Amicus Curiae Brief — Allender v. United States

[ "ptrn

FILED

) m

No. Nee MAY 1 5 2000

CLERK

IN THE ERK

AJ o\Ta

Supreme Court of the Gnited States

CITY OF INDIANAPOLIS, ef al,

Petitioners,

V.

JAMES EDMOND, et al.,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF KANSAS AND THE AMICI STATES

IN SUPPORT OF

THE CITY OF INDIANAPOLIS, ET AL.

CARLA J. STOVALL

Kansas Attorney General _

STEPHEN R. MCALLISTER

Kansas State Solicitor

(Counsel of Record)

JARED S. MAAG

Assistant Attorney General

120 S.W. 10th Avenue, 2nd FI.

Topeka, Kansas 66612-1597

(786) 296-2215

Counsel for Kansas and the

Amici States

[Additional Counsel Listed After Conclusion].

PGOP |

i

TABLE OF CONTENTS

Page

pe SEs weak 8 ty >. Ses lil

INTERESTS OF THE AMICI STATES ............. ]

SUMMARY OF THE ARGUMENT ................ 2

EN Ss ee ee ee os oa ie 3

I. DRUG ROADBLOCKS ARE CONSTITUTIONAL IF

THEY ARE REASONABLE ................... 3

Il. UNDER THE BROWN BALANCING TEST, DRUG

ROADBLOCKS ARE CONSISTENT WITH THE

pe ee | 7

A. Drug Roadblocks Address a Serious Public

NI seth te gel ne cy Aas od Phe er aos ke 7

B. Drug Roadblocks Effectively Advance the Public

DE Se vec vol Cas awh in ta toe 9

C. Drug Roadblocks Do Not Substantially Interfere

witn Individual Liperty .. 6 ee cae 12

1. Objectively, Drug Roadblocks Interfere Only

Minimally with Individual Liberty............ 13

2. Subjectively, Drug Roadblocks Interfere Only

Minimally with Individual Liberty............ 15

Tl

IV.

THE CONSTITUTIONALITY OF A

ROADBLOCK MUST BE ASSESSED

UNDER A REASONABLENESS STANDARD

AND NOT ON THE EXISTENCE OF

BRUBP EMD ..3Se a ces bee eee ee 18

THIS COURT SHOULD NOT DEPART FROM

ITS WELL-ESTABLISHED CASE LAW ..... 19

CONCLUSIN 2.0.4. 540 ce eee ee es 21

ili

TABLE OF AUTHORITIES

Page

Cases

Bond v. United States, 120 S.Ct. 1462 (2000) ......... 6

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

Carroll v. United States, 267 U.S. 132 (1925) ........ 13

Commonwealth v. Rodriguez, 722 N.E. 2d 429

PI SO Foca a Se eee eee ]

Delaware v. Prouse, 440 U.S. 648 (1979) .........-. 14

Edmond v. Goldsmith, 183 F.3d 659

Ly i a ee aera ee passim

Florida v. Royer, 460 U.S. 491 (1983) ..........---- 8

Galberth v. United States, 590 A.2d 990 (D.C. 1991) ... 1

Maxwell v. City of New York, 102 F.3d 664

eG, OPO) oc ie eee ene 10

Merrett v. Moore, 58 F.3d 1547

‘Cl Lo ae so ) Sa orate ie passim

Michigan Dep't of State Police v. Sitz,

Me RE Se CRP aS os a ea ee. passim

National Treasury Employees Union v. Von Raab,

WET DT ios ei ee ee ens 8

Skinner v. Railway Labor Executives’ Ass'n,

WET GOD og sk ee eee eee es 3

State v. Albaugh, 571 N.W.2d 345,

Sk Seo SE) ) a a ea ec 6

State v. Burkhardt, 795 S.W.2d 399

(Mo. 1990) (en banc) .........------- rere: 11

State v. Damask, 936 S.W.2d 565

(Mo. 1996) (en banc) .........------ e+e eee passim

State v. Everson, 474 N.W.2d 695 (N.D. 1991) ..... 2,27

State v. Jackson, 942 P.2d 640, 24 Kan.

App. 2d 38 (1997) ........-.---- 2s eee eee 15,37

State v. Joyce, 885 §.W.2d 751

(Mo. Ct. App. 1994) ...:......-------- ALS wes 11

Terry v. Ohio, 392 US. 1 (1968) ......------++++--- 4

iV

TABLE OF AUTHORITIES (cont'd)

United States v. Brugal, No. 98-4255, 2000 WL 345778

CREA: AON. & Te oa eo ee 17

United States v. Condren, 18 F.3d 1190 (Sth Cir. 1994) . 7

United States v. Huguenin, 154 F.3d 547

ON, a ae a ee aa ae he eae 2

United States v. Klinginsmith, 25 F.3d 1507

Cee RN oa a ee ee et ree l

United States v. Martinez-Fuerte,

Se WE er CE kh eh ke ene ees passim

United States v. Mendenhall, 446 U.S. 544 (1980) ..... 8

United States v. Montoya de Hernandez,

Fe Rie Ee OT fb se ee as i ads 8

United States v. Morales-Zamora, 974 F.2d 149

CORE Me, ON ge ia a od eas cue see ]

United States v. Ortiz, 422 U.S. 891 (1975)....... 15, 16

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

United States v. Ramirez-Gonzalez, 87 F.3d 712

Ce ors a se ee ee oe es on?

United States v. Sanchez, 866 F. Supp. 1542

CRs We SNE es eh es ene ee ]

United States v. Sharpe, 470 U.S. 675 (1985) ........ 13

Whren v. United States, 517 U.S. 806 (1996) .... 5,6, 11

Wilson v. Commonwealth, 509 S.E.2d 540,

SP SR. FU Gre iis 2 cS AS iis ewe, 2

Constitutional Provisions and Statutes

Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,

100 Stat. 3207 (1986) (codified as amended in

scattered sections of title 18, 21, and 31

CONTI.) 655 ee Pee Ca EARS wee 7

Vv

TABLE OF AUTHORITIES (cont'd)

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

102 Stat. 4312 (1988) (codified as amended in

title 21 U.S.C. and in scattered sections of

a ee oh a tee ee a 7

Comprehensive Crime Control Act of 1984,

Pub. L. No. 98-473, 98 Stat. 1976 (1984) (codified

as amended in scattered sections of the U.S.C.) ..... 7

3 Pee eee FF oo a ea 2 3

Miscellaneous

1992 FBI Uniform Crime Rep. for the United States .... 7

1998 FBI Uniform Crime Rep. for the

Oe ne Se ee eka 1, 7,8

Matt Bai, White Storm Warning: In Fargo and

the Prairie States, Speed Kills, NEWSWEEK,

| Se). | aoe ren ereree erin s Wy a pee ee 2 9

Chris Braeske, Zhe Drug War Comes to a Highway

Near You: Police Power to Effectuate Highway

“Narcotics Checkpoints” Under the Federal and

State Constitutions, 11 Law & Ineq. J. 449 (1993)... 10

Bureau of Justice Assistance, U.S. Dep’t of Justice,

Pub. No. NJC-144531 Program Brief:

Special Drug Courts 1 (1993) ...........----+-- 7

Bureau of Justice Statistics, U.S. Dep't of Justice,

Drug & Crime Facts (last modified Apr. 7, 2000)

<http://www.ojp.usdoj.gov/bjs/def/contents.htm> ... 1

Drug Enforcement Administration, U.S. Dep't of

Justice, Drug Statistics (visited Apr. 21, 2000)

<http://www.usdoj.gov/dea/stats/drugstats. htm>

(current through June 14, 1999) ...............-. ]

Paul V. Konovalov, Note, On a Quest for Reason:

A New Look at Surreptitious Search Warrants,

48 Hastings L.J. 435 (1997) ...... 2.66... eee eee 8

vi

TABLE OF AUTHORITIES (cont'd)

National Archive of Criminal Justice Data

(visited Apr. 21, 2000) —

<http://www.icpsr.umich.edu/NACJD/home.html> .. 1

Office of National Drug Control Policy

(last modified Apr. 4, 2000)

<http://www.whitehousedrugpolicy.gov> ......... l

United States General Accounting Office, Drug

Control - Observations on Elements of the Federal

Drug Control Strategy, 1997 WL 208098

(FD.C.H. Mor. 14: 1907) 5 ee eee 7

INTERESTS OF THE AMICI STATES

The States have a significant interest in preventing drug

trafficking, not only within their respective borders, but

throughout the nation as a whole. Towards that end, drug

roadblocks have proven to be an effective means of slowing

and interrupting the ever increasing flow of illegal narcotics

that pass along major drug corridors’ and city streets.”

Thus, the constitutionality of such measures under the

Fourth Amendment is important to the States in their ongoing

efforts at drug interdiction. To date, both state and federal

courts have issued differing opinions on the legality of such

' In particular, two major drug corridors run through Kansas, I-35 (north-

south) and I-70 (east-west) . United States v. Klinginsmith, 25 F.3d 1507,

1510 nl (10th Cir. 1994) (“I-35 is a known avenue for drug

transportation”); United States v. Sanchez, 866 F. Supp. 1542, 1554

(D. Kan. 1994) (Defendant’s rental van was traveling on I-70, a known

drug trafficking route).

2 For a statistical analysis of both arrests and seizures in the United States

see Drug Enforcement Administration, U.S. Department of Justice, Drug

Statistics (visited Apr. 21, 2000) <http://www.usdoj.gov/dea/stats/

drugstats.htm> (current through June 14, 1999). For further statistics see

also Bureau of Justice Statistics, U.S. Department of Justice, Drug &

Crime Facts (last modified Apr. Zz 2000)

<http://www.ojp.usdoj.gov/bjs/dcf/contents. htm> (summarizing U.S.

statistics about drug-related crimes, law enforcement, courts, and

corrections from Bureau of Justice Statistics (BJS) and non-BJS sources),

National Archive of Criminal Justice Data (visited Apr. 21, 2000)

<http://www.icpsr.umich.edu/NACJD/home. html> (provides browsing

and downloading access to over 500 data collections relating to criminal

justice); Office of National Drug Control Policy (last modified Apr. 4,

2000) <http://www.whitehousedrugpolicy.gov> (cross-disciplinary

reference to facts and figures organized by specific drug type. Also

includes statistics on prevalence and consequences of drug use,

adjudication of drug offenders, and production, trafficking, and

distribution patterns taken from federal and state government

publications), and 1998 FBI Uniform Crime Report for the United States.

— 2

roadblocks.* Consequently, some states are given the authority

to implement a system of roadblocks while other states must

forgo that opportunity. This case provides the Court with an

opportunity to determine the constitutionality of at least some

of these roadblocks.

SUMMARY OF THE ARGUMENT

In Michigan Department of State Police v. Sitz, 496 U.S.

444 (1990), this Court stated that “reasonableness” is the

ultimate question when addressing situations involving

checkpoint “seizures.” Jd. at 450. In doing so, the Court

rejected any notion that a balancing analysis must be predicated

on a showing of some special governmental objective beyond

the general need for criminal law enforcement. /d. at 449-50.

The reasonableness of drug roadblock checkpoints therefore

turns on the balancing test established in Brown v. Texas, 443

U.S. 47 (1979), which directs that, in considering the

constitutionality of “less intrusive seizures,” a court must weigh

(1) the “gravity of the public concerns served by the seizure,”

(2) “the degree to which the seizure advances the public

interest,” and (3) “the severity of the interference with

individual liberty.” /d. at 50-51. (citation omitted). Applying

Brown to drug roadblocks yields the conclusion that this

effective law enforcement technique is constitutional, at least

in many circumstances.

> Compare United States v. Huguenin, 154 F.3d 547 (6th Cir. 1998);

United States v. Morales-Zamora, 974 F.2d 149 (10th Cir. 1992);

Galberth v. United States, 590 A.2d 990 (D.C. 1991); and,

Commonwealth v. Rodriguez, 722 N.E.2d 429 (Mass. 2000), each holding

drug roadblocks to violate the Fourth Amendment, with Merrett v. Moore,

58 F.3d 1547 (11th Cir. 1995); State v. Damask, 936 S.W.2d 565 (Mo.

1996) (en banc); and State v. Everson, 474 N.W.2d 695 (N.D. 1991),

which held these types of roadblocks to be legal. Cf Wilson v.

Commonwealth, 509 S.E.2d 540, 29 Va. App. 63 (1999) (insufficient

evidence presented to support public concern prong of Brown for

particular checkpoint; however, checkpoints not per se unconstitutional).

3

First, given the magnitude of the illegal drug trafficking

problem throughout the United States, and its association with

criminal activity of all sorts, the public concern over minimally

intrusive drug roadblocks is a rhetorical question at best.

Second, the public interest is best served by law enforcement

techniques that effectively stem the tide of an illicit trade which

affects both directly and indirectly every citizen, while

balancing each citizen’s right to be free from “unreasonable”

seizures. Finally, the intrusive nature of these roadblocks is

clearly minor. In short, there is no reason for the Court to

deviate from the principle announced in both Sitz and United

States v. Martinez-Fuerte, 428 U.S. 543 (1976), that the

intrusion on motorists during similar type roadblocks is both

“slight” and “quite limited,” Sitz, 496 U.S. at 451; Martinez-

Fuerte, 428 U.S. at 557, when the exchanges during the

roadblocks in question are virtually identical.

Simply put, the issue is one of reasonableness, and given

the circumstances surrounding the implementation of drug

roadblocks for interdiction purposes, no justifiable basis exists

for the Court to depart from its well-established precedent that

already essentially declares these roadblocks “reasonable”

under the Fourth Amendment.

ARGUMENT

I. DRUG ROADBLOCKS ARE CONSTITUTIONAL

IF THEY ARE REASONABLE.

The Fourth Amendment prohibits only “unreasonable”

searches and seizures.‘ Skinner v. Railway Labor Executives’

Ass’n, 489 U.S. 602, 619 (1989). Thus, as a general rule,

‘The right of the people to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and

persons or things to be seized.” U.S. CONST. amend. IV.

4

either probable cause or individualized suspicion is necessary

to seize an individual suspected of criminal activity. Terry v.

Ohio, 392 US. 1, 20-21 (1968). Individualized suspicion,

however, is not necessary in a roadblock scenario where the

Court has required only a reasonableness analysis that balances

a motorist’s Fourth Amendment protections against the

interests of the State. Martinez-Fuerte, 428 U.S. at 555.

Applying that standard, this Court has routinely found, in a

checkpoint context, that the public interest in detecting various

forms of criminal activity outweighs any potential interference

with individual liberty.

In 1976, this Court first addressed the suspicionless

seizure of individuals at a United States Border Patrol

checkpoint positioned to detect the illegal importation of

immigrants into the United States. United States v. Martinez-

Fuerte, 428 U.S. 543. The Court ultimately found that the

United States had a legitimate interest in preventing the entry

of illegal immigrants and that requiring individualized suspicion

would be impractical given the flow of traffic and the inability

of officers to reasonably identify those who are transporting

illegal aliens. /d at 557. The Court concluded that the

roadblocks involved were minimally intrusive, that they served

a legitimate public interest, and that the record before the

Court supported the need for this particular technique. /d. at

562.

Some three years later, this Court in Brown v. Texas, 443

U.S. 47, established a framework for evaluating the

constitutionality of roadblocks. Jd. at 50-51. In addressing

these “less than intrusive” seizures, the Court found that the

reasonableness of the stop was dependent upon three factors:

(1) the “gravity of the public concerns served by the seizure,”

(2) “the degree to which the seizure advances the public ©

interest,” and (3) “the severity of the interference with

individual liberty.” /d. (citation omitted). The reasonableness

5

of the checkpoint stop in light of these factors therefore is the

determinative issue.

Eleven years later, this Court reinforced the proposition

that reasonableness is at the core of any roadblock issue in

Michigan Department of State Police v. Sitz, 496 U.S. 444.

There, respondent maintained that some special governmental

need “beyond the normal need’ for criminal law enforcement”

must exist before a balancing analysis is employed. /d. at 450.

The Court, however, soundly rejected the “special

governmental need” requirement, finding Martinez-Fuerte and

Brown to be the relevant authorities for an analysis of

roadblocks under the Fourth Amendment. Sitz, 496 U.S. at

450.

As the drug roadblock in question in this case and those

utilized by the States are virtually identical in both purpose and

design to the roadblocks upheld in Brown, Martinez-Fuerte,

and Sitz, there is no reason for this Court to deviate from the

well-established reasonableness analysis applied in those cases.

The Seventh Circuit majority abandoned _ this

straightforward analysis in holding Indianapolis’s roadblock

system unconstitutional. That court chose to analyze the

reasonableness of the roadblock simply on the determination of

whether “there is a basis for believing that a particular search

or seizure . . . will yield evidence or fruits or instrumentalities

of crime.” Edmond v. Goldsmith, 183 F.3d 659, 665 (7th Cir.

1999). This decision to probe the “purpose behind the

program” resulted in the lower court impermissibly focusing on

the state of mind of those who established the checkpoint. /d.

(emphasis added). Such an approach disregards this Court’s

holding in Whren v. United States, 517 U.S. 806 (1996), that

there is no constitutional authority for judging the legitimacy of

a traffic stop by assessing the actual motivations of the officers

6

involved. /d. at 811-13.° Indeed, this Court warned against

the adoption of such a subjective test as it would necessitate

individual inquiry into police activity, thus compromising the

invariable nature of the protections embodied in the Fourth

Amendment. /d. at 815.° Accordingly, any reasonableness

evaluation of a particular roadblock must be made not from the

subjective standpoint of the officers but rather objectively. /d.

at 813.’

The proper test for the constitutionality of these particular

roadblocks therefore is the balancing test of Brown v. Texas.*

* This principle was reiterated in this Court’s recent decision in Bond v.

United States, 120 S. Ct. 1462, 1465 n.2 (2000) (“the issue is not [the

officer's] state of mind, but the objective effect of his actions.”).

° The Court concluded that “police enforcement practices, even if they

could be practicably assessed by a judge, vary from place to place and

from time to time. We cannot accept that the search and seizure

protections of the Fourth Amendment are so variable.” Whren v. United

States, 517 U.S. at 815. (citations omitted).

” On this very point, the Court stated that ““the 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.”” Whren, 517 U.S. at 813 (citation omitted) (emphasis added).

* The Brown balancing analysis has been used in other checkpoint

contexts. Several courts, in challenges to fish and game checkpoints,

employ Brown for a constitutionality assessment. See, e.g, State v.

Albaugh, 571 N.W. 2d 345, 347, 1997 N.D. 229 [8] (N._D. 1997) (listing

cases).

7

Il. UNDER THE BROWN BALANCING TEST, DRUG

ROADBLOCKS ARE CONSISTENT WITH THE

FOURTH AMENDMENT.

A. DRUG ROADBLOCKS ADDRESS A SERIOUS

PUBLIC CONCERN.

It is unquestionable that the illicit drug trade which

operates throughout the United States tears at the very fabric

of society.’ This is illustrated not only by the increasing

number of arrests,'° but by the expansion of laws designed to

limit both the proliferation and use of drugs.'' The inextricable

link to other areas of criminal activity is also readily apparent."”

° An estimated $67 billion dollars is spent annually on the social costs of

illegal drugs. United States General Accounting Office, Drug Control -

Observations on Elements of the Federal Drug Control Strategy, 1997

WL 208098 (F.D.C.H. Mar. 14, 1997).

Between 1980 and 1989 national drug arrests increased by 134%.

Bureau of Justice Assistance, U.S. Dep’t of Justice, Pub. No. NJC-144531

Program Brief: Special Drug Courts 1 (1993). Between 1989 and 1998

drug abuse violations increased 19.6%, for those under 18 years of age

there was an 85.6% increase in arrests for drug violations. In 1998 alone

there were 1,559,100 drug arrests, the highest rate among the 14.5 million

arrests that year. 1998 FBI Uniform Crime Rep. for the United States 209-

15.

! See Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98

Stat. 1976 (1984) (codified as amended in scattered titles of the U.S.C.);

Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570, 100 Stat. 3207 (1986)

(codified as amended in scattered sections of titles 18, 21, and 31 of the

U.S.C.); Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, 102 Stat.

4312 (1988) (codified as amended in title 21 U.S.C. and in scattered

sections of the U.S.C.).

" “For example, 15,377 of the 22,540 murders in the United States in

1992 were committed with firearms, of which 1,144 concerned drugs”

United States v. Condren, 18 F.3d 1190, 1198 (Sth Cir. 1994) (citing 1992

FBI Uniform Crime Rep. for the United States 20). Between 1994 and

1998 the total number of murder victims for whom supplemental homicide

information was available equaled 89,208. Of that number 4,594 (5.1%)

8

Acknowledging this fact, the Court in United States v.

Mendenhall, 446 U.S. 544 (1980), observed that:

“The public has a compelling interest in detecting those

who would traffic in deadly drugs for personal profit.

Few problems affecting the health and welfare of our

population, particularly our young, cause greater concern

than the escalating use of controlled substances. Much of

the drug traffic is highly organized and conducted by

sophisticated criminal syndicates. The profits are

enormous. And many 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.”

Id. at 561-562. (Powell J., concurring).

Narcotics trafficking is “one of the greatest problems

affecting the health and welfare of our population,” National

Treasury Employees Union v. Von Raab, 489 U.S. 656, 668

(1989), causing a “veritable national crisis in law

enforcement... .” United States v. Montoya de Hernandez,

473 U.S. 531, 538 (1985). See also Florida v. Royer, 460

US. 491, 513 (1983) (Blackmun J., dissenting).

Increased use and distribution of particular narcotics has

further defined the war on drugs over the past two decades.

Whereas crack cocaine drove the drug policies of the mid

1980’s, the emergence of methamphetamine will likely garner

the lion’s share of the attention in today’s war.’* These facts

involved narcotic drug laws; 813 (.09%) involved brawls due to the

influence of narcotics. 1998 FBI Uniform Crime Rep. for the United

States 21.

'’ The recent focus by the federal government on methamphetamine is an

obvious reaction to the increased use of this particular drug. The sharp

incline has led some experts to conclude that methamphetamine may be

become the most frequently abused intravenous drug. Paul V. Konovalov,

Note, On a Quest for Reason: A New Look at Surreptitious Search

9

are important if only to reinforce the rise in a phenomena that

the courts are all too familiar with.

In sum, there is simply no debate over the impact of illegal

drugs in the United States. The lack of a dispute therefore

gives rise to the argument that narcotics trafficking parallels, if

not exceeds, the concern over the problem addressed in Sitz.

496 U.S. at 451. It would seem inherently contradictory for

the Court to determine that the public’s concern over narcotics

trafficking exists on a level far removed from that of

eradicating the nation’s drunken driving problem based solely

on a separate degree of urgency, as the Seventh Circuit

majority essentially did. See Edmond, 183 F.3d at 663 (No

urgent consideration of public safety is shown with

Indianapolis’s drug roadblock). The concern over narcotics

trafficking is simply not minimized by an argument that the

effects are not as immediate or dramatic as that of accidents

involving alcohol.

To the extent that this Court has found the nation’s drunk

driving epidemic to satisfy the first Brown factor, the same

result must follow for a problem that parallels and exceeds that

of drunk driving on our nation’s highways.

B. DRUG ROADBLOCKS EFFECTIVELY

ADVANCE THE PUBLIC INTEREST.

In addressing the Brown effectiveness factor, a substantial

degree of deference is paid to law enforcement officials who

develop the particular -roadblocks. The Court in Sitz

emphasized that Brown did not imbue the courts with the

Warrants, 48 Hastings L.J. 435, 437-38 n.18 (1997). See also, Matt Bai,

White Storm Warning: In Fargo and the Prairie States, Speed Kills,

NEWSWEEK, Mar. 31, 1997, at 66-67 (“[A]n alarming amount of meth

is now being made in local ‘labs’ - bathtubs and closets where anyone

with a high-school knowledge of chemistry, and access to hundreds of

recipes on the Internet, can cook up a batch himself.”).

10

power to decide “which among reasonable alternative law

enforcement techniques should be employed to deal with a

serious public danger.” Sitz, 496 U.S. at 453. Towards that

end, the courts cast aside any role in determining reasonable

alternatives, leaving the choice to those officials who possess

the unique understanding of the resources needed to combat a

particular problem."* Jd. at 453-54.

It certainly follows from this line of reasoning that an

absolute number of arrests from any particular roadblock need

not be achieved under the second Brown factor. Indeed, this

Court has historically accepted low “hit rates” in approving

checkpoints. See Martinez-Fuerte, 428 U.S. at 554 (0.12%

arrest rate); Sitz, 496 U.S. at 458 (126 stops, 2 arrests, a 1.6%

arrest rate).'° Various factors contribute to the overall success

rate during any given checkpoint. In practical terms, law

'* For example, the 43rd precinct in the Bronx set up a checkpoint during

the spring and summer of 1992 in response to an escalation of street

crime, including four drive by shootings. In reviewing the basis for this

checkpoint, the Second Circuit found that “at the time of implementation,

the checkpoints were reasonably viewed as an effective mechanism to

deter criminal behavior in the barricaded area.” Maxwell v. City of New

York, 102 F.3d 664, 667 (2nd Cir. 1996).

'® As a further example of “hit rates,” in July of 1992, Minnesota officials

established a narcotics checkpoint on Interstate 35W south of

Minneapolis. Between 7:00 p.m. and 11:00 p.m. approximately 650 cars

passed through the checkpoint. Of that number approximately 50 cars

were diverted for further questioning resulting in a total of seven

individuals being cited for narcotics violations, a hit rate of 1.07%. Chris

Braeske, The Drug War Comes to a Highway Near You: Police Power to

Effectuate Highway “Narcotics Checkpoints” Under the Federal and

State Constitutions, 11 Law & Ineq. J. 449, 450-51, 463 (1993). In State

v. Damask, 936 S.W.2d 565 (Mo. 1996), it was reported that in a

checkpoint set up along I-44 in Franklin County, Missouri 66 vehicles

passed through and 10 vehicles were searched resulting in one arrest, id.

at 568, a hit rate of 1.5%. Likewise, in Merrett v. Moore, 58 F.3d 1547,

1551 (llth Cir. 1995), the Court, im reviewing a “mixed-motive”

roadblock, reported a 4.6% vehicle citation rate.

11

enforcement will likely expect increased or decreased hit rates

depending on the location of the checkpoint. In the matter

before this Court, a drug hit rate of 5% resulted from

checkpoints established within the city limits of Indianapolis.

Edmond, 183 F.3d at 661. Indianapolis achieved an overall hit

rate of 9% when arrests for non-drug related crimes are

included. Jd. Thus, targeting a drug rich environment will

likely result in a much higher success rate than checkpoints set

up in other locations."®

However, the general focus of the effectiveness prong

under Brown turns not on the numbers achieved but on

whether the checkpoint advances the public’s interest. Merrett

v. Moore, 58 F.3d 1547, 1551 (11th Cir. 1995). In the

context of mixed-motive roadblocks, safety concerns are

generally the guideposts. /d., Sitz, 496 U.S. 444. Thus, in

checkpoints established to ensure compliance with traffic and

motor vehicle laws, the state’s interest is sufficiently advanced.

Delaware v. Prouse, 440 U.S. 648, 658 (1979). The same is

true of DUI roadblocks. Sitz, 496 U.S. at 455. The mere

presence of an alternative or additional motivation behind the

checkpoint does not then make it illegitimate.'’ Again, ulterior

motives do not invalidate objectively justifiable police conduct.

Whren, 517 U.S. at 811.

6 In Damask, the I-44 location was targeted as a known drug route, a fact

the Missouri courts had taken judicial note of. State v. Burkhardt, 795

S.W.2d 399, 405 (Mo. 1990) (en banc), State v. Joyce, 885 S.W.2d 751,

752 (Mo. Ct. App. 1994).

'7 For instance, the presence of a K-9 unit at a roadblock designed to check

registration or sobriety fails to implicate any Fourth Amendment

concerns. United States v. Place, 462 U.S. 696, 707 (1983). Thus, a

checkpoint that has been lawfully established cannot then be found

constitutionally infirm merely because the state may have the additional

purpose of intercepting smuggled narcotics. Merrett, 58 F.3d at 1551.

12

In a situation where other motivations are absent and the

establishment of the checkpoint is premised solely on drug

detection, the state’s interest is certainly advanced. Granted,

other law enforcement means exist to detect and seize'

narcotics, but drug roadblocks substantially advance the states’

interest in detecting large shipments of drugs and the very flow

of those shipments. The success of the drug trade is dependent

upon large scale smuggling by “couriers” or “mules” who

traverse the country’s roadways — such as I-70 and I-35

across Kansas — carrying substantial amounts of narcotics.

Thus, checkpoints provide law enforcement with a reasonably

effective means of discovering contraband given that “the flow

of traffic tends to be too heavy to allow the particularized

study of a given car.” Martinez-Fuerte, 428 U.S. at 557. As

in Martinez-Fuerte, the purpose of the checkpoints in question

is legitimate and in the public interest. Jd. at 562. Roadways

are the lifeline of the narcotics industry. Stifling an effective

means of suppressing the flow of narcotics on those roadways

simply because the checkpoint is drug related “would largely

eliminate any deterrent to the conduct of well-disguised

smuggling operations.” Jd. at 557.

The public’s interest in drug eradication is advanced

through the implementation of either single or mixed-motive

checkpoints. Indeed, these checkpoints provide reasonable

methods of narcotics interdiction, while according proper

respect to an individual’s rights under the Fourth Amendment.

The Brown effectiveness prong is therefore satisfied in this

instance.

C. DRUG ROADBLOCKS DO NOT SUB-

STANTIALLY INTERFERE WITH _INDI-

VIDUAL LIBERTY.

The third Brown factor is the extent to which a drug

roadblock intrudes upon the individual liberty of a motorist,

both objectively and subjectively. In this context, the

particulars of each roadblock are important in evaluating both

13

“the duration of the seizure and the intensity of the

investigation” and the “fear and surprise engendered in law-

-abiding motorists by the nature of the stop.” Sitz, 496 U.S. at

452. In addition, the degree to which the checkpoint interferes

with legitimate traffic and the discretion afforded the officers

will further define the checkpoint’s constitutionality. Martinez-

Fuerte, 428 U.S. at 558-59.

The similarities between the roadblocks at issue here and

those approved by the Court on prior occasions lead to the

conclusion that the intrusiveness of drug checkpoints in general

is constitutionally indistinguishable. Sitz, 496 U.S. at 453.

1. OBJECTIVELY, DRUG ROADBLOCKS

INTERFERE ONLY MINIMALLY WITH

INDIVIDUAL LIBERTY.

It is conceded that any checkpoint stop will constitute a

seizure as the stop “intrude[s] to a limited extent on motorists’

right to ‘free passage without interruption.” Martinez-Fuerte,

428 U.S. at 556, 557-58 (quoting Carroll v. United States, 267

U.S. 132, 154 (1925)); Sitz, 496 U.S. at 450. However, this

Court has historically refused to draw a bright line on the

length of an investigative stop, relying rather on the directive

that the seizure “not involve any delay unnecessary to the

legitimate investigation of the law enforcement officers.”

United States v. Sharpe, 470 U.S. 675, 686-87 (1985).

In Martinez-Fuerte and Sitz the Court found the

respective detentions to be both brief and minimal. 428 U.S.

at 544-48, 558 (3 to 5 minute detention); 496 U.S. at 448, 452

(25 second average delay). More specifically, the Court in Sitz

found:

“virtually no difference between the levels of intrusion on

law-abiding motorists from the brief stops necessary to the

effectuation of these two types of checkpoints, which to

the average motorist would seem identical save for the

nature of the questions the checkpoint officer might ask.”

14

Id. at 451-52.

This determination is equally applicable to the matter now

before the Court. Absent specific questions by law

enforcement officers to the motorist about the possible

possession of narcotics, the minimal level of intrusion is

virtually identical to Martinez-Fuerte and Sitz."*

Any given checkpoint will involve a number of variables,

e.g., increased traffic, weather, substantial “hit rates” resulting

in increased investigation, etc. Thus, a checkpoint, at its

inception, must be designed to limit any potential delays that

motorists might encounter, such delays having the greatest

potential for constitutional violations and liability. Merrett, 58

F.3d at 1552. The level of intrusiveness can be easily

calculated through effective planning and the establishment of

rigid guidelines designed not only to limit the discretion of the

officers involved but also to counter any unforseen problems. |

Accordingly, organizational planning becomes paramount in

order to limit the objective intrusion upon those passing

through the checkpoint. Martinez-Fuerte, 428 U.S. at 559.”

'§ For example, in Damask, the objective intrusion at both checkpoints was

viewed as minimal. At the Franklin County checkpoint the officers were

limited to checking a driver’s license and registration, inquiring whether

the driver saw the posted checkpoint signs, and why the driver had exited

the road after seeing the sign. The Texas County checkpoint was even

less intrusive. There officers did not check licenses and registrations,

opting only to question the driver about whether they had observed the

checkpoint sign, where they were going, and where they were coming

from. In addition, the checkpoints were established in regions that fully

minimized potential traffic problems. In all, a motorist was stopped, on

the average, for no more than two minutes. 936 S.W.2d at 574.

'? In his dissent, Judge Easterbrook rightfully noted that Indianapolis took

great pains to establish a rigorous protocol for its checkpoint, thus

eliminating the unconstrained discretion that was at the heart of this

Court’s decision in Delaware v. Prouse. Edmond, 183 F.3d at 670.

15

It is undisputed that checkpoint stops could fail a

constitutional evaluation if they are operated at a level of

indiscretion akin to a roving patrol. Jd. at 558-59. Asa result,

narcotics checkpoints must be implemented in a manner so that

“an individual’s reasonable expectation of privacy is not subject

to arbitrary invasions solely at the unfettered discretion of

officers in the field.” Brown, 443 U.S. at 51 (citations omitted).

Prior case law supports the fact that narcotics roadblocks are

indeed established in a manner consistent with these well-

settled constitutional principles, as common protocols include,

among other things, advance planning, monitoring the time

involved in the stop, and responding to potential traffic

congestion. See State v. Damask, 936 S.W.2d 565, 574 (Mo.

1996); Merrett, 58 F.3d at 1549, 1551-52; State v. Jackson,

942 P.2d 640, 641-42, 24 Kan. App. 2d 38, 39-40 (1997).

2. SUBJECTIVELY, DRUG ROADBLOCKS

INTERFERE ONLY MINIMALLY WITH

INDIVIDUAL LIBERTY.

This Court has continually found the level of intrusiveness

at checkpoints to be far less than that attending a roving patrol.

United States v. Ortiz, 422 U.S. 891, 894-95 (1975); Martinez-

Fuerte, 428 U.S. at 558. Consequently, checkpoints are

viewed in a wholly separate context. Jd.

Courts must account for not only the level of discretion

afforded the officers” but the potential for fear and surprise

2 In Damask, the appeals court went to the extent of asking the following:

(1) Was the checkpoint conducted according to a plan prepared in advance

with the input of both field and supervisory personnel? (2) Does the plan

designate specific guidelines to be followed by field personnel? (3) Were

the terms of the plan adequately disseminated to the field personnel prior

to operation of the checkpoint? (4) Were supervisory personnel on hand

to oversee the checkpoint? (5) Was the checkpoint location chosen by

supervisory personnel for some nonarbitrary reason? (6) Were all vehicles

stopped or, if not, were there specific, nondiscretionary criteria used to

16

generated by the checkpoint when evaluating the subjective

intrusion on motorists. Sitz, 496 U.S. at 452. However, the

“fear and surprise’ to be considered are not the natural fear of

one who [is smuggling narcotics] over the prospect of being

stopped at a [narcotics checkpoint] but, rather, the fear and

surprise engendered in law-abiding motorists by the nature of

the stop.” Jd. This fear, as this Court has found, is minimized

by the fact that other vehicles are subjected to the same

investigatory measures, that the authority of the law

enforcement officers is visibly apparent, and that the fright and

annoyance of such an intrusion is much less appreciable than

that which might occur during a roving patrol stop. Ortiz, 422

US. at 894-95.

In light of these factors, the planning stage for a narcotics

checkpoint becomes important as it is here that the level of

discretion is defined. Guarding against the possibility of

unbridled decision making, the field personnel’s discretion must

be sufficiently circumscribed in order to prevent the operational

phase from shifting into a “roving patrol.” Thus, a well-

documented approach that narrows the discretion of the

officers fulfills the constitutional safeguards. Additionally, an

advance plan that is authorized by supervisory officers who

establish a checkpoint in an area designed to accomplish the

intended goal will further sustain the checkpoint’s

constitutionality. Martinez-Fuerte, 428 U.S. at 559.

Minimizing the fear of lawful travelers requires paying a

great deal of attention to the actual set up of the narcotics

checkpoint. Diminishing citizens’ fears will therefore depend

largely upon the notice that is supplied and the “visible signs of

the officers’ authority.” Ortiz, 422 U.S. at 895. In most, if not

all, circumstances motorists will be notified by one or more

generate a random determination as to which vehicles would be stopped,

as opposed to some sort of discretionary selection method? 936 S.W.2d

at 574.

17

large signs signaling the approach of a narcotics checkpoint.”!

Damask, 936 S.W.2d at 568 (two signs reading “DRUG

ENFORCEMENT CHECKPOINT 1 MILE AHEAD),

Merrett, 58 F.3d at 1549 (“cones, warning signs, and flashing

lights”); State v. Everson, 474 N.W.2d 695, 696 (N.D. 1991)

(Large sign reading “Please stop”); Edmond, 183 F.3d 659

(See Pet: App. at 57a) (“NARCOTICS CHECKPOINT __

MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED

TO STOP”); United States v. Ramirez-Gonzalez, 87 F.3d 712,

713 (Sth Cir. 1996) (Large traffic signs posted over 100 yards

away which read “Drug Interdiction Checkpoint.”), Jackson,

942 P.2d at 642, 24 Kan. App. 2d at 39 (Motorists on I-35

advised by five signs stating either “check lane ahead” or

“narcotics check lane ahead”). Once the checkpoint is.reached,

uniformed officers are present to conduct a routine inquiry with

the traveler. Damask, 936 S.W.2d at 568 (cars found

uniformed officer waiting); Merrett, 58 F.3d at 1549 (12

officers plus four to five K-9 units present at each checkpoint),

Everson, 474 N.W. 2d at 696-697 (sheriff's deputies, drug

enforcement officers and highway patrol officers present at

checkpoint); Edmond, 183 F.3d 659 (See Pet. App. at 57a)

(stopped cars met by a team of officers, one of whom was in

full uniform); Jackson, 942 P.2d at 642, 24 Kan. App. 2d at 39

(17 officers at scene). It is clearly evident that having non-

uniformed officers conducting the initial contact with the

motorists could cause a potential hazard given the lack of

apparent authority. It stands to reason that highly visible,

uniformed officers will always be present during the primary

encounter with a motorist.

21 In a very recent decision, the Fourth Circuit found that in a narcotics

checkpoint established on Interstate 95 near Ridgeland, South Carolina,

motorists were warned of an impending roadblock by “two signs,

illuminated by safety flares and reflective lettering, reading ‘DRUG

CHECKPOINT AHEAD.”” United States v. Brugal, No. 98-4255, 2000

WL 345778, at *1 (4th Cir. Apr. 4, 2000).

18

In practical terms, a narcotics checkpoint is designed not

only to minimize the fear that might be instilled in an

approaching driver, but to ensure the safety of the officers as

well. Towards that end, it seems only prudent that sufficient

measures, through the use of large signs, direction cones, and

necessary lighting, among other things, will be taken in order

to balance the motorists interests with that of law enforcement.

The intrusion visited upon a motorist who is subject to a

narcotics checkpoint is minor at most. A well-designed

checkpoint will address any potential nsks that might otherwise

make the seizure unreasonable, thus limiting the interference

with individual liberty. Brown, 443 U.S. at 51. There is no

significant difference between narcotics checkpoints in general

and the checkpoints approved in both Martinez-Fuerte and

Sitz. All are similar in design and purpose, varying only in the

criminal activity they seek to uncover. Accordingly, drug

roadblocks satisfy the final Brown factor.

lil. THE CONSTITUTIONALITY OF A ROADBLOCK

MUST BE ASSESSED UNDER A_ REA-

SONABLENESS STANDARD AND NOT ON THE

EXISTENCE OF EXCEPTIONS.

The majority in Edmond ostensibly carves out an

exception for roadblocks established by the federal government

on an enumerated powers basis. Indeed, the majority

acknowledged the “paradoxical implication” of that decision

which, rightfully so, would contravene traditional notions of

federalism by subjecting the states to greater Fourth

Amendment restrictions. Edmond, 183 F.3d at 664-65.

Evaluation of the constitutionality of a checkpoint must occur

under the proper reasonableness analysis; it is not dependent on

whether an exception exists for a particular federal agency.

The Seventh Circuit’s majority approach “to normal fourth

amendment principles turns that amendment on its head.” Jd.

at 670. (Easterbrook, J., dissenting). Any idea that a

checkpoint’s validity must be predicated on an exception

19

simply has no constitutional foundation and impinges the

states’ police powers.

Thus, this Court has found that “for purposes of Fourth

Amendment analysis, the choice among such reasonable [law

enforcement] alternatives 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.” Sitz, 496 U.S. at 453-54. Judge

Easterbrook’s well-reasoned dissenting opinion in Edmond is

consistent not only with Sitz, but with the framers’ intent as

well, given that “[I]ocal governments should have more, not

less, leeway than does the national government to decide how

the tradeoff between privacy and effective law enforcement

shall be handled.” Edmond, 183 F.3d at 671 (Easterbrook, J.

dissenting).

The unprecedented mobility of today’s populace means

that politically accountable officials whose law enforcement

methods prove ineffective and/or Draconian face the

undesirable prospect of being removed at the ballot box and/or

losing disgruntled citizens to neighboring communities with

more responsive officials. The roadblocks at issue here are

precisely the kind of reasonable law enforcement tools that

politically accountable officials should be permitted to

implement. The success or failure of these roadblocks will

ultimately be judged by the citizenry, who will either reward

those public officials with reelection or punish them by electing

an opponent or relocating to another community.

IV. THIS COURT SHOULD NOT DEPART FROM ITS

WELL-ESTABLISHED CASE LAW.

Balancing the state’s interests against the individual liberty

of a motorist in a fixed checkpoint context, this Court has, on

several occasions, approved checkpoints. Indeed, in Martinez-

Fuerte, Sitz, Prouse, and Brown, this Court has approved the

establishment of checkpoints that are minimally intrusive and

20

sufficiently limit the discretion of individual officers. In the

final analysis, narcotics roadblocks are constitutionally

permissible. The strictures of the Fourth Amendment are not

violated because the “balance of the State’s interest in

[eradicating narcotics trafficking], the extent to which [these

checkpoints] can reasonably be said to advance that interest,

and the degree of intrusion upon individual motorists who are

briefly stopped, weighs in favor of the state... . .” Sitz, 496

U.S. at 455.

21

CONCLUSION

For the foregoing reasons, this Court should reverse the

Seventh Circuit’s decision. :

Respectfully submitted,

CARLA J. STOVALL

Kansas Attorney General

STEPHEN R. MCALLISTER

Kansas State Solicitor

(Counsel of Record)

JARED S. MAAG

Assistant Attorney General

120 S.W. 10th Avenue, 2nd FI.

Topeka, Kansas 66612-1597

(786) 296-2215

Counsel for Kansas and the

Amici States

May 2000

22

BILL PRYOR

Attorney General

State of Alabama

JANET NAPOLITANO

Attorney General

State of Arizona

MARK PRYOR

Attorney General

State of Arkansas

BILL LOCKYER

Attorney General

State of California

JOHN M. BAILEY

Chief State’s Attorney

State of Connecticut

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

JAMES E. RYAN

Attorney General

State of Illinois

KAREN M. FREEMAN-WILSON

Attorney General

State of Indiana

THOMAS J. MILLER

Attorney General

State of lowa

MICHAEL C. MOORE

Attorney General

State of Mississippi

DON STENBERG

Attorney General

State of Nebraska

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

JAN GRAHAM

Attorney General

State of Utah

MARK L. EARLEY

Attorney General

State of Virginia