LEGAL WRECK ON ROADBLOCKS

Watching the U.S. Supreme Court in action these days is a little like
tuning in for the latest episode of "Fear Factor."

But instead of crawling into vats of snakes, or having white mice
crawl over their bodies, the justices delight in masticating and
spitting out their own precedents, or in dividing along narrow
ideological lines so that important legal issues are decided by bare
5-4 majorities.

Consider what happened last week in a case dealing with police
roadblocks.

Just over two years ago, a majority of the justices decided that
Indianapolis could not create random roadblocks to detect drug crimes.
In a strongly worded majority opinion, Justice Sandra Day O'Connor -
by most standards a conservative, law-and-order judge - stated that
roadblocks couldn't constitutionally be created merely to detect
evidence of criminal wrongdoing. That purpose had to be accompanied by
some level of individual suspicion of a crime.

It was a sound ruling, but one that the ultra-conservative legal trio
of Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist
derided, noting that the stops were of short duration, usually "less
than three minutes," in Chief Justice Rehnquist's words.

They missed the point: It is not the length of the delay but, rather,
the purpose that offends the Constitution. And average motorists must
be presumed innocent of wrongdoing, without strong evidence to the
contrary.

With that as precedent, an Illinois court ruled that a roadblock in a
Chicago suburb, set up to gather evidence about a hit-and-run
accident, resulted in unconstitutional stops and searches, one of
which led to a motorist's conviction on drunken driving charges.
Although the details seemed quite close to those in the Indianapolis
case, the high court's verdict was the complete opposite.

And the outcome - like a good installment of "Fear Factor" - seemed
based more on emotion than on good sense.

Justice Stephen Breyer, writing the majority opinion, said that there
was "grave public concern" about the accident, which justified
stopping innocents and questioning them.

But was that "grave public concern" any less than that which should
greet drug crimes, or break-ins of the elderly, or any number of other
heinous offenses?

Justice Ruth Bader Ginsburg, joined by Justices David Souter and John
Paul Stevens, wanted to send the case back for more questions to
determine the urgency of the stops and whether they were the best way
to gain information. That was the reasonable course that the other
justices should have followed.

In 2000, rejecting roadblocks for gathering evidence of crimes,
Justice O'Connor warned that allowing the practice could make
warrantless police searches "a way of life" in America.

By its action last week, the Court has ominously placed us a step
closer to that result.