ARE CHECKPOINTS ILLEGAL SEARCHES?

Alarge roadside sign alerts the driver: Police checkpoint ahead! Sure
enough, there are the red cones and the bubblegum lights. The driver
obediently stops and reaches for his driver's license. While this is being
produced and inspected, a drug-sniffing dog ambles around the vehicle.

Question: Is this familiar procedure constitutional?

Answer: Yes, no, and it depends.

During the term that begins Oct. 2, the Supreme Court will attempt to
provide a more satisfactory answer. Lower federal courts are sharply
divided on the issue.

The case at hand comes from Indianapolis, where motorists James Edmond and
Joell Palmer brought a class action to enjoin the city's checkpoint
program. Once in the past they had been stopped at a checkpoint. They had
not enjoyed the experience. In 1998 the city set up six pullovers with the
avowed intention of catching drug offenders. Police stopped 1,161 cars. The
inspections resulted in 55 drug-related arrests and 49 arrests for other
offenses. Officers regard such a 9 percent hit rate as hugely successful.
The question before the district court was whether the program could be
continued.

At trial, the city defended its program as well within the boundaries of
Fourth Amendment jurisprudence. Under the city's protocol, fixed
checkpoints were determined by crime statistics and by the degree of
inconvenience imposed upon drivers. Only a predetermined number of cars
were stopped at one time. Uniformed officers checked documents and looked
for signs of drunk driving. If everything appeared to be in order,
motorists were detained for no more than two to five minutes, a minimal
intrusion.

U.S. District Judge Sarah Evans Barker agreed with the city that the
program met constitutional requirements and refused to shut it down. The
objecting motorists, supported by the Indiana Civil Liberties Union,
appealed successfully to the 7th U.S. Circuit Court of Appeals. Chief Judge
Richard Posner and Judge Diane P. Wood voted to reverse. Judge Frank
Easterbrook dissented. Because of the conflicting opinions in lower federal
courts, the Supreme Court agreed to hear the case. It presents a close
question.

As a general proposition, the Fourth Amendment requires police to have (1)
"probable cause" or at least (2) "an articulable suspicion" before they
stop and search anyone. In Indianapolis they had neither justification for
calling out Rover the sniffing dog. They were tossing a net and hoping a
few fish swam into it.

There are exceptions to the general rule, as Posner acknowledged. "We may
assume that if the Indianapolis police had a credible tip that a car loaded
with dynamite and owntown Indianapolis, they would not be violating the
Constitution if they blocked all the roads to the downtown area even though
this would amount to stopping thousands of drivers without suspecting any
one of them of criminal activity."

The Constitution tolerates other exceptions. Roadblocks may be justified,
for example, to intercept illegal immigrants or to catch a fleeing
criminal, but in the court's view the Indianapolis checkpoint program could
not be justified under any exception.

Posner was unwilling to suggest any bright-line rules: "When urgent
considerations of the public safety require compromise with the normal
principles constraining law enforcement, the normal principles may have to
bend. The Constitution is not a suicide pact. But no such urgency has been
shown here."

Judge Easterbrook took a different view. He believes that the Indianapolis
program is "objectively reasonable given its minimal intrusion and
substantial success." The invasion of privacy at a roadblock is slight.
Detention is short, the search superficial, and the use of a drug-sniffing
dog is not a "search" at all. Easterbrook professed to be puzzled by his
colleagues' concern with the motivation for a search. Everyone agrees that
routine license-and-registration checkpoints are valid. Why is it different
if the primary purpose is to check for illicit drugs?

I would side with Judge Easterbrook on this one. There is a very real
distinction between homes and automobiles. If federal agents proposed to
search every 10th house in a randomly chosen block, their proposal would be
greeted with howls of derision and scorn. But the expectation of privacy is
much diminished in the case of a person driving a car in a drug-infested
neighborhood. In such combat zones, every 10th vehicle carries an
"articulable suspicion" that the driver is peddling drugs. I would set up
the checkpoints and whistle for Rover to get on the job.