Statement of Ken Falk
Legal Director, Indiana Civil Liberties Union
As police agencies become more aggressive in fighting the war on drugs, individual liberties frequently are threatened. From the very inception of our nation, the Fourth Amendment has stood as a barrier against the notion that the government may seize and search innocent persons without cause in the hopes of finding guilty ones.
Indianapolis v. Edmond (No. 99-1030) raises this precise issue: can the government conduct seizures through traffic roadblocks to detect criminal activity even though there is absolutely no individualized cause for the seizures. The answer to this question will help define the Fourth Amendment in the 21st Century.
In August of 1998, the Indianapolis Police Department began a series of traffic roadblocks which had as their avowed purpose the interdiction of unlawful drugs. The City intended to operate the roadblocks pursuant to a formal policy entitled, "Drug Checkpoint Contact Officer Directives by Order of the Chief of Police." The explicit purpose of the policy is to interdict the flow of unlawful drugs in Indianapolis. This is done by stopping a set number of vehicles and forcing them to pass through the checkpoint areas.
The checkpoints are set up at areas chosen by the police with regard to, among other things, neighborhood crime statistics. The policy provides that officers are not given discretion to stop the vehicles out of sequence and, once selected, the driver must pass through the checkpoint. When the driver enters the checkpoint, an officer asks the driver for his or her license and registration and the driver is informed that he or she is being stopped at a drug checkpoint.
While the vehicle is stopped, officers look for signs of impairment and conduct an open-view examination from outside of the vehicle. A drug detection dog is walked around each car and examines every vehicle. If consent is given by the person in control of the vehicle, or if probable cause is ascertained by the police, a warrantless search of the vehicle is performed. If the dog "alerts" to drugs, that is deemed to be probable cause.
The checkpoint operations are large, involving approximately thirty 30 officers. The checkpoints are announced by signs immediately before the stops which indicate that "drug checkpoints" are ahead. In the six drug checkpoints in 1998, which were conducted before the appeal of this case, 1,161 vehicles were stopped. The police reported 55 drug-related arrests and 49 other arrests for conduct unrelated to drugs.
The United States Supreme Court has made it clear in earlier cases that a traffic stop is a "seizure" as that term is used in the Fourth Amendment. The Court also has frequently held that the Fourth Amendment requires that any search or seizure be supported by individualized suspicion. Although narrow exceptions have been made to this rule, the Court has always demanded that searches and seizures for the purposes of normal criminal investigation be supported by individualized cause. The exceptions which have been allowed to the cause requirement have all been for searches and seizures which have served some other, non-criminal investigatory purpose. These include administrative searches, drug testing for special needs unrelated to law enforcement, and inventory searches of cars after drivers are arrested and detained.
Indianapolis v. Edmond presents the question of whether stopping motorists at a drug interdiction checkpoint whose primary, if not sole, purpose is attempting to find criminals carrying drugs is constitutional. The Court is being asked by the City of Indianapolis to turn its back on the cause requirement and authorize a criminal investigatory seizure even though it is not supported by individualized cause.
In earlier cases, the Supreme Court has stressed that checkpoint stops are seizures within the Fourth Amendment. In a 1976 case (United States v. Martinez-Fuerte, 428 U.S. 543 (1976)), the Court allowed fixed immigration checkpoints where cars were briefly stopped so that immigration officers could question drivers and passengers to verify their immigration status. This type of stop is widely viewed by courts and commentators as a non-criminal investigatory stop which advances the inherent right of the United States to insure that persons and goods enter the country lawfully.
In 1990, in Michigan Department of State Police v. Sitz (496 U.S. 444 (1990)), the Court approved brief sobriety checkpoints where motorists would be stopped for less than 30 seconds while police ascertained if they appeared drunk. Although drunk driving is a crime, the Court assumed that the programmatic purpose of these roadblocks was not to investigate criminal activity, but to remove immediately unsafe vehicles. As such, the stops were akin to license and inspection stops which many states maintain to remove imminently unsafe vehicles from roads before immediate harm befalls innocent persons.
In October of 1998, two of the innocent motorists who had been stopped in the roadblocks, James Edmond and Joell Palmer, brought suit on their own behalf and on behalf of a class of Indianapolis motorists to challenge the roadblocks. They sought a preliminary injunction to stop the roadblocks from continuing. The district court denied the preliminary injunction, finding that the roadblocks were constitutional and were not distinguishable from those in Sitz and Martinez-Fuerte.
The Seventh Circuit disagreed. The majority, in a decision by Chief Judge Posner, noted that unlike the roadblocks in Sitz and Martinez-Fuerte, the ultimate purpose of these roadblocks was to catch criminals. This criminal investigatory purpose required that the seizure be supported by individualized suspicion. Judge Easterbrook dissented from this view.
The City, along with the United States, is arguing that the drug crisis in America is a sufficiently strong interest to justify the roadblocks. This argument is not a new one. In the 1920's, the Supreme Court stood firm against the law enforcement demand that the cause requirement in the Fourth Amendment should be removed so that the national crisis brought on by the violation of Prohibition laws could be addressed. Last year, in Florida v. J.L., the Court refused to create a new "firearms exception" to the Fourth Amendment.
Without the cause requirement to contain criminal investigations, there is little to prevent law enforcement from creating greater and greater incursions into our privacy under the banner of law enforcement and societal need. At its core, the Fourth Amendment protects individual privacy. An adverse decision will go a long way in removing that protection and will allow the proliferation of law enforcement techniques which are designed to ensnare innocent persons in the hopes of finding the guilty few.