SUPREME COURT CONSIDERS USE OF DRUG CHECKPOINTS

WASHINGTON, Oct. 3 - 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 the 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 today: 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 of 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 today appeared sympathetic to 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?

"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," Justice David
H. Souter said to A. Scott Chinn, the Indianapolis corporation counsel.
What was the difference between stopping pedestrians and stopping cars? the
justice wanted to know.

People in cars already have a lower "expectation of privacy," Mr. Chinn
replied, and a checkpoint for pedestrians 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
objected. "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
an 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 conducted at the
roadblocks.

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

After Ms. 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 Mr. Falk, "So long as they have
the authority to stop the car, what difference does it make if they have
another purpose?"

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

Mr. 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 of checking a driver's paperwork into a tool of criminal
investigation without probable cause.

"If we break down the barrier here and allow a seizure without cause, we
will have seizures of persons on the streets," Mr. Falk said. The court
could not ignore the "programmatic purpose" of the drug checkpoints, he
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 v. 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 United States Court of Appeals for the Seventh Circuit 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," Judge 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 today, Justice John Paul Stevens started to make the
same distinction between inquiring into the individual police officer's
purpose and the purpose behind a program as a whole. But time ran out
before Mr. Falk could fully take advantage of Justice Stevens's helping hand.

The case, City of Indianapolis v. Edmond, No. 99-1030, is being followed
closely by cities and law enforcement organizations. A brief from the
National League of Cities indicated that other cities would adopt the
Indianapolis program if it were upheld.