Police Liability Beat POLICE LIABILITY BEAT (formerly known as: The Walsh & Makholm Liability Beat) Volume 12, No. 2 March 2004 John Makholm, Esquire The Walsh & Makholm Law Group Traffic “Checkpoints”: When can we use them? The Problem Traffic “Checkpoints” like many other Law Enforcement methodologies are an evolving mechanism by which the Law Enforcement community endeavors to interdict law violators. As such, the courts are in a continual state of flux in defining just what will and will not be allowed from a Constitutional stand point. This process is difficult to understand at best and infuriating at worst to Law Enforcement Officers who are simply trying to get the “bad guys” off the streets. This it is a process whereby Officers continually initiate new and innovative techniques to interdict wrong doers, and those techniques come under the review of the courts, especially the United States Supreme Court, when individual citizens claim that their Constitutional rights were violated as a result of the police action. Traffic Checkpoints are a perfect example of this phenomenon. In this issue we will review the current law as interpreted by the U.S. Supremes, so that Agencies may have a better understanding of what types of Traffic Checkpoints are currently approved by the Court and what types are not. United States v. Martinez Fuerte, 428 U.S. 543, 96 S.Ct. 3074, (1976): “Checkpoints” have been a focus of the United States Supreme Court for many years. One of the first significant cases was Martinez-Fuerte, where the Court reviewed the use of Traffic Checkpoints created to interdict illegal aliens. The case originated a result of conflicting decisions by the U.S. Courts of Appeals for the 5th and 9th Circuits, and was a consolidation of several appeals by Defendants who had been arrested at different fixed checkpoints. The Supreme Court ultimately ruled that fixed traffic/vehicle checkpoints that were established for the brief questioning of vehicle occupants in order to interdict illegal aliens were Constitutional even where there was no reason to believe (articulable suspicion) that a particular vehicle contained illegal aliens, and despite the fact that no judicial warrant had been obtained to set up such Checkpoint before hand. This case was an important step in providing the foundation of support for Traffic Checkpoints. The Court had to balance the important 4th Amendment limitations on Search and Seizure against the important national problem of illegal aliens. The Court importantly recognized that “checkpoint stops” are Seizures within the meaning of the 4th Amendment. Martinez-Fuerte at 556. Nevertheless, the Court noted that: "(T)he circumstances surrounding a checkpoint stop and search are far less intrusive than those attending a roving patrol stop. Roving patrols often operate at night on seldom traveled roads, and their approach may frighten motorists. At traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion" citing to the Court’s earlier ruling in United States v. Ortiz, 422 U.S. 891, 897 n. 3, 95 S.Ct. 2585, 2589 (1975). Delaware v. Prouse, 440 U.S. 848, 99 S.Ct. 1391 (1979): Next in the progression of Traffic Checkpoint cases came to us not so much as a solid ruling in favor of such Checkpoints, but rather as an observation by the Court while ruling that Officer could not conduct routine traffic stops of individuals to check their Driver’s Licenses and/or Registrations without some type of articulable suspicion. For those of you who have been in Law Enforcement for a while you will recall the days of stopping motorists just to see if their DL’s were valid. For those of you newer to the profession, you are probably saying: “what?” Yes, in the good old days Officers in some jurisdictions did just stop people to check their Driver’s Licenses and/or Registrations. But, with the advent of Prouse that traffic enforcement technique came to a screeching halt. For our purposes here, the importance of Prouse is that the Court took the time to again explain how the Court differentiated between the degree of 4th Amendment intrusion created by a traffic stop vis-à-vis that created by a fixed Traffic Checkpoint, explaining that a motorist is much less likely to be frightened or annoyed by a Traffic Checkpoint than by a traditional, lights and siren traffic stop. Prouse at 657-658. While I am not sure the ACLU would agree that was the holding of the Court. The Court’s “observation” which is pertinent to this article was that: “[t]his holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. [FN26] Questioning of all oncoming traffic at roadblock type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers.” Prouse at 663. So, the Court left the door open a bit for future legitimate Traffic Checkpoints. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990): In 1990 the United States Supreme Court Ok’d the use of Sobriety Checkpoints. Although by now, DUI/Sobriety Checkpoints have become common place throughout this country, it is instructive to review the Supremes’ ruling in this case to see exactly what it approved and did not approve. This case began back in 1986 when Sobriety Checkpoints were not a national phenomenon. In fact the case began with three Michigan motorists attempting to stop the very first Sobriety Checkpoint to be held in the State of Michigan. They were not able to stop the first Checkpoint, and that operation was conducted in Saginaw, MI by the State Police in cooperation with the Saginaw County Sheriff’s Office, and the facts show that during the 75-minute Checkpoint, 126 vehicles proceeded through the Checkpoint, the average delay was approximately 25 seconds and resulted in only two DUI arrests. The procedure of the Michigan Sobriety Checkpoint was described by Justice Rehnquist: “[u]nder the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist's driver's license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer's observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately.” Sitz at 447. This is important because these were the conditions reviewed by the Court, if your Checkpoint varies greatly procedurally, you may want to have your Legal Advisor review that procedure. Although the Sobriety Check Point was devised by the Michigan State Police, interestingly enough the lower court and the Michigan Supreme Court both ruled in favor of the Plaintiff’s and against the State Police, holding that the Checkpoint was a seizure under the 4th Amendment and that in light of the U.S. Supreme Court’s previous opinions, the Michigan Courts felt that the intrusion created by the Checkpoints did not balance with the effectiveness of the Checkpoints. Fortunately the U.S. Supremes did not agree with the analysis of the Michigan Courts. The Supremes discussed the magnitude of the problem of drunken drivers in the United States, mentioning that over 25,000 persons are killed as a result of drunken drivers. The Supremes also pointed out that the “effectiveness” of Sobriety Checkpoints, i.e. the relative low number of arrests (2 out of 126), was not dispositive of the value of such Checkpoints and compared this Checkpoint with the one previously approved by the Court in Martinez-Fuerte. It is also important to note some of the caveats to approving this Checkpoint articulated by the Court. The Court held that “[d]etention of particular motorists for more extensive field sobriety testing may require satisfaction of an individualized suspicion standard.” Sitz at 451. Also the Court pointed out that their opinion did not address any unreasonable treatment of persons after the actual detention at a particular Checkpoint. id. The final ruling of the Court: “[i]n sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment.” Sitz at 455. Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447 (2000): In 2000, the Supreme Court said NO to the City of Indianapolis Traffic Checkpoint for the purposes of Drug Interdiction. While at first blush it seems counterintuitive that a Checkpoint for drunk drivers is Ok, but one for drugs is not, but the Court took great pains to explain the difference, and at the same time send a strong message to the Law Enforcement community as to what types Traffic Checkpoints are likely to be allowed and which are not. In Edmond, the City of Indianapolis operated Traffic Checkpoints in an effort to interdict drugs. Several persons who were stopped in those Checkpoints filed suit in Federal Court, and the U.S. District Court denied their request for a preliminary injunction stopping the Checkpoints. However, on appeal, the 7th Circuit Court of Appeal “reversed” the lower court and held that the Drug Checkpoints contravened the 4th Amendment. By the way, the success rate of the Indianapolis Drug Checkpoints was far higher than the previous Alien and Sobriety Checkpoints reviewed by the Supreme Court, i.e. 104 arrests out of 1,161 vehicles which proceeded through the checkpoint. However, the effectiveness of the Drug Checkpoints was not the major concern of the Supreme Court. The concern, was that the Court had never approved a Checkpoint whose primary purpose was to detect evidence of ordinary criminal wrongdoing, and this is where the Drug Checkpoint got snagged. Thus, the Court has set the bar that a Checkpoint for general Highway Safety is different from a general interest in crime control. Edmond at 40. The Court’s own words are clear: “[w]e have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion.” Edmond at 41. The City argued that the Court had previously approved Checkpoints in Sitz and in Martinez-Fuerte, whose main purpose was arresting those suspected of committing crimes. However, the Court keenly replied that if it allowed that reasoning to prevail, that virtually any Traffic Checkpoint could be constructed anywhere for any conceivable Law Enforcement purpose, and the Court was not going to allow that. Edmond at 42. Illinois v. Lidster, 124 S.Ct. 885 (2004): Earlier this year, the Supreme Court again further defined Traffic Checkpoints by approving of a Checkpoint that was established to try to obtain information on a hit-and-run driver. A 70 year-old bicyclist was hit and killed by someone who had left the scene, and one week later the police set up a Checkpoint at about the same time and place where the man was hit. The Police then blocked a lane of traffic forcing cars to line up and be stopped for 10-15 seconds where the occupants were asked if they knew anything about the accident and were handed a flyer, which requested assistance with finding the hit-and-run driver. The Petitioner, Robert Lidster, was apparently DUI and was caught via his poor driving into the Checkpoint. Lidster made his way through the Court system, and ended up in the Supreme Court where the Court granted Certiorari and this type of brief Checkpoint was not presumptively invalid under the 4th Amendment and that Lidster’s 4th Amendment rights were not violated by this arrest/Checkpoint. So, how does this case differ from Edmonds? The Court explained that: “[t]he checkpoint stop here differs significantly from that in Edmond. The stop's primary law enforcement purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals.” Lidster at 889. Basically, the Court found that this Checkpoint really was not much different from consensual encounters where police routinely ask questions in follow-up investigations (citing to Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319 (1983). The Court also reinforced its previous ruling that the 4th Amendment does not treat a motorist’s car as his castle. id. So What Do We Do? The above cases give Law Enforcement Agencies a pretty good idea of the types of Traffic Checkpoints, which are allowed, and those that are not. Of course this is by no means definitive, and numerous variations of the above cases can be imagined. Suffice it to say that if your Agency has developed a Traffic Checkpoint which is not covered by the existing case law, you should proceed cautiously with the assistance of legal counsel and your State Attorney’s Office. It is critical that Agencies instruct their Officers on the rights guaranteed to citizens under the 4th Amendment to the Constitution of the United States of America and focus on changes in the laws of Search and Seizure, as exemplified in the United States Supreme Court cases outlined above. It is embarrassing, or worse, to be at deposition in a civil case and have Officers not even know what the 4th Amendment is. It is worse yet, to be at trial, and witness an Officer fumbling on the stand to articulate the 4th Amendment. Furthermore, the results of Officers not knowing the rights guaranteed by the 4th Amendment relative to Traffic Checkpoints are even more serious. Agencies need first re-evaluate their current policies and procedures pertaining to establishment of Traffic Checkpoints in light of all the existing case law, both State and Federal. Agencies should next provide training to their Officers, which both instructs on the Policies and Procedures of the Agency, the Constitutional Issues involved, and also how relevant State Statutes govern the search and seizure by Law Enforcement Officers in your State. Moreover, it is important that the Agency makes sure that the nexus between the Agency Policies and Procedures and State/Federal law is clear. As we have stated before, often times we find that it was clear to the “trainers” and the “administrators” who draft the policy or procedure, but is not clear to the Officers who are governed by the policy/procedure on a daily basis. It bears repeating that often times line officers who are the first to be affected by changes in the law or case law, are often the last to know about these changes. It is common place that the legal updates and professional magazines received by Agencies are read by the “brass” and by the trainers, but, unfortunately, often times that’s as far as the information goes. Many times this lack of follow through in disseminating information is simply the product of administrators having too much to do. Sometimes it is the result of poor communications among divisions of Agencies. However, good intentions are great, but where the rubber meets the road is did the people who need the information every day get it? One way to deal with this situation, even in small agencies, is to designate individuals to be responsible for transmitting new laws and case law to the officers of the Agency. Another is to develop a close working relationship with your State Attorney or District Attorney’s Office and have their Office provide your Officers with periodic up-dates. From my experience, as over worked as they usually are, Prosecutors would much rather educate Officers on the front end, then deal with violative conduct later, which causes important cases to fail by virtue of misunderstandings which were preventable We know that most departments already provide their officers with general orders, policies and procedures manuals, criminal law digests, and law updates, but more is required. It is critical that the Agency assign specific members to distribute law updates to the troops in a timely way, and not 6 months after the change went into affect. Action Steps: 1. Does my Agency participate in or set up Traffic Checkpoints? If so, does my Agency provide specific policies for the implementation or effecting of Traffic Checkpoints? If so, does that policy comprehensively describe the proper procedure for setting up such Traffic Checkpoint with due regard for both legal and safety considerations? Also, if there is such policy, does that policy conform with both Federal law and your State Law? If not, why not? In the final analysis it would be far better to not implement Traffic Checkpoints than to conduct them improperly. 2. Does my Agency provide training on rights guaranteed under the 4th Amendment to the Constitution? If so, is that training of a continuing variety, or is it left to the initial Academy and hit-or-miss thereafter? It is imperative that the Agency have a continuing, articulable/documented training methodology in place for the constant education of the Officers on 4th Amendment rights. A response that the Officer was trained at “the Academy” years ago, just won’t get it. 3. Does my Agency provide annual training/re-certification in the laws governing Search and Seizure? Does this training include discussions of how Search and Seizure and the 4th Amendment specifically relate to Traffic Enforcement? Does this annual training/recertification include “interactive” training, which verifies the Officers get it? And, is this training being conducted by individuals with the credentials/experience to be adequately disseminating this information? If not, why not? 4. Does my Agency’s Traffic Checkpoint policy comprehensively address the role of supervisors in monitoring/supervising the on-site operation of such Traffic Checkpoints? And, does the policy address a post event analysis of the Traffic Checkpoint? 5. Does my Agency realize that without an up-to-date specific policy and/or training in the laws of Search and Seizure coupled with training in the 4th Amendment, that a great burden is placed on officers? Does my Agency realize that this burden equates to potential criminal and civil liability issues for the officers, and consequently, potential legal problems for not only the individual Officers, but also for the department/government entity? The Agency should, because under 42 U.S.C. § 1983 litigation, the “policy” or “custom” of the Agency (written or unwritten), or lack there of could be a formula for disaster in civil court. 6. Does my Agency have a current understanding with the prosecutor/state attorney or district attorney regarding their criteria for the implementation of Traffic Checkpoints? Has my Agency asked these attorneys to conduct training for the Agency in appropriate implementation of Traffic Checkpoints, which is geared not only to be consistent with Federal case law, but also specifically to our State’s Laws? If not why not? 8. Does my Agency work in conjunction with other Agencies in the operations of Traffic Checkpoints such as was the case between the Michigan State Police and the Saginaw Sheriff’s Office in Sitz? If so, does my Agency just “go along” with the other Agency, or has my Agency’s Legal Advisor and/or the State/District Attorney’s Office reviewed our joint methodologies for legality? If not, it certainly would be a good idea. Copyright by: The Makholm Law Group (This column may only be reprinted with permission.) The Police Liability Beat is an informational bulletin and will endeavor to bring to the attention of our readers/subscribers decisions of the courts which will effect the Law Enforcement / Corrections Community and an analysis of those cases. Additionally, the column will make suggestions for assessment of agency policies. This column should not be construed as a “legal opinion” or “legal advice.” The column is provided only for the purpose of disseminating information relevant to our readers/subscribers in the Law Enforcement / Corrections Community. John A. Makholm, Esq. and The Makholm Law Group, welcome comments and suggestions for future articles, and would encourage subscribers to contact us with suggestions for future columns, as we aspire to become more interactive with our readers and address your areas of concern, and we can be reached at: The Makholm Law Group One Capitol Center 696 – First Avenue North, Ste. 205 St. Petersburg, Florida 33701 Ph: 727/823-5100 Fx: 727/823-5114 e-mail: makholm@att.net or visit us at our website: www.policeattorneys.net