Amicus Curiae Brief — Allender v. United States

Supreme Court, US.

FILED

No. 99-1030

MAY 1.52099.

IN THE

Supreme Court of the Unite States

CITY OF INDIANAPOLIS, INDIANA, AND STEPHEN

GOLDSMITH, IN HIS OFFICIAL CAPACITY AS MAYOR OF THE

CITY OF INDIANAPOLIS,

Petitioners,

Vv.

JAMES EDMOND, ET AL.,

Respondents.

On Writ Of Certiorari to the

United States Court of Appeals

For the Seventh Circuit

BRIEF OF THE

NATIONAL LEAGUE OF CITIES, NATIONAL

GOVERNORS’ ASSOCIATION, NATIONAL

ASSOCIATION OF COUNTIES, COUNCIL OF STATE

GOVERNMENTS, INTERNATIONAL CITY/COUNTY

MANAGEMENT ASSOCIATION, INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION, AND

U.S. CONFERENCE OF MAYORS

AS AMICI CURIAE SUPPORTING PETITIONERS

RICHARD RUDA *

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington D.C. 20001

(202) 434-4850

* Counsel of Record for the

Amici Curiae ;

Witson - Eres Printine Co.. inc. - 789-0096 - WasHINGTON. D.C. 20001

QUESTION PRESENTED

Whether checkpoints at which law enforcement officers

briefly stop vehicular traffic, check motorists’ licenses and

vehicle registrations, look for signs of impairment, and walk a

“narcotics detection” dog around the exterior of each stopped

automobile are unlawful under the Fourth Amendment.

(i)

TABLE OF CONTENTS

ete cg an EEN REE REEE TSS SPSS Eas U8 SOAR OU SNORE

INDIANAPOLIS* ROADBLOCK PROGRAM

SATISFIES THE FOURTH AMENDMENT............

A. Brown v. Texas Provides The Standard For

Determining The Constitutionality Of

Indianapolis’ Checkpoints..............ccceccece0e.

B. A Primary Purpose Of Interdicting Drug

Offenders Does Not Render Indianapolis’

Program Violative Of The Fourth

ey CEE LTR ON TEE IO

ky ptt as cane OE IN cg ee See

(ili)

Page

27

iV

TABLE OF AUTHORITIES

Cases Page

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

Camara v. Municipal Court, 387 U.S. 523

1 GET Pcs ciscsiapascccipubelateuaiesianalsnianeeune mnie 21

Chandler v. Miller, 520 U.S. 305 (1997)............... 19

Delaware v. Prouse, 440 U.S. 648 (1979)......... 9, 11, 16

Florida v. Royer, 460 U.S. 491 (1983) ........ eee 25

Galbert v. United States, 590 A.2d 990 (D.C.

FINED issuieshs bosisasudelonslasbissand saadadaatasudeaambannias Keiiainghaiae 26

Horton v. California, 496 U.S. 128 (1990)............ 25

Maryland v. Buie, 494 U.S. 325 (1990).............. 22

Michigan v. Summers, 452 U.S. 692 (1981).......... 22

Michigan Dept. of State Police v. Sitz, 496 U.S.

SE I eich tinhchaniediccdsenbaciscaernapacess cienavaitsabints passim

New. York v. Burger, 482 U.S. 691 (1987)............. 24

Pennsylvania v. Mimms, 434 U.S. 106 (1977)....... 8

South Dakota v. Opperman, 428 U.S. 364

EN iakicnnsasiearcencotabibinahs Siaamdadubaee idinedanhaiinteids 24

Texas v. Brown, 460 U.S. 730 (1983) .........cceeeeeees 25

Ferry v. GIO, FIZUIS. 1 CUGGB) ossscisccssscssesonseas a, Ba ee

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

CIE siikcaininianicaibgaihsintained covacadslad esthiaenaaeaseecaneni 12

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

EP iakivesshhaicnb acd ecesbcadicbbadsdapixddeniduanakiatatin oohabates 8,9

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

FIIR spk snsiicidvanientsiicadiadedcaitanas oti abaaante passim

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

is SN iicciannessnnitiasnbinnaj bla cinsa taka puadciintcaneasias tea 26

United States v. Mendenhall, 446 U.S. 544

CP ctinckaxticsidibicarts bias tarsi hcitcapiigabdnsaniiniansiassien 1, 7, 14

United States v. Ortiz, 422 U.S. 891 (1975) .......... 10

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

United States v. Robinson, 414 U.S. 218 (1973)... 21, 22

Whren v. United States, 517 U.S. 806 (1996)........ 5, 24

Vv

TABLE OF AUTHORITIES—Continued

Statutes | Page

Wane, Fume, Ce Br bh oa vccnisscctsnsastundelacaeitsonies 16

Ind. Ann. Code § 9-24-18-5 .uu.........cccccscsssccssssssseees 16

Other Authorities

Brief for Petitioners, Michigan Dept. of State

Police v. Sitz, 496 U.S. 444 (1990)... 6, 24

U.S. Department of Justice, Bureau of Justice

Statistics, Drugs, Crime and the Justice System

CIDR sssinssicrssnsissectindaiaeaabndiahanaenadie |

U.S. Department of Justice, Bureau of Justice

Statistics, DWI Offenders under Correctional

DCT RIE TIRE sesisicecnnssniiuiichoisddedassnanaiaiapmeinksl 24

U.S. Department of Justice, Drug Enforcement

Administration, Table, Percentage of Adult

Males Testing Positive for Any Drug at Time

of Arrest <http://www.usdoj.gov/dea/stats/

CONES DOI is sitiesinsinsniencciavnnichaahanibenaiehitanas 14

U.S. Department of Justice, Drug Enforcement

Administration, Table, Percentage of Adult

Males Testing Positive for Specific Drugs at

Time of Arrest in 1998 http://www.usdoj.

gov/dea/stats/drugstats Atm ..........ceeeseeeeeeeeeeeeees 14

U.S. Department of Transportation, National

Highway Traffic Safety Administration

Drug Impaired Driving http://www.nhtsa.dot.

gov/people/outreach/safesobr/ 1 5qp/web/iddrug

RNIIG, .isiecisninieececeessitnnileibiomasbatecseemiennaani 23, 23-24, 24

U.S. Department of Transportation, National

Highway Traffic Safety Administration,

Technical Report, Evaluation of Checkpoint

Tennessee: Tennessee's Statewide Sobriety

Checkpoint Program _http://www.nhtsa.dot.

gov/people/injury/research/ChekTenn/ChkptT

PO RINDI sinissossssaicintesisaacinitenCeetsamdepncadiaasimaainatiia 17

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county, and municipal governments and officials throughout

the United States. Amici have a strong interest in legal issues

that affect state and local governments.’

As Justice Powell wrote, “[t]he public has a compelling in-

terest in detecting those who would traffic in deadly drugs for

personal profit. Few problems affecting the health and wel-

fare of our population, particularly our young, cause greater

concern than the escalating use of controlled substances.”

United States v. Mendenhall, 446 U.S. 544, 561 (1980) (Pow-

ell, J.. concurring). The drug trade destroys lives and fami-

lies, causes crime, ruins neighborhoods, disrupts schools,

strains the health care systems of urban areas, and harms

business, industry and workplaces. See U.S. Department of

Justice, Bureau of Justice Statistics, Drugs, Crime, and the

Justice System 7-14 (1992).

The pervasiveness and extent of the harms caused by drug

trafficking mandate innovative approaches to law enforce-

ment efforts. Like other States and local governments, Indi-

anapolis has initiated a highly effective program of drug

checkpoints, which is modeled on the programs upheld by

this Court in Michigan Dept. of State Police v. Sitz, 496 U.S.

444 (1990), and United States vy. Martinez-Fuerte, 428 U.S.

543 (1976). The program is conducted under strict guidelines

which constrain police discretion and involves only a brief

delay to motorists. The sole difference between Indianapolis’

' Pursuant to Rule 37.3 of the Rules of this Court. the parties have con-

sented to the filing of this brief amicus curiae. Their letters of consent

have been filed with the Clerk of the Court.

Pursuant to Rule 37.6, amici state that this brief was not authored in

whole or in part by counsel for a party, and no person or entity, other than

amici or their members, made a monetary contribution to the preparation

or submission of this brief.

2

program and those which the Court has previously upheld is

that each car is subject to a non-invasive dog sniff. See

United States v. Place, 462 U.S. 696, 707 (1983). This, how-

ever, does not render the program a violation of the Fourth

Amendment's prohibition against unreasonable seizures.

Acknowledging that under existing Fourth Amendment

doctrine “these roadblocks probably are legal,” Pet. App. 3a,

the court of appeals devised a novel rule to invalidate the

program. According to the court, “the purpose behind the

program is critical to its legality” and “[t]he program must be

a bona fide effort to implement an authorized regulatory pol-

icy rather than a pretext for a dragnet search for criminals.”

Id. at 10a. This rule is inconsistent with the text of the Fourth

Amendment and this Court's cases, which use an objective

inquiry to assess the reasonableness of police procedures. It

threatens other constitutionally reasonable police procedures

whenever they are used primarily for genera! criminal -law

enforcement.

Because of the importance of the issue to amici and their

members, this brief is submitted to assist the Court in its reso-

lution of the case.

SUMMARY @F ARGUMENT

A police roadblock is a seizure under the Fourth Amend-

ment, but the Fourth Amendment prohibits only those sei-

zures that are unreasonable. The constitutionality of a road-

block is thus determined 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). Applying this test, the Court has twice

upheld roadblocks. See Michigan Dept. of State Police vy.

Sitz, 496 U.S. 444 (1990); United States v. Martinez-Fuerte,

428 U.S. 543 (1976).

3

Indianapolis’ program is likewise constitutional. The dis-

tribution, sale and use of illegal drugs is one of this country’s

most pressing problems. The roadblocks clearly advance the

public interest as the program has resulted in an arrest rate of

4.7 percent for drug offenses and 4.3 percent for driving of-

fenses.

Nor does the program unreasonably interfere with individ-

ual liberty. The roadblocks are carried out under a plan

which imposes “explicit, neutral limitations on the conduct of

individual officers,” Brown v. Texas, 443 U.S. at 51, and does

not permit deviation from the procedure absent additional jus-

tification. Moreover, the location of the roadblocks is se-

lected weeks in advance by officers at the supervisory level.

The level of objective intrusion is only marginally greater

than that of sobriety checkpoints, which the Sitz Court charac-

terized as “minimal.” 496 U.S. at 452. The average duration

of a stop is two to three minutes or less, Pet. App. 28a, 57a, a

shorter period than that upheld in Martinez-Fuerte. See 428

U.S. at 547. The only significant difference between Indian-

apolis’ program and those upheld in Martinez-Fuerte and Sitz

is the dog sniff. A dog sniff, however, is a limited non-

invasive procedure that does not require a driver to open car

doors, the glove compartment, or the trunk. “It does not ex-

pose noncontraband items that otherwise would remain hid-

den from public view” and “discloses only the presence or

absence of narcotics, a contraband item.” United States v.

Place, 462 U.S. 696, 707 (1983). | There is “no other inves-

tigative procedure that is so limited both in the manner in

which the information is obtained and in the content of the

information revealed by the procedure.” Jd. Indeed, the

Court has held that a dog sniff is not “a ‘search’ within the

meaning of the Fourth Amendment.” /d. The objective intru-

sion of Indianapolis’ roadblocks is thus well within the range

of constitutional reasonableness.

4

The subjective intrusion of Indianapolis’ program — “the

fear and surprise engendered in law-abiding motorists by the

nature of the stop,” Sitz, 496 U.S. at 452 — does not render it

constitutionally unreasonable. Motorists are provided with

* ‘visible signs of the officers’ authority,” id. at 453 (quoting

Martinez-Fuerte, 428 U.S. at 558) including signs announc-

ing the checkpoint and the presence of thirty police officers

and several cruisers. Motorists can also see that the proce-

dure is conducted in a regularized manner. Finally, having a

dog led around the exterior of one’s car does not create fear

and anxiety in a “law-abiding motorist[],” id. at 452, to any

greater degree than police walking around the car to check for

working lights, a valid license plate, and inspection sticker. It

is also far less likely to generate fear and anxiety than the se-

lective referrals for further questioning, even in the absence

of articulable suspicion, which the Court upheld in Martinez-

Fuerte. See 428 U.S. at 560.

The court of appeals acknowledged that if the reasonable-

ness of Indianapolis’ program “is to be assessed at the level

of the entire program . . . these roadblocks probably are legal,

given the high ‘hit’ rate and the only modestly intrusive char-

acter of the stops.” Pet. App. 3a. The court failed, however,

to follow this Court's precedents, reasoning instead that

“courts do not usually assess reasonableness at the program

level when they are dealing with searches related to general

criminal law enforcement rather than to primarily civil regu-

latory programs for the protection of health, safety, and the

integrity of our borders.” /d. at 4a. Because Indianapolis ac-

knowledged that the primary purpose of its roadblocks was to

interdict drug offenders, the court held the program unconsti-

tutional.

The court of appeals’ contention that courts do not assess

the reasonableness of police procedures related to general

criminal law enforcement by conducting program-level bal-

ancing cannot be squared with cases such as Martinez-Fuerte

ce I AOE LEE EE LL LT IE

Te St AEE ET INT TED Tm

5

and Sitz, which employed this approach. It ignores that in

Martinez-Fuerte, each of the non-governmental parties had

been indicted for multiple felony offenses. And while Sitz

did not arise out of a criminal prosecution, the Court was

surely cognizant of the consequence for those found at a

roadblock to have been driving under the influence. It also

ignores other cases in which this Court has relied on pro-

grammatic justifications to uphold police procedures related

to general criminal law enforcement. See, e.g., Terry v. Ohio,

392 U.S. | (1968).

This Court's cases also refute the court of appeals’ conten-

tion that inquiry into a program's purpose “‘is critical to its

legality,” and because Indianapolis’ “program has no regula-

tory purpose,” it is constitutionally unreasonable. Pet. App.

10a. Aside from the fact that the district court found that In-

dianapolis’ program had the secondary purpose of checking

driver's licenses and vehicle registrations, this Court has

“never held, outside the context of inventory search or admin-

istrative inspection . . . that an officer's motive invalidates

objectively justifiable behavior under the Fourth Amend-

ment.” Whren v. United States, 517 U.S. 806, 812 (1996).

Furthermore, in Sitz the Court expressly rejected the conten-

tion that “there must be a showing of some special govern-

mental need ‘beyond the normal need’ for criminal law en-

forcement before a balancing analysis is appropriate.” 496

U.S. at 450. That the government's purpose is to enforce the

criminal law as opposed to a regulatory program is not proba-

tive of whether police conduct that does not amount to a

search is constitutionally reasonable.

The court of appeals’ inquiry into purpose is also unwork-

able, as shown by the court's suggestion that the result might

be different “if the primary purpose were to detect drunken

drivers” because “the dog could be added to the roadblock

scenario on the theory that since a sniff is not a search, the

incremental invasion of privacy would be negligible.” Pet.

6

App. Ila. Rather than engage in an inquiry which the Fourth

Amendment provides no standard for resolving, courts should

examine the intrusiveness of the procedures used at a road-

block to determine whether the interference with individual

liberty is so severe as to render it constitutionally unreason-

able. Because Indianapolis’ procedures do not unreasonably

intrude on motorists” liberty, the program is constitutional.

ARGUMENT

INDIANAPOLIS’ ROADBLOCK PROGRAM SATISFIES

THE FOURTH AMENDMENT

The court of appeals failed to follow settled Fourth

Amendment principles in stiking down Indianapolis’ highly

effective roadblock program. The court acknowledged that

“[iJn the case of Indianapolis’ drug-roadblock program, the

probability of a ‘hit’ is high,” that “the deterrence of drug of-

fenses produced by these hits advances the strong national,

state, and local policy of discouraging the illegal use of con-

trolled substances,” and that “[t}he cost—in delay, anxiety,

and invasion of privacy—to the drivers and passengers

stopped for five minutes at a roadblock and subjected to a

visual inspection of the interior and a sniff by a dog is small,”

Pet. App. 4a, thus demonstrating that the program satisfies the

three-part test of Brown v. Texas, 443 U.S. 47 (1979)-

Viewing the program as a “method{] of policing associ-

ated with totalitarian nations,” Pet. App. 4a-5a, the court of

appeals failed to apply the Brown test. It did so notwithstand-

ing that Michigan Dept. of State Police v. Sitz, 496 U.S. 444

(1990), applied this test in upholding sobriety checkpoints for

drivers “under the influence of alcohol or controlled sub-

stances.” Brief for Petitioners at 6, Sitz (No. 88-1897); see

* Indeed. the cost to motorists is even less than this, as the district court

found that “[a} typical stop lasts 2 to 3 minutes.” Pet. App. 28a (citing

Depew Aff. 45, Pet. App. 57a-58a).

7

also Pet. App. 7a (Sitz upheld “roadblocks at which drivers

are checked for being under the influence of alcohol or

(other) mind-altering drugs”). According to the court of ap-

peals, “the purpose behind the program is critical to its legal-

ity.” Id. at 10a. In the court's view, because the City’s pro-

gram “is meant to intercept a completely random sample of

drivers [and] there is neither probable cause nor articulable

suspicion to stop any given driver,” id. at 6a, it is constitu-

tionally unreasonable unless it is “a bona fide effort to im-

plement an authorized regulatory policy rather than a pretext

for a dragnet search for criminals.” /d. at 10a. Because the

city openly acknowledged that the program's primary pur-

pose is “to interdict unlawful drugs,” id. at 51a (stipulation),

the court held that Indianapolis’ roadblocks violate the Fourth

Amendment.

As explained below, the court of appeals’ rule is unhelpful

in determining whether Indianapolis’ roadblocks are reason-

able under the Fourth Amendment. While “inquiry into pur-

pose is one method of identifying and banning the most fla-

grantly abusive governmental conduct,” Pet. App. 11a, inter-

dicting drug offenders is as indisputably valid and compelling

a governmental purpose as “detect[{ing] drunk drivers.” Pet.

App. 10a-1 1a; see United States v. Mendenhall, 446 U.S. 544,

561 (1980) (Powell, J., concurring). Moreover, the Brown v.

Texas standard identifies “the most flagrantly abusive gov-

ernmental conduct,” Pet. App. | 1a, because it examines “the

degree to which the seizure advances the public interest.”

443 U.S. at 51. Indianapolis’ roadblocks are only minimally

more intrusive to motorists than the roadblocks upheld in Sitz

and United States v. Martinez-Fuerte, 428 U.S. 543 (1976).

The incremental intrusion of a dog sniff — which itself is not a

search, see United States v. Place, 462 U.S. 696 (1983) —

does not render Indianapolis’ roadblocks constitutionally un-

reasonable. While law enforcement experts might disagree

over the best methods for interdicting drug offenders, the

Court has made clear that the Fourth Amendment leaves it to

8

politically accountable state and local officials to choose

among constitutionally reasonable alternatives. See Sitz, 496

U.S. at 453-54.

A. Brown v. Texas Provides The Standard For Deter-

mining The Constitutionality Of Indianapolis’

Checkpoints

It is well settled that police roadblocks or * ‘checkpoint

stops are ‘seizures’ within the meaning of the Fourth

Amendment.” = Sitz, 496 U.S. at 450 (quoting Martine:-

Fuerte, 428 U.S. at 556). The Fourth Amendment, however,

does not prohibit all seizures but only those which are unrea-

sonable. See id.; see also United States v. Brignoni-Ponce,

422 U.S. 873, 878 (1975). “The reasonableness of seizures

that are less intrusive than a traditional arrest depends * * “on

a balance between the public interest and the individual's

right to personal security free from arbitrary interference by

law officers.” *” Brown v. Texas, 443 U.S. at 50 (quoting

Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (quoting

Brignoni-Ponce, 422 U.S. at 878)). The Court has further

explained that “[c]onsideration of the constitutionality of such

seizures involves a weighing of the gravity of the public con-

cerns served by the seizure, the degree to which the seizure

advances the public interest, and the severity of the interfer-

ence with individual liberty.” /d. at 50-51.

The essential concern in assessing the reasonableness of a

seizure short of arrest is to protect “the individual's right to

personal security free from arbitrary interference by law offi-

cers.” Brignoni-Ponce, 422 U.S. at 878. See Sitz, 496 U.S.

at 450; Brown, 443 U.S. at 51. “[T]he Fourth Amendment

requires that a seizure must be based on specific, objective

facts indicating that society's legitimate interests require the

seizure of a particular individual, or that the seizure must be

carried out pursuant to a plan embodying explicit, neutral

limitations on the conduct of individual officers.” Brown,

443 U.S. at 51. Thus, while the Court has held that random

9

stops of motorists which are not based on individualized sus-

picion are constitutionally unreasonable, see Delaware v.

Prouse, 440 U.S. 648, 663 (1979); Brignoni-Ponce, 422 U.S.

at 882-84, it has twice upheld roadblocks conducted by offi-

cers whose discretion has been properly circumscribed to pro-

tect against arbitrary police conduct. See Sitz, 496 U.S. at

450-53; Martinez-Fuerte, 428 U.S. at 559-64.

1. In Martinez-Fuerte, the Court held that the Border Pa-

trol’s operation of fixed roadblocks to detect illegal aliens,

which were established on major highways in Southern Cali-

fornia and Texas 65 to 90 miles from the Mexican border,

were reasonable under the Fourth Amendment notwithstand-

ing that the government did not have reasonable suspicion to

stop any single vehicle. See 428 U.S. at 545-50." The Court

began its Fourth Amendment analysis by noting “the substan-

tiality of the public interest in the practice of routine stops for

inquiry at permanent checkpoints,” and that “[rjoutine check-

point inquiries apprehend many smugglers and illegal aliens

who” use “important highways” as “a quick and safe route

into the interior.” /d. at 556-57. The Court thus concluded

that the government's “need to make routine checkpoint stops

is great.” Jd. at 557.

The Court then examined the degree to which the stops in-

truded on Fourth Amendment interests. The Court observed

that the proceedure “involves only a brief detention of travel-

ers during which all that is required of the vehicle's occupants

‘Although the court of appeals distinguished Martinez-Fuerte on the

ground that it “depend{ed] ultimately on sovereign powers over foreign

relations, foreign commerce, citizenship, and immigration that states and

cities do not possess.” Pet. App. 9a (citation omitted), the Sirs Court ex-

tensively relied on Martinez-Fuerte in upholding Michigan's sobriety

checkpoints. See, ¢.g., 496 U.S. at 450 (“Martinez-Fuerte, which utilized

a balancing analysis in approving highway checkpoints for detecting ille-

gal aliens, and Brown v. Texas, are the relevant authorities here.” ) (cita-

tions omitted).

10

is a response to a brief question or two and possibly the pro-

duction of a document evidencing a right to be in the United

States.” /d. at 558 (internal quotations and citation omitted).

Furthermore, “[nJeither the vehicle nor its occupants are

searched, and visual inspection of the vehicle is limited to

what can be seen without a search.” Jd. While noting that

“[t]his objective intrusion” also existed with the roving patrol

stops which the Court held unconstitutional in Brignoni-

Ponce, the Court explained that “we view checkpoint stops in

a different light because the subjective intrusion—the gener-

ating of concern or even fright on the part of lawful travel-

ers—is appreciably less in the case of a checkpoint stop.” /d.

This is so, the Court reasoned, because “ *[a]t traffic check-

points 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.” — /d. (quoting United States v. Ortiz, 422 U.S.

891, 894-95 (1975)).

The Martinez-Fuerte Court also found it significant that

“checkpoint operations both appear to and actually involve

less discretionary enforcement activity.” Jd. at 559. As the

Court explained, “[t}he regularized manner in which estab-

lished checkpoints are operated is visible evidence, reassuring

to law-abiding motorists, that the stops are duly authorized

and believed to serve the public interest.” /d. The Court

noted with approval that “[t}he location of a fixed checkpoint

is not chosen by officers in the field, but by officials respon-

sible for making overall decisions as to the most effective al-

location of limited enforcement resources,”’ who are “unlikely

to locate a checkpoint where it bears arbitrarily or oppres-

sively on motorists as a class.” /d. Because “field officers

may stop only those cars passing the checkpoint, there is less

room for abusive or harassing stops of individuals than there

was in the case of roving-patrol stops.” Jd.

11

Adhering to these principles, the Court in Delaware v.

Prouse held uncons*itutional random spot checks of a driver's

license and vehicle registration which are not based on “at

least articulable and reasonable suspicion.” 440 U.S. at 663.

In particular, the Court noted that “[f]or Fourth Amendment

purposes, we . . . see insufficient resemblance between spo-

radic and random stops of individual vehicles making their

way through city traffic and those stops occasioned by road-

blocks where all vehicles are brought to a halt or to a near

halt, and all are subjected to a show of the police power of the -

community.” /d. at 657.

Moreover, absent some degree of individualized suspicion,

the Court could not “conceive of any legitimate basis upon

which a patrolman could decide that stopping a particular

driver for a spot check would be more productive than stop-

ping any other driver.” /d. at 661. It is “[t]his kind of stan-

dardless and unconstrained discretion [which] is the evil the

Court has discerned when in previous cases it has insisted that

the discretion of the official in the field be circumscribed, at

least to some extent.” Jd. Thus, while the Court held uncon-

stitutional the spot check at issue in Prouse, it explained that

“[{t}his holding does not preclude the . . . States from develop-

ing methods for spot checks that involve less intrusion or that

do not involve the unconstrained exercise of discretion.

Questioning of all oncoming traffic at roadblock-type stops is

one possible alternative.” Jd. at 663."

* In a concurring opinion. Justice Blackmun, joined by Justice Powell,

likewise endorsed “the roadblock stop for all traffic’ as an example of

“less intrusive spot checks ‘that do not involve the unconstrained exercise

of discretion.” ~ 440 U.S. at 663-64 (quoting id. at 663). Justice Black-

mun further expressed the view that “other not purely random stops (such

as every 10th car to pass a given point) that equate with, but are less intru-

sive than. a 100% roadblock stop” are constitutionally reasonable. /d. at

464.

12

In Sitz, the Court upheld Michigan's sobriety checkpoints.

The Sitz Court began by rejecting the motorists’ argument —

adopted by the court of appeals in this case — that application

of the Brown balancing test was improper absent “‘a showing

- of some special governmental need ‘beyond the normal need’

for criminal law enforcement.” 496 U.S. at 450 (quoting

Treasury Employees v. Von Raab, 489 U.S. 656, 665-66

(1989)). Von Raab, the Court explained, did not “repudiate

our prior cases dealing with police stops of motorists on pub-

lic highways. Martinez-Fuerte, which utilized a balancing

analysis in approving highway checkpoints for detecting ille-

gal aliens, and Brown v. Texas, are the relevant authorities

here.” 496 U.S. at 450 (citations omitted).

Turning to the balancing test, the Court observed that “[n]Jo

one can seriously dispute the magnitude of the drunken driv-

ing problem or the States’ interest in eradicating it.” Jd. at

451. As for the interference with motorists’ Fourth Amend-

ment interests, the Court characterized the objective intrusion

as “slight,” adding that “[w]e see virtually no difference be-

tween 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

officers might ask.” /d.

The Court next rejected the Michigan court's conclusion

that the subjective intrusion on motorists was substantial be-

cause the checkpoints had “the potential to generate fear and

surprise in motorists.” /d. at 452. The Court explained that

“[t]he ‘fear and surprise’ to be considered are not the natural

fear of one who has been drinking over the prospect of being

* Sitz's reliance on Martinez-Fuerte demonstrates the erroneousness of

the court of appeals’ view, see Pet. App. 9a, that the Fourth Amendment

imposes greater restrictions on state than federal officials in conducting

roadblocks.

13

stopped at a sobriety checkpoint but, rather, the fear and sur-

prise engendered in law-abiding motorists by the nature of

the stop.” /d. Noting that the “checkpoints are selected pur-

suant to the guidelines, and uniformed police officers stop

every approaching vehicle,” the Court concluded that “[t}he

intrusion resulting from the brief stop at the sobriety check-

point is for constitutional purposes indistinguishable from the

checkpoint stops we upheld in Martinez-Fuerte.” Id. at 453.

Finally, the Court addressed “*the degree to which the sei-

zure advances the public interest." /d. (quoting Brown, 443

U.S. at 51). In this regard, the Court explained that “[tJhis

passage . . . was not meant to transfer from politically ac-

countable officials to the courts the decision as to which

among reasonable alternative law enforcement techniques

should be employed to deal with a serious public danger.” Id.

While “[e]xperts in police science might disagree over which

of several methods of apprehending drunken drivers is prefer-

able as an ideal,” the Fourth Amendment leaves “the choice

among such reasonable alternatives [to] the governmental of-

ficials who have a unique understanding of, and a responsibil-

ity for, limited public resources, including a finite number of

police officers.” Jd. at 453-54. Noting that “the record from

one of the consolidated cases in Martinez-Fuerte showed that

in the associated checkpoint, illegal aliens were found in only

0.12 percent of the vehicles passing through the checkpoint,”

and that “[t]he ratio of illegal aliens detected to vehicles

stopped . . . was approximately 0.5 percent,” the Court con-

cluded that the Michigan checkpoint’s arrest rate of 1.6 per-

cent demonstrated the effectiveness of the program. /d. at

455.

2. Applying the principles of these cases, it is clear that

Indianapolis’ drug roadblock program satisfies the Fourth

Amendment. The distribution, sale, and use of illegal drugs

remains one of this country’s most pressing problems. “The

public has a compelling interest in detecting those who would

14

traffic in deadly drugs for personal profit. Few problems af-

fecting the health and welfare of our population, particularly

our young, cause greater concern than the escalating use of

controlled substances.” United States v. Mendenhall, 446

U.S. at 561 (Powell, J., concurring). Indianapolis is not im-

mune from the harms caused by drug trafficking and drug

abuse.° “[T]he magnitude” of the problem and the City’s

“interest in eradicating it” are uncontestable. Sitz, 496 U.S. at

451.

Nor can there be any dispute as to whether the drug road-

blocks sufficiently “advance[] the public interest.” Sirz, 496

U.S. at 453. Indianapolis conducted six roadblocks at which

1,161 cars were stopped. See Pet. App. 2a, 55a. These stops

yielded 55 arrests for drug offenses, 49 arrests/citations for

driving offenses, and 5 arrests for other offenses. See id.

As a percentage of the vehicles stopped, the roadblocks re-

sulted in arrests and citations at a rate of 4.7 percent for drug

offenses and 4.2 percent for driving offenses. These results

demonstrate that Indianapolis’ program was_ substantially

more effective than those which the Court upheld in Sitz and

Martinez-Fuerte. See Sitz, 496 U.S. at 454-55 (1.6 % arrest

rate for drunk driving demonstrated that roadblock advanced

State's interest); Martinez-Fuerte, 428 U.S. at 554 (0.12 %

arrest rate).

° According to U.S. DEA statistics. 66.8 percent of adult males

arrested in Indianapolis test positive for drug use in 1998. Since 1993,

no less than 60 percent of adult males arrested in Indianapolis have

tested positive for drug use. See U.S. Department of Justice. Drug En-

forcement Administration. 7 ible. Percentage of Adult Males

Testing Positive for Any Drug at Time of Arrest (visited May 12, 2000)

<http://www.usdoj.gov/dea/stats/drugstats.htm>. In 1998, 34.2 percent of

Indianapolis’ arrestees tested positive for cocaine. 45.1 percent tested

positive for marijuana, and 1.8 tested positive for opiates. See Table. Per-

centage of Adult Males Testing Positive for Specific Drugs at Time of Ar-

rest in 1998 (visited May 12. 2000) <http://Awww.usdoj.gov/dea/

stats/drugstats. hin.

15

Nor does Indianapolis’ program unreasonably “interfere[]

with individual liberty.” Brown v. Texas, 443 U.S. at 51. The

roadblocks were “carried out pursuant to a plan embodying

explicit, neutral limitations on the conduct of individual offi-

cers.” Jd. Roadblock locations “are selected at the supervi-

sorial level weeks in advance based on geographic suitability,

taking into consideration area crime statistics and the ability

to locate the checkpoint in a location which will minimize the

interference with normal traffic flow” while “permit[ting] ob-

servation of traffic approaching the checkpoint.” Pet. App.

56a (affidavit of Sergeant Depew).

Moreover, “[t]he checkpoints are begun with [a] predeter-

mined number of cars being stopped” and each “vehicle is

processed in exactly the same fashion as all other vehicles,”

id. at 57a, with all drivers being asked to present their license

and registration while a drug detection dog walks around the

car. See id. at 54a, 57a. The next group of cars is not stopped

until the last stopped car has been processed and allowed to

depart. See id. at 57a. “[{N]o deviations from” the car selec-

tion procedure are “permitted and under no circumstances are

random stops permitted or utilized.” /d. Further investiga-

tion is impermissible absent additional justification such as a

driver's failure to present a valid license, plain view observa-

tion of contraband or a weapon, or a dog alert, which estab-

lishes probable cause. See Pet. App. 53a-54a. Indianapolis’

procedure thus circumscribes the discretion of field officers to

an even greater extent than the procedure upheld in Martines-

Fuerte, which allowed for the selective referral of motorists

“to the secondary inspection area . . . on the basis of criteria

that would not sustain a roving-patrol stop.” 428 U.S. at 563.

Furthermore, Indianapolis’ roadblocks do not unreasonably

intrude on motorists’ Fourth Amendment interests. The de-

gree of ‘ ‘objective intrusion’ — as “measured by the dura-

tion of the seizure and the intensity of the investigation” — is

only marginally greater than that of sobriety checkpoints,

16 ss

which the Sitz Court characterized “as minimal.” 496 U.S. at

452 (citation Omitted). If a motorist presents a valid license

and registration “and there is no probable cause presented by

the officer's plain-view, plain smell[] examination, or a dog

alert,” the motorist is allowed to proceed. Pet. App. 57a. The

average duration of such a stop is two to three minutes or

less,’ see id. at 28a, 57a, a period of shorter duration than

that upheld by the Court in Martinez-Fuerte. See 428 U.S. at

547.

The only significant difference in the level of “objective in-

trusion” between Indianapolis’ program and those approved

in Sitz and Martinez-Fuerte is the dog sniff. But the incre-

mental intrusion of a dog sniff conducted on a public street,

where the dog’s presence is lawful, is too insubstantial to

render Indianapolis’ program constitutionally unreasonable.

A sniff “by a well-trained narcotics detection dog” of the ex-

terior of a car is a non-invasive procedure as it does not re-

quire a driver to open car doors, the glove compartment or the

trunk. See United States v. Place, 462 U.S. 696, 707 (1983).

“It does not expose noncontraband items that otherwise

would remain hidden from public view” and “discloses only

the presence or absence of narcotics, a contraband item.

Thus, despite the fact that the sniff tells the authorities some-

thing about the contents of [a car], the information obtained

is limited.” Jd. Indeed, there is “no other investigative pro-

” When a motorist fails to present a valid license and registration, the

police run a records check utilizing the on-scene mobile data terminal.

which “may take an additional 15 seconds to two minutes.” Pet. App.

58a: see also id. at 52a. A driver's failure to carry a license and registra-

tion is more than adequate justification to conduct further investigation.

See Prouse, 440 U.S. at 658 (“[T]he States have a vital interest in ensur-

ing that only those qualified to do so are permitted to operate motor vehi-

cles, that these vehicles are fit for safe operation, and hence that licensing.

registration, and vehicle inspection requirements are being observed.”>).

See also, e.g., Ind. Ann. Code §§ 9-24-1-1 (requiring licenses), 9-24-18-

5 (prohibiting driving while license is suspended or revoked).

17

cedure that is so limited both in the manner in which the in-

formation is obtained and in the content of the information

revealed by the procedure.” /d. In short, a sniff is not “a

‘search’ within the meaning of the Fourth Amendment.” /d.

The intrusion is no greater than that which is constitutionally

permissible at either a sobriety or immigration checkpoint.*

Likewise, the “ ‘subjective’ intrusion” of Indianapolis’

checkpoints — “the fear and surprise engendered in law-

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

452 (citation omitted) — does not render the program constitu-

tionally unreasonable. Motorists are provided with “visible

signs of the officers’ authority,” id. at 453 (citations omitted),

including lighted signs which identify the checkpoints as a

“NARCOTICS CHECKPOINT __ MILE AHEAD, NAR-

COTICS K-9 IN USE, BE PREPARED TO STOP,” Pet.

App. 57a, the presence of “approximately thirty” police offi-

cers including uniformed patrolmen, and police cruisers. /d.

at 52a. Furthermore, motorists can see that the procedure is

conducted in a regularized manner, with all cars receiving the

same initial processing. See Sitz, 496 U.S. at 453. Finally,

having a dog led around the exterior of one’s car does not

create fear and anxiety in a “law-abiding motorist[],” id. at

452, to any greater degree than police walking around the car

* In 1994-95, the State of Tennessee. with the assistance of a National

Highway Traffic Safety Administration grant. conducted an extensive

statewide sobriety checkpoint program, in which officers “used passive

alcohol sensors in flashlights to detect the odor of alcoholic beverages.”

See U.S. DOT, NHTSA, Technical Report, Evaluation of Checkpoint

Tennessee: Tennessee's Statewide Sobriety Checkpoint Program, Execu-

tive Summary at 4 <_ http://www.nhtsa.dot.gov/people/injury/research

/ChekTenn/ChkptTN.html>. Such devices are functionally indistinguish-

able from drug detection dogs, in that they reveal only the presence or

absence of alcohol odors in a driver's breath. An affirmance of the court

of appeals’ judgment would raise a serious question regarding the consti-

tutionality of such non-invasive devices as passive alcohol detection

sensors.

18

to check for working lights, a valid license plate and inspec-

tion sticker. And it far less likely to generate fear and anxiety

in a law-abiding motorist then the selective referrals to a sec-

ondary inspection area for further questioning which the

Court upheld in Martinez-Fuerte. See 428 U.S. at 560.

As the forgoing demonstrates, Indianapolis’ program

causes only an incremental interference with motorists” lib-

erty, which is of insufficient magnitude to render it unconsti-

tutional. The program's high degree of effectiveness demon-

strates that it “advances the public interest,” Brown, 443 U.S.

at 51, and is thus constitutionally reasonable. Because the

program satisfies the Brown standard, the court of appeals

erred in invalidating it.

- B. A Primary Purpose Of Interdicting Drug Offenders

Does Not Render Indianapolis’ Program Violative

Of The Fourth Amendment

The court of appeals acknowledged that if the reasonable-

ness of Indianapolis’ program “is to be assessed at the level

of the entire program . . . these roadblocks probably are legal,

given the high ‘hit’ rate and the only modestly intrusive char-

acter of the stops.” Pet. App. 3a. The court failed to follow

controlling precedent, however, explaining that “courts do not

usually assess reasonableness at the program level when they

are dealing with searches related to general criminal law en-

forcement rather than to primarily civil regulatory programs

for the protection of health, safety, and the integrity of our

borders.” /d. at 4a (citation omitted). According to the court,

“[b]ecause it is infeasible to quantify the benefits and costs of

most law enforcement programs, the program approach might

well permit deep inroads into privacy.” Id.

Evidently concluding that Indianapolis’ program amounts

to a “dragnet search” — a term which neither the court of ap-

peals nor this Court have ever defined — the court further rea-

soned that “[a]lthough there is nothing in the text of the

rn

19

Fourth Amendment to prevent dragnet searches . . . the Su-

preme Court has insisted that ‘to be reasonable under the

Fourth Amendment, a search ordinarily must be based on in-

dividualized suspicion of wrongdoing,” save in cases of ‘spe-

cial need” based on ‘concerns other than crime detection.”

Id. at 5a (quoting Chandler v. Miller, 520 U.S. 305, 313-14

(1997) (emphasis added by court of appeals)). In the court of

appeals’ view, “[p]rogram-level justifications for searches in

support of specific regulatory programs do not carry over to

general criminal law enforcement.” /d. Because Indianapolis

acknowledged that the primary purpose of the roadblocks was

to interdict drug offenders, the court held the program uncon-

stitutional.

1. The court of appeals’ reasoning finds scant support in

this Court's Fourth Amendment jurisprudence. The court's

first contention — that it is improper to assess the reasonable-

ness of Indianapolis’ roadblocks “at the program level” by a

balancing analysis because courts do not do so “when they

are dealing with searches related to general criminal law en-

forcement rather than to primarily civil regulatory programs,”

Pet. App. 4a — simply ignores numerous cases in which this

Court has done precisely that, including the most relevant au-

thority of Martinez-Fuerte and Sitz.”

In Martinez-Fuerte, each of the non-governmental parties

was a person who had been indicted on multiple counts of

” Implicit in the court of appeals’ statement is the suggestion that Indi-

anapolis’ roadblock stops are searches for purposes of the Fourth

Amendment. Both Sitz and Martinez-Fuerte characterized the initial stop

and questioning as a “seizure.” See Sitz, 496 U.S. 450-51; Martine:-

Fuerte, 428 U.S. at 556. Moreover, in Place, the Court held that a dog

sniff is not “a ‘search’ within the meaning of the Fourth Amendment” -

because it is “limited both in the manner in which the information is ob-

tained and in the content of the information revealed by the procedure.”

462 U.S. at 707. To the extent the court of appeals analyzed Indianapolis”

program as a search, it was mistaken.

20

illegally transporting aliens in violation of the former 8

U.S.C. § 1324(a)(2); several of the defendants had also been

charged with other felony offenses. See 428 U.S. at 547-49.

While Sitz did not involve the appeal of a criminal prosecu-

tion, the Court was obviously cognizant that the consequence

for those found to have been “driving under the influence”

was their arrest. See 496 U.S. at 448.

Notwithstanding the serious criminal consequences facing

those apprehended in Martinez-Fuerte and Sitz, in both cases

the Court analyzed the reasonableness of the police conduct

at the program level by weighing, in the aggregate, the bene-

fits to the public interest against the costs to the motoring

public. In Martinez-Fuerte, the Court expressly noted that

“[rJoutine checkpoint inquiries apprehend many smugglers

and illegal aliens,” that the government's “need to make rou-

tine checkpoint stops is great,” and that “[rJoutine checkpoint

stops do not intrude [unreasonably] on the motoring public.”

428 U.S. at 557-58. In Sitz, the Court explicitly rejected the

argument “that there must be a showing of some special gov-

ernmental need ‘beyond the normal need’ for criminal law

enforcement before a balancing analysis is appropriate.” 496

U.S. at 450. The Court thereupon observed that “ *[d]runk

drivers cause an annual death toll of over 25,000 and in the

same time span cause nearly one million personal injuries and

more than five billion dollars in property damage.” and that

“the weight bearing on the other scale — the measure of the

intrusion On motorists stopped briefly at sobriety checkpoints

— is slight.” 496 U.S. at 451 (citation omitted).

While the court of appeals erroneously viewed the pro-

grams at issue in Martinez-Fuerte and Sitz as being “primar-

ily civil regulatory programs,” this Court's Fourth Amend-

ment jurisprudence contains numerous cases relying on pro-

grammatic justifications to uphold police procedures “related

to general criminal law enforcement.” Pet. App. 4a. For ex-

ample, in Terry v. Ohio, 392 U.S. 1 (1968), the Court held

21

that a police officer has the authority to conduct a pat down

search for weapons on less than probable cause. The Court

relied on FBI statistics which detailed the number of police

officers killed or wounded in the line of duty nationwide, not-

ing that “American criminals have a long tradition of armed

violence, and every year in this country many law enforce-

ment officers are killed in the line of duty, and thousands

more are wounded.” /d. at 23, 24 n.21.

The Court also acknowledged that “a limited search of the

outer clothing for weapons constitutes a severe, though brief,

intrusion upon cherished personal security, and it must surely

be an annoying, frightening, and perhaps humiliating experi-

ence.” /d. at 24-25. In holding that a police officer could

conduct a pat down search on the basis of an articulable rea-

sonable suspicion, the Court did exactly what the court of ap-

peals asserted that courts do not do — “assess reasonableness

at the program level” of a search “related to general criminal

law enforcement.” Pet. App. 4a. See also 392 US. at 21

(“there is ‘no ready test for determining reasonableness other

than by balancing the need to search [or seize] against the in-

vasion which the search [or seizure] entails’) (quoting

Camara v. Municipal Court, 387 U.S. 523, 536-37 (1967)).

The Court took the same approach in United States v. Rob-

inson, 414 U.S. 218 (1973), upholding a police officer's au-

thority to conduct a search incident to arrest notwithstanding

the absence of probable cause to believe the arrestee was car-

rying a weapon or evidence. The Court refused to limit “the

breadth of the general authority to search incident to a lawful

custodial arrest on an assumption that persons arrested for the

offense of driving while their licenses have been revoked are

less likely to possess dangerous weapons than are those ar-

rested for other crimes.” /d. at 234. In the Court's view, this

assumption rested on “a rather speculative judgment,” which

was refuted by FBI statistical data “indicat[ing] that a signifi-

cant percentage of murders of police officers occurs when the

>

officers are making traffic stops.” Jd. at 234 & n.5 (citations

omitted). As the Court explained, “[t]he danger to the police

officer flows from the fact of the arrest, and its attendant

proximity, stress, and uncertainty, and not from the grounds

for arrest.” Id.

Recognizing the necessarily “ad hoc judgment” involved in

a search incident to arrest, the Court held:

The authority to search the person incident to a lawful

custodial arrest, while based upon the need to disarm and

to discover evidence, does not depend on what a court

may later decide was the probability in a particular arrest

Situation that weapons or evidence would in fact be

found upon the person of the suspect. A custodial arrest

of a suspect based on probable cause is a reasonable in-

trusion under the Fourth Amendment; that intrusion be-

ing lawful. a search incident to the arrest requires no ad-

ditional justification.

Id. at 235. See also Maryland v. Buie, 494 U.S. 325, 332-34

(1990) (determining reasonableness of protective sweep of

premises where arrest occurs by balancing governmental in-

terest in police safety against arrestee’s Fourth Amendment

interests); Place, 462 U.S. at 703-04 (rejecting argument that

“absent some special law enforcement interest such as officer

safety, a generalized interest in law enforcement cannot jus-

tify an intrusion on an individual's Fourth Amendment inter-

ests in the absence of probable cause’); Michigan v. Sum-

mers, 452 U.S. 692, 702-03 (1981) (upholding detention of

occupant of house being searched on less than probable

cause, reasoning that “[a]lthough no special danger to the po-

lice is suggested by the evidence in this record, the execution

of a warrant to search for narcotics is the kind of transaction

that may give rise to sudden violence or frantic efforts to con-

ceal or destroy evidence’’).

As the foregoing demonstraies, the Court routinely ana-

lyzes the reasonableness of police procedures “related to gen-

23

eral criminal law enforcement” by conducting “program

level” assessments and balancing. Pet. App. 4a. Contrary to

the view of the court of appeals, this approach does not “per-

mit deep inroads into privacy,” id., as numerous cases dem-

onstrate. See, ¢.g., Place, 462 U.S. at 703-10 (conducting bal-

ancing but holding unreasonable a ninety-minute seizure of a

suspect's luggage to arrange a drug sniff that was supported

by a reasonable suspicion but not probable cause), Brown v.

Texas, 443 U.S. at 50-53 (holding unreasonable a discretion-

ary seizure to require a person to identify himself which was

not supported by “a reasonable suspicion” of criminal activ-

ity). ’

2. The Court's cases likewise refute the court of appeals’

contention that inquiry into the program's purpose “is critical

to its legality,” and because “[t]he program has no regulatory

purpose,” it is constitutionally unreasonable. Pet. App. 10a.

The first flaw in this reasoning is that the district court found

that “a secondary purpose of the checkpoints is to check

driver's licenses and vehicle registrations.” Jd. at 44a. _ In-

deed, out of the program's 109 arrests and citations, 49 were

for driving-related offenses. See id. at 55a. The court of ap-

peals was clearly mistaken in asserting that the program “has

no regulatory purpose.” /d. at 10a.'°

'’ Even if not intended. it is clear that the use of a drug-sniffing dog

advances the substantial state interest in promoting highway safety. Ac-

cording to NHTSA, “[aJlcohol and other drugs create a serious highway

safety problem among the general driving population.” See US.

Department of Transportation, National Highway Traffic Safety

Administration, Drug Impaired Driving (visited May 11, 2000)

<http://www.nhtsa.gov/people/outreach/safesobr/ 1 Sqp/web/iddrug.html_ >.

NHTSA “estimates that drugs are used by approximately 10 to 22 percent

of drivers involved in crashes, often in combination with alcohol.” Jd. A

1992 NHTSA study of the deaths of 1.882 drivers indicated that “alcohol

was found in 51.5 percent of the drivers, and other drugs were found in

17.8 percent of the drivers.” /d. A NHTSA study of “non-fatally injured

drivers” found that “!2 percent of all drivers tested positive for drugs

24

The second flaw is that while some of the Court's cases

suggest that inquiry into purpose is sometimes relevant in as-

sessing the validity of certain intrusions, almost every case

has involved police conduct amounting to a search. See, e.g.,

New York v. Burger, 482 U.S. 691, 713-16 (1987) (upholding

warrantless inspections of closely regulated businesses);

South Dakota v. Opperman, 428 U.S. 364, 376 (1976) (ob-

serving in dictum that “there is no suggestion” that an inven-

tory search of a car “was a pretext concealing an investigatory

police motive”). The Court has, however, “never held, out-

side the context of inventory search or administrative inspec-

tion . . . that an officer's motive invalidates objectively justi-

fiable behavior under the Fourth Amendment.” Whren v.

United States, 517 U.S. 806, 812 (1996). In any event, there

can be no claim of pretext here, where Indianapolis openly

other than alcohol . . . and 23.5 percent of drivers less than 21 years old

tested positive for drugs other than alcohol.” /d. NHTSA further states

that “[s]tudies of drug incidence among drivers arrested for motor vehicle

offenses have found drugs in 15 to 50 percent of drivers. The higher rates

typically are more prevalent among drivers who have been arrested for

impaired or reckless driving but who were not impaired by alcohol. as

shown by low blood alcohol concentration (BAC) levels.” /d.

NHTSA also suggests a high degree of marijuana use by teenagers

while driving. /d. According to NHTSA, twenty percent of high school

seniors “reported that they smoke marijuana in a car.” /d. This figure is

greater than the percentage of students who acknowledge drinking alco-

holic beverages in cars. /d. A recent Department of Justice survey which

conducted personal interviews with DWI offenders indicates that 9.5 per-

cent of jailed DWI offenders reported using drugs at the time of their ar-

rest. U.S. Department of Justice. Bureau of Justice Statistics. DW/ Of-

fenders under Correctional Supervision 11 (Table 16) (1999).

Drug checkpoints are thus an important adjunct to alcohol sobriety

checkpoints: indeed, the procedures upheld in Sitz checked for drivers

who were under the influence of both alcohol and drugs. See Brief for

Petitioners at 6, Sitz: see also Pet. App. 7a.

25

acknowledged that one of the purposes of the program was to

conduct a “narcotics checkpoint.” Pet. App. 57a.!

To the extent the court of appeals engaged in an objective

inquiry into the City’s purpose, the Court's cases support the

view that a purpose of general criminal law enforcement does

not preclude application of the Brown test in assessing the

reasonableness of a seizure. In Sitz, the Court expressly re-

jected the contention that “there must be a showing of some

special governmental need ‘beyond the normal need’ for

criminal law enforcement before a balancing analysis is ap-

propriate,” and held that the Brown standard controlled. 496

U.S. at 450. See also Florida v. Royer, 460 U.S. 491, 498-99

(1983) (noting that in Brignoni-Ponce the government's pur-

pose of enforcing immigration laws “was sufficient to warrant

temporary detention for limited questioning” and declining to

suggest “that a similar rationale would not warrant temporary

detention for questioning on less than probable cause where

the public interest involved is the suppression of illegal trans-

actions in drugs or of any other serious crime”). That the

government's purpose is to enforce the criminal law as op-

posed to a regulatory program is not probative as to whether

'' The court of appeals” reliance on dictum from the plurality opinion

in Texas v. Brown, 460 U.S. 730 (1983). is misplaced. See Pet. App. 7a

(“the amendment would be violated if ‘the roadblock was a pretext

whereby evidence of narcotics violation might be uncovered in “plain

view” in the course of a check for driver's licenses”) (quoting 460 U.S. at

743). The referenced language did not address the validity of the initial

stop but rather whether the police properly seized evidence in plain view.

the discovery of which was then required to be “inadvertent.” At the time.

a showing of pretext would have defeated a police claim that evidence had

been discovered inadvertently. That requirement has since been over-

ruled. See Horton v. California, 496 U.S. 128, 137-42 (1990). The objec-

live inquiry established by Horton and Whren demonstrates that where the

police have a constitutionally valid basis for a stop, it cannot be chal-

lenged as being pretextual.

26

police conduct that does not amount to a search is constitu-

tionally reasonable.

3. This Court should reject the court of appeals” approach

because it is unworkable and “injects too large an element of

uncertainty into the interpretation” of the Fourth Amendment.

Pet. App. Ila. Indeed, the court of appeals suggested that the

result might be different “if the primary purpose were to de-

tect drunken drivers” because “the dog could be added to the

roadblock scenario on the theory that since a sniff is not a

search, the incremental invasion of privacy would be negligi-

ble.” /d. Just how a court would determine whether a road-

block program's primary purpose was detecting drunk drivers

(or reducing traffic congestion) as opposed to catching drug

offenders is unclear.'~ The Fourth Amendment does not an-

swer the question, just as it says nothing that suggests why

police practices which are undertaken for the purpose of en-

forcing the criminal law are more objectionable than those

undertaken to enforce regulatory programs.

Contrary to the view of the court of appeals, “the alterna-

tive” is not “to rule that either all roadblocks are illegal or

none are.” /d. at lla. Rather, consistent with Brown, Marti-

nez-Fuerte, and Sitz, a court should examine the intrusiveness

of the procedures used in conducting a roadblock to deter-

mine whether “the interference with individual liberty” is so

severe as to render it constitutionally unreasonable. Brown,

443 U.S. at 51. Thus, a roadblock, at which police order —

'- Compare United States v. McFayden, 865 F.2d 1306. 1307-08 (D.C.

Cir . 1989) (upholding checkpoint whose “principal purpose was to allow

police to check for a driver's license and vehicle registration” even though

it “facilitated a narcotics enforcement effort” and police testified “that

they were hopeful that the roadblocks would also have a ‘halo’ or ‘spin-

off effect of deterring drug trafficking” ), with Galbert v. United States,

590 A.2d 990. 999 (D.C. 1991) (asserting that a roadblock “addressed to

problems of general law enforcement . . . is antithetical to the Fourth

Amendment’).

27

without some articulable basis — every driver and passenger

out of their car to conduct a more thorough plain view exami-

nation of a car's interior, might well be so intrusive as to ren-

der it unconstitutional. But where, as here, police discretion

has been properly circumscribed, a roadblock that results in a

brief delay to motorists and uses a non-intrusive measure that

“discloses only the presence or absence of narcotics, a con-

traband item,” Place, 462 U.S. at 707, is clearly within the

range of constitutionally reasonable practices under the

Fourth Amendment.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

RICHARD RUDA*

Chief Counsel

JAMES I. CROWLEY

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Suite 345

Washington, D.C. 20001

(202) 434-4850

“Counsel of Record for the

May 15, 2000 Amici Curiae