There seems to be a relatively new justification for using DUI checkpoints. I have read several news articles where police are using DUI checkpoints for the purpose of educating people on laws related to alcohol. The latest was an Orange County Register article (9/24/10) giving notice of a DUI checkpoint by the Placentia Police Department.
Can a police agency conduct a DUI checkpoint for the purpose of education? The Supreme Court in City of Indianapolis v. Edmond (2000) 531 U.S. 32 provided: “Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.” If a checkpoint is invalid for purposes of crime control, then a checkpoint educating on alcohol laws must be valid. Wrong! Educating the public on “alcohol laws” by stopping cars is not a legitimate reason for a 4th Amendment seizure. The government can educate by other means like utilizing public address announcements on radio or television.
Our right not to be seized by the government without a legitimate purpose is such an important right that Justice Clarence Thomas provided past U.S. Supreme Court decisions were wrongly decided by stating:
“Taken together, our decisions in Michigan Dept. of State Police v. Sitz, and United States v. Martinez-Fuerte, stand for the proposition that suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops. I am not convinced that Sitz and Martinez-Fuerte were correctly decided. Indeed, I rather doubt that the Framers of the Fourth Amendment would have considered “reasonable” a program of indiscriminate stops of individuals not suspected of wrongdoing.” (Id at 56)
The plan that limits the discretion of officers Justice Thomas mentioned can be found in the California Supreme Court case ofIngersoll v. Palmer (1987) 43 Cal.3d. The Court in Ingersoll decided checkpoints should follow certain guidelines:
1) Decision Making at the Supervisory Level – Supervisory law enforcement personnel must make the decisions regarding a DUI checkpoint. Traffic officers or field officers cannot be apart of the decision making process.
2) Limits on Discretion of Field Officers – A formula to determine what vehicles will be stopped must exist such as stopping every other driver or every third or tenth driver. Suppossedly this takes away the decision making from the field officer in order to prevent arbitary selection of vehicles.
3) Maintenance of Safety Conditions – The purpose is to maintain safety of motorists and officers. Examples of safety considerations are; proper lighting, warning signs and signals and clearly identifiable official vehicles and personnel. Traffic congestion is another consideration.
4) Reasonable Location – Supervisory or policymaking officials must decide the location of the checkpoint. Even though the purpose of the checkpoint is supposed to be a non-criminal purpose, the location should be chosen based on likelihood of actual drunk drivers stopped and high occurrence of alcohol-related accidents
5) Time and Duration – Supervisory personnel must decide, based upon various criteria, at what time and for how long the checkpoint must be maintained.
6) Indicia of Official Nature of Roadblock – There must be signs giving notice to a driver that they are about to drive into a checkpoint. The signage must indicate a law enforcement checkpoint and not a construction zone. Officers must in uniforms sufficient to indicate to drivers that an official police agency is conducting the stop.
7) Length and Nature of Detention – Police should detain a driver long enough for the officer to question the driver briefly. This brief questioning is used by officer to detect sign of intoxication. If the officer detects the combination of odor of alcohol, bloodshot and/or watery, and/or slurred speech, he can then detain the driver further. Lengthy questioning can invalidate the stop.
8) Advance Publicity – A police agency conducting a checkpoint should give notice to the public where and when a checkpoint will be setup. This notice is typically accomplished by publishing the information in local newspapers and/or anouncements on local radio stations.
Justice Thomas makes it clear that a checkpoint is a seizure of individuals suspected of no wrongdoing. So, the only way a checkpoint could be constitutional is if it is consensual. Therefore, a requirement for a constitutional checkpoint would be to warn individuals of the checkpoint and allow the individual to avoid the checkpoint. If there is no way to avoid the checkpoint once the individual has been notified of the checkpoint, then it cannot be consensual.
The Ingersoll Court supports this proposition when it noted:
“Checkpoint personnel were specifically instructed that drivers were not to be stopped merely for avoiding the checkpoint. The road sign announcing the checkpoint was placed sufficiently in advance of the checkpoint that motorists could choose to avoid the checkpoint.” (Id at 1336)
The Ingersoll Court did not specifically state that a lack of an escape route would make the checkpoint unconstitutional. However, the escape route makes the checkpoint consensual. Without consent of the driver, the checkpoint is, as Justice Thomas provides, “… an indiscriminate stop of individuals not suspected of wrongdoing.” Therefore, it is not necessary for the Ingersoll Court to state the obvious.