# Amicus Curiae Brief — Allender v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0586%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 873

## Text

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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)
.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0586%3A14. Public record. Not legal advice.