Amicus Curiae Brief — Allender v. United States

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No. 99-1030

| JUL 0 6 2009

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In The "Pps

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Supreme Court of the United~ States

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‘CITY OF INDIANAPOLIS, INDIANA, and

BART PETERSON, in his official capacity as

Mayor of the City of Indianapolis, Indiana,

Petitioners,

Vv.

JAMES EDMOND and JOELL PALMER, on their own

behalf and on behalf of a class of those similarly situated,

Respondents.

¢

On Writ Of Certiorari

To The United States Court Of Appeals

For The Seventh Circuit

¢

BRIEF OF THE NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE LAWYERS AND THE

ASSOCIATION OF FEDERAL DEFENDERS AS

AMICI CURIAE IN SUPPORT OF RESPONDENT

¢

Wes.tey MacNeit OLIver*

TULANE Law SCHOOL

6329 Freret Street

Room 255-D

New Orleans, LA 70118

(504) 862-8810

Of Counsel:

BARBARA BERGMAN

Co-Cuair, NACDL Amicus

COMMITTEE

University oF New Mexico

SCHOOL OF LAW

1117 Stanford N.E..

Albuquerque, NM 87131

(505) 277-3304

“Counsel of Record

TABLE OF CONTENTS

FARES GP ALTTTAMRESOE 6 ch ccc csncctivedscccvess ili

STATEMENT OF INTEREST OF AMICI CURIAE...... |

SUMMARY OF ARGUMENT ..............0500e00ee 2

SOO eT Tee UL TO TTEE ER OREN Tee. 2

I. INDIVIDUALIZED SUSPICION IS REQUIRED

WHENEVER THE GOVERNMENT'S

OBJECTIVE IN A SEIZURE IS THE

INVESTIGATION OF CRIME ..............e000. 5

A. Alien Checkpoints Secure National Borders... ... 7

B. Sobriety Checkpoint Remove Potentially

Deadly Drivers from the Highway............ 10

C. Drug Checkpoints Prosecute the Criminal

IRs oo ci cncahdcicnnaannetences 11

Il. AMOTORIST MAY NOT BE SUBJECTED TO

A DOG SNIFF ABSENT REASONABLE

OE PT Tere eT LETTE LET TTT ETT 12

A. A Dog Sniff is a Show of Force Requiring

a Quantum of Suspicion .............eseee0. 13

B. The:Inaccuracy of Dog Sniffs on a Random

Population Demonstrates that Dog Sniffs

Absent Reasonable Suspicion Yields an

Intolerable Number of False Positives.......... 15

TABLE OF CONTENTS - Continued

C. Many State Courts and Ccommentators Have

Called for a Showing of RXeasonable Suspicion

Before a Dog Sniff is Perrmitted.............. 18

Ill. THE INDIANAPOLIS ROAi)DBLOCK DOES

NOT ADEQUATELY LIMr-T THE DISCRETION

OF POR BC Ce 5 rie eee eek 20

A. The Directives Do Not Acdequately Limit the

Extent or Manner of Inve?stigation Officers

May Perform at the Checkkpoint.............. 21

B. The Directives Do Not Acdequately Limit the

Discretion of Law Enforceement Officials

Determining Where the R’oadblock Shall Be

et Se See eee 23

CONCLUSION ..... 0... ccc ccc cet etter eeeeeee 26

TABLE OF AUTHORITIES

CASES:

Almeida-Sanchez v. United States, 413 U.S. 266 (1978) .. . .9

B.C. v. Plumas Unified School District,

fae Woe 1260 (th Cir, 1999)... .............-. AS

Brown v. Texas, 460 U.S. 730 (1983) .............00005 6

Cady v. Dombrowski, 431 U.S. 433 (1973) ..........00. 10

Camara v. Municipal Court, 387 U.S. 523 (1967) . 22, 23, 25

Carroll v. United States, 267 U.S. 132 ( SE ie Lae e 2,9

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

Commonwealth v. Johnston, 530 A.2d 74 (Pa. 1987)..... 19

Coolidge v. New Hampshire, 403 U.S. 443 (1971)....... 23

Delaware v. Prouse, 496 U.S. 444 (1979) ....... 3-4, 20, 24

Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind. 1979),

aff'd in part and remanded in part, 631 F.2d 91

BR Ae ye ene 17

Illinois v. Wardlow, 120 S.Ct. 673 (2000).............. 15

I.N.S. v. Lopez-Mendoza, 468 U.S. 1032 (1984) ....... 9-10

Marshall v. Barlow's Inc., 436 U.S. 307 (1978) ...... yA

Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995)...... 3, 16

ili

TABLE OF AUTHORITIES -— Continued

Michigan Dep't of State Police v. Sitz,

496 U.S. 444 (1990)... ccc ccc cece eee ee 10-11, 20

Michigan v. Tyler, 436 U.S. 499 (1978) ...........0008- 6

National Treasury Employees Union v. Von Raab,

eee ee ee ae 16, 18

New York v. Burger, 482 U.S. 691 (1987) .............4. 22

People v. Unruh, 713 P.2d 370 (Colo. 1986) (en banc)... 18

Pooley v. State, 705 P.2d 1293 (Alaska App. 1985)...... 18

Schneckloth v. Bustamonte, 412 U.S. 218 (1973)........ 21

Skinner v. Railway Labor Exec. Assoc.,

eR | nr ern renee re $, 21

South Dakota v. Opperman, 428 U.S. 364 (1976)......... 6

State v. Pellici, 580 A.2d 710 (N.H. 1990)............. 18

United States v. Buchanon,

ey gripe Lo A, . ) eee 3, 13, 14

United States v. Edwards,

489 F.2d 496 (2d Cir. 1974) ........... cece 16, 18

United States v. Gigley, 213 F.3d 509 (10th Cir. 2000) . . . 23

United States v. Martinez Fuerte,

ge Rr ery eer eer ee ee 2)

iv

TABLE OF AUTHORITIES — Continued

United States v. Montoya de Hernandez,

GTS UD. GOe CEOSOR aoa ink oe cee ates cee Chek 9

United States v. McRae, 81 F.3d 1528 (10th Cir. 1996) .. . 23

United States v. Pena, 920 F.2d 1509 (10th Cir. 1990)... .23

United States v. Place, 462 U.S. 702 (1983)......... 13,14

United States v. Ramsey, 431 U.S. 606 (1977)........... 8

United States v. Thirty-Seven Photographs,

MET ULE. DES NT oS i's eaakcn i¥ecdavinanaas 9, 16

United States v. Zapata,

8OD-F.36 1257 CERT. BOGE). oo cc civeccecs 22-23

STATUTES:

Collections Act of 1789, Ch. 5, 1 Stat.29............... 7

MISCELLANEOUS AUTHORITY:

Robert C. Bird, An Examination of the Training and

Reliability of the Narcotics Detection Dog,

SD Te. Da F. GR CE «avn 8 be ceencdecccens 15, 17

Consent Decree, United States v. New Jersey (D.N.J.)

(Civ. No. 99-5970-MLC) (visited May 21, 2000)

<http://www.usdoj.gov/crt/split/documents/jerseya.

ST back ec ceectsdpansicenkasaviatecbacnehns .12

TABLE OF AUTHORITIES - Continued

Morgan Cloud, Searching Through History,

Searching for History, 63 U. Chi. L. Rev.

1 7OF (PORES 5 i donned scons ceaee aera 8

William J. Cuddihy, The Fourth Amendment:

Origins and Original Meaning, 602-1791 (1990) ...... 7

Wayne R. LaFave, Criminal Law (3d ed. 2000)... 12, 17, 18 |

David Benjamin Oppenheimer, Kennedy, King,

Shuttleworth and Walker: The Events Leading

to the Civil Rights Act of 1964, 26 U.S.F. L. Rev.

GES CUFFS) iid vaio ce ceien eae eee 15

Kenneth L. Pollack, Note, Stretching the Terry Doctrine

to the Search for Evidence of a Crime: Canine Sniffs

State Constitutions and the Reasonable Suspicion

Standard, 74 Vand. L. Rev. 803 (1994).......... 19-20

Silas J. Wasserstrom & Louis Michael Seidman, The

Fourth Amendment as Constitutional Theory,

77 Gow. b, 5. FR an os os a ee 24

vi

STATEMENT OF INTEREST OF AMICI CURIAE'

The National Association of Criminal Defense

Lawyers (NACDL) is a professional bar association founded

in 1958 for the purpose of advancing the mission of the

nation's criminal defense lawyers to ensure justice and due

process for persons accused of a crime or other misconduct.

Today, the NACDL has almost 10,000 direct members and

80 affiliates representing another 28,000 members, who

include private criminal defense lawyers, public defenders,

active U.S. military defense counsel and law professors.

NACDL has members in all fifty states, and the American

Bar Association recognizes NACDL as an affiliate

organization and awards it full representation in its House of

Delegates.

The Association of Federal Defenders (AFD) was

formed in 1995 to enhance the representation provided under

the Criminal Justice Act, 18 U.S.C. § 3006A, and the Sixth

Amendment of the United States Constitution. AFD is a

nationwide, non-profit volunteer organization whose

membership includes attorneys and support staff of Federal

Defender Offices.

Among NACDL's and AFD's objectives is to deter

overreaching by law enforcement officers by vigorously

defending the protections guaranteed by the Constitution.

NACDL and AFD believe that this case may have a

significant impact on the power of law enforcement

personnel to intrude upon the lives of citizens it has no

reason to suspect of any wrongdoing. Accordingly, NACDL

' Both parties have consented to the filing of this brief. No counsel for

any party has authored this brief in whole or in party, and no person or

entity, other than amici, has made a monetary contribution to the

preparation or submission of this brief.

and AFD file this brief in support of the Respondent to urge

this Court to hold that a seizure for the purpose of criminal

investigation requires an officer to first suspect the person to

be seized is engaged in criminal wrongdoing. Further,

NACDL and AFD urges this Court to recognize that the use

of police dogs to test for the presence of narcotics on persons

and property is a show of official force that often leads to

false positives and therefore fruitless searches. To guard

against what the decisions in the lower courts reveal to be an

intolerable number of searches resulting from false positives

by narcotics detection dogs, NACDL and AFD urge this

Court to limit canine sniffs to situations where officers have

reasonable suspicion to believe narcotics present.

SUMMARY OF ARGUMENT

In 1925, this Court announced that a roadblock to

determine whether motorists were in possession of

contraband alcohol would be an unreasonable seizure.

Carroll v. United States, 267 U.S. 132, 153-54 (1925). "It

would intolerable and unreasonable if a prohibition agent

were authorized to stop every automobile on the chance of

finding liquor, and thus subject all persons lawfully using the

highways to the inconvenience and indignity of such a

search." Jd.

Fourth Amendment decisions since Carroll have

reaffirmed that a roadblock to investigate the possibility

motorists are committing a crime would be intolerable. This

Court has recently recognized that a search or seizure is

permitted only where the state has individualized suspicion

of criminal wrongdoing or an important purpose other than

prosecuting criminal wrongdoing. Chandler v. Miller, 520

U.S. 305, 313-14 (1997).

The roadblock in the instant case seizes every

motorist absent any suspicion of wrongdoing to investigate

the possibility the motorist is violating a criminal statute.

The directives to officers in the Indianapolis roadblock

indicate that the positive indication by the drug dog is but

one way a full automobile search may occur. Probable cause

may be developed independent of the dog sniff and officers

may obtain consent to search the cars. No limits are placed

on the types of questions that may be asked to obtain

probabie cause or the statements that may be used to prompt

consent.

Even if the dog alert alone permitted a search of the

automobiles stopped at this roadblock, the reliability of drug

dogs on a random population is, at best, suspect. Cases

litigated in the lower courts reveal that when dogs are asked

to inspect those whom officers have no articulable basis to

suspect, false positives can exceed 96 percent. Merrett v.

Moore, 58 F.3d 1547, 1549 (11th Cir. 1995); B.C. v. Plumas

Unified School District, 192 F.3d 1260, 1263 (9th Cir. 1999).

A police dog is a show of force exceeding that

required at a stop to ensure licensure or sobriety. See United

States v. Buchanon, 72 F.3d 1217, 1225 (6th Cir. 1995)

(recognizing that running a drug dog on a disabled car police

were about to assist was a show of force requiring reasonable

suspicion). The drug interdiction roadblock using a narcotics

detection dog on every car is therefore a greater intrusion

upon a motorist than a checkpoint to achieve the regulatory

goals of ensuring motorists are licensed and sober. Even

where the drug dog does not indicate the presence of

narcotics, subjecting each citizen to a compelled intrusion

aimed at his prosecution subjects him to this show of force

unjustified by any suspicion.

Finally, a roadblock must limit the discretion of law

enforcement officials responsible for its operation. Delaware

v. Prouse, 440 U.S. 648, 657 (1979). The Indianapolis drug

checkpoint does not provide guidelines that tell an officer

when he may seek consent to search a car -- though the

directives inform the officer that he may seek consent to

search a vehicle. The directives tell the officer he may search

a car on probable cause but do not limit his attempt to obtain

probable cause nor do they provide for a standard set of

questions to ask all motorists. The type of interrogation an

officer performs in his effort to obtain probable cause or

consent can vary widely from motorist to motorist. The

location of the roadblock is left to the decision of the police

who are directed to assess crime rates in determining where

the roadblocks shall be placed. Police are therefore afforded

too much discretion to subject one portion of the community

to an intrusion not visited on more affluent, more influential

sections.

ARGUMENT

I. INDIVIDUALIZED SUSPICION IS REQUIRED

WHENEVER THE GOVERNMENT'S OBJECTIVE

IN A SEIZURE IS THE INVESTIGATION OF

CRIME.

The stated purpose of the roadblock is to discover

those committing the criminal offense of possession of

narcotics. The directives to officers operating the roadblock

describe the seizure as a "drug checkpoint." Drug

Checkpoint Officer Directives, App. of Pet. Brief, 53a. The

City of Indianapolis further admits in its brief that the

purpose of the roadblock is criminal investigation. "To be

sure, the City uses checkpoints to enforce the law." See Brief

of Petitioner at 16. A drug dog circles each stopped vehicle

to determine whether a seized motorist is in possession of

contraband. Directives, J 8, App. of Pet. Brief at 54a. The

drug dog does not, as indeed it could not, determine whether

the motorist is under the influence of an unlawful substance.

The dog alerts only to the criminal act of possession -- an act

that neither poses a public safety concern to those on the

highway nor is the subject of civil regulation. See Skinner v.

Railway Labor Exec. Assoc., 489 U.S. 602, 633 (1989)

(recognizing distinction between prosecutorial interest in

discovering drug possession and public safety interest in

discovering incidents of drug use by those in dangerous

professions).

Absent suspicion of criminal wrongdoing, a search or

seizure may not be conducted for the purpose of discovering

evidence of a crime. "To be reasonable under the Fourth

Amendment, a search ordinarily must be based on individual

suspicion of wrongdoing." Chandler v. Miller, 520 U.S. 305,

313 (1997). The only exceptions to this rule occur when the

government seeks goals "beyond the normal need for law

enforcement." Jd. See also Michigan v. Tyler, 436 U.S. 499,

512 (1978); Brown v. Texas, 460 U.S. 730, 743 (1983); South

Dakota v. Opperman, 428 U.S. 364, 373 (1976). |

In several contexts this Court has recognized that

intrusions without suspicion of wrongdoing must be justified

by a goal other than the investigation of crime. In

Opperman, this Court recognized that the police may

inventory impounded automobiles "where the process is

aimed at securing or protecting the car and its contents." Jd.

at 373 (emphasis added). Standardized procedures are

required to assure that inventory searches are "limited in

scope to the extent necessary to carry out the caretaking

function" and not become "a pretext concealing an

investigatory police motive." /d. at 375, 376. "Inventory

searches... are not conducted in order to discover evidence of

acrime." Jd. at 383 (Powell, J., concurring).

Similarly, in Brown this Court permitted the

introduction of evidence discovered in a roadblock to ensure

that all motorists are licensed. The Court recognized,

however, that there was "no suggestion that the roadblock

was a pretext whereby evidence of narcotics might be

uncovered in ‘plain view." Jd. at 743.

This Court in Tyler recognized that firefighters may

investigate the origins of a fire to prevent further danger to

persons or property absent probable cause of any

wrongdoing. Jd. at 510. A warrant is required to reenter a

burned building after the blaze has been extinguished, but the

magistrate issuing the warrant need only be assured that the

intrusion is reasonably tailored to locating the origin of the

fire, no suspicion of wrongdoing is required. Jd. This Court,

however, held that if firefighters wish to search for evidence

of arson, or evidence linking an individual to an act of arson,

probable cause would be required. Jd. at 511-12.

Roadblocks, suspicionless seizures of automobiles,

have been permitted where the government has been able to

identify a goal separate from criminal enforcement, a valid

public interest that is immediately served through the

roadblock itself. Specifically, this Court has permitted a

roadblock to ensure the integrity of international borders and

to ensure the safety of the motoring public. These exceptions

are consistent with the Court's recognition that when

“concerns other than crime detection . . . are alleged in

justification of a Fourth Amendment intrusion, courts must

undertake a context-specific inquiry, examining closely the

competing private and public interests advanced by the

parties." Chandler v. Miller, 520 U.S. 305, 314 (1997).

A. Alien Checkpoints Secure National Borders.

The Framers recognized a distinction between-border,

or customs, searches and searches designed to discover

evidence of wrongdoing. The Collections Act of 1789, Ch.

5, 1 Stat. 29,” provided in part for the mechanisms by which

a ship could be searched. The First Congress considered

these provisions of the Collections Act twelve days before

James Madison presented the first version of what became

the Fourth Amendment to the House of Representatives. The

Act passed three weeks before Congress' final revision of the

Amendment. William J. Cuddihy, The Fourth Amendment:

Origins and Original Meaning, 602-1791, 1491 (1990).°

"The Collections Act explicated the Fourth Amendment, for

both documents expressed the thoughts of the same persons

on the same subjects." Jd. at 1491-93.

The Collections Act made a distinction between a

search to determine the nature of goods entering the country

? Repealed by Act of August 4, 1790, ch. 35, § 74, 1 Stat. 145, 178

* Unpublished Ph.D. dissertation available from UMI Dissertation

Services, 300 N. Zeeb Road, Ann Arbor, Michigan 48106.

by ship and a search for evidence of wrongdoing aboard ship.

The Act permitted officers "of any port of entry or delivery,

at which any ship or vessel may arrive to put [inspectors] on

board" who shall specify "the marks and numbers of each

package, and a description thereof." Jd. at § 15, 1 Stat. at 40.

The Act, however, in a separate section permitted officers to

conduct a warrantless search of a vessel only when they had

"reason to suspect any goods, wares or merchandise subject

to duty shall be concealed." Jd. at § 24, 1 Stat. at 43.

A quantum of suspicion to search for evidence of

wrongdoing was required to search even at the border while

an inventorying of items entering the border could proceed

absent suspicion. "The statute distinguished these

administrative acts from searches of ships that were triggered

by a belief that dutiable goods were being concealed to avoid

payment of taxes." Morgan Cloud, Searching Through

History; Searching for History, 63 U. Chi. L. Rev. 1707,

1740-41 (1996). Further, as this Court has recognized, this

statute is the first enactment of a long-recognized "right of

the sovereign to protect itself by examining persons and

property crossing into this country." United States v.

Ramsey, 431 U.S. 606, 616 (1977).

[A] port of entry is not a traveler's home. His

right to be let alone neither prevents the search

of his luggage nor the seizure of unprotected,

but illegal, materials when his possession of

them is discovered during such a search.

Customs officials characteristically inspect

luggage... it is an old practice intimately

associated with excluding illegal articles from

the country.

United States v. Thirty-Seven Photographs, 402 U.S.

363, 376 (1971). See also United States v. Montoya de

Hernandez, 473 U.S. 531, 540 (1985) ("the Fourth

A mi ea OL Speatno enter

Amendment balance between the interests of the Government

and the privacy rights of the individual is struck much more

favorably to the Government at the border"); Carroll v.

United States, 267 U.S. 132, 154 (1925) (recognizing unique

interest of federal government at the border).

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

(1976), this Court permitted a roadblock fifty miles from an

international border to discover illegal aliens. The protection

of the integrity of national borders is a function of

government the Framers recognized was not limited by the

usual pre-requisites to a search or seizure, a warrant and

probable cause. As the United States has previously argued,

the search for aliens is essentially a regulatory or

administrative search as criminal prosecution is not the goal

of the search, rather it is an interest in maintaining the

integrity of its borders -- an interest the government

vindicates most often without resort to the criminal process.

Almeida Sanchez v. United States, 413 U.S. 266, 278 (1978)

(Powell, J., concurring).

The government further argues that [roving

automobile searches in border regions for

aliens] . . . are undertaken for administrative

rather than prosecutorial purposes, that their

function is simply to locate those who are

illegally here and to deport them.

Id.

As this Court has recognized, the goal of discovering

illegal aliens is civil deportation -- the possibility of criminal

prosecution is rarely implemented. /.N.S. v. Lopez-Mendoza,

468 U.S. 1032, 1043 (1984). "[O]nly a very small

percentage of arrests lead to criminal prosecutions. Thus the

arresting officer's primary objective, in practice, will be to

use the [arrestee's post-arrest statements] in the civil

deportation hearing." Jd. This type of roadblock therefore

immediately served the regulatory goal of identifying those

unlawfully in this country and commenced the process of

their removal.

B. Sobriety Checkpoints Remove Potentially

Deadly Drivers from the Highway

This Court has held that when officers act to protect

the safety of the community, rather than investigate crime,

the usual standards of suspicion are not prerequisites to a

legitimate intrusion. For example, in Cady v. Dombrowski,

413 U.S. 433, 447-48 (1973), this Court recognized that

officers acting to protect the public, as opposed to

investigating crime, are performing community caretaking

functions. In Cady, an officer entered the trunk of a disabled

car towed to a garage as he believed the motorist, a Chicago

police officer, was required to carry his service revolver at all

times. Jd. at 437. The officer checked the trunk to ensure the

weapon he thought to be in the trunk would not be

discovered by vandals once the car was impounded. Jd. at

448. This Court held that when officers are performing

community caretaking functions, such as protecting the

public from weapons falling into the hands of criminals, the

typical requirement of individual suspicion is not a

prerequisite to the action.

Ensuring motorists are sober and therefore not posing

a lethal threat to their fellow motorists is surely part of an

officer's duty to protect the community. In Michigan Dep't of

State Police v. Sitz, 496 U.S. 444 (1990), this Court permitted

a roadblock to ensure that motorists were sober. The Court,

in allowing the roadblock, weighed the state's interest in

preventing the carnage caused by drunk drivers against the

10

minimal intrusion caused by the thirty second stop at a

checkpoint. Jd. at 451.

Certainly drunk driving is a crime and arrests were

made for drunk driving at the roadblock considered in Sitz.

Id. at 448. The State's interest in exacting possible sanction

for driving under the influence, however, pales in comparison

to the State's interest in removing drunk drivers from the

highway before their impairment causes tragic, often fatal,

accidents. Not unlike the interest advanced in Martinez

Fuerte, the criminal component of the state's interest is

ancillary to a regulatory goal -- here, the community

caretaker function of making the highways safe.

C. Drug Checkpoints Prosecute the

Criminal Act of Possession.

This Court has previously distinguished the

regulatory interest in discovering those using drugs in

dangerous occupations from the investigation of the crime of

possessing drugs. For example, in permitting mandatory

drug testing for railroad engineers previously involved in

train accidents, this Court noted "the possession of unlawful

drugs is a criminal offense that the Government may punish,

but it is a separate and far more dangerous wrong to perform

certain sensitive tasks while under the influence of those

substances." Skinner v. Railway Labor Exec. Assoc., 489

U.S. 602, 633 (1989) (emphasis added).

The purpose of the Indianapolis roadblock is the

detection of those in possession of unlawful drugs. See

Directives, App. of Pet. Brief, 53a.. The identification of

those in possession of contraband narcotics commences the

criminal charging process for this offense. Individual

suspicion is therefore required for the seizure as the

11

governmental interest is sought through the drug interdiction

checkpoint. Chandler, 520 U.S. at 513-14.

The United States, as amicus curiae, argues that the

discovery of drug traffickers prevents further criminal acts by

these individuals and other, particularly the distribution of |

drugs. Brief of the United States at 12 n.4. Incapacitation of

the offender so that he may not commit further crimes against

society and deterring others from doing the same are,

however, two of the goals of criminal prosecution in all

cases. See Wayne R. LaFave, Criminal Law, § 1.5(a), 24-25

(3d ed. 2000). The desire to prevent future crimes by those

discovered to have committed one crime -- and the desire to

prevent crimes by others -- does not therefore demonstrate an

interest beyond that inherent in every criminal prosecution.

When the state seeks to intrude upon a citizen with no

reason to believe him involved in wrongdoing, it is consistent

with this Court's doctrines (and common sense) that the state

only be allowed to do so when it is not subjecting him to a

process that has as its aim his incarceration.

II. AMOTORIST MAY NOT BE SUBJECTED TO

A DOG SNIFF ABSENT REASONABLE

SUSPICION.

In a consent decree to eradicate racial profiling on the

New Jersey Turnpike, the United States Department of

Justice and the New Jersey State Police agreed that dog sniffs

would be used on cars lawfully stopped only where there was

a basis for using the dog. See Consent Decree, United States

v. New Jersey, J] 32-33 (D.N.J.) (Civ. No. 99-5970 MLC)

(visited May 21, 2000)<http://www.usdoj.gov/crt/split/

documents/jerseya.htm>.

12

If the dog sniff were of no moment, as the City of

Indianapolis and the United States assert, see Brief of

Petitioner at 19; Brief of United States at 15; adding nothing

to a detainee's uneasiness and posing no substantial risk of a

false positive, this provision would unnecessarily inhibit law

enforcement. That the New Jersey State Police and the

United States Department of Justice agreed to this term is an

implicit recognition of one of two important truths (and

perhaps both). Dog sniffs subject the citizen to the state's

machinery of criminal investigation which is an offensive act

to a citizen not free to walk away. And dog sniffs pose a

substantial risk of false positives resulting in fruitless and

very invasive searches undermining a citizen's reasonable

expectation of privacy and dignity.

A. A Dog Sniff is a Show of Force Requiring a

Quantum of Suspicion.

A police dog at a roadblock adds a degree of official

force and intimidation not present where officers merely

check license and registration and ensure the driver is sober.

Indeed, the Sixth Circuit has held that bringing a narcotics

detection dog to the scene of a disabled car is a "show of

force" indicating to a reasonable person that a drug

investigation is underway with which the motorist may not

interfere. United States v. Buchanon, 72 F.3d 1217, 1225

(6th Cir. 1995).

This Court has never authorized the use of a narcotics

detection dog on property still in the lawful possession of

someone authorities have no reasons to suspect of

wrongdoing. In United States v. Place, 462 U.S. 702, 709

(1983), this Court held that a suspect's luggage had been

detained by authorities for such a substantial length of time

13

that probable cause was required for the detention. The

Court then recognized that a shorter detention of the luggage

could be supported by a showing of reasonable suspicion,

provided that the investigation performed on the detained

luggage was "properly limited in its scope." Jd. at 706.

It was in this context, where the police have a basis

for separating a traveler from his luggage, that this Court

noted that a dog sniff added nothing to the intrusion visited

upon a suspect. Jd. at 707. This Court did not say that

property in the lawful possession of its owner may be sniffed

at any time.

Bringing a police dog to an otherwise legitimate

suspicionless encounter between an officer and citizen

changes the legal nature of the encounter. In Buchanon,

officers encountered the motorist as part of their efforts to

assist him with his car trouble -- a legitimate basis for a

suspicionless encounter of the officers with the motorist. The

Sixth Circuit recognized, however, that directing a drug dog

to sniff the disabled vehicle was an investigation of the

motorist's property -- an investigation with which he may not

interfere. Buchanon, 72 F.3d at 1225. "Bringing out the dog

was a show of force . . . and when the sniff began, it would

have been clear to a reasonable person that a drug

investigation was underway and that troopers would not

permit access to the vehicle during the dog sniff." Jd. The

Court held this show of force, during a function the officers

doubtless had the right and responsibility to perform --

assisting a disabled motorist -- requiring reasonable

suspicion. Jd.

Whether the narcotic detection dog is viewed by the

motorist as investigating him for criminal violations or a

powerful show of the officer's authority and power, the

police dog is clearly a sign of police power adverse to the

motorist. When the purpose of the seizure is to investigate

id

the possibility he is committing a crime, the motorist is aware

that he is treated as a suspect, that he is under a microscope

where officer look for factors that suggest criminal activity

sufficient to justify a search. And the investigative technique

of a dog sniff demonstrates the officer's immediate physical

authority not unlike his hand on a weapon.

Those who because of race, ethnicity, class, or prior’

unpleasant encounters with police have come to distrust the

police would find this examination even more offensive and

frightening. See Illinois v. Wardlow, 120 S.Ct. 673, 680-81

(2000) (Stevens, J., dissenting)(noting reasonable fear of the

police by some segments of the community, particularly

racial minorities). The vision of police dogs being let loose

on civil rights marchers in Birmingham, Alabama is an image

burned into the American conscience. See David Benjamin

Oppenheimer, Kennedy, King, Shuttleworth and Walker: The

Events Leading to the Civil Rights Act of 1964, 29 U.S.F. L.

Rev. 645, 671 (1995) (noting use of police dogs against

marchers in Birmingham). This sad chapter in American

history taints the current use of police dogs and instills fear in

those who cannot forget the way these dogs have been used.

The police dog simply is not a source of comfort to an

innocent motorist seized in an official roadblock -- it is a

show of force, a demonstration of the immediate physical

power at the officers’ disposal -- a power that history reminds

us has not always been responsibly used. .

B. The Inaccuracy of Dog Sniffs on a Random

Population Demonstrates that Dog Sniffs

Absent Reasonable Suspicion Yield an

Intolerable Number of False Positives.

A narcotics detection dog is particularly unreliable

when asked survey a random population. See Robert C. Bird,

An Examination of the Training and Reliability of the

Narcotics Detection Dog, 85 Ky. L. J. 405, 430 (1996-97).

15

This Court's has yet to authorize dog-sniffs of random

populations. Indeed it has not permitted the unwilling to be

subjected to dog sniffs unless there has been, at least, a

showing of individualized suspicion. United States v. Place,

462 U.S. 696, 706-08 (1983). The cases reported in the

lower courts reveal that this Court should not permit the use

of drug dogs absent individualized suspicion as the rate of

false positives on a random population will lead to an

intolerably high number of fruitless searches.“

Dogs are quite unreliable in indicating the presence of

drugs in cars seized at roadblocks. In a roadblock in Florida,

similar to the one in the instant case, the accuracy of the dogs

was enhanced by requiring two separate dogs to alert on an

automobile before a search could proceed. Merrett v. Moore,

58 F.3d 1547, 1549 (11th Cir. 1995). All cars on the Florida

highway were stopped and drug detection dogs sniffed the

outside of the cars while officers checked the license and

registration of the motorists. Jd. When a dog indicated the

presence of narcotics, a second dog was brought to the

automobile. Only if both the first and second dog alerted did

a search occur -- consent was requested for a search on the

second canine alert, if consent was not given, a warrant was

obtained. Of the twenty eight cars searched using this

method, only one search resulted in the arrest of a motorist

for possession of illegal narcotics. Jd. Thus, the alert of one

drug detection dog -- confirmed by the positive alert by a

second drug detection dog -- yielded fruitless searches in 27

out of 28 cases. Jd. In other words, a roadblock, using a

procedure even more carefully designed than the one in the

* Certainly dog sniffs at airports and international borders would go

unaffected by a reasonable suspicion prerequisite to a sniff as the full

search permitted by a positive alert is permitted of any commercial airline

passenger, see National Treasury Employees Union v. Von Raab, 489

U.S. 656, 675 n.3 (1989) (citing United States v. Edwards, 498 F.2d 496,

500 (2d Cir.1974)), or international traveler. United States v. Thirty-

Seven Photographs, 402 U.S. 363, 376 (1971).

16

instant case, resulted in the search of an innocent person's car

96.4% of the time.

The use of dogs in school setting have similarly

produced unreliable results when used on a population

officers have no reason to suspect. In B.C. v. Plumas Unified

School District, 192 F.3d 1260 (9th Cir. 1999), dogs were

used to sniff high school students. Though there were

positive indications by the drug dogs on students, no drugs

were ever found. Jd. at 1263. The false positive rate was

therefore 100 percent.

In Doe v. Renfrow, 475 F. Supp. 1012 (N.D. Ind.

1979), aff'd in part and remanded in part, 631 F.2d 91 (7th

Cir. 1980), students were randomly sniffed by narcotics dogs

for drugs. Fifty positive indications by drug-detection dogs

yielded only seventeen instances of actual narcotics

possession. Thus, the police found no drugs on thirty-three

individuals on whom the dogs alerted. On this random

sample, the dogs were accurate in their alerts less than thirty-

four percent of the time.

The fear of false positives when dogs are used on a

random population is therefore very real.

The judiciary should be most skeptical of

sniffs conducted in a random, unfocused

manner. All but the most carefully planned

random sniffs using highly trained dog

teams will likely result in many false

positives.

Wayne R. LaFave, Search and Seizure: A Treatise on the

Fourth Amendment, § 2.2(f), 63 n. 265.1 (quoting Bird,

supra, 433-34).

17

Limiting dog sniffs to situations where officers have

reasonable suspicion of the presence of narcotics reduces the

number of fruitless searches the cases in the lower courts

reveal to be all too common.

C. Many State Courts and Commentators

Have Called for a Showing of Reasonable

Suspicion Before a Dog is Permitted to Sniff

Lower courts have typically permitted dog sniffs only

in cases where officers had reasonable suspicion to believe

narcotics present before beginning the dog sniff. See

LaFave, supra, at § 2.2(f), 456 (noting that with rare

exceptions, courts have approved of dog sniffs only where

reasonable suspicion existed that narcotics would be found in

the place sniffed.) In cases where dog sniffs have been

performed in the absence of reasonable suspicion, lower

courts have approved the use of dogs primarily, if not

exclusively, on closed containers or luggage at airports or

other places where government inspection is anticipated.

People v. Unruh, 713 P.2d 370, 377 (Colo. 1986) (en banc)

(citing cases); National Treasury Employees Union v. Von

Raab, 489 U.S. 656, 675 n.3 (1989) (citing United States v.

Edwards, 498 F.2d 496, 500 (2d Cir. 1974) (recognizing that

all commercial airline passengers may be searched absent

individual suspicion)).

The Pennsylvania Supreme Court, not unlike many

other state courts, ° has regarded a dog sniff to be a search

* Several other state courts have arrived at the same conclusion under

their respective state constitutions. See Pooley v. State, 705 P.2d 1293,

1310-11 (Alaska App. 1985); State v. Pellici, 580 A.2d 710 (N.H. 1990);

People v. Unruh, 713 P.2d 370 (Colo. 1986)(en banc). As many

commentators have noted, this Court's decision in Place did not resolve

the issue of whether a drug dog may be set loose on a citizen or his

property absent suspicion of wrongdoing. See LaFave, supra, at § 2.2(f),

456. These from various state courts either make that assumption or

18

as

under the state constitutional protection against unreasonable

searches and seizures. Commonwealth v. Johnston, 530 A.2d

74 (Pa. 1987). Like other state courts, the Pennsylvania

Supreme Court recognized that permitting a dog sniff only

where officers had probable cause to believe drugs present

would render the canine sniff of marginal utility at best. Jd.

at 79. The Court therefore recognized that probable cause

was an inappropriate standard for dog sniffs but held that "a

free society will not remain free if police may use this, or any

other crime detection device, at random and without reason."

Id. Because the dog sniff was "inherently less intrusive than

other searches," the Court found the appropriate balance

between the needs of criminal enforcement and individual's

freedom from unwarranted criminal investigations to be

struck by the prerequisite of reasonable suspicion. "[A]n

individual's interest in being free from police harassment,

annoyance, inconvenience and humiliation is reasonably

certain of protection if the police must have a reason before

they may... utilize a dog." Jd. at 80.°

Many commentators have similarly labeled the dog

sniff an investigative technique which subjects its targets to a

humiliation and potentially offensive police encounter.

Recognizing nevertheless that the intrusion is minimally

intrusive, these commentators analogize the encounter to a

Terry stop, another investigative technique that subjects a

citizen to a potentially undesirable encounter. See LaFave,

supra, § 2.2(f), 461; Note, Kenneth L. Pollack, Stretching the

Terry Doctrine to the Search for Evidence of Crime: Canine

recognize the reasonable suspicion requirement irrespective of the federal

minimum.

6 The Court noted that a dog sniff was “unlikely to intrude except

marginally upon innocent persons." /d. at 79-80. To the contrary, when

drug dogs are used on a random population, as discussed above, the cases

litigated in the lower courts indicate frequent intrusions on innocent

persons.

19

Sniffs, State Constitutions and the Reasonable Suspicion

Standard, 47 Vand. L. Rev. 803 (1994).

Requiring reasonable suspicion as a prerequisite to a

dog sniff is that it reduces the risk of a false positive and does

not subject an innocent citizen to the accusational nose of a

police dog without a basis.

Il. THE INDIANAPOLIS ROADBLOCK DOES NOT

ADEQUATELY LIMIT THE DISCRETION OF

POLICE OFFICERS.

Where suspicionless automobile seizures have been

permitted, this Court has required a limitation on officer

discretion at the roadblock so that officers may not arbitrarily

decide how invasive the intrusion shall become or arbitrarily

subject some to the initial seizure but not others. See

Michigan Dep't of State Police v. Sitz, 496 U.S. 444, 450-51

(1990) (all cars entering roadblock must be checked in same

manner); Delaware v. Prouse, 440 U.S. 648, 657 (1979)

(recognizing that roadblock where all cars were briefly

stopped to ensure licensure could be reasonable intrusion).

The directives to officers performing the Indianapolis

Drug Interdiction Roadblock do not adequately supply

guidelines that assure equal treatment of all stopped

motorists. Neither the directives to officers running the

roadblock nor the affidavits the City of Indianapolis

presented to the District Court provide adequate assurances

that all motorists are equally likely to be seized in the

checkpoints.

20

A. The Directives Do Not Adequately Limit the

Extent or Manner of Investigation Officers

May Perform at the Checkpoint.

The directives to officers operating the Indianapolis

roadblocks further reveal that an indication by a trained drug

dog is not the only way an officer may gain the right to

search a motorist's car. The directives note that a motorist's

voluntary censent to search will permit a search, even

without a positive indication by the drug dog.’ Probable

cause can be developed during the officer's interaction with

the motorist even absent a positive indication by a drug dog.

As the directives read:

A warrantless search of a vehicle is permitted

if the person in control of the vehicle gives a

valid consent to search. The officer may not

overbear the will of the person consenting. . . .

A warrantless search of a vehicle is also

permitted if the officer has probable cause to

believe the vehicle contains contraband,

evidence, or fruits of a crime.

App. of Pet. Brief at 53a.

In a regulatory search, a search for non-criminal

purposes, officials will stop when the inspection is complete

-- an intrusion circumscribed by a clear goal. The inspection

is complete when the wiring of a dwelling has been

’ While this Court has recognized that a voluntary consent to search a car

permits an officer to conduct a search, see Schneckloth v. Bustamonte,

412 U.S. 218, 227-34 (1973), this Court has never permitted a

suspicionless seizure so that the officer may request consent of the seized

motorist.

21

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

(1967), or when the vehicle identification numbers of cars at

a vehicle dismantling plant have been examined. See New

York v. Burger, 482 U.S. 691 (1987). "[B]ecause the

inspections are neither personal in nature nor aimed at the

discovery of evidence of a crime, they involve a relatively

limited invasion of the... citizen's privacy." Camara, 387 .

US. at 537.

A search for evidence of criminal activity is

necessarily less circumscribed -- there is no discrete place

where all citizens place incriminating evidence or

contraband. The intrusion by the state in these circumstances

is simply greater than when a clearly defined regulatory task

is being performed. No direction is provided to the officer

indicating when he may ask the motorist to consent or what

sort of questions he may ask in his efforts to obtain probable

cause by some means other than a canine sniff. Admittedly

the directives instruct the officers that "all cars are to be

examined in the same manner." Directives, App. of Pet.

Brief at 54a. The directives nevertheless expressly state that

the officer may obtain consent to search the vehicle or search

the vehicle when he has probable cause -- the methods by

_ which the officer may attempt to develop probable cause are

not limited by the directives. The directives do not tell the

officer whether he is to seek consent to search from all

motorists, some or none. The directives do not instruct the

officer on the questions or statements he can or should use to

obtain consent or the questions he can or should ask of

motorists in an attempt to develop probable cause.

If consent is given or probable cause discovered, a

very intensive search ensues -- an intrusion not visited on

those from whom officers do not seek consent or attempt to

develop probable cause. The search of a car for drugs could,

and often does, involve removing floor mats, spare tires, and

door panels. See United States v. Zapata, 180 F.3d 1237,

22

1243 (11th Cir. 1999) (consent to search car for weapons or

drugs permits removal of door panels); United States v. Pena,

920 F.2d 1509, 1514 (10th Cir. 1990) (finding consent to

"look in" a car allowed officer to remove door panels);

United States v. McRae, 81 F.3d 1528, 1537-38 (10th Cir.

1996) (finding consent to "look in" a car included lifting

carpet in the trunk); United States v. Gigley, 213 F.3d 509

(10th Cir. 2000) (consent to "look in" van permits officers to

look under rear middle seat).

The goal of the police is not a search tailored to a

regulatory goal such as an examination of the driver's license.

The admitted purpose is the discovery of drugs which may be

hidden anywhere in a car. The directives to Indianapolis

police officers operating these drug interdiction roadblocks

permit these very intrusive searches to be sought of some but

not others -- with no basis for the differentiation.

B. The Directives Do Not Adequately Limit the

Discretion of Law Enforcement Officials

Determining Where the Roadblocks Shall

Be Placed.

The Fourth Amendment establishes a wafrant '

requirement which is waived only when significant

exigencies prevent obtaining a warrant. See Coolidge v. New

Hampshire, 403 U.S. 443, 454-55 (1971).. The fact that a

search or seizure may occur on something less than (or, more

precisely, other than) probable cause, does not eliminate the

warrant requirement in the absence of an exigency. See

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

v. Barlow's Inc., 436 U.S. 307 (1978). The location of a

roadblock therefore should require the same sort of judicial

approval required when the government seeks a suspicionless

regulatory intrusion.

23

o- ae °

The instant case provides a classic example of the

need for judicial supervision of the investigatory process.

The City of Indianapolis asserts that supervisory level

officials determine the location of the roadblock in advance.

Affidavit of Marshall Depew, App. 57a. The determination

is to be made based on crime rates and extent to which the

location will affect traffic. Jd.

The point of a roadblock -- as opposed to random

suspicionless stops of motorists -- is that a cross-section of

the community is subjected to the same intrusion. See

Delaware v. Prouse, 440 U.S. 648, 657 (1979) (requiring

stop of all automobiles if suspiciononless seizure is sought).

Officers may not target individual motorists or groups of

motorists without suspicion. /d. If all persons are equally

subject to the same chance of a seizure at a checkpoint, the

powerful and the outcast, then the decision of whether a short

seizure is a good policy can be entrusted to the political

process. Those who legislate and influence police policy are

as likely to be seized by a checkpoint as anyone else. See

Silas J. Wasserstrom & Louis Michael Seidman, The Fourth

Amendment as Constitutional Theory, 77 Geo. L. J. 19, 93

(1988) (arguing that Fourth Amendment provides for equal

protection from searches and searches so that democratic

process will be responsive to claims that intrusions

applicable to all are bad policy).

Where police officers, even at the supervisory level

are permitted to establish the checkpoint's location, they can

place the checkpoint in an area that lacks influence. Further,

nothing in the stipulations entered in the District Court

prevents the checkpoints from being operated in precisely the

manner the Respondents alleged in their complaint. A sign

along the highway warns of a drug checkpoint further down

the highway while the actual checkpoint is discretely hidden

at the bottom of the next exit ramp. J.A. at 8. Those with

something to hide from authorities naturally exit.

24

The supervisory officer can select a community that

lacks political influence and corral those with drugs off the

interstate onto the exit ramp leading to this community. A

high hit rate generated, not by the community's indigenous

drug problem, but by the signs alerting drug carriers of the

impending roadblock, confirms that the supervisory officer

has correctly located a "high crime area."

This Court has continued to require a warrant for

intrusions that can be conducted without a warrant to ensure

that regulatory agencies follow standard, non-discriminatory

procedures in all cases. See Camara v. Municipal Court, 387

U.S. 523 (1976); Marshall v. Barlow's Inc., 436 U.S. 307

(1978). Drug interdiction roadblocks have the potential to be

allocated based on hunches about segments of the community

and drug use -- hunches that will subject perfectly innocent

citizens to intrusions on their liberty because of their race or

class -- intrusions wealthier communities are less likely to

experience. The location of this type of suspicionless

intrusion is therefore especially appropriate for judicial

supervision.

CONCLUSION

For the foregoing reasons, the judgment of the United

States Court of Appeals for the Seventh Circuit should be

affirmed.

Respectfully submitted,

WESLEY MACNEIL OLIVER*

TULANE LAW SCHOOL

6329 Freret Street

Room 255-D

New Orleans, LA 70118

(504) 862-8810

Of Counsel:

BARBARA BERGMAN

Co-CHAIR, NACDL AMICUS COMMITTEE

UNIVERSITY OF NEW MEXICO

SCHOOL OF LAW

1117 Stanford N.E.

Albuquerque, NM 87131

(505) 277-3304

* Counsel of Record

July 6, 2000

26