclude a harmful substance or dangerous persons[,]

[tJhough that may be the ultimate aim, [instead] the City concedes

that its proximate goal is to catch drug offenders in the hope of in-

capacitating them, and deterring others, by criminal prosecution.”

That analysis overlooks that, by arresting narcotics traffickers,

confiscating contraband, and deterring others from engaging in

similar smuggling efforts, Indianapolis’s program does exclude

drugs from the city.

5 Border Patrol agents have advised us that, especially follow-

ing the Mexican marijuana harvest in the Fall, there are times

when they discover more narcotics than aliens smuggled in cars

going through their checkpoints. The Border Patrol checkpoints at

Las Cruces, New Mexico, reported 129 drug seizures from Sep-

tember through December 1997, valuing approximately $8.6 mil-

lion. In the first three months of this year alone, those checkpoints

made 104 seizures of $3.7 million worth of illegal narcotics.

ing their contraband.’ Public roadways thus represent

a critical link in the nationwide drug trafficking chain.

Also like illegal immigration, drug trafficking on the

public roadways “poses formidable law enforcement

problems.” Martinez-Fuerte, 428 U.S. at 552. While

law enforcement personnel can identify and stop some

suspicious vehicles, as a general proposition “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 illegal [drugs].” Id. at 557. Drug

traffickers, moreover, possess a “seemingly inexhausti-

ble repertoire of deceptive practices and elaborate

schemes,” that includes “adroit selection of source

locations, smuggling routes, and increasingly elaborate

methods of concealment.” Von Raab, 489 U.S. at 669.’

In particular, a requirement of particularized suspicion

before cars could be stopped at a checkpoint “would

largely eliminate any deterrent to the conduct of well-

6 See Pet. App. 12a (“The high hit rate of Indianapolis’s road-

block scheme suggests that Indianapolis has placed the roadblocks

in areas of the city in which drug use approaches epidemic propor-

tions.”); State v. Damask, 986 S.W.2d 565, 573 (Mo. 1996) (drug

checkpoint on a road that “is known as a popular route for the

transport of narcotics” upheld because it was designed “to discover

problems predictably associated with persons who traveled these

thoroughfares”).

7 See also United States v. Mendenhall, 446 U.S. 544, 561-562

(1980) (Powell, J., concurring) (“Much of the drug traffic is highly

organized and conducted by sophisticated criminal syndicates.

* * * (MJany drugs * * * may be easily concealed. As a result,

the obstacles to detection of illegal conduct may be unmatched in

any other area of law enforcement.”); cf. Florida v. Royer, 460 US.

491, 519 (1983) (Blackmun, J., dissenting) (“The special need for

flexibility in uncovering illicit drug couriers is hardly debatable.

Surely the problem is as serious, and as intractable, as the problem

of illegal immigration.”).

disguised smuggling operations.” Martinez-Fuerte, 428

US. at 557.

b. The checkpoint program also serves the secon-

dary purpose of verifying driver’s licenses and

registrations. Pet. App. 44a. This Court has repeatedly

indicated that checkpoints for license and registration

verification are permissible under the Fourth Amend-

ment, because they serve the States’ “vital interest in

ensuring that only those qualified to do so are per-

mitted to operate motor vehicles, that these vehicles

are fit for safe operation, and hence that licensing,

registration, and vehicle inspection requirements are

being observed.” Prouse, 440 U.S. at 658; see also id. at

663. Similarly, in Martinez-Fuerte, the Court predi-

cated its decision upholding checkpoints for illegal

aliens in part on the existence and historical acceptance

of license and registration stops. 428 U.S. at 560 n.14

(“Stops for questioning, not dissimilar to those involved

here, are used widely at state and local levels to enforce

laws regarding drivers’ licenses, safety requirements,

weight limits, and similar matters.”).°

8 The courts of appeals and highest state courts have unani-

mously sustained properly constituted license-and-registration

checkpoints. See Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995),

cert. denied, 519 U.S. 812 (1996); United States v. Morales-

Zamora, 914 F.2d 200, 202-203 (10th Cir. 1990) (collecting cases);

United States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989); United

States v. Prichard, 645 F.2d 854 (10th Cir.) (license and insurance

checkpoint), cert. denied, 454 U.S. 832 (1981); LaFontaine v. State,

497 S.E.2d 367 (Ga.), cert. denied, 525 U.S. 947 (1998); see also

Park v. Forest Serv., 205 F.3d 1034, 1040 (8th Cir. 2000)

(allegations that checkpoint “consisted of an identification and reg-

istration check” do not describe an unconstitutional seizure);

United States v. Trevino, 60 F.3d 333 (7th Cir. 1995), cert. denied,

516 U.S. 1061 (1996); cf. State v. Rodriguez, 877 S.W.2d 106 (Mo.

1994) (commercial vehicle inspection checkpoints); but see State v.

2. The Intrusion on Liberty and Privacy Is Minimal. ~—_

The overall intrusion on motorists’ liberty and

privacy interests at Indianapolis’s checkpoint, as in

Martinez-Fuerte and Sitz, is minimal. -Officers first ask

for the driver’s license and registration. Pet. App. 53a.”

That is a familiar and constitutional inquiry for traffic

checkpoints. See p. 14, supra. The officers next check

for signs of driver impairment, Pet. App. 58a, which is

no more intrusive here than in Sitz. The officers also

walk a narcotics- detection canine around the exterior

of the vehicle while the license and registration are

being checked. See Pet. 3; Pet. App. 57a. A sniff by a

narcotics-detection dog of the publicly exposed exterior

of personal effects is not a search. United States v.

Place, 462 U.S. at 707 (dog sniff of luggage is not a

search); see also Class, 475 U.S. at 114 (“The exterior of

a car, of course, is thrust into the public eye, and thus to

examine it does not constitute a ‘search.’”). The dog

makes its “observations from a public vantage point

where [it] has a right to be.” California v. Ciraolo, 476

U.S. 207, 218 (1986); see also Pet. App. 40a. And

motorists have no reasonable expectation of privacy in

odors, particularly of contraband substances, emanating

from their automobiles. Moreover, because the canine

sniff is conducted on a car that has already been prop-

erly stopped for a license, registration, and sobriety

check, the sniff itself should not expand the length of

the detention at the checkpoint and thus does not entail

an independent seizure of the vehicle and its occupants.

Larson, 485 N.W.2d 571 (Minn. Ct. App. 1992) (document check-

point invalidated because officers had too much discretion).

9 Indiana law requires drivers to display their license and regis-

~ tration upon the demand of a police officer. Ind. Code Ann.

_§§ 9-18-2-21(b)(2), 9-24-13-3 (Michie 1997).

Absent the development of individualized suspicion, the

average length of the delay is two to three minutes. Id.

at 38a, 57a. That is not discernibly longer than the time

motorists are required to spend stopped at a toll booth

on a busy day or at a traffic light at a busy intersection.

See Fed. Highway Admin., Traffic Control Devices

Handbook 4-100 (1983). It is shorter than the average

time of the Border Patrol checkpoints upheld in

Martinez-Fuerte. See 428 U.S. at 547 (three to five

minute stop). The stipulated record reveals no inordi-

nately intrusive questioning by officers nor visual

inspection of the vehicle or passengers beyond “what

can be seen without a search.” Id. at 558.

The subjective intrusion on law-abiding motorists

(Sitz, 496 U.S. at 452) is also minor. The police officers’

actions are regularized and their discretion is closely

cabined. The checkpoint locations are selected weeks in

advance by high-level officials based on reasonable and

objective criteria, such as crime statistics, traffic vol-

ume, and operational safety. Pet. App. 56a-57a; see also

Sitz, 496 U.S. at 458; Martinez-Fuerte, 428 U.S. at 559.

Cars are stopped on the basis of a predetermined,

objective formula (such as every tenth car). Pet. App.

37a-38a, 54a, 57a; cf. Sitz, 496 U.S. at 453. The steps

officers implement in the checkpoint procedure are also

regimented, Pet. App. 37a-38a, 58a-54a, providing “visi-

ble evidence, reassuring to law-abiding motorists, that

the stops are duly authorized and believed to serve the

public interest,” Martinez-Fuerte, 428 U.S. at 559.

Furthermore, the public is provided advance notice of

the checkpoints’ operation (but not precise location).

Pet. App. 37a. On the roadways, lighted signs warn

motorists as they approach the checkpoints. Jd. at 57a;

cf. Martinez-Fuerte, 428 U.S. at 545-546, 559 (because

of signs, motorists “are not taken by surprise”). The

Ssabcen ot

presence of marked police cruisers and uniformed offi-

cers demonstrates the checkpoints’ official character.

Pet. App. 57a. Consequently, 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 or annoyed by the intrusion.”

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

3. The Checkpoints Are Highly Effective.

Indianapolis’s checkpoints are “spectacularly success-

ful,” Pet. App. 18a, with an arrest rate approaching ten

percent, id. at 3a, 18a. Roughly half of those arrested

were charged with driving offenses and the other half

with drug offenses. Ibid. That effectiveness rate ex-

ceeds what this Court has sustained in earlier check-

point cases. See Sitz, 496 U.S. at 455 (1.6% arrest rate

for drunk drivers); Martinez-Fuerte, 428 U.S. at 554

(apprehension rates of 17,000 illegal aliens per ten

million cars and 725 déportable aliens per 146,000

vehicles).

* * *

Balancing those considerations, because Indianapo-

lis’s checkpoints serve substantial public interests,

involve no greater degree of intrusion than this Court

has previously held is permissible for vehicle check-

points, and have proven to be a highly effective means

of combating an intractable law enforcement problem

on the public roadways, they are valid under the

Fourth Amendment.

C. The Court Of Appeals Erred In Holding That The

Checkpoint Program In This Case Is Invalid Because It

Serves Law Enforcement Interests

The court of appeals acknowledged that, if Indianapo-

lis’s checkpoints were reviewed under this Court’s

checkpoint precedents, they “probably are legal, given

the high ‘hit’ rate and the only modestly intrusive

character of the stops,” Pet. App. 3a, and “the strong

national, state, and local policy of discouraging the

illegal use of controlled substances,” id. at 4a. The

court held, however, that motor vehicle checkpoints

must be justified on the basis of a “special need” other

than enforcement of the criminal law. Jd. at 5a. That is

incorrect.

1. This Court’s checkpoint cases foreclose any such

requirement. In Sitz, the same claim was made that the

sobriety checkpoints could be upheld only if predicated

on “a showing of some special governmental need,

beyond the normal need, for criminal law enforcement.”

Sitz, 496 U.S. at 450. But this Court found it “perfectly

plain” that the Court’s requirement of special needs

beyond routine law enforcement in drug-testing cases

was in no way designed to repudiate our prior cases

dealing with police stops of motorists on public

highways. Martinez-Fuerte, supra, which utilized a

balancing analysis in approving highway check-

points for detecting illegal aliens, and Brown v.

Texas, supra, are the relevant authorities here.

Ibid. Similarly, in Brown v. Texas, this Court stated

that the Fourth Amendment requires either that sei-

zures be based on individualized suspicion “or that the

seizure must be carried out pursuant to a plan

embodying explicit, neutral limitations on the conduct

of individual officers,” without confining the latter to

special needs above and beyond general law enforce-

ment interests. 443 U.S. at 51 (emphasis added).”

Sitz cannot be distinguished on the premise (Pet.

App. 8a-9a) that sobriety checkpoints serve primarily a

public-safety function. The record in Sitz established

that “an arrest would be made” for any driver found

intoxicated at the checkpoint. 496 U.S. at 447. While

those arrests simultaneously performed the functions of

enforcing the criminal law and promoting public safety

by removing drunk drivers from the road, the check-

points at issue here also serve significant public-safety

ends by removing drugs from their primary distribu-

tion network and thus averting the human and societal

toll that their trafficking and usage exacts.

Martinez-Fuerte further establishes that the social

harms to be advanced by a checkpoint program are not

confined to traffic safety or regulatory ends. There, the

checkpoints directly enforced the criminal prohibitions

on alien smuggling and illegal entry, which this Court

characterized as a “significant law enforcement need[].”

Martinez-Fuerte, 428 U.S. at 555. Indeed, each of the

defendants in Martinez-Fuerte had been prosecuted.

Id. at 547-550. Running through the opinion, moreover,

is a recognition of the vital role checkpoints play in

addressing the “formidable law enforcement problems”

posed by illegal-alien traffic. Id. at 552, 556-557 & n.12.

Nor can Martinez-Fuerte be distinguished, as the

court of appeals suggested (Pet. App. 10a), on the basis

10 See also Prouse, 440 U.S. at 654-655 (“In those situations in

which the balance of interests precludes insistence upon some

quantum of individualized suspicion, other safeguards are gener-

ally relied upon to assure that the individual’s reasonable expecta-

tion of privacy is not subject to the discretion of the official in the

field.”) (footnote and internal quotation marks omitted).

that the Border Patrol’s checkpoints promoted essen-

tially the “regulatory purpose” of deporting illegal

aliens. While the passenger aliens found in a stopped

automobile may be administratively deported rather-

than prosecuted, the car’s driver, whose Fourth

Amendment rights are directly implicated by the

stop, is “routinely prosecute[d]” by the government.

Martinez-Fuerte, 428 U.S. at 553 n.9. Furthermore,

this Court rejected precisely such an administrative/

law enforcement distinction in Martinez-Fuerte. See

id. at 560 n.14 (“The fact that the purpose of such laws

is said to be administrative is of limited relevance in

weighing their intrusiveness on one’s right to travel.”).

The court of appeals also suggested (Pet. App. 9a)

that Martinez-Fuerte is irrelevant because the check-

points in that case were founded upon the federal gov-

ernment’s unique authority over foreign relations and

immigration. This Court, however, did not rest its

analysis on an immigration-authority exception to the

Fourth Amendment. Nor would such a rationale have

merit, given that Border Patrol checkpoints occur as far

as 100 miles away from the border and often are situ-

ated in locations where metropolitan areas interrupt

the traffic flow from the border. In any event, apart

from intrusions at the border, see Montoya de Hernan-

dez, 473 U.S. at 537-538; United States v. Ramsey, 431

U.S. 606, 616 (1977), the Fourth Amendment imposes

the same constraints on the federal government and the

States. Thus, while immigration control furnished the

particular interest in Martinez-Fuerte, States also may

establish checkpoints to serve their own weighty inter-

est in regulating narcotics smuggling on public roads.”

11 The court of appeals’ contention that checkpoint stops must

rest on “concerns other than crime detection,” Pet. App. 5a

2. The rationale for requiring “special needs” beyond

routine law enforcement in other contexts has no

application to the checkpoints operated in this case.

The drug testing cases, for example, involve both a

search and seizure of an individual, and one that

implicates a uniquely personal activity.” If such per-

sonal intrusions were permitted for routine crime

detection, it would do much to undermine the general

principle of Fourth Amendment law that intrusions on

the person require some individualized suspicion. By

contrast, the “practice of stopping automobiles briefly

for questioning” at a checkpoint involves only a brief

seizure and no search; it “has a long history evidencing

its utility”; and it “is accepted by motorists as incident

(citation and emphasis omitted), also conflicts with the court’s own

view (id. at 5a-6a) that roadblocks to detect fugitives or threatened

violations of criminal laws are permissible. Such roadblocks plainly

advance criminal law enforcement needs. While they also may

address particular exigencies in preventing crimes or escapes,

drug seizures likewise terminate further criminal activity involv-

ing both the smuggler and the drugs and may thereby avert the

violence that pervades drug trafficking and drug usage.

2See Bond v. United States, 120 S. Ct. 1462, 1464 (2000)

(“Physically invasive inspection is simply more intrusive than

purely visual inspection.”); Houghton, 526 U.S. at 303 (cases

involving “the unique, significantly heightened protection afforded

against searches of one’s person” do not govern searches during

automobile stops); Skinner v. Railway Labor Exec. Ass’n, 489 US. -

602, 617 (1989) (“There are few activities in our society more per-

sonal or private than the passing of urine.”); cf. United States v.

Ortiz, 422 U.S. 891, 895 (1975) (because a traffic stop is “considera-

bly less intrusive than a search,” suspicionless checkpoints may be

appropriate for the former but are not for the latter).

to highway use.” Martinez-Fuerte, 428 U.S. at 561

n.14."

D. The Checkpoint In This Case Is Valid Because It Is

Objectively Justified By Its Secondary Purpose To

Check Driver’s Licenses And Registrations

The court of appeals did not find Indianapolis’s check-

point program unconstitutional because of anything the

officers did in implementing the checkpoints. Instead,

the court’s decision turned upon its conclusion that “the

purpose behind the [checkpoint] program is critical to

its legality,” Pet. App. 10a (emphasis omitted), and that

Indianapolis was “concern[ed] * * * primarily with

catching crooks,” id. at 8a. But even were the Court to

conclude that an interest in narcotics-detection is insuf-

ficient to support a checkpoint program, the check-

points in this case are adequately supported by their

valid “secondary purpose” (id. at 44a) to check driver’s

licenses and vehicle registrations.

1. The district court found—and the court of appeals

did not disagree—that Indianapolis’s checkpoints had

two purposes, the primary purpose of narcotics inter-

diction and the secondary purpose of enforcing the

drivers’ license and registration laws. Pet. App. 44a.

13 The court of appeals’ reliance (Pet. App. 5a) on Chandler v.

Miller, 520 U.S. 305 (1997), was also misplaced. In Chandler, the

Court stated that an exception to the ordinary requirement of

individualized suspicion for a search may exist when “‘special

needs’—concerns other than crime detection—are alleged in justi-

fication of a Fourth Amendment intrusion.” Jd. at 314. But, as the

dissenting opinion noted (Pet. App. 16a), Chandler acknowledged

(520 U.S. at 308) this Court’s decisions in Martinez-Fuerte and

Sitz—both of which involved checkpoints that, at least in part,

served crime detection interests. -Further, in Sitz, the Court made

clear that “special needs” analysis does not apply to vehicle check-

points. See p. 18, supra.

Because the constitutional validity of that secondary

purpose is unquestioned and because the scope of the

entire seizure was a permissible means of accomplish-

ing that purpose, the checkpoints are valid under the

Fourth Amendment regardless of their additional,

narcotics-detection purpose. Where one of the pur-

poses served by a vehicle checkpoint serves the impor-

tant public interests that this Court has held justify

such operations and where the checkpoint’s additional

purpose(s) do not alter the length or intrusiveness of

the seizure, the existence of multiple purposes does not

raise a Fourth Amendment problem. Cf. Horton v.

California, 496 U.S. 128, 188 (1990) (“The fact that an

officer is interested in an item of evidence and fully

expects to find it in the course of a search should not

invalidate its seizure if the search is confined in area

and duration by the terms of a warrant or a valid

exception to the warrant requirement.”); see also

Merrett v. Moore, 58 F.3d 1547, 1550-1551 (11th Cir.

1995), cert. denied, 519 U.S. 812 (1996).

To illustrate, the checkpoints at issue in Sitz and

Martinez-Fuerte had significant law-enforcement com-

ponents. Yet this Court sustained them without quan-

tifying or weighing the dual law enforcement and public

interest components of those checkpoints’ purposes. In

fact, in United States v. Villamonte-Marquez, 462 U.S.

579 (1983), this Court held that the Customs Service’s

“substantial” “governmental interest in assuring

compliance with documentation requirements”

is “particularly” enhanced, not diminished, when en-

forced “in waters where the need to deter or apprehend

smugglers is great.” Id. at 593.

Furthermore, a constitutional rule for multi-purpose -

checkpoints that turns upon which purpose is “primary”

and which purpose is “secondary” is unworkable. From

the vantage point of the individual who is stopped, the

intrusion is identical whether a license-and-registration

checkpoint is supplemented with a drug-detection

canine for the subsidiary purpose of narcotics control,

or whether a narcotics-interdiction checkpoint serves

the subsidiary goal of checking driver’s licenses, reg-

istrations, and sobriety. In either case, officers may

establish checkpoints with highly regulated protocols

that include a brief stop, a check of license and registra-

tion, and examination of the vehicle’s exterior by a

drug-detection dog. There is no apparent basis for

invalidating one practice while upholding the other.

Nor would there be a jurisprudentially practicable way

for courts to determine which purposes predominated

for particular checkpoints. Law enforcement agencies

may establish programs without clearly labeling (or

prioritizing) the purposes they serve. And the reasons

for maintaining a mixed-purpose checkpoint may vary

over time and as public office holders change. The

result under the Fourth Amendment should not depend

on such inquiries.”

2. a. A focus on the objective characteristics, rather

than subjective purposes, of a particular checkpoint is

consistent with general principles in Fourth Amend-

ment analysis. “[A]lmost without exception in evaluat-

ing alleged violations of the Fourth Amendment the

Court has first undertaken an objective assessment of

14 See Whren v. United States, 517 U.S. 806, 815 (1996) (“We

cannot accept that the search and seizure protections of the Fourth

Amendment are so variable * * * and can be made to turn upon

such trivialities.”); Massachusetts v. Painten, 389 U.S. 560, 565

(1968) (White, J., dissenting from dismissal of certiorari) (“[S]end-

ing state and federal courts on an expedition into the minds of

police officers would produce a grave and fruitless misallocation of

judicial resources.”).

an officer’s actions in light of the facts and circum-

stances then known to him.” Scott v. United States, 436

U.S. 128, 137 (1978).

[T]he fact that the officer does not have the state of

mind which is hypothecated by the reasons which

provide the legal justification for the officer’s action

does not invalidate the action taken as long as the

circumstances, viewed objectively, justify that

action.

Id. at 188.”

That rule equally applies to searches and seizures

involving traffic or transportation offenses. In Whren

v. United States, 517 U.S. 806 (1996), this Court unani-

mously held that a traffic stop for the commission of a

civil traffic infraction is reasonable, regardless of the

officers’ underlying motivation to search the car for

drugs. Id. at 813-815; see also Ohio v. Robinette, 519

U.S. 33, 38 (1996). In Brower v. County of Inyo, 489

U.S. 593 (1989), this Court refused to consider the sub-

jective intent of police officers in determining whether

a roadblock to stop a fleeing suspect constituted a

seizure. Id. at 598-599. Similarly, in United States v.

Robinson, 414 U.S. 218, 236 (1973), the Court held that

an objectively reasonable arrest for a traffic violation

justified a search incident to arrest for weapons and

15 See also Bond, 120 S. Ct. at 1465 n.2 (“(TJhe subjective intent

of the law enforcement officer is irrelevant in determining whether

that officer’s actions violate the Fourth Amendment * * *; the

issue is not his state of mind, but the objective effect of his

actions,” even where the officer lacks individualized suspicion.);

Graham v. Connor, 490 U.S. 386, 397 (1989) (“prior cases make

clear” that the “subjective motivations of the individual officers *

* * halve] no bearing on whether a particular seizure is

‘unreasonable’ under the Fourth Amendment”).

evidence, whether or not the officer had any objective

or fact-specific concern for his safety.”

There is no sufficient reason to adopt a different

approach for checkpoints. The Brown v. Texas balanc-

ing test, which generally applies to checkpoint stops,

see Sitz, 496 U.S. at 450, weighs purely objective

factors. It looks first at “the gravity of the public

concerns served by the seizure,” Brown, 443 U.S. at 51

(emphasis added), not at what primary concerns

prompted adoption of the checkpoint program. In this

case, there can be no serious dispute that, whatever the

intent of the Indianapolis officials who adopted the

checkpoint program, the checkpoints served the impor-

tant public interest in ensuring that only properly

licensed and sober drivers in registered cars occupied

the public roadways. Those were the first things the

officers checked for at the roadblocks, those activities

alone defined the temporal and physical scope of the

seizure, and those offenses accounted for nearly half of

the arrests made.

The second and third Brown v. Texas factors—the

effectiveness of the checkpoints and the severity of the

interference with individual liberty—are also quin-

tessentially objective inquiries. The former often

focuses on statistical success rates. See Sitz, 496 U.S.

at 455; Martinez-Fuerte, 428 U.S. at 553-554. And the

intrusiveness of the seizure from the individual’s

16 See also Villamonte-Marquez, 462 U.S. at 584 n.3 (upholding a

brief, suspicionless detention of a ship for a documentation check

regardless of the agents’ ulterior motive to detect illegal drugs);

Horton, 496 U.S. at 138-139 (observation of items in plain view

need not be inadvertent).

standpoint turns on what officers actually do, not on

what supervisory officials think.” |

b. The court of appeals found (Pet. App. 10a) a

difference of constitutional magnitude between the

subjective purpose of individual officers implementing

the checkpoint, the consideration of which is imper-

missible, and the aggregated purpose of those law

enforcement officials who designed the checkpoint, the

consideration of which it deemed controlling. But if the

purpose of the officers actually executing the seizure is

irrelevant, there is no Fourth Amendment justification

for making dispositive the relative weights that the

program’s originators attach to the checkpoints multi-

ple purposes.” It would make little sense for courts to

invalidate otherwise constitutional checkpoint seizures

simply because the public officials in a particular

jurisdiction listed their purposes in the “wrong” order

in a press release or policy memorandum.

Nor is a purpose inquiry necessary to prevent “drag-

net searchfes] for criminals.” Pet. App. 10a. “Scrupu-

lous adherence” to the existing objective limitations on

checkpoint seizures will accomplish that goal. Horton,

496 U.S. at 140. As noted above, the justification for

checkpoints is confined to stops of motor vehicles on

public roadways because of their unique Fourth

17 The highway signs in this case warned drivers only of a

“narcotics checkpoint.” But the content of the warning signs did

not significantly influence the nature or degree of the intrusion.

Such warnings are not constitutionally compelled. See Sitz, 496

U.S. at 447-448 (no indication that warning signs were present).

And the warnings here would be unlikely to generate “fear and

surprise * * * in law abiding motorists.” Id. at 452.

18 See Whren, 517 U.S. at 815 (it is “somewhat easier to figure

out the intent of an individual officer than to plumb the collective

consciousness of law enforcement”).

Amendment status, and thus does not permit seizures

of pedestrians or searches of persons or cars. There is

also a practical limitation both on what crimes have a

sufficiently pervasive connection to the roadways to

make it sensible to commit law-enforcement resources

to checkpoints and what crimes can be policed effec-

tively through plain view inspections or canine sniffs in

the brief detention time permitted for checkpoint

seizures. Finally, “the expense to law enforcement

agencies and public intolerance of the inconvenience

impose a check on unreasonable recourse to this

power.” 4 Wayne R. LaFave, Search and Seizure

§ 9.6(a), at 311 (8d ed. 1996); see also zd. § 10.8(d), at 693.

c. The court of appeals also erred in relying (Pet.

App. 1la) on this Court’s dicta in Whren, supra, that

“the exemption from the need for probable cause (and

warrant), which is accorded to searches made for the

purpose of inventory or administrative regulation, is

not accorded to searches that are not made for those

purposes,” 517 U.S. at 811-812 (emphasis omitted).

Even assuming that this language applies to checkpoint

stops, which are not conducted for administrative or

inventory purposes and which entail limited seizures

not searches, it does not cast doubt on the validity of

Indianapolis’s checkpoints.

First, one reason to question putatively administra-

tive or inventory searches when they are made for law-

enforcement purposes is that those searches of persons’

homes and business premises, or of automobiles already

entirely within police custody, normally would require

the highest level of protection under the Fourth

Amendment: a warrant or probable cause. Brief auto-

mobile stops, by contrast, do not typically require that

level of justification, even outside the checkpoint con-

text. See, e.g., United States v. Sharpe, 470 U.S. 675

(1985) (investigatory stop of a vehicle justifiable on

reasonable suspicion); United States v. Brignoni-Ponce,

422 U.S. 873 (1975) (same). And checkpoint procedures

provide an objective level of regularity that protects

against arbitrary action by law enforcement officers,

without any need to scrutinize the official purpose. See

Brown v. Texas, 443 U.S. at 51; Prouse, 440 U.S. at 663.

Second, and in any event, the Court has never invali-

dated an otherwise-justified administrative or inven-

tory search by finding that there also was an underly-

ing law-enforcement purpose. Administrative and

inventory searches must be guided by objective limita-

tions on the police officers’ behavior.” Those limits sub-

stitute for the traditional probable cause requirement.

Once such objective limitations are in place, however,

and the general interests served by administrative and

inventory searches are furthered by the practice in

question, the existence of additional, important govern-

.mental purposes for a particular practice should not

provide a basis for invalidating it under the Fourth

Amendment.”

19 See New York v. Burger, 482 U.S. 691, 702-703 (1987) (ad-

ministrative search must “further” a “‘substantial’ government in-

terest” and must be “carefully limited in time, place, and scope”);

Colorado v. Bertine, 479 U.S. 367, 372 (1987) (“standardized proce-

dures” required for vehicle inventories); Barlow’s, 486 U.S. at 323

(“neutral criteria”); Camara v. Municipal Court, 387 U.S. 523, 538

(1967) (“reasonable legislative or administrative standards” must

govern administrative searches).

2 The court of appeals further erred in relying (Pet. App. 11a)

on the plurality’s pretext language in Texas v. Brown, 460 U.S.

730, 743 (1983). That language arose entirely in that portion of the

opinion addressing the requirement in the law at that time that

evidence in plain view be discovered inadvertently. See Coolidge

v. New Hampshire, 403 U.S. 443, 466 (1971). This Court dispensed

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.