As the holiday season approaches, drivers should plan to expect checkpoints. Checkpoints are increasingly common features of law enforcement strategy and are governed by particular rules.
Federal money subsidizes the use of checkpoints through state programs such as the Governor’s Highway Safety Program
The general rule is that checkpoints may not be established for general crime enforcement. That’s because the Fourth Amendment requires individualized and particularized suspicion. Just because you are a member of a class of people – a racial or ethnic group, or a group engaged in some legal activity such as driving – does not allow the police to simply stop and inquire, except under very narrow and specific circumstances.
The Supreme Court has held that checkpoints may only exist if they satisfy a specific programmatic purpose – City of Indianapolis v. Edmond, 531 US 32 (2000). Again: general crime enforcement is prohibited.
So, for instance, the Supreme Court of the United States has allowed brief, suspicionless seizures at fixed checkpoints designed to intercept illegal aliens, U.S. v. Martinez-Fuerte, 428 US 543 (1976), for sobriety checkpoints to stop people who may be driving while impaired, Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (1990), to verify drivers’ licenses and vehicle registrations, Delaware v. Prouse, 440 U.S. 648 (1979), and to ask motorists for information about a recent hit-and-run accident. Illinois v. Lidster, 540 U.S. 419 (2004).
That’s all federal case law regarding checkpoints, including DWI-related checkpoints.
State law, of course, must respect federal constitutional guarantees given the incorporation of the Fourth Amendment through the Fourteenth Amendment against the states.
In State v. Rose, the North Carolina Court of Appeals decided whether sheriffs deputies in Onslow County had conducted a constitutional checkpoint in which a defendant was ultimately charged with felony possession with intent to sell and deliver marijuana. State v. Rose 612 SE 2d 336 (2005).
The defendant’s attorney usually receives a checkpoint plan or checkpoint program, a written document often “okayed” by a senior member of the department that purportedly spells out the specific programmatic purpose of the checkpoint. Both the state and federal supreme courts have held that a trial court must make an inquiry of the real purpose behind the checkpoint, and cannot simply rely on the State’s claim that the checkpoint served a valid purpose.
In addition, both courts have held that checkpoints cannot simply be validated because they are pursuing a programmatic purpose that is valid – for instance, DUI enforcement. In other words, if one of the many things you’re doing is DWI enforcement, the court has held that that legitimate purpose does not off-set the fact that you’ve established an illegal checkpoint.
For instance, in State v. Rose it was evident that, even though the State of North Carolina claimed that the checkpoint was for a valid programmatic purpose, the evidence at trial indicated that “at this particular checkpoint one officer would approach the driver to ask for the license and registration, while a second officer would scan the inside of the vehicle and walk around it. The testimony does not explain why a second officer was necessary to check licenses and registrations. In this case, it appears that the function of the second officer may have been to scan for possible criminal activity.”
In addition to a checkpoint being for a valid programmatic purpose, the Court must conduct a second inquiry as to the reasonableness with which the checkpoint is conducted.
In judging reasonableness, courts must look to “(1) the gravity of the public concerns served by the seizure, (2) the degree to which the seizure advances the public interest, and (3) the severity of the interference with individual liberty.'” Lidster, 540 U.S. at 427 (quoting Brown, 443 U.S. at 51 (1979).
And here’s the crucial test from State v. Rose: “As Chief Justice Burger wrote in Brown—a decision reaffirmed and applied by the Supreme Court in 2004 in Lidster—a checkpoint “must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown, 443 U.S. at 51. There must be orderly procedures to limit the “unfettered discretion of officers in the field” in order to avoid the “arbitrary invasion” of motorists’ privacy interests. Id. The Supreme Court has stressed that “standardless and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent.” Prouse, 440 U.S. at 661.
It’s important to note that the inquiry about whether a checkpoint is valid or constitutional is separate and distinct about whether the individual officer behaved in an appropriate manner.
If the checkpoint is invalid, then the seizure is invalid.
In a typical DWI scenario, a defendant challenges the checkpoint, arguing that the checkpoint plan does not embody explicit, neutral limitations on the condcut of the individual officers. The prosecutor argues in rebuttal that, essentially, the illegal conduct – perhaps the impaired driving – was detected by an officer who did not behave beyond the scope of the limitations.
Frankly, the prosecutor’s response does not answer the state or federal appellate courts’ concerns. Appellate courts are concerned about checkpoints themselves that go beyond the narrow, limited criteria established in Prouse, City of Indianapolis, and Sitz.
If the checkpoint plan allows discretion to the officers, then the checkpoint plan is invalid and the checkpoint itself is unconstitutional.
If the checkpoint plan limits discretion, but officers act beyond the scope of the checkpoint plan, then the checkpoint itself is unconstitutional.
But a checkpoint is never valid if the checkpoint plan is overly broad… the defect in the checkpoint plan invalidates the entire operation, even if officers themselves behave in a restrained way.