Drug Roadblocks: A Constitutional Perspective.

When traveling major highways in the United States, it is not uncommon for motorists to encounter signs warning of drug roadblocks ahead. Sometimes, these signs are legitimate, and travelers find themselves briefly stopped at roadblocks while drug dogs are used to detect the odor of any controlled substances that may be emanating from the vehicles. Other motorists, who attempt to avoid these roadblocks by making a quick exit off the highway or a U-turn, find themselves stopped and questioned by strategically placed law enforcement officers. Occasionally, the signs are a pretense - set for the sole purpose of justifying the detention of drivers who take steps to avert the nonexistent roadblock.

Because the federal appellate courts are inconsistent in their views regarding the lawfulness of drug roadblocks, and the U.S. Supreme Court has not specifically addressed the issue, the constitutionality of drug roadblocks remains uncertain. This article examines the issues surrounding the use of various types of drug roadblocks from a constitutional perspective and offers some legal and practical considerations for law enforcement agencies contemplating the use of these techniques.

The Constitutionality of Roadblocks

In the 1979 case of Brown v. Texas,(1) the Supreme Court considered the constitutionality of roadblocks and created a framework for evaluating their lawfulness. The starting point of the Court's analysis was that all individuals stopped at roadblocks have been "seized" for constitutional purposes, and thus, to satisfy the requirements of the Fourth Amendment, roadblocks must be reasonable.(2) The Court then created a balancing test for determining the reasonableness of roadblocks.

The Brown balancing test requires that courts evaluating the lawfulness of roadblocks consider three factors: 1) the gravity of the public concerns that are addressed or served by the establishment of the roadblock; 2) the degree to which the roadblock is likely to succeed in serving the public interest; and 3) the severity with which the roadblock interferes with individual liberty. When evaluating the severity of interference, courts are required to gauge the subjective and objective intrusion into individual freedom.(3) Subjective intrusion is determined by calculating the potential of the roadblock for generating fear and surprise in motorists. Objective intrusion into individual freedom is measured by the duration of the detention at the roadblock and the intensity of any attendant questioning or inspection.

The practical result of the Brown balancing test is that there is no general rule permitting or prohibiting the establishment of roadblocks. Rather, individual roadblocks must be evaluated within the framework of the balancing test on a case-by-case basis to determine their lawfulness.

Application of the Brown Balancing Test

Although the constitutionality of any roadblock requires an evaluation under all three factors of the Brown balancing test, existing case law allows for a high degree of predictability regarding the first two factors when certain types of roadblocks are put to the test. For example, in Michigan Dept. of State Police v. Sitz,(4) the Supreme Court ruled that a highway sobriety checkpoint program passed the Brown balancing test. In doing so, the Court found, with respect to the first factor of the balancing test, that there could be no dispute over the "magnitude of the drunken driving problem or the States' interest in eradicating it."(5) Similarly, the second factor was satisfied by the Court's concluding that statistics sufficiently prove the effectiveness of sobriety checkpoints in addressing this important interest.(6)

With the first two factors of the balancing test satisfactorily resolved by the Supreme Court, the lawfulness of any drunk-driving roadblock thus depends completely on the outcome of the review under the third factor. Successful analysis under the third factor depends primarily on the level of planning, preparation, and care taken by the instituting law enforcement agency to ensure that the roadblock in question interferes with individual liberty no more than is reasonably necessary.(7)

The Supreme Court has likewise resolved the first two factors of the balancing test in favor of checkpoints designed to detect illegal aliens,(8) and those designed to enforce driver licensing and vehicle registration laws.(9) The Court has not, however, similarly resolved these threshold issues with respect to drug roadblocks. Consequently, law enforcement agencies contemplating the use of drug roadblocks must be prepared to address all three factors of the Brown balancing test. Whether a drug roadblock passes the balancing test may very well depend on how carefully the initiating law enforcement agency plans the procedure and articulates its purpose.

Single-Purpose Drug Roadblock

One of the more difficult types of roadblock for law enforcement agencies to justify is the single-purpose drug roadblock. Although roadblocks intended to advance such administrative purposes as compliance with registration, licensing, and traffic laws are routinely permitted, some courts have been reluctant to allow roadblocks designed to investigate criminal activity.(10) Recognizing that the law in this area is unsettled, agencies contemplating the use of the single-purpose drug roadblock should be aware that their efforts involve some risk. However, the risk can be somewhat abated by full knowledge and compliance with the Brown balancing test.

When the stated purpose of a roadblock is to detect illegal controlled substances, there should be no dispute over the legitimacy of the government interest that is addressed by the activity. Like drunk drivers on U.S. highways, the quantity of illegal drugs in the United States has prompted serious public concern. Thus, drug roadblocks should easily stand up to scrutiny under the first factor of the Brown balancing test.

Promoters of single-purpose drug roadblocks are more likely to encounter difficulty when required to demonstrate the effectiveness of the practice in advancing its legitimate interest in combating drug trafficking. Roadblocks established for the sole purpose of detecting illegal drugs are not likely to result in a high percentage of arrests. In the past, the Supreme Court has demonstrated a willingness to accept a low percentage of arrests(11) as long as at its inception, the belief that the roadblock would be effective was reasonable.(12) Designers of drug roadblocks can bolster the reasonableness of their belief in the predicted effectiveness of roadblocks and, at the same time, increase the likelihood of a high percentage of arrests by strategically placing the roadblocks in areas where drug use is rampant.(13)

Careful planning can similarly improve the chances of a drug roadblock meeting the third factor under the Brown balancing test. In order to limit the subjective intrusion on individual liberty worked by a roadblock, designers can obviate motorists' fear and surprise by clearly advertising the existence and purpose of the roadblock with a sufficient number of large, easily read signs placed on the highway well in advance of the actual checkpoint.

The objective intrusion can be curtailed by implementing the roadblock in a manner that limits the delay experienced by travelers approaching and passing through the checkpoint. Managers can tailor the roadblock by regulating the number of vehicles that can be stopped at any one time and by limiting the nature and number of questions posed by officers staffing the checkpoints. In order to effectively meet subsequent challenges in court, efforts to limit the objective intrusion of roadblocks should be reflected in carefully drafted written instructions and not left to the discretion of officers implementing the roadblock.(14)

Mixed-Motive Roadblock

Law enforcement agencies can reduce the risks attendant to single-purpose roadblocks by combining a drug canvass with a more readily justified DUI or licensing and registration checkpoint. Although questions regarding their legality remain unresolved, mixed-motive roadblocks are more apt to satisfy the elements of the Brown balancing test. Moreover, logic and language from recent Supreme Court decisions argue strongly in favor of the constitutionality of such roadblocks.

The first two factors of the balancing test are met satisfactorily when the purpose of a roadblock is to enforce licensing and registration requirements or to apprehend drunk drivers.(15) Thus, the only remaining issue is whether the roadblock is carefully constructed so as to reduce both the subjective and objective interference with individual liberty. The outcome of the balancing test should not be altered simply because officers staffing the checkpoint have the investigation of drug trafficking as an ancillary motive. The constitutionality of the roadblock seems apparent as long as the time it takes to ask drug-related questions, request consent to search, or use a dog to detect odors of contraband does not significantly increase the delay experienced by motorists passing through the checkpoint.

For example, in Merrett v. Moore,(16) the Eleventh Circuit Court of Appeals upheld the legality of a roadblock that had the interception of illegal drugs as its undisputed primary purpose. Because the investigating law enforcement agency had no authority to establish roadblocks, the drug probe was conducted in conjunction with a driver's license and vehicle registration checkpoint. A class action was filed challenging the legality of the roadblock on the grounds that the license and registration check was merely a pretext for the drug seizure. On review, the court found that the license and registration checkpoint satisfied the requirements of the Brown balancing test and concluded that "where the state has one lawful purpose sufficient to justify a roadblock, that the state also uses the roadblock to intercept illegal drugs does not render the roadblock unconstitutional."(17)

Other courts have been more receptive to the pretext argument advanced by the class action in Merrett.(18) These courts tend to focus on the "primary" or "real" motive for the roadblock rather than the application of the balancing test. When evaluating roadblocks that have the primary purpose of investigating drug trafficking, courts that subscribe to the pretext argument find the practice "unreasonable" under conventional Fourth Amendment review. This approach, however, appears to contradict recent Supreme Court analysis of the Fourth Amendment reasonableness requirement.(19)

The Supreme Court has held repeatedly that the reasonableness requirement of the Fourth Amendment is an objective standard that does not permit an inquiry into the law enforcement officers' subjective motivation.(20) To hold that otherwise-lawful DUI or license and registration enforcement checkpoints are unlawful simply because program sponsors had an additional motive to investigate drug trafficking seems an anomaly. However, until the Supreme Court resolves this issue, law enforcement agencies should understand that conducting a mixed-motive roadblock is not completely without risk.

Significance of Motorists' Efforts to Evade

Stopping vehicles that seek to avoid roadblocks and using false signs warning of drug checkpoints ahead for the sole purpose of justifying the detention of motorists making obvious attempts to evade nonexistent roadblocks are rather controversial, yet legally defensible law enforcement strategies. The success of these strategies may depend largely on the location of the checkpoints and signs.

The practice of stopping motorists attempting to avoid advertised roadblocks is likely to be challenged when a subsequent search of the vehicle results in the seizure of evidence or contraband that becomes the subject of a motion to suppress. Because the vehicle was not actually stopped at a checkpoint, the court hearing the motion will not apply the Brown balancing test. Instead, the court will require that the government justify both the seizure and search of the vehicle under traditional Fourth Amendment analysis.

In an effort to justify the seizure, the government may argue that the motorist's efforts to evade the drug checkpoint gave law enforcement officers a reasonable suspicion to justify the temporary detention of the vehicle pursuant to the Supreme Court's decision in Terry v. Ohio.(21) The success of this argument, however, will depend on the court's willingness to view a quick exit off the highway or a hasty U-turn as indicia of criminal activity. Because there could be any number of legitimate reasons why motorists would want to avoid the inherent delay of a drug roadblock, courts are unlikely to view efforts to evade, standing alone, as sufficient justification for the seizure.(22)

The government's ability to defend the seizure would be enhanced greatly if the motorist's efforts to evade the checkpoint involved a violation of traffic regulations. According to the ruling of the Supreme Court in Whren v. United States,(23) a stop based on probable cause to believe that the driver of a vehicle has committed a traffic violation is lawful despite the fact that officers making the stop have an ulterior motive to investigate criminal activity.

In Whren, plainclothes officers patrolling a high-drug area in an unmarked police car noted the somewhat-suspicious behavior of the occupants of a vehicle. After the vehicle made an unsignaled right-hand turn, the officers pursued and stopped it. When they approached the vehicle, the officers observed evidence of illegal drug activity. The occupants of the vehicle were arrested and a search of the car disclosed a substantial quantity of drugs that subsequently became the subject of a motion to suppress.

The defendants argued that the stop of their vehicle for the minor traffic infraction was unreasonable under the Fourth Amendment because it was a pretext used by the officers to conduct their drug investigation. The Supreme Court, however, rejected the defendants' argument and concluded that the objective nature of the Fourth Amendment reasonableness analysis precluded any consideration of an officer's subjective motivation. The fact that officers have the subjective intent to investigate criminal activity cannot render unlawful an otherwise-objectively reasonable stop.

Applying the Whren rationale to the stop of motorists evading drug roadblocks, the seizure would be objectively reasonable if the efforts to evade involved an illegal U-turn, an unsignaled lane change, or any other violation of the traffic laws. To take full advantage of this principle, law enforcement agencies should locate drug checkpoints and the signs advertising them in areas with no easy exit and where U-turns are illegal. Additionally, officers positioned to stop vehicles attempting to avoid roadblocks should be instructed specifically to make the seizure only after observing a clear traffic violation.

Using Dogs to Detect Drugs

Once officers lawfully stop a vehicle, either at a checkpoint or as it is attempting to evade one, they can justify a subsequent search in a number of ways. They can search the vehicle pursuant to voluntary consent,(24) incident to the arrest of an occupant,(25) under the vehicle exception,(26) or with a search warrant. Both the issuance of a search warrant and the justification of a search under the vehicle exception require that the government establish probable cause to believe the vehicle contains evidence or contraband. In an effort to develop the requisite probable cause to search vehicles in and around drug checkpoints, many law enforcement agencies employ drug dogs.

Whether a dog alert alone constitutes probable cause depends on a variety of factors, such as the dog's training and record of reliability. Regardless of the evidentiary weight accorded a dog alert, the drug dog remains both a useful and practical law enforcement tool. In United States v. Place,(27) the Supreme Court held that the use of a dog to detect the odor of contraband did not amount to a search under the Fourth Amendment and, thus, did not require any justification on the part of the government. This ruling opened the door for law enforcement agencies to use dogs for a variety of purposes, including the detection of controlled substances at drug roadblocks.

Law enforcement agencies that employ drug dogs at checkpoints should be careful, however, to ensure that the use of the dogs does not adversely affect analysis of the roadblock under the third factor of the Brown balancing test by significantly increasing either the fear or delay experienced by stopped motorists. Agencies can accomplish this by having a sufficient number of dogs on hand to efficiently contend with stopped vehicles, by using dogs that do not have an overly aggressive alert, and by not allowing the dogs to intrude into the stopped vehicles.

Conclusion

Until the legal issues surrounding drug roadblocks are conclusively resolved, the technique will continue to be the subject of considerable litigation. Law enforcement agencies need not, however, abandon the practice. Rather, agencies should exercise abundant care in designing and implementing roadblocks so as to maximize the likelihood that they will withstand scrutiny under the Brown balancing test and traditional Fourth Amendment analysis.

Endnotes

1 443 U.S. 47 (1979).

2 U.S. Const. amend. IV reads:

"The right of the people to be protected 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."

3 443 U.S. at 50-51.

4 110 S. Ct. 2481 (1990).

5 Id. at 2485.

6 Id. at 2486-87.

7 Id.

8 United States v. Martinez-Fuerte, 96 S. Ct. 3074 (1976).

9 Delaware v. Prouse, 99 S. Ct. 1391 (1979).

10 See, e.g., United States v. Huguenin, 154 F.3d 547 (CA6); United Sta;es v. Morales-Zamora, 974 F.2d 149 (CA10); Edmond v. Goldsmith, F.3d; Wilson v. Commonwealth, 509 S.E.2d 540 (Va. App. 1999).

11 In Martinez-Fuerte, supra, the success rate was approximately .5 percent; in Prause, supra, the success rate was 1.6 percent; and in Sitz, supra, the success rate was approximately 1 percent.

12 110 S. Ct. at 2487-88.

13 In Edmond v. Goldsmith, F.3d, (CA7 1999), the court noted that the police increased the likelihood of the drug roadblock in question being found reasonable by placing it in an area where "drug use approaches epidemic proportions. Id. at.

14 See, Martinez-Fuerte, 96 S. Ct. at 3083.

15 Supra notes 7, 8, and 9.

16 58 F.3d 1547 (CA 11 1995).

17 Id. at 1550-51.

18 See, e.g., United States v. Huguenin, 154 F.3d 547 (CA6 1998), Edmond v. Goldsmith, F.3d (CA7 1999).

19 In Edmond, supra, Circuit Judge Easterbrook filed a dissenting opinion in which he made the following statement:

"Why should the constitutionality of a roadblock program turn on what its promoters think (or the order in which its components were approved), rather than on what happens to the citizenry? Over and over, the Supreme Court says that the reasonableness inquiry under the Fourth Amendment is objective; it depends on what the police do, not on what they want or think." F.3d at (dissenting opinion).

20 See Whren v. United States, 116 S. Ct. 1769 (1996) and cases cited therein.

21 392 U.S. 1 (1968).

22 See, e.g., Huguenin, supra.

23 116 S. Ct. 1769.

24 Illinois v. Rodriguez, 110 S. Ct. 2793 (1990).

25 New York v. Belton, 69 L.Ed.2d 768 (1981).

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

27 103 S. Ct. 2637 (1983).

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.