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Is the DC Checkpoint Plan Unconstitutional?
The Washington Post has a detailed story on DC's plans for a "military style checkpoint" to stop gun violence. Eugene mentioned it briefly below, but I wanted to blog at some length about the legal issues. It turns out that there's a fairly specific Fourth Amendment law of automobile checkpoints, and that we can look to those cases to see how the DC law fits in. My bottom line: I think the DC checkpoint plan is pretty clearly unconstitutional.

  Let's start with some background. The Supreme Court has held that the legality of automobile checkpoints are governed by a reasonableness standard under the Fourth Amendment. The cases try to balance the government's interests against the privacy interest and permit the automotive checkpoint when the government has a good reason and the infringement on privacy is minimal. So, for example, the police can use a drunk driving check point, or an immigration checkpoint, so long as they are well designed to minimize the privacy intrusion. See, e.g., Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driving checkpoint okay); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (immigration checkpoint okay)

  In 1996, in Maxwell v. City of New York, 102 F.3d 664 (2d Cir. 1996), a divided panel of the Second Circuit relied on these precedents to uphold a checkpoint nearly identical to the one that DC is planning. The Second Circuit thought that the checkpoint was reasonable for three reasons:
First, the checkpoints in question served an important public concern in attempting to deter drive-by shootings that were, or were reasonably perceived to have been, connected with widespread drive-up drug purchases. Second, at the time of implementation, the checkpoints were reasonably viewed as an effective mechanism to deter criminal behavior in the barricaded area. Indeed, checkpoints similar to the one here had been effectively used in the past by the New York City Police. Third, the intended level of intrusion to motorists was minimal. No vehicle was to be stopped or its operation questioned unless entry into the cordoned-off area was desired. For those seeking entry, the stop was meant to be brief and was aimed solely at ascertaining the motorists' connection to the neighborhood.
  The Post story suggests that DC is relying on the Maxwell case as authority for legality of the checkpoint. And if the law were today what it was in 1996, I would say their legal case is certainly plausible.

  The difficulty is that four years after Maxwell, the Supreme Court took a different turn in its cases in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the City of Indianapolis set up vecicle checkpoints to search for drugs. The city was worried that people were bringing narcotics into the city, and they figured that they could set up reasonable checkpoints to deal with the drug problem much like the earlier checkpoints had dealt with the problems of drunk driving and immigration. The Supreme Court disagreed, concluding that the check points were unconstitutional because the government interest was a traditional law enforcement interest rather than something else like public safety.

George Weiss (mail) (www):
there is also the idea that you cant enter the neighborhood unless you have a 'legitimate purpose'-unless there is an emergency-and absent legislation-can the police simply dictate where you walk?
6.5.2008 11:21pm
stunned:
Basides the 4th Amendment issues (which are interesting), surely it's unconstitutional to only allow drivers with a "legitimate purpose" into the area, right? Relatedly, if they insisted on entering despite being turned away, on what basis could they be arrested?
6.5.2008 11:22pm
Humble Law Student (mail):
Lol, I just read about those cases in my Bar review materials.
6.5.2008 11:23pm
Oren:
I wonder what the DC police will do if every single person stopped at the checkpoint hands over their license and then gives them the silent treatment (or "I respectfully decline to answer any further questions").
6.5.2008 11:35pm
Sean O'Hara (mail) (www):
The description of the DC plan goes beyond searching cars entering a neighborhood. They actually want to tell people who don't live there or have legitimate -- as determined by the police -- business in the area that they can't enter. "I'm sorry, white teenagers from Falls Church have no reason to be in this neighborhood. Leave at once."
6.5.2008 11:43pm
OrinKerr:
6.5.2008 11:45pm
Mahan Atma (mail):
"The cases try to balance the government's interests against the privacy interest and permit the automotive checkpoint when the government has a good reason and the infringement on privacy is minimal. So, for example, the police can use a drunk driving check point, or an immigration checkpoint, so long as they are well designed to minimize the privacy intrusion."


Yeah, that's "reasonable"...
6.5.2008 11:50pm
stunned:
from that article: "Even if there is no “right to remain” in our Federal Constitution, there is a right to travel interstate, and there might similarly be a right to travel intrastate to the extent necessary to engage in the ordinary activities of life." (citing Johnson v. City of Cincinnati, 310 F.3d 484, 496–98 (6th Cir. 2002) for the latter proposition)

And according to the wapo article the police apparently do let potential entrants travel to the extent necessary to engage in the ordinary activities of life. But it seems like there's still a subsidiary issue whether they can demand an explanation before letting you enjoy that right.
6.6.2008 12:03am
Oren:
stunned, I'm quite sure that giving the police the silent treatment will, in the absence of warrants and the like, get you through the checkpoint (although maybe not too quickly).
6.6.2008 12:05am
Oren:
Actually, all of a sudden my certainty is totally gone. Damnable doubt!
6.6.2008 12:07am
tvk:
Orin, given that there are four cases that criss-cross, and that the DC checkpoint situation falls in the middle of the Supreme Court cases (and is basically indistinguishable from the 2d Cir. case, so the only question is whether it has been superseded), how is this a "clear" case? Looks more like a law school exam question to me.
6.6.2008 12:08am
OrinKerr:
tvk,

Because I think it's pretty clear the Second Circuit case was superseded in Edmond and that Edmond speaks directly to the facts of this case. It's not a "duh" case, but I think it's pretty clear. Let's put it this way; I really really wouldn't want to be the DC government lawyer who has to defend this.
6.6.2008 12:29am
cboldt (mail):
I don't think the constitutionality can be tested as a blanket. From the linked article ...

Police will search cars if they suspect the presence of guns or drugs


Not all cars will be searched. Those that are [searched] may or may not have a legitimate probable cause for suspicion argument.
6.6.2008 1:13am
cboldt (mail):
Edmond is indeed a fascinating case. I wonder a few things. Would other circuits rule the same way? Did the use of dogs sway the judges toward finding unreasonable intrusion? I found this fact interesting, "stopping 1,161 vehicles and arresting 104 motorists. Fifty-five arrests were for drug-related crimes" Perhaps the court was concerned that this extent of lawbreaking, if turned into strict enforcement (as the roadblocks seemed to do), would have an undesirable side effect. What if the arrest rate was substantially lower, say half a percent or even less, instead? Same result?
.
I know the outcome based review isn't "the way it's done," but I'm pretty sure it's a practical consideration. If the authorities start to round up 5% of the population, the public will, capital WILL, get uppity.
.
The 7th Circuit also points out practical solutions, "authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check." What precludes the city from being concerned about impaired drivers and licensing? "the purpose inquiry is to be conducted only at the programmatic level." And also, "a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible. In none of these cases, however, did we indicate approval of a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing."
.
The problem then, it seems, is setting up a checkpoint with intent to find the criminal possession of contraband, and arrest the criminals.
6.6.2008 1:36am
cboldt (mail):
Another possible distinguishing quality, between the conduct that the 7th Circuit held in violation of the 4th amendment in Edmond, and the proposed conduct of the DC City police, is in the relationship between the checkpoint and a fixed-location community.
.
Is there a 4th amendment issue the the barrier to entry to a literally gated community? No. The residents voluntarily submit to the inconvenience of proving they have a right to enter. In DC, the residents are portrayed as at wits end, and willing to submit to inconvenience to enter their own community.
.
But in Indianapolis, "checkpoint locations are selected weeks in advance based on such considerations as area crime statistics and traffic flow." Without knowing the details, this does not appear to establish a challenge to entry to a specific area. The checkpoints may well have been on thoroughfares - main roads - and perhaps targeting roads used to access shopping malls or the like.
.
I don't know the road layouts in these respective cases, but if the DC neighborhood in question is void of thoroughfares, malls, etc., and becomes more like the literal gated community; the less likely a finding of fourth amendment violation.
.
Also, in Edmond, the protocol was in high traffic areas -- a fixed number of cars was stopped for processing, and some amount of traffic (sounds like a majority of it) was passed through without so much as a glance. That sort of approach simply would not do in the "gated community" paradigm; but darn, I'm still amazed at the 9% hit rate in Edmond.
6.6.2008 2:01am
Pio (mail):
cboldt: In a gated community, folks literally voluntarily submit to the gated community, and I would think they even have clauses in their contracts to that effect. I think that's a bit different than the local police chief simply deciding for the neighborhood that it in his esteemed judgment they would willingly submit to this, especially since police aren't always particularly popular or in touch. The consent in this case is assumed and seems pretty far-fetched. Also, many gated communities own their own roads (even if they still allow normal cops to patrol them), whereas these are public roads. I'm not sure if that has any legal implications though. (I'm not a lawyer)

By the way, Orin, as one of the folks who emailed you to request a commment on this subject, I'd like to thank you for this post, this kind of detailed and authoritative analysis is what I love about the VC.
6.6.2008 2:12am
OrinKerr:
By the way, Orin, as one of the folks who emailed you to request a commment on this subject, I'd like to thank you for this post, this kind of detailed and authoritative analysis is what I love about the VC.

You're very welcome, Pio. Thanks for the thanks.
6.6.2008 2:18am
arbitraryaardvark (mail) (www):
I agree with the conspirators that the searches are probably unconstitutional. Next question: is the unconstitutionality clear enough to defeat a claim of qualified immunity by the officers?
Also, do DC residents have applicable rights under some lesser document, maybe a charter or legislation?
6.6.2008 4:00am
cboldt (mail):
-- In a gated community, folks literally voluntarily submit to the gated community --
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Understood. I don't mean to make the DC case and a gated community "the same." My point was to try to draw a spectrum between the situation you describe, and something at the other end (bounded by Edmond perhaps), with the situation in DC falling somewhere between those two paradigms.
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"Gated cities" is going too far (with some exceptions, it wasn't too far in the Katrina aftermath), but the DC activity hasn't been litigated yet, so we don't know if that police activity is too sweeping as to the "targets" of the police scrutiny.
.
I think there are distinctions to be made between Edmond and DC, in addition to the "emergency" exception.
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-- I think that's a bit different than the local police chief simply deciding for the neighborhood that it in his esteemed judgment they would willingly submit to this --
.
The WaPo story has hints that the residents are asking for help from the police department. I can see drawing another spectrum here, between the literal gated community (which this is NOT); and inspecting all traffic on a road that is not "part of a neighborhood" (e.g., an interstate or other limited access highway).
.
Those factors, in combination with the dicta in Edmond, that random but widely applied stops just for DL checks is okay, and my general sense of how far DC will go in insisting on a police force monopoly to protect its citizens (arguing that its firearms laws are constitutional), leads me to think the court would find THIS search to be constitutional.
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Not an easy case, but the outcome is of course uncertain.
6.6.2008 6:30am
PersonFromPorlock:
As I remarked in the thread above, IANAL and maybe I'm missing something, but it seems to me that the exclusion of individuals from the controlled areas flatly violates the First Amendment Right to Peacebly Assemble, and the fact that the excluded individuals are free to meet elsewhere is no mitigation.
6.6.2008 8:00am
emsl (mail):
Everyone is looking at this facially, but I think there are going to be impossible problems when this is put in practice as well. For example, how can they possibly avoid taking race into consideration? In the real world, the police are going to work with whatever factors they have and if the neighborhood is (and I don't know the actual situation) largely Hispanic, will they give additional scrutiny to those who are African-American or Caucasian? Will they look at clothing for gang affiliation which is really only a more subtle way of doing the same thing? Given all the controversy over stopping minorities in white neighborhoods because they "don't seem to fit in" or the DWB cases, I think this will be a nightmare in practice that will also expose DC and the police to a panoply of lawsuits.
6.6.2008 8:38am
DJR:
If Orin Kerr says he doesn't want to defend the Fourth Amendment constitutionality of a government practice the arguments for that practice likely are not very good.

Nevertheless, the distinction between Sitz and Edmond was that the former involved the special needs exception for government purposes "beyond law enforcement." When the checkpoint is simply to look for drugs that is almost purely a law enforcement purpose. But when the purpose is to increase safety in a place that has become unsafe because of gun violence, I think that is a legitimate special need beyond law enforcement.

To put it another way, drunk driving checkpoints serve to detect drunk driving not only because it is illegal but also because it is unsafe. They also deter drunk driving in the first place. DC's checkpoint is not directed at detecting any crime (unless the police happen to develop probable cause during the stop) so arguably the argument that the special needs exception applies is stronger here than in Edmond.

Finally, although it was a 6-3 decision, Edmond was written by O'Connor. We have a different Court today and I would not count on Justice Kennedy to hold this is unconstitutional.
6.6.2008 8:48am
George Lyon (mail):
Why on earth would DC need to do this. After all the Chief touts how well DC's gun prohibitions are saving lives.
6.6.2008 8:58am
Prof. S. (mail):
How about we all just say screw it and go back to the days of drawbridges and moats?
6.6.2008 9:03am
Alex Denmark (mail):

The Supreme Court disagreed, concluding that the check points were unconstitutional because the government interest was a traditional law enforcement interest rather than something else like public safety.


Isn't the main purpose of law enforcement to promote public safety?
6.6.2008 9:06am
Alex Denmark (mail):

The Supreme Court disagreed, concluding that the check points were unconstitutional because the government interest was a traditional law enforcement interest rather than something else like public safety.


Isn't the main purpose of law enforcement to promote public safety?


I know the outcome based review isn't "the way it's done," but I'm pretty sure it's a practical consideration. If the authorities start to round up 5% of the population, the public will, capital WILL, get uppity.


What if 5% of the population are criminals? Should we not round them up because it looks bad?
6.6.2008 9:06am
Chuck Simmins (mail) (www):
As I read the story in the Examiner, I drew the conclusion that they were going to be stopping pedestrians. Does that make a difference?
6.6.2008 9:47am
Layedback (mail):
Even if the checkpoints were deemed constiutional, would any eveidence seized as a result make it to court? The nature of the initial contact between officer and citizen, would tend to lend itself to supression of evidence motions wouldn't it? How can the government imply probable cause when the initial contact between the officer and criminal was compulsory, i.e. could a would-be defendant claim that if, in the normal series of events and absent the compulsory interaction with law enforcement, he would have never been stopped by the police. This would be especially germane if the defendant would happen to reside in the area in question. I don't think it would pass the "smell test," but I'm positing it to real lawyers.
6.6.2008 9:48am
Layedback (mail):
before anyone shoots me down on the sobriety checkpoint point. An officer could reasonably assertain that a person is drunk-driving with the normal parameters the driving of the car without the stopping of the vehicle at a preordained "checkpoint", however, an officer could not assertain that someon was carrying a gun with out first stopping the vehicle and looking inside. Most weapons charges like that are done under the auspices of another charge, i.e. speeding etc.
6.6.2008 9:55am
Mark E (mail):
Four thoughts ...

a) The source of the crime problem is the criminals. Wouldn't it just be better to not to have the lawyers &judges let the criminals off easy?

b) Since DC is probably not going to hire more police and I'm sure that breaks, lunches, vacations etc. aren't going to be eliminated, where are the police that will man these check points come from? Are paper pushers going to be put into the field ... or are patrols and other enforcement activities be reduced?

c) It is always easier and safer for the police to go after the law abiding than it is to go after the criminals.

d) After Kelo, McCain - Finegold and other rulings, will the infrigement of another part of the Bill of Rights matter to the Supreme Court?
6.6.2008 10:28am
Seamus (mail):
I think that's a bit different than the local police chief simply deciding for the neighborhood that it in his esteemed judgment they would willingly submit to this

While I normally dislike lawyers' tendency to use "she" and "her" to refer to a person of unspecified gender, in this case it's probably more appropriate to say "her esteemed judgment," since we're really talking about a decision by D.C. Police Chief Cathy Lanier.
6.6.2008 10:51am
30yearProf:
The 7th Circuit also points out practical solutions, "authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check." What precludes the city from being concerned about impaired drivers and licensing? "the purpose inquiry is to be conducted only at the programmatic level."


I view this differently. The Seventh Circuit has just jumped on the PRETEXT bandwagon. Even worse, they have told the police just what lies the court is willing to accept (I don't think anyone "believes" the police in these situations).

There certainly aren't many civil liberty advocates regarding criminal procedure on the bench no matter which political party appoints them.
6.6.2008 10:58am
john w. (mail):
Isn't the main purpose of law enforcement to promote public safety?

I believe the proper Libertarian answer to that question is: "Hell, No!"

Citizens of a free republic are supposed to be responsible for their own safety. And the only function of professional law enforcement should be to apprehend suspect(s) *after* a crime has been committed and deliver them to the judicial system for trial.
6.6.2008 11:05am
Major John (mail) (www):

"We're going to go into an area and completely shut it down to prevent shootings and the sale of drugs."


We have these type of operations here in Iraq. They are called "Cordon and Search"...

And, yes, I am exaggerating for effect. I do not think this type of 'operation' is Constitutional or very effective. If they go ahead, I at least hope I am wrong on the effective part.
6.6.2008 11:06am
PaulTX (mail) (www):
This is the bottom line:


The difficulty is that four years after Maxwell, the Supreme Court took a different turn in its cases ...


And seven years after Carhart, the Court took a turn. And seventeen years after Bowers, it took another turn. And ...

Nobody knows -- nor can they know -- whether DC's checkpoint plan is "constitutional." It may or may not be constitutional depending on whether Justice Kennedy has his Cherrios. And that information isn't publicly available.
6.6.2008 11:26am
Richard Aubrey (mail):
IMO, attorneys consider such Fourth issues from the standpoint of admissible evidence.
When I was in the Army, we were told that various forms of sweeps (of the troops' lockers) would not generate any, not any, useful evidence for criminal procedures.
But we could lawfully confiscate illegal stuff (drugs, unauthorized weapons, booze, and so forth). And, of course, knowing who had had such stuff allowed command to know who to watch more closely in the future.

So, given that this is probably a useful distinction in civilian life, what would the constitutionality be of stopping, searching, confiscation of unlawful stuff (drugs and guns, for example) and not worrying about its admissibility since it's not going to court?
6.6.2008 11:54am
cboldt (mail):
-- The Seventh Circuit has just jumped on the PRETEXT bandwagon. --
.
Not that typing at 3 AM is an excuse, but I made a fat error in assigning the dicta to the 7th Circuit. The Edmond decision is SCOTUS. As such, it wipes out my "maybe a different Circuit would find otherwise" consideration.
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I think all the other factual distinctions are in play in the argument. I disagree that the DC plan is closely analogous to the unconstitutional activity described in the Edmond case.
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My sense of whether or not this is a constitutional violation (i.e., would I be pissed off) depends on many factors, most of which I outlined. If I have no business in the neighborhood, I can avoid contact with "the man." And even if I have a friend or business in the neighborhood, if the contact is fleeting, it's no more an intrusion than the several "courtesy stops" I've been under while driving at 3 AM. Once for a headlamp out, and once because the pickup truck had my motorcycle in the back (I was required to produce evidence of ownership).
6.6.2008 12:17pm
holdfast (mail):
Checkpoints - what is this, Sadr City? We've been fighting the "War on Poverty" in these cities for almost 50 years - I think we should all agree that the locals don't want us there, and it is therefore time to declare peace and "redeploy to an over-the-horizon" location. If the local citizens of Iraq Washington DC want to have a sectarian civil war, there is very little that a bunch of interlopers can do.

Peace in our time!
6.6.2008 12:29pm
wfjag:

When I was in the Army, we were told that various forms of sweeps (of the troops' lockers) would not generate any, not any, useful evidence for criminal procedures.
But we could lawfully confiscate illegal stuff (drugs, unauthorized weapons, booze, and so forth). And, of course, knowing who had had such stuff allowed command to know who to watch more closely in the future.


Richard -- my experience as a military prosecutor is that evidence seized during a properly scheduled and conducted Health &Welfare Inspection was admissible. However, there were problems when Commanders and NCOs tried to use a HWI as a pretext to conduct a search without probable cause -- like looking at all but one person's locker and bed, saying "OK, looks squared away" and then dismantling Private Doper's locker and bed. I spent a lot of time keeping Commanders and NCOs within proper bounds.

I don't believe, however, that HWI procedures can be applied to civilian life. Service members give up significant privacy and other rights. Enlistment is recognized by the courts as a change in citizenship status. Although a Commander can inspect privately owned vehicles for safety hazards -- tires, brake lights, head lights, etc. -- and proof of current license, registration and liability insurance, that doesn't allow crawling into and taking apart a vehicle to see if something is hidden in it. That type of search still requires probable cause. And, for Commanders who fail to understand that, Art. 138, Uniform Code of Military Justice, 10 USC 938, is a career ender.
6.6.2008 12:30pm
30yearProf:
So, given that this is probably a useful distinction in civilian life, what would the constitutionality be of stopping, searching, confiscation of unlawful stuff (drugs and guns, for example) and not worrying about its admissibility since it's not going to court?


If this isn't unconstitutional, then the "police state" has arrived.

In the military, the theory is sort of property oriented. The Commander "owns" the tools in his unit (including the people) and he can perform "preventive maintenance" on those tools completely outside the UCMJ system. This is under his "health and welfare" power (that's why there is no physician-patient privilege in the military, BTW).

In civilian life, no one "owns" us and we can do whatever we like unless the government can force us to do otherwise and there are a limited number of "doors" through which the government can get into my life. The government has no general power to make citizens be or do good. Those doors are defined and controlled by the Constitution. Otherwise, we might as well be in the UK or the USSR (nice alliteration).
6.6.2008 12:42pm
cboldt (mail):
-- If this [search w/o cause, but no criminal prosecution to follow] isn't unconstitutional, then the "police state" has arrived. --
.
The threshold for assigning the label "police state" varies from person to person. Some would say as long as you have noting to hide, what's the problem? Anyway, there is another label, similar in nature, that being "surveillance state." Brought to you (in secret) by the WOD and WOT.
6.6.2008 12:48pm
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 06/06/2008 A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
6.6.2008 12:54pm
Jiminy (mail):
Can any lawyers here maybe draw a line connecting this action along with the Boston PD action to search houses for unregistered guns w/out a warrant? I'm trying to understand the 4th amendment issues there, as I believe the program came out of residents asking for help from police, which I seem to understand here in the DC instance as a similar request with the checkpoints.
6.6.2008 1:17pm
Richard Aubrey (mail):
wfjag
I was in forty years ago, just about. We called it a "shakedown". I recall, as an EM, having my stuff searched because the arms room was short a bayonet. I presume that was PC and if they'd found anything, it would have been admissible.

Your terminology is not familiar. We also had inspections, which were scheduled in advance, of course. Those would have found nothing, naturally.

But a shakedown was unannounced and did not require PC and we had been told that nothing, even a dead platoon leader, found in some guy's locker, was admissible. We were only looking for contraband. Nice to know where Lt. Fuzz had got to, and all. Still, nothing was admissible.
6.6.2008 1:19pm
JeanE (mail):
We all know DC has a crime problem, and if I were living there I would want help from the police to eliminate crime, and I don't just want them showing up to arrest the guy who drove by and shot my son- I want help PREVENTING crime in my neighborhood.
Can I as a citizen get together with my neighbors and set up barricades at the end of the street and prohibit anybody who doesn't live there or have legitimate business there from entering? If I don't have the legal authority to do so, how am I supposed to protect my neighborhood from crime? If I have the legal authority, but my neighbors and I don't have the resources and skills to carry out such an operation, can I call upon the local police department to help us out in protecting our neighborhood?

How can citizens and communities constitutionally implement programs like this to protect themselves? Governments are instituted in order to secure our inalienable rights. If criminals violate my rights without consequence, why do I need or want government?
6.6.2008 1:36pm
Soccer Hooligan:
Forgive me if this question misses the mark. But why couldn't this also be challenged as a due process or equal protection violation? Some version of the right to travel?

As proposed, this is not just a checkpoint, but a cordon. The government is not merely looking for criminals or information; it is turning people away if police officers are not satisfied that these people have a good reason to enter the cordoned area.

Thank you Professor Kerr.
6.6.2008 1:59pm
PatHMV (mail) (www):
Jiminy... the Boston plan simply involved police officers knocking on doors and asking for permission to look around. Because the folks were already in their homes, there is no "detention" of any sort; the police are not in any way stopping them from proceeding down the street or what have you. They're just doing what any private person has a right to do, knock on the door and ask a question. Under the law, I could knock on your door right now and ask if you would mind if I came in and rummaged through your stuff.

But you don't have a right to force people to not go down a public street, nor to demand that they produce ID before going down a public street. The police don't either, except in the circumstances allowed by the 4th Amendment.
6.6.2008 2:00pm
wfjag:
30YearProf:

While it is true that there is no physician-patient privilege in the military, that has nothing to do with "ownership". No such privilege was generally recognized at common-law, and Military Rule of Evidence 501(d) expressly provides that no such privlege exists.

It's highly questionable that such a privilege exists under Federal Rule of Evidence 501, also. Although there are cases, in dicta, referring to it, the holdings I have seen conclude that if it exists, it was waived or an exception exists. Two recent appellate cases have directly addressed the issue and both clearly held that there was no such privilege under federal law:

United States v. Jong Hi Bek, 493 F.3d 790, 801-01 (7th Cir. 2007):


Bek cannot establish that the medical records were subject to any privilege of confidentiality. Federal common law has not historically recognized a privilege between patients and physicians. Northwestern Mem'l Hosp. v. Ashcroft, 362 F.3d 923, 926 (7th Cir. 2004)("[T]he evidentiary privileges that are applicable to federal-question suits are given not by state law but by federal law, Fed. R. Evid. 501, which does not recognize a physician-patient (or hospital-patient) privilege."); see also Whalen v. Roe, 429 U.S. 589, 602 n.28, 97 S. Ct. 869, 51 L. Ed. 2d 64 (1977)("The physician-patient evidentiary privilege is unknown to the common law."). Bek acknowledges this shortcoming in his argument, but contends that we should find such a privilege here. He relies on Jaffee v. Redmond, 518 U.S. 1, 116 S. Ct. 1923, 135 L. Ed. 2d 337 (1996), in which the Supreme Court recognized a privilege between a psychotherapist and a patient and noted that under Rule 501 of the Federal Rules of Evidence, federal courts may define new privileges. Id. at 8, 10. But we can find no circuit authority in support of a physician-patient privilege, even after Jaffee. Indeed, in a decision issued after Jaffee, we declined to recognize such a privilege, see Northwestern Mem'l Hosp., 362 F.3d at 926, and we can find no reason to create one now.


cert. den. __ U.S. __, 128 S. Ct. 549; 169 L. Ed. 2d 374 (2007), and,

Helsabeck v. Fabyanic, 173 Fed. Appx. 251, 257 (4th Cir. 2006):


Third, Helsabeck argues that the district court should have excluded Dr. Tucker's testimony about Helsabeck's statements at the hospital because Helsabeck asserted the physician-patient privilege. The Federal Rules of Evidence do not recognize a physician-patient privilege where, as here, subject matter jurisdiction is based on federal law. See Fed. R. Evid. 501. Helsabeck nonetheless urges us to hold that the Virginia law on physician-patient privilege, Va. Code Ann. § 8.01-399(A), applies here because he asserts a pendent state law battery claim. Even if we found the Virginia privilege rule applicable, Helsabeck waived the privilege by putting his medical condition at issue, releasing his medical records, and failing to object when Fabyanic submitted Dr. Tucker's testimony with his summary judgment motion. See Va. Code Ann. § 8.01-399(B). We therefore conclude that the district court did not err by admitting Dr. Tucker's testimony.


Dear Richard:

I was a military prosecutor much more recently than 40 years ago. In the early 1980's the Military Rules of Evidence were adopted, which are based on the Uniform Rules of Evidence and Federal Rules of Evidence. However, MRE Article V, Privileges, are substantially different than the Uniform and Federal rules. I'm not saying that the Government didn't use the adoption of the MRE to change things in its favor ("We're from the Government and we're here to help you" is something any vet is quite familiar with), only that now, under a properly scheduled and conducted Health &Welfare Inspection (whether or not announced in advance to the unit), evidence found is admissible under the MRE. I have, however, also seen "shakedowns" -- and the Army, which has a separate Trial Defense Service whose attorneys are independent of the Command (&God help the Commander who forgets that) loves it when a Commander or NCO forgets the difference between a HWI and a shakedown. Unlawful command influence is a serious issue. Major General William Sutter, US Army (ret) [now Clerk of Court, US Supreme Court], ran afoul of that, and that is why, while he was Acting Judge Advocate General, US Army, he was never confirmed as The Judge Advocate General, US Army.

As a FYI, my late father was an Army Officer during WWII, and while not a JAG, the Articles of War didn't require that a Legal Officer be a JAG. He participated in some court-martials, and, his experience was likely more similar to yours than mine. Times do change things.
6.6.2008 2:01pm
DJR:

So, given that this is probably a useful distinction in civilian life, what would the constitutionality be of stopping, searching, confiscation of unlawful stuff (drugs and guns, for example) and not worrying about its admissibility since it's not going to court?


It is unconstitutional. I think your real question is, what stops police from doing this? The answer is that they can be sued for violating clearly established constitutional law. Giuliani is loved in New York for coming up with the idea of unconstitutional searches with no prosecutions just to get the goods off the street. It worked, though there is now a class action seeking to enjoin New York from continuing the practice.

While government usually defends police in court in these suits and picks up the tab if they lose (and passes it along to their insurance carrier), there could also be punitive damages, particularly where the officer knows the practice is unlawful and does it anyway. Most governments and insurance companies will not cover punitive damages, so if I were a police officer I would be very reluctant to follow this kind of policy.
6.6.2008 2:04pm
PatHMV (mail) (www):
JeanE: The cure would be worse than the disease, over all. What can neighborhoods do? Organize neighborhood watch. Demand that the city increase patrols in your neighborhood. If the neighborhood can afford it, form a homeowner's association and collect dues to pay for patrols by off-duty officers. Just call the cops on a regular basis to report the drug deals you see going down.

In some communities which have had a problem with prostitution, local activists have very visibly photographed the johns coming to purchase services. Do the same thing with the drug dealers.

There's a LOT which can be done to fight crime without putting up checkpoints which would be more suitable in Beirut or Belfast.
6.6.2008 2:05pm
whit:
i am hardly extensively versed in the relevant case law.. however.. i cannot see how this is constitutional. no way!
6.6.2008 2:24pm
General Disarray:
wfjag,

What would you have said to the commander of a soldier who lived in town, and who accidentally(?) shot himself in the foot, when that commander suggested that an officer or staff NCO should proceed to said soldier's residence and confiscate his firearms? The XO and I told him that we didn't think that was OK. (Neither of us was a lawyer at the time.) I've never been entirely sure whether we were right.
6.6.2008 2:59pm
Thoughtful (mail):
What is the evidence we no longer live in a free society? The chief of police in the nation's capital is seriously talking about cordoning off areas of the city--whole neighborhoods--and demanding that people acused of no crime justify their desire to enter such areas to government officials who have the power to turn them away, and intelligent people, many lawyers, are having a serious argument as to whether or not that might be constitutional...
6.6.2008 3:03pm
Railroad Gin:
The only rationale of Sitz that makes any sense is that DUI poses a sort clear and present dange, thus getting a drunk driver off the road while he is still drunk thereby saves "the children." Its not just about punishing him or deterring others, but removing an immediate threat. According to Edmonds, the same thinking doesn't apply to drugs.

Personally, I don't buy any of this. Unless you can show me some case from the 1800s upholding checkpoints along the Oregon Trail, I think its clear that this sort of stuff violates the Fourth Amendment. The idea of internal checkpoints where people have to show their papers is a B-movie parody of the sort of thing the Bill of Rights was supposed to prevent. As applied to people walking and not even driving this should be a no-brainer.

Having said that, there's enough caselaw both ways that the police officers in DC are entitled to qualified immunity and punitive damages is out of the question.

Sadly, the impossibility of punitive damages is a bigger no-brainer under current law, than that the Fourth Amendement forbids whats happening in DC.
6.6.2008 3:07pm
sobi:
What I like about VC is that the commentary is extended to the human spectrum including emotions and in-your-face principles. It gives life back to the law.

This issue is so contentious, it is hard to resist.

Whit, you confuse me. Is there more than one person using that name?

The debates keep reaching back to the allowable stop and search of a vehicle at a checkpoint to prevent drunken drivers from careening down the road. I always have a thought in the back of my mind that says: why does getting into a vehicle and driving suspend the constitution?

If the constitution can be suspended, then what must be argued first is why, outside of marshal law, not where and when or under what reasoning.
6.6.2008 3:13pm
NickM (mail) (www):
They're also demanding identification and announcement of purpose from passengers.

That one goes beyond Maxwell, never mind that Edmond overruled Maxwell.

DC municipal government has never let unconstitutionality get in the way of a markedly stupid idea.

Nick
6.6.2008 4:01pm
jgshapiro (mail):
I don't get why this doesn't fit with the public safety rationale of Sitz.

(1) You have an area that is consumed by gun violence.
(2) You are trying to intercept guns from entering that area. That is directly related to the danger.
(3) You are also in a city that has outlawed most gun possession (for now, this law still stands) and probably never grants a concealed weapons permit.

So possessing a gun in a car probably violates the law, irrespective of what you intended to do with that gun, and intercepting that gun would likely lead to greater public safety.

Moreover, while I don't have any data to back this up, I think it is safe to say that you are far more likely to save lives or prevent serious injury from stopping one of these illegal (carried w/o permit) guns from entering the area than you are from stopping a drunk driver from driving home.

You also have consent of the residents most likely to be affected by the searches, unlike in Sitz.

I just don't see how this isn't resolved by Sitz, unless the contention is that Edmonds (very silently) overruled Sitz.
6.6.2008 5:07pm
Kevin Murphy:
The CHP has a standard method of avoiding this issue: they set up their checkpoints adjacent to a probable-cause generator, such as an absurdly-placed stop sign which everyone rolls. This gives them the chance to detect drunk drivers and write a bunch of tickets, too.
6.6.2008 9:08pm
holdfast (mail):
All joking aside, I am probably one of the most pro-police, law and order guys you will ever meet, and to me this just screams "unconstitutional". They are not just searching cars for guns - they are turning back anyone who does not have a "legitimate" reason to be in the neighborhood. I'm sorry, I thought this was the USA, not Soviet Russia or the Passbook days of Apartheid South Africa?

DC has a crime crisis for a bunch of totally unsurprising reasons: The citizenry is disarmed, the local economy retards job creation, the police are underresourced, the law is regularly flouted to the point where a crackhead ex-mayor can win election to the City Council, most kids are born with no father, just a babymamma... I could go on, but instead of dealing with these problems, they are effectively declaring martial law?
6.6.2008 9:36pm
Jeffery W Wilson (www):

George Lyon: Why on earth would DC need to do this. After all the Chief touts how well DC's gun prohibitions are saving lives.

Good question. Perhaps they'll stock a stack of bills at each checkpoint, so MPD can conduct a quick gun "buy-back".
6.6.2008 9:51pm
Jeffery W Wilson (www):

holdfast: DC has a crime crisis for a bunch of totally unsurprising reasons: The citizenry is disarmed, the local economy retards job creation, the police are underresourced, the law is regularly flouted to the point where a crackhead ex-mayor can win election to the City Council, most kids are born with no father, just a babymamma... I could go on, but instead of dealing with these problems, they are effectively declaring martial law?

Perhaps, but the District does have a great new baseball stadium (taxpayer-financed), and is considering building a new soccer stadium (which may also be taxpayer-financed). If you can't fix the underlying problem(s), improve the window-dressing.
6.6.2008 10:11pm
jdd6y:
So does this mean that Riverside County's fireworks checkpoint in Baker is unconstitutional?
6.6.2008 10:44pm
Strat (mail):
JeanE asks:

How can citizens and communities constitutionally implement programs like this to protect themselves? Governments are instituted in order to secure our inalienable rights. If criminals violate my rights without consequence, why do I need or want government?


Merchants have done this in cities for years, and often with better results than asking for prophylactic measures from the police. They have banded together, pooled resources and retained private agencies for the purposes of monitoring and encouraging appropriate behavior within a small circumscribed area.

Given that the courts have ruled that the police have no duty to protect us from loss before the fact, it's disingenuous for them to intimate that they're capable and willing to do that.

In the rare cases (this may well be one), where the police are willing to attempt it (potentially at the expense of their real job), they often are constrained either through resources or legality to using tools that are disproportionate to the problem. I'd cast this as an example of that.

The police are well aware of the power of a "request." There is no lack of instances where private entities use the same means to foster the security of the environs with which they are charged.
6.7.2008 10:02am
wfjag:
Dear General Disarray:

I saw something similar recently. The Soldier, a senior NCO who is a small arms expert, shot himself in the foot while cleaning a personal weapon at home. He's also a multi-tour combat vet. The first response was to order him to undergo a psych eval to determine if he was suicidal -- he wasn't. He got complaisant. He was also ordered to have his personal firearms secured in the Provost Marshall's arms room until remedial action/training was completed. The remedial action was that he had to compete the post firearm's safety and qualification (in which he was, by far, the highest ranking enlisted Soldier, as this was the basic and not refresher training), and to complete a state approved firearm's safety course (which is a fairly thorough course). He then was ordered to teach the Company a firearm's safety class -- with emphasis on the dangers of being complaisant when handling firearms. And, a Line of Duty Investigation was done -- which concluded that his injury was Not Line of Duty, Due to Own Misconduct. This last meant that he did not receive medical care at gov't expense (i.e., no TRICARE coverage, so he's paying for the EMS run and ER), and will not be entitled to treatment of any future problems by the VA. The reason for having him teach a class to his Company was not to humiliate him (everyone knew what had happened). Rather, it was to kill the rumor mill that it wasn't an accident and to impress on less experienced Soldiers that since someone as experienced as the NCO could hurt himself when he cut corners, firearms are always dangerous and safety steps are to be followed always. One reason for ordering that his personal weapons be stored in the PM's arms room was to head off any attempts by civilian police seizing them as potential evidence while they investigated what happened (they were also concerned about a possible suicide attempt, and would possibly have used the "potential evidence" excuse to get the guns out of the house till that was investigated). Another reason was that his wife, a German lady, was pretty P.O.ed, so getting the guns out of the house for a while was probably a good idea, since she probably would have beat him to death with one of them till she calmed down.

Not all of these are legally sufficient reasons, I suspect. As for effect on the NCO's career, I understand that the class he taught was very thorough and he'll get a positive "bullet comment" (some irony under the circumstances that that's what it's called) on his NCOER about the class, and he's made some young troops believers that firearms safety is a no BS subject.

I agree that the "book answer" is that a Commander cannot lawfully seize a Soldier's off-post property. However, a Commander can always suspend a Soldier's pass privileges and order him or her to reside in the barracks due to safety concerns -- which separates the Soldier from his or her privately owned weapons. This can be a very important point when there are domestic problems. It's better, I believe, to look at a range of responses and tailor them to the situation and not use a "Yes/No" book answer response to a series of questions that are considered discretly. I guess the real answer to what you faced was "Did it work?" If so, then you did the right thing. Good Officers and NCOs know their troops. Everyone screws up sometimes, but some learn from their and others mistakes, and others don't or blame others. There's no one size fits all answer.

I see this as a material distinction between how the military responds and how civilian police respond. Civilian police use a one size fits all approach, and under that approach must treat everyone equally.

I only see one useful lesson the the civilian police can draw from the military. The US military went into Iraq lacking good HUMIT. It adopted policies very similar to those of big city police departments -- operate from big, secure stations, ride around in vehicles that prevented contact with the citizens, rely heavily on bribes for info on who were trouble makers, and respond to the insurgents and in so doing give up the initiative. The approach failed in Iraq just like it failed in Haiti. The surge has worked not merely because additional troops were deployed. Rather, it worked primarily because the troups were deployed out of the bases and started living and working with Iraqi security forces in neighborhoods. They started "walking the beat." They got to know the citizens, who began to trust them and tell them who the insurgents are and where the weapons, money, etc., were hidden. This is a proactive strategy based on facts on the ground. Until city police forces get back to having cops walk the beat and get to know the citizens living in their neighborhoods, I doubt it really matters what they do.
6.7.2008 10:56am
whit:
fwiw, DC police (at least in the recent past) has a reputation as being pretty frigging mediocre (at best).

part of the reason is that nobody would want to work there when there are agencies that treat you much better, and pay you much better, in the near vicinity. what's the draw? they also employed RIDICULOUS affirmative action program that practically ensured they would hire (and promote) grossly underqualified applicants/cops. with predictable results.

the only agency i can think of offhand with as bad or worse a reputation is (pre-katrina... i can't speak for post-katrina) new orleans PD.
6.7.2008 5:50pm
30yearProf:
The debates keep reaching back to the allowable stop and search of a vehicle at a checkpoint to prevent drunken drivers from careening down the road. I always have a thought in the back of my mind that says: why does getting into a vehicle and driving suspend the constitution?


Me too.

I believe Orin said last week that he liked the rule. Maybe he can explain it's basis.

It can't just be that cars were strange and new (even most Judges didn't have one) in 1932 or whenever the S.Ct. first decided that there was no expectation of privacy in an automobile (whose expectation? did they ask for any evidence? do expectations change or are we all stuck in 1932?)
6.8.2008 12:39am
whit:
of course there is an expectation of privacy in a vehicle. if there wasn't (as you claim), then cops could search a vehicle for no reason. that's not the case. they need RS to pat-frisk the lunge area, and PC to search (in those states that allow PC searches. mine doesn't, w/o a warrant, but we do have search incident).

you might mean you have a DIMINISHED expectation in a car vs. a home. but you certainly have AN expectation of privacy in a car.
6.8.2008 12:56am
sobi:
I'm not sure what you're responding to whit, but an expectation of privacy, diminished or otherwise, belongs to the person, not the location.

That is why a landlord cannot waive a renter's right to privacy.

But privacy is a bit of a red herring in the sense that without probable cause, an individual cannot be stopped unless, arbitrarily, one is in a car. That is the primary point at which the constitution becomes suspended--when it involves a driver, who by operating the vehicle, has somehow become less of a citizen.

Which is why it relates back to the stops of vehicles approaching the target neighborhood.

I've read several articles, and so far have not come across one that said pedestrians are being stopped.

So even in an abuse of the constitution, the police recognize that driving a vehicle diminishes a citizen's constitutional protection.

I'm saying it shouldn't.
6.8.2008 4:14am
30yearProf:
you might mean you have a DIMINISHED expectation in a car vs. a home. but you certainly have AN expectation of privacy in a car.


And, on the head of the pin, we find 7,426,804 angels dancing.
6.8.2008 10:54am
whit:
30yrprof, spare me the snark. you were wrong and you knew it.
but this is the internet, so lord forbid you actually admit your error.

face it. you are wrong. you do have AN expectation of privacy in a motor vehicle.

but again, this is the internet, where most people are more concerned with their fragile ego. you were wrong. deal with it and move on
6.8.2008 6:49pm
whit:

I'm not sure what you're responding to whit, but an expectation of privacy, diminished or otherwise, belongs to the person, not the location.


im responding to (since you express that you have no knowledge of what i am responding to) the post above mine where 30yrprof erroneously stated that the scotus said that one does not have any expectation of privacy in a car.

that's false.


But privacy is a bit of a red herring in the sense that without probable cause, an individual cannot be stopped unless, arbitrarily, one is in a car. That is the primary point at which the constitution becomes suspended--when it involves a driver, who by operating the vehicle, has somehow become less of a citizen.


um, false. there is an expectation of privacy in a car, but it is LESS than an expectation of privacy in a residence.

similarly, generally speaking, there is less expectation of privacy in many respects in a licensed business than there is in a home.

fwiw, the federal constitution doesn't MENTION privacy. my state constitution does. it says you have the right to be free from unreasonable searches and seizures, but i am sure you know that.


I've read several articles, and so far have not come across one that said pedestrians are being stopped.

So even in an abuse of the constitution, the police recognize that driving a vehicle diminishes a citizen's constitutional protection.



look, i am of the opinion that this program by DC is unconstitutional. but that has (apparently) yet to be adjudicated.

but your language is incorrect. the police ***IN DC*** don't "recognize" what i don't perceive to be true. they BELIEVE it, and i am of the opinion that they are wrong.

i don't know if peds are being stopped or not. i don't rely on articles to be that detailed. i'd prefer to go to source documents. either way, it is my opinion that the DC cops are acting unconstitutionally.
6.8.2008 6:56pm
sobi:

But privacy is a bit of a red herring in the sense that without probable cause, an individual cannot be stopped unless, arbitrarily, one is in a car. That is the primary point at which the constitution becomes suspended--when it involves a driver, who by operating the vehicle, has somehow become less of a citizen.



um, false. there is an expectation of privacy in a car, but it is LESS than an expectation of privacy in a residence.


Yes, I saw that part, that he referred to a case where privacy was determined. I thought you might be responding to that, so I said I wasn't sure.

It could have extended also to my post where I said that driving suspended the constitution. I wasn't being snarky. When I am, it will be overtly snarky. It will be subtle, and finely tuned, but there won't be a question.

The constitution doesn't mention privacy, true, but it also doesn't mention cars for that matter. Privacy is an issue of person for me. But I also believe it is better to keep a secret than to reveal it conditionally and vetch later. I am a practical person.

My point is that there is confusion permitting the police to "believe" that the stop is constitutional. Whether it is recognize or believe is not significant for my purposes.

I believe that this confusion stems from a line of interpretations that treats a driver of a car differently than a pedestrian. I happen to think the error also lies there.

In another case, it has been years since I've read it, the Supreme Court ruled that a commercial enterprise did not have the authority to suspend the constitutional rights of those crossing its threshold.

They could not, by posting notice, or indicating that people knowingly waived their constitutional rights by crossing the threshold, create a free zone where constitutional protections did not apply and therefore, did not inhibit the commercial interest from electronic listening.

I think, but don't hold me to it, that this had to do with reasonable expectations of privacy inside an employer's building while being an employee.

I think this reasoning should extend to a driver inside of a car for the same reason. There is no authority to create a zone where constitutional protections can be suspended or lessoned.

We can't sign them away anymore than we can sign away liability.
6.8.2008 7:44pm
whit:

I believe that this confusion stems from a line of interpretations that treats a driver of a car differently than a pedestrian. I happen to think the error also lies there.


i'm not aware there was such a line of intepretation.

as i understand it, generally speaking you need RS to stop either - with exception noted below

i am aware there are very limited exceptions, such as DUI sobriety checkpoints (which are illegal in my state, since my state constitution HAS a right to privacy).

but at least from that example, that doesn't demonstrate the different expectations of privacy in peds vs MV's since there is no equivalent "walking under the influence" crime that has similar violent impact on other individuals.

there are other examples where you can stop a MV ***or*** a pedestrian w/o RS such as certain limited stops for investigations related to hunting, that i won't go into. but those apply EQUALLY to peds and MV's.

with motor VESSELS, there is no expectation of privacy, fwiw, since cops can stop you for a 'safety inspection' with NO RS whatsoever. that has always surprised me.

and again, i don't think the DC thing IS constitutional.


I think this reasoning should extend to a driver inside of a car for the same reason. There is no authority to create a zone where constitutional protections can be suspended or lessoned.

We can't sign them away anymore than we can sign away liability.



i agree. and fwiw, how would that apply to businesses that state that "guns not allowed within" when carrying a gun (at least in WA) is clearly a constitutional right?

i am NOT referring to liquor establishments, etc. where the limitation is due to state law (whether that is valid or not iyo), but if a business decides they don't want guns in their business and posts a sign.

i would argue they have no such authority, iow if somebody violated that and the business then became aware, they would have no trespassing complaint. whether once they became aware, they could tell the person to leave is another issue.
6.8.2008 8:02pm
sobi:
It does get tricky. The sobriety checkpoint is the line of reasoning I refer to along with other attempts to use it to expand stops without RS. For example, Driver's license checks were tried in Georgia, contraband in other states, and no doubt there have been some that have my attention. I lump the whole thing together under line-of-reasoning, but it wouldn't necessarily fly in a legal arena my way.

Guns in particular make for sticky walking. For me, I have a hard time saying I want a business establishment to be able to set a dress standard, ties, no bare midriffs, in other words an atmosphere of respect and mannerly behavior, and saying that provided one does so mannerly, one should be able to carry a well-styled gun.

I happen to think that is true, as well as I happen to think that there would be a great many more establishments where mannerly behavior was the norm if it were, but sometimes I have a difficulty finding the phrasing that permits me to apply a similar baseline to both situations.

Doesn't mean someone hasn't, just means I haven't come across it yet.
6.8.2008 8:32pm
whit:

It does get tricky. The sobriety checkpoint is the line of reasoning I refer to along with other attempts to use it to expand stops without RS.

but i contend that in and of itself that offers no proof that cars have a lesser standard than peds, more specifically that those driving a car have a lesser expectation of privacy vs. those walking. clearly, DUI is a crime that has no equivalent with pedestrians. scores of thousands die from DUI, with most of them innocent victims. not the case with pedestrians. i am not aware of any lesser expectation with people driving in cars vs. pedestrians, and the DUI checkpoint example doesn't offer any, for my reasons given.

so, again... the claim was made by one that those driving a car have no expection of privacy, which is OBVIOUSLY false.

your contention otoh is that cars are treated differently than walking such that people driving the former have lesser expectation of privacy than those doing the latter.

and i have yet to see ANY evidence to support this proposition. im not saying yer wrong (vs. 30yrprof who is wrong). i am saying you have provided no evidence to support this statement.

so, until that's done, i remain skeptical.
6.8.2008 9:04pm
sobi:
You're saying, if I interpret you correctly, that the risk of potential harm from possible DUI drivers is such that it justifies a stop without RS.

Then you go on to say that because there is no equivalent risk in pedestrian behavior, that it is fair to stop a driver without RS whereas stopping a pedestrian would be wrong.

Therefore, my saying that a sobriety checkpoint is a suspension of the constitution is incorrect.

Then you say there is no evidence that a driver is treated differently than a pedestrian even though they can be stopped at a sobriety checkpoint, because there's no comparable death toll.

I say that death toll is a statistic pulled in from the outside to provide rational for a situation where, were there no actual difference, wouldn't require one.

There is a difference.
6.8.2008 9:32pm
30yearProf:
Whit says:
you might mean you have a DIMINISHED expectation in a car vs. a home. but you certainly have AN expectation of privacy in a car.


Yes, and I have a hair or two on my bald head. ;-)

The judicially recognized expectation of privacy of an occupant of an automobile is almost zero.

Here's one simple explanation of how it disappeared.

The Supreme Court recognizes three distinct doctrines permitting the police to search automobiles without warrants. First, since Carroll v. United States (1925), a warrant has not been required so long as there is probable cause to believe that the vehicle contains contraband or evidence of a crime. This “automobile exception” has been greatly expanded since Carroll. For example, the Court held in California v. Carney (1985) that a mobile home capable of traveling on a highway was included within the exception, and in Wyoming v. Houghton (1999), the Court held that the police may use the exception to search the personal belongings of passengers (but not the passengers themselves).

Second, the Court held in New York v. Belton (1981) that the police may automatically search an automobile's passenger compartment without a warrant after arresting an occupant of the vehicle because a criminal may hide contraband or weapons in the vehicle before the arrest. Since the Court held in Atwater v. City of Lago Vista (2001) that the police may arrest motorists for even petty traffic violations, the police now have an incentive to arrest minor traffic violators in order to perform “Belton searches” of their automobiles.

“Inventory searches” are the third doctrine permitting the police to perform warrantless automobile searches. In Colorado v. Bertine (1987), the Court held that the police may thoroughly search vehicles that have been lawfully impounded for any reason. The Court explained that such inventory searches are justified to protect the owner from misappropriation, to protect the police from false claims of theft, and to prevent dangerous items from being stored on police property.

Taken together, the expansion of the automobile exception, Belton searches, and inventory searches have largely eliminated the expectation of privacy that American motorists may once have had in their automobiles.

LINK


More here:
Link TWO
6.8.2008 10:07pm
whit:

You're saying, if I interpret you correctly, that the risk of potential harm from possible DUI drivers is such that it justifies a stop without RS.


no. i'm not saying that. i'm saying the scotus has said that, and ONLY in very limited circumstances (the restrictions as to how checkpoints can be operated. a cop can't just drive around and decide to randomly stop cars because they might be dui.



Then you say there is no evidence that a driver is treated differently than a pedestrian even though they can be stopped at a sobriety checkpoint, because there's no comparable death toll.

I say that death toll is a statistic pulled in from the outside to provide rational for a situation where, were there no actual difference, wouldn't require one.



i don't think i grok your point here. are you saying that the death toll thang is some sort of excuse they are using to get away with it? not really sure.

fwiw, as i understand the history, dui checkpoints specifically, and DUI enforcement generally (the massive uptick in, and the way it is taken much more seriously) was largely a result of MADD etc. and not cops looking to expand their authoritah

fwiw, this may surprise you, but ime most cops don't like doing DUI's, dealing with DUI's in any way, shape or form.
there's a smaller subset that loves them, but most cops i know avoid them like the plague - the paperwork is ridiculous, drunks are annoying, to do them WELL requires that you do them frequently and/or pay a lot of attention to case law changes and NHTSA guidelines, etc. plus, DUI defense largely entails defense attorney's trying to pick apart the officer, more so than almost any other kind of case.
6.8.2008 10:36pm
whit:
30yrprof, i appreciate the links. i disagree with your conclusion. here's why

1) the carroll doctrine only means that police can do searches w/o a warrant. it does NOT eliminate the necessity for probable cause to do so. so, there is no effect upon expectation of privacy because the carroll doctrine does NOT ALLOW ANY SEARCHES THAT AREN'T SUPPORTED BY PC, WHICH IS THE SAME STANDARD REQUIRED FOR SEARCH WARRANTS. it merely makes them "easier" to do, so to speak, since you don't have to get a warrant FIRST. they are also still just as suppressable if it was found the cops didn't have PC.

2) Belton: cops have the authority to search a PERSON incident to arrest, regardless of their presence in a vehicle. when they are in a vehicle, the cops are essentially searching the "lunge area" which is what they could search if the person wasn't in a car.

3) i was not aware that atwater was "vehicle specific" . cops can ALSO arrest for petty PEDESTRIAN VIOLATIONS and then search incident to arrest, so what is the DISTINCTION between peds and vehicles? that was what was being claimed, that i was saying i had not seen evidence for - that expectation of privacy had eroded in vehicles vs. pedestrians.

4) the concepts behind bertine are ALSO not pedestrian specific. if i arrest a guy with a backpack, i can search the backpack too. i guess the one bertine addition is a trunk can be searched (note that in WA state i can never search a trunk w/o a warrant or consent. bertine (and carroll) don't apply here. i can search incident to arrest, but WITHOUT an arrest, i need consent or a warrant. of course the VAST majority of cases where i have PC, i can arrest, and then search incident. so, there is little if any functional difference. if i have PC, but no arrest, then i can seize the car and apply for a warrant.)

i also noted at least you are saying "largely eliminated" REOP vs. "NO" expectation of privacy. so, at least you are now backpedaling :)
6.8.2008 10:47pm
30yearProf:
No, Whit, I'm saying that whatever "expectation of privacy" for us peons that the S. Ct. deigns to recognize is virtually indistinguishable from zero.

Now that I know you are a police officer and take everything so literally, I'll try to remember to say "tantamount to none" instead of "no."
6.8.2008 11:05pm
sobi:
Yes, it is SCOTUS who has said that, and yes, it must be a check-point, and not a random excuse to stop people.

No, I never thought the police were the driving force behind the court-created exemption from the 4th.

Yes, the death toll, usually referred to as public safety is the excuse used to violate the 4th at a sobriety checkpoint.

I don't suppose the police do like drunks, they can be exceptionally annoying as well as astoundingly dense, no argument there.

The whole preemptive law thing is troubling. MADD is just another PAC, and I have no doubt that their input had something to do with the increase in DUI enforcement as a preemptive measure.

None of that alters the fact that getting in a car and driving lessens one's constitutional protection against being stopped without cause. You can't polite your way through a check-point, so-to-speak, even when you are dull, conservative, and sober.

I don't think a check-point is consistent with the US constitution whether it is aimed at those presumably carrying crime, violence, or gun into a vulnerable neighborhood that would not have crime were outsiders not threatening to bring it, (there was a touch of sarcasm in that) or a sobriety check-point, Friday night after the bars close.

I realize that you've stated clearly that you are of the opinion that the DC check-point is most-likely unconstitutional, and you probably would not volunteer for a sobriety check-point given a choice.

But I wasn't really referring to you, or to LE in general when I said that a person getting into a car and driving should have the same freedom of movement generally extended to citizens of the US traveling by other means.

There are many places where freedom of movement is being restricted, check-points are being set-up, and citizens are subjected to various degrees of search and inquiry. A lot of these are related to 9/11.

Sobriety checkpoints are not. In that sense, they are uniquely troubling, just as the check-point outside the DC neighborhood is uniquely troubling.

I think it is, in part, because sobriety check-points were cleared by SCOTUS, that paved the way for the DC check-point to be believed constitutional.
6.8.2008 11:09pm
whit:

Yes, it is SCOTUS who has said that, and yes, it must be a check-point, and not a random excuse to stop people.

No, I never thought the police were the driving force behind the court-created exemption from the 4th.

Yes, the death toll, usually referred to as public safety is the excuse used to violate the 4th at a sobriety checkpoint.



you do realize you are begging the question, correct? you are stating as fact that DUI checkpoints *are* "court created exemption from the 4th", and that they "violate" the 4th.

i understand that's your opinion. but starting a post where your opinion is stated as if it was a fact is ... well... not cricket :)

fwiw, some states due to their MORE RESTRICTIVE privacy than the federal's do not have sobriety checkpoints - WA state comes to mind. WA state constitution has a right to privacy. federal does not. it has a right to be free from unreasonable searches and seizures.



The whole preemptive law thing is troubling. MADD is just another PAC, and I have no doubt that their input had something to do with the increase in DUI enforcement as a preemptive measure.



a gross understatement. MADD is VERY VERY influential. it is really quite amazing. they have helped change entire societal attitudes. watch the old road movies where driving around drinkin' was fun and acceptable. really.

MADD regularly lobbies for legislation, and i know some state reps (and a congressman) myself. trust me. MADD has legislator's (and the public's) ear.

MADD also gives awards to cops who are especially successful at DUI's, etc. and has been really strong about convincing dept's to have DUI units, etc.


None of that alters the fact that getting in a car and driving lessens one's constitutional protection against being stopped without cause. You can't polite your way through a check-point, so-to-speak, even when you are dull, conservative, and sober.




this i agree with. i get yer earlier point. while walking you have no chance of being stopped (legally at least) without some sort of reason that is articulable towards your own actions (community caretaking, reasonable suspicion, witness to a crime, probable cause), etc. there are no 'random ped checkpoints'.


I realize that you've stated clearly that you are of the opinion that the DC check-point is most-likely unconstitutional, and you probably would not volunteer for a sobriety check-point given a choice.



i couldn't. not legal in my state


after reading your post, i DO get your point. but i also insist that the DUI situation IS non-analogous to any ped situation.

DUI checkpoints ARE a restriction on free movement, absolutely. and i am clear that YOU consider them unconstitutional. personally, i LEAN towards that viewpoint, but i have not made up my mind.

i realize they are very narrow in scope as to times they can be run, methodology of stop, brief detention, etc.

i participated in the checkpoints in hawaii, and if people did not raise RS they were let go literally within 1 minute.
6.9.2008 2:16pm
sobi:
The other issue of privacy in a vehicle is going to get more complex and contentious.

New York has cases in dispute on the issue where a battery-powered GPS was attached to a suspect's vehicle sans warrant.

Privacy comes in because it is attached to the outside of the vehicle which is exposed to public view and provides no more information than what could have been gathered via a police observation team following the car which does not call for warrant.

Contrast with the thermal search for grow-light heat needing a warrant, and another interesting tidbit in that a public telephone booth leads to an expectation of audio privacy but not visual privacy.

I anticipate much controversy.

The issue is far from settled.
6.9.2008 4:57pm
whit:

The other issue of privacy in a vehicle is going to get more complex and contentious.

New York has cases in dispute on the issue where a battery-powered GPS was attached to a suspect's vehicle sans warrant.

Privacy comes in because it is attached to the outside of the vehicle which is exposed to public view and provides no more information than what could have been gathered via a police observation team following the car which does not call for warrant.



we've already had that issue adjudicated in WA. in WA we need a warrant/order to attach one. but again, our constitution specifically recognizes "privacy".

i agree that otoh, it seems no different than merely having a helicopter surveil the vehicle. iow, it provides no more information than a method that does not require a warrant.

however, i think this falls under the "it's not practicable " theory.

iow, while it technically provides no more information, using a helicopter (or roving surveillance) is prohibitively expensive and.or logistically difficult, such that there is a natural reason that it is not used all that often.

but it's so easy to attach a GPS. heck, if GPS became cheap enough, cops could go around and attach GPS to EVERYBODY's car. is that really what we want as a society?

in reality, much of our "privacy" comes out of convenience. there is no (as far as i know) constitutional reason that we couldn't stick a cop every 50 ft on every freeway, road, sidewalk, etc. or at least a video camera. but it's not practicable, so it's a non-issue constitutionally. but assuming it was practicable, is that the kind of surveillance society we'd want to live in? i would argue no. go to england for that stuff :)

otoh, i'd suggest a compromise for GPS. since it DOES merely make a method of surveillance (like following in a helicopter) more convenient (and cheap), but is kind of "icky", then requiring reasonable suspicion to attach a GPS would at least require a threshold - iow, cops couldn't do it randomly.

i think that would be a fair compromise.
6.9.2008 8:13pm
The Unconcievable Truth:
In all reallity its illegal. There aren't to be checkpoints anywhere else than on the boarder or for drunk drivers. This is just warming the people up to a complete turnover to a police state. Imagine, more of these checkpoints popping up, heavily armed units patrolling your neighborhood. A situation where a fistfight breaks out between two middle school kids could be considered breaking the law, and these said patrollman could take any action they felt nessicary. Its a bunch of bs, and if people dont start opening their eyes sooner than later, more and more of these checkpoints will be showing up, and more and more of our freedoms raped from us americans.
6.13.2008 6:15pm
Letter to Representative:
Hey all,
I'm trying to draft up a letter to send to my local representatives and request an official congressional inquiry into this matter. Below is what I have drafted. If you want to take a look at it, add in your two cents, it would be greatly appreciated!


I am writing you today to inquire and comment about a recent incident involving the Washington Metropolitan Police Department and the use of “Neighborhood Safety Zones”. On June 4, 2008, in Washington DC, the local police set up military-style checkpoints in the Northeast neighborhood known as the Trinidad area. According to a recent article in the Washington Post dated June 5, 2008 (D.C. Police to Check Drivers in Violence-Plauged Trinidad) ,

“the checkpoint will stop vehicles approaching the 1400 block of Montello Avenue NE, a section of the Trinidad neighborhood that has been plagued with homicides and other violence. Police will search cars if they suspect the presence of guns or drugs, and will arrest people who do not cooperate, under a charge of failure to obey a police officer, officials said.”

As you are aware all citizens of the Unites States are afforded protections under the Fourth Amendment of the Constitution; “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” These suspicionless checkpoints are clearly a violation as they infringe upon rights provided in the Constitution and previous rulings made by the Supreme Court of the United States. The mere fact that people would be arrested if they did comply with a warrantless search is completely unconstitutional and unwarranted.

The Supreme Court has held that the legality of automobile checkpoints are governed by a reasonableness standard under the Fourth Amendment. The cases try to balance the government's interests against the privacy interest and permit the automotive checkpoint when the government has a good reason and the infringement on privacy is minimal. So, for example, the police can use a drunk driving check point, or an immigration checkpoint, so long as they are well designed to minimize the privacy intrusion. See, e.g., Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) (drunk driving checkpoint okay); United States v. Martinez-Fuerte, 428 U.S. 543 (1976) (immigration checkpoint okay)

According to the DC Metropolitan Police Website: (http://mpdc.dc.gov/mpdc/cwp/view,a,1238,q,565204.asp) , the police department has justified the “constitutionality” of these searches with the Supreme Court case of Maxwell v. City of New York, 102 F.3d 664 (2d Cir. 1996). However, in 2000, the Supreme Court took a different turn and set a new precedent as held City of Indianapolis v. Edmond, 531 U.S. 32 (2000). In Edmond, the City of Indianapolis set up vehicle checkpoints to search for drugs. The city was worried that people were bringing narcotics into the city, and they figured that they could set up reasonable checkpoints to deal with the drug problem much like the earlier checkpoints had dealt with the problems of drunk driving and immigration. The Supreme Court disagreed, concluding that the check points were unconstitutional because the government interest was a traditional law enforcement interest rather than something else like public safety. Quoting the court “While we do not limit the purposes that may justify a checkpoint program to any rigid set of categories, we decline to approve a program whose primary purpose is ultimately indistinguishable from the general interest in crime control.” The question is now whether the checkpoint is being used to protect the “general interest in crime control”, which is obviously the purpose of these checkpoints, to reduce the general amount of violence and crime within these neighborhoods. By stopping every car entering this neighborhood to determine if a crime has been committed, it is simply infringing on the right to privacy of every citizen subject to these searches.
Additionally, police officers have turned people away from the neighborhood if they did not have a “legitimate purpose” such as going to a doctor or going to Church. However, people who simply wanted to travel through the area were turned away. Since when should our nation’s capital be similar to the likes of checkpoints that existed in Berlin during the Cold War? The answer is never! Again, as confirmed by Supreme Court rulings, the government may not restrict our right to travel without due process of law (which is clearly happening in this case). In Kent v. Dulles, 357 U.S. 116 (1958) (overruled by Regan v. Wald, 468 U.S. 222, reh'g denied, 469 U.S. 912 (1984)),[2] the United States Secretary of State had refused to issue a passport to an American citizen based on the suspicion that the plaintiff was going abroad to promote communism. Although the Court did not reach the question of constitutionality in this case, Justice William O. Douglas held that the federal government may not restrict the right to travel without due process:
“The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. If that "liberty" is to be regulated, it must be pursuant to the law-making functions of the Congress. . . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.”

Additionally, even if there is no “right to remain” in our Federal Constitution, there is a right to travel interstate, and there might similarly be a right to travel intrastate to the extent necessary to engage in the ordinary activities of life." (citing Johnson v. City of Cincinnati, 310 F.3d 484, 496–98 (6th Cir. 2002) for the latter proposition). Traveling at ones own will and driving on whatever road one would like to is inherent to engage in the ordinary activities of life without infringement by the police.

I request that your office investigate this incident at its earliest convenience. This ongoing suspicionless roadblock represents a clear and present danger to the rights of the American people as well as a misuse of government resources. Additionally, I request that the Chief of Police, Cathy Lanier undergo administrative review for her disregard and contempt of court. I hope you as well as your office sees the clear and convincing violations of civil rights committed by the Metropolitan Police Depatment.
6.17.2008 9:18am