WHY CARE ABOUT A PUSHER'S RIGHTS?

We All Lose Far More Than We Gain From Dayton Traffic Checkpoints

It probably seemed like a good idea at the time.

On June 8 and June 20, 1988, the Dayton Police Department set up
checkpoints in every police district but downtown to inspect the licenses
and other papers of every driver who passed through. Among more than 2,100
cars stopped, police arrested 159 people for driving without a license,
issued 224 traffic citations, served 48 warrants, recovered three stolen
cars and made six felony arrests.

So what's the problem?

Oh, just this nagging little question on the part of the Montgomery County
Public Defender's Office and others that as a law-enforcement mechanism,
the checkpoints mauled Dayton drivers' constitutional rights--specifically,
the Fourth Amendment, which guarantees that Americans be free from
unwarranted police intrusion into their lives.

The public defender's office, which inevitably ended up representing some
of those nabbed in the sweep, was so concerned that it challenged the
checkpoints' constitutionality. The public defender won in trial court, but
the city appealed. Last week, the 2nd District Court of Appeals ruled 2-1
that the checkpoints were legal. Two appellate judges found that police had
enough of a public-safety interest in removing unlicensed drivers from the
streets that the checkpoints fell within U.S. Supreme Court guidelines. Now
the Montgomery County Public Defender's Office says it will appeal that
decision, all the way to the U.S. Supreme Court if necessary.

All this over a traffic ticket? Can't these guys take a hint?

No, and thank heavens they can't--because this isn't really about a traffic
ticket or even about recapturing a stolen car. It's about a freedom the men
who wrote our Constitution considered so important they spelled it out
plainly in the Bill of Rights. The Fourth Amendment limits what the
government may do under the guise of law enforcement; it says flatly that
citizens going about their lawful business shall be free from unwarranted
government interference.

This still is a strange and wonderful concept in several parts of the
globe, where governments contend that they have the right to control their
citizens' movements. But it has been such an intrinsic American freedom for
more than two centuries, many of us have come to think it's the natural
order of things. The Fourth Amendment is what passes today for
constitutional white noise.

Which makes no less disturbing its decade-long evisceration by the Supreme
Court. A conservative majority has so whittled our Fourth Amendment privacy
rights, many legal scholars say, that in effect we no longer have them.

How bad can it be? The court has narrowed the definition of "search" until
it's no longer a search--and you have no right to complain--if the cops
hover over your yard in a helicopter with high-powered binoculars, perch on
a tree limb to peer inside your bedroom, browse through your trash and your
bank records or eavesdrop on your cellular calls. Most recently, the court
ruled that it's OK for immigration agents to board a bus, pat down luggage
at random and arrest passengers if they find contraband such as drugs.

No one is going to lose any sleep over drug dealers. In fact, most recent
surveys and polls show that Americans want their justice system to be
tougher on criminals. Pick a dozen Americans randomly, tell them the
Supreme Court is waging war on criminal defendants' rights and they'd
probably form a cheering squad for the justices.

The Dayton appellate ruling, by Judges James A. Brogan and Thomas J. Grady,
certainly is consistent with these activist federal rulings. It cites
Supreme Court rulings that allow such checkpoints for nabbing drunken
drivers and undocumented immigrants, and states that Dayton proved to the
two judges' satisfaction that the public's interest in getting unlicensed
drivers off the streets outweighs the police intrusion into our personal
lives.

It's just that the lone dissent seems far more compelling. In opposing the
checkpoints, Judge Frederick N. Young noted that nationally, drunken
drivers have caused some 25,000 deaths per year; waves of undocumented
immigrants strain taxpayer-funded social services in border states.
Government, in other words, has a compelling interest in stopping both
practices. But if the Dayton checkpoints serve a similarly pressing public
need, Young wrote, the city failed to show it.

The public defender's office says it'll ask the entire five-judge appellate
bench to rule on the case, in hopes that the remaining two judges will side
with Young. Let's hope so, even if it means a thief or two slips through
the net, at least this time.

David Cole is a Georgetown University Law Center professor and volunteer
staff attorney with the Center for Constitutional Rights. As he explained
in The Legal Times, our Fourth Amendment rights "are constitutional in
nature precisely because criminal defendants and suspects are, as a group,
unlikely to receive protection through the political process. When the
Supreme Court abandons them as well, it has failed to live up to its most
important obligation."

It may be among our justice system's hardest lessons: We pare another's
rights--even the most reprehensible among us--only by also shaving our own.