TROLLING FOR TRAFFICKERS

A Roadblock In Holyoke Leads To A Precedent-Setting
Supreme Judicial Court Case

On Nov. 21, 1997, Holyoke cops, working with the State Police, set up
a roadblock at the intersection of Elm Street and Sonoma Place, a
short, one-way residential side street in the poor Holyoke
neighborhood known as the Flats.

Ten Holyoke officers and eight state troopers, a total of 18 police,
manned the roadblock from 7 to 9 in the evening with two
narcotics-sniffing dogs. The goal was to catch drug traffickers.
During the two hours, 58 cars passed by. Fourteen were pulled over and
searched.

This whopping deployment of manpower netted three arrests: one for
possession of marijuana and driving with a suspended license, another
for driving with a suspended license, and a third for driving with no
license. Two other people were cited, one for driving an uninspected
car, and one for having a defective windshield wiper.

It sounds like a night that, if remembered at all, would be remembered as
one of the resounding anticlimaxes in the history of local law enforcement.
Instead it's now slated to go before the state Supreme Judicial Court,
whose justices hand-picked the case from the roster of state appeals cases
because it represents a first for Massachusetts: the first time a roadblock
has been used for any purpose other than to catch drunken drivers.

And it raises such troubling questions about the use of dragnet
searches and seizures without warrants that the American Civil
Liberties Union of Massachusetts and the Committee for Public Counsel
Services, the Massachusetts agency that provides legal aid for
indigent defendants, have weighed in on the case.

So 18 police went down deep and came up dry on Sonoma Place, snaring
only a small quantity of drugs. Why did such a futile operation become
an issue for the Supreme Judicial Court?

Because Hampden County District Attorney Bill Bennett evidently
believes it's worth his office's time and money to justify the arrest
of Hector Rodriguez.

Rodriguez was pulled over that night after one of the officers at the
roadblock spotted an opened pack of Phillies Blunts cigars on the back
seat of his car. Rodriguez admitted -- on the spot and with no legal
counsel -- not only that his license was suspended, but also that he
had been smoking pot before he arrived at the roadblock. The police
claimed, and Rodriguez denies, that he allowed them to search his car.
Inside it, with the help of one of the dogs, the cops found blunts
with marijuana in them, and arrested Rodriguez.

In Holyoke District Court in February, Rodriguez's lawyer, Geri
Laventis, filed a motion to suppress the evidence found in the car.
Laventis claimed that the stopping of the car was unconstitutional and
that the roadblock's negligible results made it impossible to justify
on the grounds of effectiveness as a tool for curbing drug
trafficking. Judge Nancy Dusek-Gomez agreed with Laventis on the
matter of constitutionality, and allowed the motion.

"Unlike the situation in roadblocks enforcing the state's drunk
driving laws, where the status of the driver is at issue, [this case]
opens the door for citizens in motor vehicles to be stopped based on
what they might be transporting therein," Dusek-Gomez wrote in her
ruling, which destroyed the police's case. She added that whatever
police suspected about the practice of loading the ends of Phillies
Blunts with pot, the cigars themselves are not illegal to possess, and
their presence did not give the police sufficient reason to search
Rodriguez's car.

Instead of letting the matter die, however, Bennett took up the
cudgels for the police and appealed Dusek-Gomez's decision. Bennett
and Assistant DA Thomas Townsend argued that drugs are such a clear
and present danger to society that the danger outweighs the "minor
intrusiveness" of a roadblock.

They also insisted the Holyoke roadblock was a success, claiming that
the three arrests and two citations amounted to an overall 8.62
"arrest/citation rate," and that the arrest of Hector Rodriguez --
though it netted so little pot that it made a joke out of the
ambitious stated goal of curbing drug trafficking -- nevertheless
translated into a 1.72 percent narcotics arrest rate. Because the
Supreme Court has ruled other kinds of roadblocks constitutional with
even lower effectiveness rates than this -- roadblocks set up to catch
illegal aliens, for example -- the effectiveness requirement should be
satisfied here, the DA's office argued in its brief to the appeals
court.

The DA's office also argued that several other states had found
roadblocks legal as means for picking up drug traffickers. What their
argument left out was that roadblocks for various purposes, including
nabbing drunken drivers, had also been declared illegal in other
states if there was not abundant and recent evidence, formally
presented, that the roadblock was needed at a particular spot.

The Holyoke case landed on the state appeals court's roster this
spring. A summary of every case on that roster is always supplied to
the Supreme Judicial Court for the justices' perusal, and they have
the option to take under their own motion any case they believe has a
special potential to set precedent. They took the roadblock case and
originally scheduled a hearing in May, but that hearing was postponed.
Now Laventis and the DA's office expect it to be heard in the fall.

If the SJC overturns Dusek-Gomez's ruling, it could pave the way for
roadblocks to be used in Massachusetts for any number of purposes
other than to keep drunken drivers off the road. That would be an
ominous change in the direction that case law has traditionally taken
in a state where the courts have frowned on searches without very
specifically worded warrants. One landmark case concerning roadblocks,
Commonwealth v. Shields, allowed drunken driving roadblocks only
because the court concluded that stopping cars for that one purpose
did not "open the door for suspicionless searches and seizures in
other contexts."

But that's exactly what Commonwealth v. Rodriguez would do if the DA's
office wins, according to the American Civil Liberties Union of
Massachusetts. "If you stopped 100 cars anywhere you'd get something
- -- motorists with suspended licenses, fugitives from justice, illegal
aliens," said attorney Bill Newman of Northampton, an ACLUM lawyer who
helped write the friend-of-the-court brief in the Holyoke case. "The
DA wants to say that you're justified in setting up a roadblock any
time it can achieve some sort of yield. That's frightening."

On the local scene, it's not clear whether the District Attorney's
office appealed the Holyoke case with the intention of using
roadblocks more widely, or just to defend the police.

Roadblocks are "just one tool that we wanted to try to stem the flow
of narcotics in this notorious area in which the use of other tools
has been pretty futile," said First Assistant District Attorney Jim
Orenstein. "We're waiting for this ruling on their constitutionality
before we decide whether to use them again."