DUI police checkpoints aren’t just unconstitutional, they’re also ineffective. Albemarle’s stopped 545 vehicles last night, and found two people who above the limit. That’s a 0.3% success rate making it, by any rationale, a total waste of time. More effective? Watch the cars go by and pull over the people who are driving badly. That being the purpose of DUI laws.
Of course, they weren’t just looking for people driving drunk, and that’s how you know that these checkpoints are bullshit.* They got eight people for driving without a license, three people for driving on a suspended license, and two for not having an inspection sticker. They got 650% more people for violations other than that which they’re using as their justification for pulling people over without probable cause. That’s standard, not incidentally. The DUI business is a fig leaf for conducting unlawful searches.
I’m lucky I’ve never been pulled over in one of those. Do I cooperate, or do I refuse, explaining that it’s unconstitutional? I have no idea, but I resent that I have to worry about being put in that situation.
There are two favorite tricks here in Cumberland:
1. Walk the dog around your vehicle illegally while talking with you, even if it’s just conversational. (We know all the Deputies here). Illegal and they will get called on it by me as well.
2. Sit on private property in order to hide out to catch speeders, etc. That makes the owners of the property an agent of the State, and I don’t think that is constitutional either.
Either way, yes, they are stupid. And as someone who has a nearly month-old VFOIA request with the Cumberland Sheriff’s Department, I think I know stupid when I see it… :)
I think that sobriety checkpoints (if reasonably conducted) are currently constitutional under the U.S. Constitution, according to the U.S. Supreme Court, and have been held constitutional and otherwise permitted under Virginia law. (They are unlawful in some states, though).
Do you have authority for their unconstitutionality in Virginia?
I don’t know about the constitutionality of it, but it sure seems a waste of time and resources. Won’t people who plan to drive drunk just avoid the checkpoint? I don’t drink so I don’t know the answer to that, but it makes sense to me. I wish the police would be on the look out for people driving badly or strangely all the time, not just one night of the year. Getting drunk and dangerous for any reason drivers off the road would really save lives.
On the other hand, what if one of those 2 drunk drivers would have caused a fatal accident if not caught at the checkpoint? And does the existence of checkpoints on New Year’s Eve serve as a deterrence to driving drunk? We can’t know how many people don’t drive drunk for fear of being caught due to extra police presence.
I don’t drive on New Year’s Eve because of fear of drunk drivers, so I do believe in a deterrence effect of some sort :).
It is my interpretation of the constitution that they are unconstitutional. The constitution is really quite specific about search and seizure; without probable cause, it’s illegal. Checkpoints are inherently cause-blind, hence unconstitutional.
The SCOTUS took this matter up in 1990 in Michigan Dept. of State Police v. Sitz. They upheld checkpoints in a 6-3 vote. The court said that whether or not the checkpoints are effective isn’t relevant to them, and said that, simply, the inconvenience to drivers is so slight as to be meaningless. Now, when the court got in the business of taking up the matter of “convenience,” I don’t know (well, I do, it was Brown v. Texas), but that was the logic. Rehnquist (writing for the majority) even confesses right up front that, yes, they’re a violation of the Fourth Amendment, which I found a bit stunning. Obviously, I agree with the minority here (Stevens, Brennan and Marshall), who said that the problem isn’t that people aren’t being forced to give up a bit of their time, it’s that they’re forced to give up a bit of their rights. The good news is that the SCOTUS remanded the case to the Michigan Supreme Court, who figured that if the majority says it’s a seizure, then it’s a seizure, and declared the state’s checkpoint law to be unconstitutional. Texas and Washington are two of about a dozen (IIRC) states who have followed suit.
I read an article in the RTD a few weeks ago (I can’t find it now) about how checkpoints are so ineffective that now they’re really about scaring people, as a “deterrent,” rather than about actually catching people driving drunk. I guess I should appreciate the honesty, but I just can’t bring myself to.
If the SCOTUS acknowledged the majority opinion that the checkpoints were unconstitutional, then how did it justify backing them? If something is unconstitutional, then doesn’t the Supreme Court by default have to strike it down?
Regardless of constitutionality, my question as a taxpayer would be whether the revenue brought in from the violations will exceed the amount spent in the way of officer’s time and whatever else went into the checkpoint. I’m guessing no, or maybe just barely, and like Waldo said, pulling over bad drivers would go much further in stopping people who are actually dangerous to the rest of us.
And on a side note, do that many people really drive drunk on new year’s anymore? If I’m going to take that risk I certainly wouldn’t do it on the one day of the year associated with DUIs.
Actually, they don’t have to, and that’s probably a good thing. A primary purpose of the SCOTUS is to attempt to make hard-and-fast rules (“congress shall make no law…abridging the freedom of speech…”) fit the world as we know it (libel and slander laws, for instance). Their job is often to balance individual freedoms against collective goods, and that’s no mean feat.
There’s also a matter of language here. If something is unconstitutional, it’s unconstitutional because the SCOTUS says it is. If they say it’s not then, legally, it’s not. Now, you and I might disagree, and that’s a good and healthy thing. After all, even the SCOTUS reverses themselves from time to time. First there was Plessy v. Ferguson, then there was Brown v. Board of Education. The Constitution didn’t change in the interim; we did.
Alison, in regard to your “on the other hand” rumination: Your questions are really the same ones asked in the discussions about giving up civil liberties in the name of preventing terrorism. You can boil down both your question and the terrorism-related ones into this: “Is it worth giving up a moral intangible to gain a practical tangible?” In your questions, the moral intangible is constitutional protection from unjust search and seizure, in the form of “just cause”: the police have to have reason to believe you’ve committed a crime before they can search you. The practical tangible is lives saved by stopping drunk drivers.
We have a similar thing here in New York City where the police perform random bag searches at the entrances of some subway stations. It violates the idea of just cause in the same way, and I have twice been denied access to the subway because I refused to submit to search.
These two examples’ similarities don’t stop at being the same sacrifice of freedom, they both are also similarly ineffective. A random breathalyzer search is far more effective at catching people for other, less dangerous crimes like driving without a license, marijuana posession, etc. Correspondingly, such random searches aren’t usually performed in areas where you would have the best chance of catching (and this preventing) DUIs, like nightlife areas. It doesn’t take a rocket scientist to figure out these searches have an alterior motive. The subway searches are even more ineffective at their assumed goal: to catch terrorists. In this example, the search isn’t mandatory, you can refuse to be searched, and you’re simply ejected from the station. (This is still illegal, but not the issue at hand.) So, anyone toting a bomb in a backpack can simply say “no” and walk to another, unprotected entrance to the same station. Or, hell, you can follow the rules and not return to said station, instead walking 7 blocks to the next station on the same line which is almost certain to be free of police and taking the train from their back to the other station. Like airport security, these searches do little to prevent terrorism. They simply try to make people feel like things are being done. So, both examples sacrifice a liberty to accomplish something far less valuable than what they claim to offer.
One can quote Jefferson’s catchier statements until you’re blue in the face, but for me it just comes down to this: Our country is defined by our liberty. It is this freedom, laid out in the Bill of Rights, that makes us the greatest nation on Earth. We have repeatedly had citizens march off to fight and die to protect our ability to possess this freedom. We, as a nation, have repeatedly and publicly stated, through action: It is better to give up our lives than it is to give up our liberty.
So, when law enforcement argues that if we just give up our protection from unjust searches we can save lives, I don’t even have to think about it. My answer is no. Not because their argument is disingenuous (they want to catch people for other crimes), not because it is ineffective, not because they are again putting the emphasis on catching drunk driving, rather than preventing it, but because I believe it to be principally wrong.
Deterrence shouldn’t be a goal of a law. If that were the case, we could look at how well all the screaming of what a great deterrent the death penalty is.
I believe that if it made it to being a law, all should either work to change it if they wish to (Marshall/Newman), or should be looking to monitor abuses of it. (Cumberland, Prince Edward Counties) To accept a law, because “it is the law, what can we do?” really misses the point of our democracy.
Heaven knows that there is enough lawlessness in governement to keep us all busy for quite some time.
Regardless of constitutionality, my question as a taxpayer would be whether the revenue brought in from the violations will exceed the amount spent in the way of officer’s time and whatever else went into the checkpoint.
I hope that we can look at law enforcement, in general, and traffic law enforcement, specifically, as something more than a positive revenue production source. The traffic laws exist, presumably, for the purpose of protecting public safety. We enforce those laws to save lives and to measure the costs of enforcement against the income generated by fines distorts the whole objective. If we, as a society decided that the punishment for speeding violations, for example, ought to be meted out in hours of roadside trash pick-up duty, rather than fines, we’d lose even more money. But, if that sort of punishment was more effective in reducing speeding (without being unduly harsh in relation to the crime), I’d be all for it. Sure, it would mean law enforcement would cost money, but that’s part of the price of civilization. We certainly don’t expect to profit by the cost of apprehending murderers, trying them and paying for their incarceration.
All this is aside from the primary issue of constitutionality, I know. Just a little detour.
But, it is this sort of search for profit in law enforcement that leads to small-town speed traps and outsourcing of photo-triggered traffic light enforcement to private companies. Not a healthy approach, in my view.
“Deterrence shouldn’t be a goal of a law. If that were the case, we could look at how well all the screaming of what a great deterrent the death penalty is.”
The death penalty isn’t a deterrent but I assume that is what you meant to say?
But as to the general concept that deterrence should not be the goal of a law, I don’t get that, assuming the law itself is constitutional. Speeding laws for instance are all about deterrence, aren’t they? Laws against shoplifting are about deterrence, aren’t they? If not, what are they about? I’m confused here.
I also agree that police work costs money and that if this was another kind of traffic enforcement, say looking out for dangerous drivers every day of the year and pulling them over rather than a checkpoint, or neighborhood patrols on foot to prevent crime, or increased patrols by car when crime is up, than we pay for it in the interest of staying safe and keeping others safe.
Will, you actually made a good point about the searches in NYC subways, have to agree with you on that.
Oh, there’s so much here that’s not quite right and it hurts. Mark Brooks, I agree that the main purpose of the law shouldn’t be deterrence, but the main purpose of the exclusionary rule to the 4th amendment is indeed deterrence. See Mapp and its progeny. (also, the “cruel trilemma” of perjury, self-accusation or contempt of court mentioned in Andreson).
Waldo, you said, “. The constitution is really quite specific about search and seizure; without probable cause, it’s illegal.”
That’d be nice, but it’s unfortunately not true (at least, it better not be true or else my Criminal Procedure professor lied to me.). There are several instances where probable cause to search is not required. DUIs are one- it has to do with the duration of the search and the level of privacy intruded upon, as well as the nature of the blood alcohol level. This comes from Schmerber (I’m sorry I can’t cite better; I’m in Florida, and haven’t any of my books or anything like that…). Schmerber involved drawing blood for a blood alcohol test without a warrant. It was upheld because there was a low level of intrusion, and by the time a warrant was gotten, the level of alcohol’d be down in the body. This case is different, because it’s a general suspicion of every car, but because of the low level of intrusion, and the gov’ts purpose, it’s been deemed OK.
Ok, going back to the generalities of your statement, there are several instances that you don’t need probable cause to search. The easiest is consent searches (consent can also be given by a third party in limited circumstances). You don’t need probable cause or reasonable suspicion if a person gives consent. See Scheneckloth.
Terry v. Ohio allows a pat-down of an individual’s outer clothing to search for weapons on reasonable suspicion (not probable cause). An officer may search incident to arrest without probable cause; he merely needs reasonable suspicion to search incident to arrest (this is the area subject to the arrestee’s immediate control, see Chimel). If we’re talking cars, you can look anywhere inside the car, including the passenger area, under the upholstery (ie, rip it out), and I think the trunk too, after a custodial arrest of the occupants, even if the occupants have been removed from the car. You may also, incident to arrest, conduct a protective sweep of the area immediately adjoining the suspect, including inside closets, for individuals waiting to attack you or for weapons, without either probable cause or reasonable suspicion. (remember that arrests aren’t the same as searches; you still need probable cause to arrest. If the arrest is no good, generally, the fruits of the search are excludable as fruits of the poisonous tree. Not always though.) You may also conduct an inventory search of a car, after the car has been lawfully been taken in by the police, on less than reasonable suspicion (the spectrum is probable cause is the highest, and reasonable suspicion is somewhere below that). You may also, incident to arrest, search under the plain view doctrine on less than probable cause (you can’t touch or move anything- it’s literally just what you can see without touching or moving anything. If there’s a gun lying on the sofa, just sitting there, you can see it and you can take it.) Parolees get even less and are a whole other area; generally, they don’t even need reasonable suspicion to search a parolee (Samson).
There are a lot of gray areas within the very, very general outlines I’ve sketched out here, but my point is, your statement about probable cause is too broad, Waldo. Probable cause is needed to arrest, always (I think. Yeah.), but not necessarily to search.
Actually, Waldo, the purpose of the DUI checkpoint is NOT to deter drunk driving; it is to increase revenues for criminal defense lawyers.
Now, if I could just get the cops to pass out my business cards…
All true, but all that’s probably all well outside of the boundaries of this blog entry. :) (Witness the glazing of eyes when folks get to your comment. ;) As I wrote earlier, a primary purpose of the SCOTUS is to attempt to make hard-and-fast rules (”congress shall make no law…abridging the freedom of speech…”) fit the world as we know it (libel and slander laws, for instance). Ditto for search and seizure. Though we can talk about Linkletter v. Walker until we’re blue in the face, I don’t imagine that but a dozen readers will follow us. :)
So in the case of the DUI checkpoints, the “reasonable suspicion” would be driving on New Year’s Eve?
Back to topic: So I did some googling and this page was interesting:
And this site had the predominant ruling for each individual state. I thought I remembered hearing that in Virginia, if you saw a checkpoint, you had the right to turn around and not go through it and that action alone was not enough for cops to come after you as a suspicious act. Seems that is correct according to that site. But cops have 101 reasons to pull a person over regardless.
Good synopsis, except for the highlighted part. In fact, the effectiveness of the stops is one factor used in the balancing test to determine constitutionality. That test weighed the state’s interest, the effectiveness, and the level of intrusion into the person’s privacy.
Rehnquist found that the state had a very high interest, the checkpoints were effective enough, and the level of intrusion was miniscule.
Under the US Constitution (as interpreted by SCOTUS) roadblocks are constitutional, in part, because they are NOT based on particularized suspicion, reasonable or otherwise. If a cop were randomly pulling drivers over, then there’s a problem. But if it is part of a scheme that completely removes officer discretion, then it is ok.
This nuance was set forth in Delaware v. Prouse (1979). “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.” 440 U.S. 648, 663 (1979). However, “[t]his holding does not preclude [a state] from developing methods for spot checks that . . . do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative.” Id.
Perverse? I think so. Sitz (inter alia) goes on to examine the roadblocks allowed by Prouse, but I think that Prouse is important in understanding why roadblocks seem to stand in the face of the traditional notions of “reasonable suspicion” and “probable cause.” They’re ok because the cops have neither suspicion nor cause as it relates to the individual, so there’s nothing to judge as reasonable or probable.
In Virginia, roadblocks have been found unconstitutional when there is “evidence that the officers were using an objective, nondiscretionary procedure” (Thomas v. Commonwealth, 22 Va. App. 735 (1996)) and if setup “without any prior direction from . . . superiors and without an existing plan” (Simmons v. Commonwealth, 238 Va. 200 (1989)).
My my—we’ve got a more legal readership here than I thought. :)
Waldo and Will agree!
Ha! But the “illegal U-turn/failure to stay in lane” mumbo jumbo is plenty of reason.
I’m thoroughly confused now. Let me get this straight. The purpose of setting up a roadblock is to catch someone doing something illegal. It’s legal to do this if cops stop everyone so as not to show a bias. Isn’t that the essence of a police state? Without reasonable suspicion or probable cause, then why should cops be stopping people at all? So the suspicious/probable situation in this case for someone getting stopped at the checkpoint is simply the fact of driving on New Year’s Eve?
And apparently it doesn’t matter (at least in VA) if the cops follow their plan, just as long as they have a plan: Deviation in checkpoint location, as stated in plan, will not invalidate the checkpoint. Sheppard v. Commonwealth, 489 S.E.2d 714 (Va. App. 1997).
I also thought that part of the plan cops put together now has to have a planned “escape route/turn around” for people to legally use who don’t want to go through the checkpoint. I thought there was some entrapment issue or something related.
But they do things in Richmond like put the checkpoint right after the Chippenham Pky bridge over the James and say the turn around is before the bridge but people don’t know of the checkpoint until they’re over the bridge so they’re stuck in it unless they do something illegal. Caused in part by this: Legal driving maneuvers that reverse a driver’s course toward a checkpoint do not justify a stop, Bass v. Commonwealth, 525 S.E.2d 921 (Va. 2000). That’s why I said cops still have 101 reasons to pull you over.
Funny thing about this is while everyone wants safe roads, most folks would raise hell if checkpoints were set up in effective places…like say the parking lots of bars…or God forbid, after a football game? If you really want to stop it, then does it not make sense to got where people are drinking? But wait, then the business owner raises hell because its killing revenue. Better his business than me on my way home from work, right? And the patron is upset because their right to have a couple drinks and drive home is being impeded?
Everyone stop worrying about the checkpoints. With just a couple more systems upgrades, a few software tweaks and the trampling of another civil right or two the police will already know from your ATM records you withdrew $200 bucks and spent $80 at the bar you just left (thanks OnStar), they will also know from cell logs that you called your weed guy and stopped by his house before you went to the bar, or perhaps you just left your mistress (once the Moral Police emerge…thanks again OnStar). The very near future of law enforcement will be an officer at the checkpoint with laptop querying the drivers activities in “The System” (and the passengers after the bust is made) to see what to look for.
Yeah, I know….I’m just being paranoid.
Well, with regards to constitutionality, I believe Albemarle County is in the Constitution Free Zone:
Just wait until USMC MP’s are assisting the local police at our checkpoints:
Wake up people, these checkpoints exist solely to keep you in control. They aren’t there to stop criminals or drunk drivers, they are there for you. This is about getting you accustomed to being stopped and interrogated by the police [state] anytime, anywhere, for any reason. This is about training you all to be good, little sheep who do what they’re told and who don’t start trouble over petty, little things like “rights”.
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