JUSTICES HEAR CASE ON DRUG CHECKPOINTS

WASHINGTON - It has been 10 years since the Supreme Court upheld the use of
drunken-driving Checkpoints on city streets, and nearly twice that long
since the court ruled that airport police could use drug- detecting dogs to
sniff passengers' luggage. So it was perhaps inevitable that the justices
would be confronted with the question they considered Tuesday: Can the
police, by adding a trained dog, turn a sobriety checkpoint into a
constitutionally permissible way of checking motorists for drugs?

If the question was obvious enough, the answer was not. The court upheld
sobriety checkpoints in 1990 as public health and safety measures, a method
of getting dangerous drivers off the road that was sufficiently distinct
from ordinary law enforcement as to not require the suspicion of individual
wrongdoing that the Fourth Amendment usually imposes on a search or seizure.

But that rationale was not available for this case, an appeal by the city
of Indianapolis from a federal appeals court's ruling that its drug
roadblocks, which it used quite successfully for four months in 1998,
amounted to a "dragnet search for criminals" that violated the Fourth
Amendment. Indianapolis was not looking for impaired drivers who were using
drugs; it was looking for drivers who were using their cars to transport
drugs through the city's streets.

While the justices Tuesday appeared sympathetic with the city's goals, they
worried aloud about the consequences of validating the checkpoints. How,
for example, could the court avoid issuing a decision that in upholding the
automobile checkpoints would logically also validate pedestrian
checkpoints, a prospect the justices clearly found troubling?

Eventually, a way of limiting checkpoints to automobiles did present
itself, and several justices seized on it with almost palpable relief. The
Clinton administration had entered the case on behalf of Indianapolis, and
Assistant Solicitor General Patricia A. Millett told the court that the
automobile drug checkpoints could be viewed simply as adjuncts to the check
for licenses and registrations that the city already did at the roadblocks.

After Millett concluded, the tide of the argument appeared to turn, as
justices who had expressed strong doubts about the city's position now
turned their skepticism on the lawyer for the other side. Kenneth J. Falk,
legal director of the American Civil Liberties Union's Indiana affiliate,
had brought the class-action lawsuit against lndianapolis on behalf of the
city's drivers.

Justice Antonin Scalia now asked Falk: "So long as they have the authority
to stop the car, what difference does it make if they have another purpose?"

Falk said that beyond the fact that "a dog cannot check licenses," the real
objection was that the addition of a drug-detecting dog converted a
regulatory program into a tool of criminal investigation without probable
cause.