JUSTICES HEAR DRUG-SEARCH CASE

Are Traffic Stops With Dogs Legal?

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?

The question was obvious enough, but 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 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 using their cars to transport drugs.

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

"If we sustain the search here, we'd be required to do the same thing if in
a given neighborhood, drug distribution is done on foot,'' said Justice
David Souter to A. Scott Chinn, the Indianapolis corporation counsel. What
was the difference between stopping pedestrians and stopping cars? Souter
wanted to know.

People in cars already have a lower "expectation of privacy,'' Chinn
replied, and a pedestrian checkpoint would be regarded as so much more
intrusive as to make it a different case.

But pedestrians actually have less privacy, Justice Ruth Bader Ginsburg
pointed out. "On a street, there you are,'' she said. "Everyone can see
you. The rationale you're offering would apply just as much. If there is a
distinction based on the expectation of privacy, I don't see it.''

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.

"The entire scope of the seizure'' was justified by the license and
registration checks, Millett said, noting that driving a car was a highly
regulated activity and that motorists expected to be stopped occasionally.

After Millett concluded, the tide of the argument, which had been running
against the city, 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 Indianapolis on behalf of the city's drivers.

Justice Antonin Scalia, who earlier had characterized the implications of
the city's argument as "scary,'' now asked Falk: "So long as they have the
authority to stop the car, what difference does it make if they have
another purpose?''

And Souter asked why, "if we assume the license check is in fact a genuine,
bona fide purpose, does the dog taint the search?''

Falk said that beyond the fact that "a dog cannot check licenses,'' the
real objection was that the drug-detecting dog converted a regulatory
program of checking a driver's paperwork into a tool of criminal
investigation without probable cause. The court could not ignore the
"programmatic purpose'' of the drug checkpoints, Falk insisted.

The question of discerning the real purpose behind a particular law
enforcement technique is a difficult one under the court's precedents. In a
1996 decision, Whren vs. United States, the court held that as long as the
police activity was objectively reasonable -- stopping a car with a broken
taillight, for example -- it was irrelevant whether that action was a
pretext for another goal, like a search for drugs.

In his opinion striking down the Indianapolis checkpoints, Judge Richard A.
Posner of the 7th Circuit U.S. Court of Appeals said that while the motives
of an individual officer were irrelevant, that was not the end of the
inquiry; "the purpose behind the program is critical to its legality,''
Posner said. In this case, he said, it was clear that the purpose was not
to check licenses but to "catch drug offenders'' and that the Fourth
Amendment's requirements therefore applied.

During the argument Tuesday, Justice John Paul Stevens started to make the
same distinction between the individual police officer's purpose and the
purpose behind a program as a whole. But time ran out before Falk could
fully take advantage of Stevens' helping hand.