Saying no to drug roadblocks.

In City of Indianapolis v. Edmond, the Supreme Court, by a vote of 6-3, struck down a roadblock established by the Indianapolis police to reduce the flow of narcotics within the city.(1) The Court affirmed a Seventh Circuit decision by Chief Judge Richard Posner(2) and resolved a split among the circuits and the states.(3) In the process, the Court issued a rather narrow opinion that should not unduly dishearten those who consider roadblocks an effective law enforcement tool.

In 1998, Indianapolis police established roadblocks for the admitted primary purpose of finding narcotics. The checkpoints were established in areas where narcotics were likely to be found. As the Court noted, "[C]heckpoint locations [were] selected weeks in advance based on such considerations as area crime statistics and traffic flow."(4) The checkpoints were operated during daylight hours and were announced by a sign that declared, "NARCOTICS CHECKPOINT--MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP."

Following written directives, the police randomly stopped a predetermined number of vehicles. The drivers were informed that they were being stopped at a drug checkpoint and asked to produce their driver's licenses and registrations. The officer inspected the car and observed its inhabitants for signs of impairment. The car was sniffed on the outside by a drug-detecting dog and was further searched only if the driver consented or if the officer had a particularized suspicion that the car contained drugs.

The stops were designed to last five minutes or less and were, absent arrest, usually concluded in two to three minutes.(5) About 9 percent of the stops resulted in arrests. Half the arrests were for drugs, half for other offenses.(6)

This case arose when James Edmond, one of the motorists stopped, filed a class action lawsuit for declaratory and injunctive relief, as well as damages. The district court denied the preliminary injunction, and the Segenth Circuit reversed.(7)

Justice Sandra Day O'Connor delivered the Supreme Court opinion. She began with the often-stated principle that a "search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing."(8) She then proceeded to catalog the relevant exceptions to this rule. In particular, the Court has allowed exceptions in cases that involve "special needs, beyond the normal need of law enforcement."(9) These needs include random drug testing of student athletes by schools, drug testing of railway employees involved in accidents, and searches for regulatory purposes such as fire prevention.(10)

O'Connor noted that the Supreme Court had approved roadblock-type searches in two cases: "border patrol checkpoint[s] designed to intercept illegal aliens" and "a sobriety checkpoint aimed at removing drunk drivers from the road."(11) Further, in Delaware v. Prouse, the Court had suggested that "a similar type of roadblock with the purposes of verifying drivers' licenses and vehicle registrations would be permissible."(12)

As Chief Justice William Rehnquist pointed out in his dissent, from the point of view of the driver there was nothing to distinguish this roadblock from those already approved by the Court--a brief stop and inspection with no further action by police unless particularized suspicion developed.(13) Moreover, the majority had emphasized that the use of the police dogs, which had not been considered a search when employed to check luggage in airports, did not turn this type of stop into an impermissible search.(14)

What, then, made this roadblock bad? On this point, the majority was clear. O'Connor, like a law professor lecturing her first-year students, repeated the holding, virtually verbatim, no less than eight times so that every reader--and every dissenting justice--would understand. The defect in this roadblock was that its "primary purpose was to detect evidence of ordinary criminal wrongdoing."(15) To O'Connor's annoyance, however, the chief justice could not get it straight.

   The chief justice's dissent erroneously characterizes our opinion as
   resting on the application of a "non-law-enforcement primary purpose
   test."... [O]ur judgment turns on the fact that the primary purpose of the
   Indianapolis checkpoints is to advance the general interest in crime
   control. The chief justice's dissent also erroneously characterizes our
   opinion as holding that the "use of a drug-sniffing dog ... annuls what is
   otherwise plainly constitutional." Again, the constitutional defect of the
   program is that its primary purpose is to advance the general interest in
   crime control.(16)

The city and the dissent cited Whren v. United States(17) and Bond v. United States(18) to the effect that "where the government articulates and pursues a legitimate interest for a suspicionless stop, courts should not look behind that interest to determine whether the government's `primary purpose' is valid."(19)

While Whren does seem on point, the Court was right to reject the argument. That decision held that if arresting officers have probable cause (in Whren it was of a traffic violation) the true motives of the officers (to search for narcotics) are irrelevant. But, as O'Connor noted, while "`subjective intentions play no role in ordinary probable cause Fourth Amendment analysis,' ... programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion."(20)

Indeed, programmatic purposes are not merely relevant, they are an essential element of every suspicionless search approved by the Court. Unless the government has shown that an administrative search has some non-crime-detecting primary goal, such as public safety or school discipline, the Court has not upheld the search. Border searches for illegal aliens and roadblocks to apprehend drunk drivers, while they do uncover crimes, are primarily for the purposes of securing the borders and promoting traffic safety.(21)

The Court did make it clear, however, that the exigent circumstances of thwarting an "imminent terrorist attack" or apprehending a "dangerous criminal who is likely to flee by way of a particular route" would allow a suspicionless stop at a roadblock.(22)

An open door for police

It is not surprising that, when such an effective and relatively unintrusive program is overturned by a 6-3 vote of this conservative Court, the police do not leave the courtroom empty-handed. Because of the Court's repeated insistence that the fault of this roadblock was that its primary purpose was to "uncover evidence of ordinary criminal wrongdoing,"(23) it follows that if this were not the primary purpose of a roadblock, it would be acceptable.

Indeed, had Indianapolis been even a little bit less ham-handed in its insistence that this was a "NARCOTICS CHECKPOINT," the Court--which, as in Whren, has often been willing to ignore the true motives of police officers in approving their behavior--might have let this one slip by. (Does anybody really believe that police search the area surrounding a handcuffed arrestee or the passenger compartment of a car from which the occupants have been removed because the arrestee might grab a weapon or destroy evidence, as the Court claims? Surely the officers' primary motive is to find evidence in places they would not ordinarily be allowed to look.)(24)

However, the next city to try to set up a narcotics checkpoint must be circumspect, since the Court is now primed to "examine the available evidence to determine the primary purpose of the checkpoint program."(25) It will not be enough to simply change the sign. Simply calling a narcotics roadblock a "traffic checkpoint," for example, won't be enough. Still, it should not be too difficult for a city (other than Indianapolis) to find that impaired driving is a big problem and roadblocks are, therefore, a necessity. And if, while one officer is asking whether the driver is drunk or on drugs, another officer happened to stroll around the car with his lovable, drug-sniffing beagle, I suspect that a different majority of the Court might not take it amiss.

Indeed, by getting O'Connor to vigorously insist that the use of the drug-sniffing dog did not doom this search, the dissent might have held the door open for a slightly modified roadblock in the future.

This is especially likely since the Court holds that "the purpose inquiry ... is to be conducted at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene."(26) Under this analysis, if the program is aimed at impaired drivers, then it doesn't matter if individual officers (or dogs) take it upon themselves to also check a vehicle for narcotics.

This decision is limited to roadblocks and does not tell us much about how the Court may decide the several other pending Fourth Amendment cases. However, the Court's general concern for individual privacy over law enforcement needs suggests that the majority might be inclined to favor the defendant/petitioner in another case currently before the Court, Kyllo v. United States.(27)

Kyllo involves the warrantless examination of a home with a thermal-imaging machine to determine whether marijuana "grow lights" were being used inside. Since the case involves the interior of a home(28) rather than an automobile, Kyllo seems to pose a much more serious threat to personal privacy than the narcotics roadblock in this case.

Notes

(1.) 121 S. Ct. 447 (2000).

(2.) Edmond v. Goldsmith, 183 F.3d 659 (7th Cir. 1999).

(3.) The Sixth, Seventh, and Tenth Circuits, as well as the District of Columbia and Virginia, held these roadblocks to be illegal, while the Eleventh Circuit and Missouri upheld them. Id. at 661.

(4.) Edmond, 121 S. Ct. 447, 451.

(5.) Id. at 450-51.

(6.) Id. at 450. This compares to a success rate of 0.12 percent for the illegal-immigrant checkpoints approved by the Court in United States v. Martinez-Fuerte (428 U.S. 543 (1976)) and a 1.6 percent arrest rate in the drunk-driving roadblocks approved in Michigan Department of State Police v. Sitz (496 U.S. 444 (1990)).Edmond, 121 S. Ct. 447, 458-59 (Rehnquist, C.J., dissenting).

(7.) Id. at 451.

(8.) Id.

(9.) Id.

(10.) Id. at 451-52.

(11.) Id. at 452 (citing Martinez-Fuerte, 428 U.S. 543, and Sitz, 496 U.S. 444).

(12.) 440 U.S. 648 (1979).

(13.) Id. at 458-59 (Rehnquist, J., dissenting). Justice Thomas advanced the strong libertarian position that all roadblocks might be unconstitutional, but since they are not, he joined Rehnquist's dissent. Justice Antonin Sc. alia joined Part I of the dissent.

(14.) Id. at 453 (citing United States v. Place, 462 U.S. 696 (1983), accord, Edmond at n.1).

(15.) Id. at 452, 454, 455, 456 n.1, 458.

(16.) Id. at 455-56 n.1 (emphasis added).

(17.) 517 U.S. 806 (1996).

(18.) 529 U.S. 334 (2000).

(19.) Edmond at 456 (quoting Brief for Petitioners, at 34).

(20.) Id. (quoting Whren, 517 U.S. 806, 813).

(21.) Id. at 457.

(22.) Id. at 455.

(23.) Id. at 454.

(24.) See Chimel v. California, 395 U.S. 752 (1969).

(25.) Edmond, 121 S. Ct. 447, 457.

(26.) Id.

(27.) 121 S. Ct. 376 (2000) (granting cert.).

(28.) Compare United States v. Knotts, 460 U.S. 276 (1983) (permissible to install an electronic "beeper" without a warrant to follow a car on the highway) with United States v. Karo, 468 U.S. 705 (1984) (not permissible to use such a beeper to disclose the presence of a container of chemicals in a house).

Craig M. Bradley is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at [e-mail].