Checkpoints: Fourth Amendment implications of limiting access to high crime areas.

In the February issue of the FBI Law Enforcement Bulletin, the Legal Digest article discussed the need for innovative approaches to combat gang violence. Specifically, the article addressed the use of gang loitering ordinances and gang injunctions.(1) In keeping with that theme, this article discusses the Fourth Amendment implications of another innovative approach to combating violent gang crime - the use of checkpoints to limit access to high crime areas.

THE WATSON AVENUE PILOT PLAN

In the summer of 1992, the Watson Avenue Special Operation was instituted in the Soundview neighborhood of the Bronx in an effort to stem the tide of a recent rise in drug activity and drive-by shootings in the area. The operation called for the cordoning of an 8 block area and the use of vehicle checkpoints to screen all individuals attempting to drive into the area. Officers operating the checkpoints were instructed to stop every vehicle entering the area and determine the driver's association with the neighborhood. Only residents, drivers of commercial vehicles, drivers of vehicles dropping off small children, or visitors to the local church were permitted to enter the area. Officers were further instructed to allow drivers to avoid the checkpoints by driving around the cordoned area or parking their vehicles and entering on foot. The checkpoint was operated on a random basis, 6 hours a day, 3 days a week, for a period of 3 weeks.(2)

THE CHALLENGE

In September of 1992, Winfred Maxwell, a retired New York City police officer attempting to visit his daughter who lived in the Soundview neighborhood, was stopped at the Watson Avenue checkpoint and asked for identification. What happened thereafter is a matter of dispute.

According to Maxwell, he advised the officer at the checkpoint that he was a retired police officer and that his license and registration were in a pouch along with a registered handgun. When Maxwell reached for and opened the pouch, the officer, observing the handgun, drew his own service weapon and ordered Maxwell out of the vehicle. Although he complied with the officer's orders, Maxwell alleges that he was thrown to the ground, beaten, and subjected to racial epithets before being arrested and charged with assault, resisting arrest, disorderly conduct, and harassment. In a subsequent jury trial, Maxwell was acquitted on all charges.

Following his acquittal, Maxwell brought a civil action against the city of New York, the police department, and several named individuals, claiming that his civil and constitutional rights were violated by his encounter with the police at the checkpoint.(3) Many of the issues raised in Maxwell's civil suit centered around disputed facts that ultimately must be resolved by a judge or jury after hearing testimony in the matter. Resolution of the legality of the checkpoint stop itself, however, required only an interpretation of existing Fourth Amendment(4) case law and was resolved by the court on the defendants' motion for summary judgment.(5)

THE SITZ ANALYSIS

When determining the legality of the checkpoint in question, the district court in Maxwell necessarily began with a review of the United States Supreme Court's decision in Michigan Department of State Police v. Sitz.(6) In Sitz, the Supreme Court was confronted with, and upheld, the constitutionality of a highway sobriety checkpoint.

The Court in Sitz began by acknowledging that all checkpoints, which by definition involve a "governmental termination of freedom of movement through means intentionally applied,"(7) constitute seizures under the Fourth Amendment and must, therefore, be reasonable. In determining the reasonableness of a checkpoint, the Court found it necessary to balance the seriousness of the problem addressed by the checkpoint and the ability of the checkpoint to have an impact on that problem against the "objective" and "subjective" intrusions on seized individuals.

Applying this test to the sobriety checkpoint at issue in Sitz, the Court concluded that no one could question the seriousness of the drunk driving problem on the nation's highways and that checkpoints are a reasonably effective method of addressing the problem. On balance, the Court found that the objective intrusion, measured by the "duration of the seizure and the intensity of the investigation,"(6) as well as the subjective intrusion, gauged by the "fear and surprise engendered in law-abiding motorists by the nature of the stop,"(9) were both minimal.

When evaluating the subjective intrusion of the sobriety checkpoint, the Court observed that the fear and surprise experienced by motorists would be minimized by the fact that motorists could see that all vehicles were being stopped and that officers were in uniform and displayed visible signs of their authority. Combining this fact with statistical data indicating that stopped motorists were detained an average of 25 seconds, the Court concluded that the sobriety checkpoint was reasonable and, therefore, constitutional.

APPLICATION OF THE SITZ ANALYSIS BY THE DISTRICT COURT

The federal district court in Maxwell v. City of New York(10) had a difficult time applying the Sitz balancing test. The court reviewed statistical data regarding drive-by shootings, drug sales, and other criminal activity in the Soundview neighborhood and determined that there was, in fact, a serious problem. However, the court found insufficient undisputed facts to permit an intelligent assessment of the effectiveness of the checkpoint in combating the problem.

When attempting to evaluate the effectiveness of the checkpoint in question, the court defined its goal as measuring the "degree to which the seizure advances the public interest."(11) Recognizing that the Supreme Court has "made it clear that an in-depth statistical examination of a checkpoint's 'effectiveness' is not warranted,"(12) the court nevertheless found that there must be some means, "beyond the subjective evaluations by neighborhood residents,"(13) of measuring whether the checkpoint reasonably advanced its stated purpose.(14) Although it was undisputed that no drive-by shootings had occurred during the operation of the checkpoint, the court found insufficient information to measure the impact of the checkpoint on other criminal activity in the neighborhood. "Without a fuller picture of how the checkpoint affected a broad spectrum of crime," concluded the court, "the proper balancing test cannot be performed."(15) Because of its perceived inability to perform the Sitz balancing test without a further finding of facts, the district court denied the defendants' motions for summary judgment on the issue of the constitutionality of the checkpoint.

APPLICATION OF THE SITZ ANALYSIS BY THE COURT OF APPEALS

On review, the United States Court of Appeals for the Second Circuit was asked to reconsider the constitutionality of the checkpoint at issue in Maxwell.(16) Applying the same balancing test as the district court, the court of appeals considered identical factors but reached a decidedly different conclusion.

First, the court of appeals accepted without hesitation the seriousness of the crime problem in the Soundview neighborhood. Next, the court considered the effectiveness of the checkpoint and observed that to satisfy this prong of the Sitz balancing test, the checkpoint need only be a reasonable method of addressing the crime problem, not necessarily the most effective method.(17) Moreover, the court pointed out that the critical point in time for determining whether a method of deterring crime is reasonably effective is at its implementation, not after the fact. Noting that similar checkpoints had been effectively used in the past by the New York City Police,(18) the court concluded that at the time of implementation the checkpoint was reasonably believed to be an effective method of addressing the recent rise in crime in the Soundview neighborhood and no further statistics regarding the actual decline in criminal activity were necessary to complete this element of the balancing test.

On the other side of the scale, the court weighed the objective and subjective intrusion caused by the checkpoint. Objectively, the intrusion was minimal because the intended duration and intensity of the checkpoint seizure were extremely limited. The court focused on the facts that only motorists seeking entry into the barricaded area were stopped and that the stop itself was specifically designed to be brief and aimed solely at ascertaining the motorist's affiliations with the cordoned area. Consequently, the court concluded that the "request for evidence of a legitimate reason to enter the barricaded area was not significantly intrusive."(19)

The court similarly dispatched with the subjective analysis. Noting that the Watson Avenue Special Operation plan called for the stopping of all vehicles seeking entry into the effected area, the court found that there would be "little concern that the stop would generate 'fear and surprise'"(20) on the part of stopped motorists. All factors considered, the court of appeals concluded that the checkpoint in question passed the Sitz balancing test and granted defendant's motion for summary judgment. The United States Supreme Court subsequently refused Maxwell's request for review and the dismissal granted by the court of appeals was permitted to stand.(21)

LIMITING ACCESS AND THE FOURTH AMENDMENT

Apart from the legality of the checkpoint seizure, the court of appeals in Maxwell briefly considered the question of whether individuals simply denied access to high crime areas would have legitimate claims under the Fourth Amendment for unreasonable seizures. Although not an issue the court had to decide in Maxwell, this question is noteworthy because of its potential for argument in future cases where individuals are stopped lawfully at a checkpoint and then refused the right to enter.

When considering this issue, the court first pointed out that the Fourth Amendment only prohibits unreasonable searches and seizures. Because officers turning individuals away at a checkpoint are not "intruding into a reasonable expectation of privacy," no search has occurred.(22) Similarly, the Maxwell court suggested that turning individuals away from a high crime area does not significantly restrict their freedom of movement and, thus, does not constitute a seizure. In reaching this point, the court noted that individuals who are turned away at a checkpoint are "free to go anywhere in the world"(23) except the restricted area and arguably are not "seized" in terms of the Fourth Amendment.(24) However, even if courts conclude that no Fourth Amendment seizure is involved in the simple denial of access to a particular area, departments contemplating the use of checkpoints should be mindful that any evidence of discriminatory or arbitrary denials of access would likely give rise to serious challenges to the legality of the checkpoints on other constitutional grounds.

LESSONS LEARNED

The checkpoint stop of the vehicle at issue in Maxwell was ultimately found to pass constitutional muster. However, both the district court and the court of appeals discussed certain aspects of the checkpoint that were deemed controversial or potentially problematic. Although none of these aspects proved fatal, any police department considering the use of checkpoints to limit access to high crime areas should pay close attention to these issues in order to lessen the likelihood of successful legal challenges.

Stated Purpose of the Checkpoint

The stated purpose of the checkpoint is critical to the court's application of the Sitz balancing test. First, the stated purpose of the checkpoint must purport to advance the public's interest in resolving a serious problem in the community. Furthermore, the checkpoint must be considered a reasonably effective method of addressing the problem. Consequently, departments considering the use of checkpoints should carefully craft a statement of purpose that can be supported by statistical or anecdotal data demonstrating the seriousness of the perceived problem. Although statistical data is not necessary to demonstrate the effectiveness of the checkpoint, the collection of such data could be extremely effective in forestalling legal challenges in this area.

Instructions to Officers Operating the Checkpoint

Because the objective and subjective intrusions engendered by the checkpoint are judged in large part by the instructions given to the officers at the checkpoint, these instructions should be clearly worded and put in writing. The instructions should limit the objective intrusion by strictly limiting the duration of seizures at the checkpoint and curtailing the officers' investigations to only what is necessary to serve the stated purpose of the checkpoint, such as checking identification and determining association with the restricted area. The subjective intrusion should be minimized by taking steps to diminish the fear and surprise engendered by the checkpoint. As noted by the court of appeals in Maxwell, stopping all cars is one way of accomplishing this goal.

Limiting Discretion of Officers Manning the Checkpoint

Although it is impossible to catalog in advance every circumstance that might arise at a checkpoint and to "provide a litmus test to resolve them,"(25) carefully crafted instructions can address and give guidance on many of the common issues that are likely to surface. For example, in Maxwell, the instructions given the officers "allowed all residents and commercial vehicles to enter, as well as persons dropping off little children or visiting the church."(26) Even though the court commented that these instructions were "as detailed as reasonably possible,"(27) it is important to note that the constitutional validity of these instructions was not directly at issue in Maxwell, and other courts have not addressed the issue. More detailed instructions should be given regarding predictable situations, such as elderly or disabled individuals wishing to enter the area for legitimate reasons. Carefully. crafted instructions that limit officer discretion to the greatest extent possible will give the officers operating the checkpoint the confidence to handle their assignment swiftly and effectively(28) and reduce the likelihood that courts will find the police action unconstitutional based on the potential for arbitrary enforcement.

Posting Signs or Giving Other Advance Notice

The court of appeals in Maxwell found that posted signs were not necessary to avoid engendering fear and surprise in motorists stopped at the Soundview neighborhood checkpoint because motorists could see that all cars were being stopped. However, the court's rationale may not apply to every checkpoint under review. For example, if a checkpoint is set up on a lightly traveled road where drivers do not have the advantage of seeing other cars being stopped, drivers may be surprised or fearful of what is happening when they are stopped. The entire issue can be avoided by posting signs or giving other advance notice.

No Automatic Search Authority

The court of appeals in Maxwell found that checkpoints constitute seizures but they are lawful under the Fourth Amendment if the societal interest advanced by the checkpoint outweighs the intrusion on the individuals stopped. The court was able to reach this conclusion because, under the Fourth Amendment, seizures need only be reasonable to be lawful. The same is not true for searches.

To be lawful, searches must be conducted pursuant to a warrant or one of the narrowly drawn exceptions to the warrant requirement.(29) Because officers manning checkpoints will not have warrants to search the vehicles stopped, no search can be permitted unless the facts of the particular stop give rise to one of the warrant exceptions. Thus, a search may be justified under the vehicle exception if, during a stop, officers make plain-view observations that give them probable cause to believe that there is evidence or contraband in the vehicle.(30) Or, more simply, officers could ask for voluntary consent to search a stopped vehicle.(31) In either case, the searches may be justified under exceptions to the warrant requirement but are not automatically justified as part of the stop.

Keep Traffic Congestion to a Minimum

One of the factors that courts consider when engaging in the Sitz balancing test is the length of the delay generated by the checkpoint. In New Jersey v. Barcia,(32) for example, a sobriety and drug checkpoint was thoughtlessly placed on the New Jersey side of the George Washington bridge. The checkpoint tied up over 1 million cars for approximately 4 hours. In order to keep delays to a minimum, checkpoint locations should be carefully selected to avoid causing massive traffic congestion, and sufficient personnel should be assigned to the checkpoints to ensure swift, efficient handling of all stopped vehicles.

Further Detentions Require Reasonable Suspicion 

The court of appeals in Maxwell was careful to point out that the initial stop of motorists at a checkpoint "need not be based on reasonable suspicion of particular drivers."(33) However, "the detention of a particular driver beyond the initial stop may require satisfaction of an individualized suspicion standard."(34)

Submit a Written Plan for Prior Legal Opinion

Any department contemplating employing checkpoints to limit access to high crime areas should submit a written plan to its legal department or legal advisor for prior review. By doing so, the department will force itself to put the entire plan in writing and will allow for any adjustments to the plan that may be required by nuances in state or local laws.

CONCLUSION

Drive-by shootings, drug trafficking, and gang related violence have seen a dramatic rise in the United States. In order to combat such criminal activity, police departments may have to take some innovative steps. Establishing checkpoints to limit access to high crime areas is one such step. However, Maxwell is the only federal court decision addressing Fourth Amendment implications of using checkpoints, and other related issues, such as refusing access, have not been resolved by the courts. Carefully established and operated checkpoints can be an effective temporary measure to give affected neighborhoods a much-needed reprieve and police departments the time they need to reestablish control of the area. Ultimately, the extent to which courts find such checkpoints constitutional may depend on how carefully departments adhere to the lessons learned from the Maxwell decisions.

Endnotes

1 Lisa A. Regini, "Combating Gangs: The Need for Innovation," FBI Law Enforcement Bulletin, February 1998, 25-32.

2 Maxwell v. City of New York, 102 F.3d 664, 666 (2nd Cir. 1996), cert. denied 118 S. Ct. 57 (1997).

3 As a remedy for the alleged violations, Maxwell claimed injunctive and declaratory relief as well as monetary damages.

4 Maxwell also claimed that his constitutional rights to intrastate travel and to associate freely were violated. These claims were dismissed by the district court and were not made part of the appeal.

5 The court determined that Maxwell lacked standing to seek injunctive and declaratory relief.

6 110 S. Ct. 2481 (1990).

7 Id. at 2485.

8 Id. at 2486.

9 Id.

10 1995 WL 244501 (S.D.N.Y. 1995)

11 Id, at 6, quoting Sitz 110 S, Ct. 2490,

12 Id. at 7.

13. Id.

14. Id.

15. Id.

16 102 F.3d 664 (2nd Cir. 1996), cert. denied, 118 S. Ct. 57 (1997).

17 In Sitz, the Supreme Court held that the "choice among ... reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public resources, including a finite number of police officers." 110 S. Ct. at 2487. See also, Brouhard v. Lee, 125 F.3d 656, 660 (8th Cir. 1997).

18 125 F.3d at 667.

19 Id.

20 Id.

21 118 S. Ct. 57 (1997). The Supreme Court refused to review the grant of summary judgment ordered by the court of appeals. The order of summary judgment, which was based on the finding by the court of appeals that the defendants were entitled to qualified immunity, pertained only to the legality of the checkpoint seizures. The Maxwell case did not directly address the constitutionality of police refusing entry to a vehicle after a lawful checkpoint stop.

22 Katz v. U.S., 389 U.S. 347 (1967).

23 102 F.3d at 668 n.2.

24 In Maxwell, individuals denied access at

the checkpoint simply could park their vehicles and walk into the restricted area. However, that plainly would be problematic for the individuals with disabilities and elderly which highlights the importance of ensuring that objective criteria for denying access are as minimally intrusive as possible to accomplish the purpose for the checkpoint.

25 102 F.3d at 668.

26 Id.

27. Id. 28 In Maxwell, a strong dissent was filed by Senior Circuit Judge Oakes on the grounds that too much discretion was given to the officer operating the Soundview checkpoint.

29 Katz v. U.S., 389 U.S. 347 (1967).

30 California v. Acevedo, 111 S. Ct. 1982 (1991).

31 Officers should be instructed to ask for consent only under exceptional circumstances and if to do so will not significantly increase the delay time of motorists stopped at the checkpoint.

32 228 N.J. Super. 267, 549 A.2d 491 (N.J. Super. 1988), affd 562 A.2d 246.

33 102 F.3d at 668.

34 Id.

Checkpoint Checklist

* Submit written checkpoint plans for prior legal advice

* State the purpose of the checkpoint

* Checkpoints do not provide officers with automatic search authority

* Reasonable suspicion is required for further detentions.

* Limit the discretion of officers operating the checkpoint by providing them with clear and succinct written instructions

* Post checkpoint signs or give notice to approaching cars

* Keep traffic congestion to a minimum

Law enforcement officers of other than federal jurisdiction who are interested in this article should consult their legal advisors. Some police procedures ruled permissible under federal constitutional law are of questionable legality under state law or are not permitted at all.