Sole Morality

Sobriety Checkpoints and the Fourth Amendment

For those not familiar with the Bill of Rights, the fourth amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

This is the amendment that keeps you the police out of your house and from stopping you at every turn for any whim they happen to have. Anytime you are engaged by a police officer and are not free to leave whenever you please, you are being detained. In the language of the above amendment, your "person" has been "seized."

The easiest example to use with this is being arrested for, let's say not showing up for court. In that case, the judge issues a bench warrant for your arrest. Thus, a warrant describing the person to be seized (you) is issued on probable cause (an officer of the court observing that you failed to show up as legally obligated). The police can then, under the authority of the warrant, seize your person (arrest you). Again, this is all contingent on "probable cause," a lower standard than what is necessary to convict someone in court, which is generally defined as a "a reasonable belief that a crime has been committed" or "reason to believe that an injury had criminal cause."

The courts have decided that police officers should have the authority to temporarily detain or seize someone to determine if probable cause exists. Thankfully, the courts didn't give carte blanche to officers to do this. The Supreme Court case Terry v. Ohio from 1968 established that officers need to have grounds to detain someone, although less than "probable cause." Instead, "reasonable suspicion" was established as the standard for such temporary detainments, commonly called a "Terry stop." The evidence, observations, and inferences must in totality be sufficient such that a reasonable person would believe that the person has been or is about to be engaged in criminal activity. It is in this case that the authority for traffic stops are based in. When an officer writes you a ticket, the officer is attesting to what he observed and gives you the option of simply paying the fine if you agree to the infraction or crime you committed or to appear in court to be judged. The detainments must be based on more than "a hunch" and must be brief in duration.

In other words, if the police do not have reasonable suspicion, then they do not have the authority to detain you. They simply can't pull you over while you're driving for no other reason than to see if you are following the law. Or can they...

In the 1990 Supreme Court case of Michigan Dept. of State Police v. Sitz, the court overturned the Michigan State Supreme Court ruling that the use of sobriety checkpoints was unconstitutional. While the majority held that the state interested in preventing drunk driving outweighed the intrusion. The dissenting minority disagreed and noted several things I find I highly agree with in this matter. Per Justice Brennan:

Some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action.

By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police.

That stopping every car might make it easier to prevent drunken driving. . . is an insufficient justification for abandoning the requirement of individualized suspicion.

Justice Stevens also wrote a dissent and referred to a Maryland checkpoint system that made use of 125 checkpoints and only resulted in a 0.3% arrest rate. Comparing this to Michigan's proposal, he notes:

Yet, even if the 143 checkpoint arrests were assumed to involve a net increase in the number of drunken driving arrests per year, the figure would still be insignificant by comparison to the 71,000 such arrests made by Michigan State Police without checkpoints in 1984 alone.

Any relationship between sobriety checkpoints and an actual reduction in highway fatalities is even less substantial than the minimal impact on arrest rates. As the Michigan Court of Appeals pointed out: "Maryland had conducted a study comparing traffic statistics between a county using checkpoints and a control county. The results of the study showed that alcohol-related accidents in the checkpoint county decreased by ten percent, whereas the control county saw an eleven percent decrease; and while fatal accidents in the control county fell from sixteen to three, fatal accidents in the checkpoint county actually doubled from the prior year."

Perhaps my favorite point from the dissents was by Justice Brennan when, quoting himself from another Supreme Court case, he wrote:

Moved by whatever momentary evil has aroused their fears, officials - perhaps even supported by a majority of citizens - may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of `the right to be let alone - the most comprehensive of rights and the right most valued by civilized men.' Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

So, with the matter being decided in 1990, why am I bringing all this up and boring you with lots of legal stuff? Well, because it wasn't completely decided.

10 states, Idaho, Iowa, Michigan, Minnesota, Oregon, Rhode Island, Texas, Washington, Wisconsin, and Wyoming (I found conflicting information on Alaska), don't allow checkpoints by prohibiting them in state law or, in Washington's case, because the state constitution provides higher protection against search and seizure than does the federal law.

In the 1988 case of City of Seattle v. Mesiani, Washington's Supreme Court upheld that sobriety checkpoints violate Article 1 Section 7 of the state constitution which says, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law." The court went on to say that "sobriety checkpoints are highly intrusive subjectively because the officer personally searches the driver for evidence of intoxication, including smelling breath, looking for open containers, and attempting to elicit evidence of lack of dexterity by asking for a license." The court finally said that sobriety checks were illegal searches thus would require a warrant. So, 20 years later, the governor of the state of Washington, Christine Gregoire, has proposed legislation that would legalize sobriety checkpoints in the state by allowing judges to issue a warrant. How would a warrant cover the search of dozens if not hundreds of drivers? Well, that's simple. Issue it for a place and time, and have it cover everyone who happens to be there!

An article regarding the proposed legislation in The Oregonian explains Gregoire's proposal. The police will have to get a warrant from a judge to set up the roadblock at a specific place and for a specific time. All vehicles would then be stopped with failure to stop being a gross misdemeanor. In other words, the warrant would not be specific as to who would be stopped nor would it have to show any probable cause regarding the person being stopped other than the fact that there are a lot of alcohol and drug related accidents that take place at that location.

Governor Gregoire said, "We will go where the impaired drivers go, with the goal of getting them off the road."

You see, the problem is that the government already has the authority to "go where the impaired drivers go." Cops can sit on the roads that bars are on, can blitz the area and have increased manpower patrolling just outside a bar at closing time, and heck they can even sit across the street and watch for anyone staggering over to a car and falling inside the drivers side door.

So, I'm left wondering why Governor Gregoire feels the need to suspend our civil liberty and our rights to privacy and protection against seizures of our person with out individualized reasonable suspicion? Why does she feel the need to go against the state Supreme Court?

The checkpoints are intrusive. The checkpoints are illegal. And unless the residents of Washington step up and do something, the checkpoints are coming your way.

How do you step up?
Take a minute and either call or write your state congressmen or women and ask them to oppose HB 2771. The link will let you search for them and will give you their office phone numbers and email addresses. You don't have to write much. A simple: "I am writing to express my opposition to HB 2771 which would allow police to conduct sobriety checkpoints. I am opposed to it because I feel it is (pick one or more: unconstitutional under the state constitution, illegal as per the 1988 Washington Supreme Court ruling, invasive, [some other reason]). I would appreciate you standing with the concerned citizens of Washington and supporting our civil rights by opposing this bill. I look forward to hearing your response and how you anticipate voting." Simple enough.

Then write or call the members of the state house judiciary committee (where the bill currently is in the legislative process). You can probably skip the committee chair and vice-chair, as they are sponsors of the bill and have probably already made up their mind on how to vote.

Then tell a friend. If you care to do that by sending this post to someone, you can do that by simply clicking on the little envelope icon at the bottom of this post.