It seems like the United States Supreme Court is divided over many issues these days. The validity of the presidential election hardly stands alone amidst the many hotly contested decisions plaguing the divided Court.

The case of City of Indianapolis v. Edmond is one of those decisions. It involves the validity of a highway checkpoint conducted by the City of Indianapolis. According to the majority opinion, the checkpoint was set up in an effort to interdict unlawful drugs. Three dissenting justices felt that another purpose of the roadblock was to check driver's licenses and vehicle registration. This split in opinion among the justices may be an indication that the majority decision does not stand on firm footing, and therefore may be a candidate for reversal as the politics of the Court change. We will begin with the majority's analysis of the case before discussing the hotly disputed issues in the eyes of the dissenters.

In August 1998, the City of Indianapolis began conducting a series of roadblocks designed to uncover illegal drugs (among other things, per the District Court record and the Supreme Court dissenters). The checkpoints were conducted according to written directives issued by the city's police chief. They were generally operated during daylight hours and were identified with lighted signs reading, "Narcotics Checkpoint -- One Mile Ahead, Narcotics K-9 In Use, Be Prepared To Stop." Once a group of cars was stopped, other traffic proceeded without interruption until all of the stopped cars had been processed or diverted for further processing. The officers were directed to stop each vehicle in the same manner. One officer advised drivers that they were being stopped briefly at a drug checkpoint and the drivers were asked to produce a license and vehicle registration. At the same time, another officer looked for signs of impairment and conducted an examination of the vehicle from the outside only. Additionally, a narcotics dog was walked around the outside of each stopped vehicle. All of these maneuvers were accomplished in less than two minutes. The directives instructed the officers that they were permitted to conduct a search only by (1) consent of the driver, or (2) based upon particularized suspicion.

Between August and November 1998, law enforcement officers stopped 1,161 cars, and made 104 arrests. Fifty-five of the arrests involved drug related crimes, while forty-nine were unrelated to drugs. The defendants, motorists who were stopped at the checkpoint, filed suit against the city asking for a preliminary injunction. The District Court denied the injunction, but the Seventh Circuit reversed, holding that the checkpoint contravened the Fourth Amendment. An appeal to the United States Supreme Court followed.

The Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. The Court has recognized only limited circumstances in which the usual rule of individualized suspicion does not apply. Some special needs searches include random drug testing of student-athletes; drug tests for United States Customs Service employees; and drug and alcohol tests for railroad employees. The Court has also upheld brief, suspicionless seizures of motorists at fixed border patrol checkpoints, and at sobriety checkpoints aimed at removing drunk drivers from the roadways.

PRIOR DECISION ON ROADBLOCKS

Fourth Amendment rights are protected at checkpoints where appropriate limitations on the scope of the stop have been mandated. This rule was announced in one of the older Supreme Court decisions, United States v. Martinez-Fuerte, 428 U.S. 543 (1976). In that case, law enforcement officers set up two permanent checkpoints located on major US highways approximately 100 miles from the Mexican border. Numerous problems presented by the influx of illegal aliens -- including a longstanding concern for the protection of the integrity of the border -- prompted the use of roadblocks.

In analyzing the constitutional issue, the Court balanced the United States' interest in checking the flow of illegal immigrants against the limited objective and subjective intrusion the roadblocks caused motorists. The objective intrusion -- the stop, the brief questioning of the occupants and a visual inspection of the car -- was considered by the Court to be "limited" because neither the car nor its occupants were searched. The subjective intrusion -- the fear and surprise awakened in law-abiding citizens by the nature of the stop -- was found to be minimal because of the regulated manner in which the checkpoints were operated. The Court said that the signs posted on the highway offered motorists visible evidence of the legitimacy of the stops. This type of standardized operation is markedly different from roving patrols in which officers might exercise unbridled discretion in interfering with motorists' use of the highways.

In Delaware v. Prouse, 440 U.S. 648 (1979), the Court seemed to approve of roadblocks to check for valid driver's licenses and vehicle registrations, although the particular roadblock in Prouse was held invalid. In that case, the officer's conduct was unconstitutional because the stop was not the product of a roadblock at all, but rather a sole police officer's decision to stop the motorist at random because, as he candidly admitted later, "he had nothing else to do at the time." The officer's exercise of "standardless and unconstrained discretion" was deemed to violate the Fourth Amendment. However, the Court added, gratuitously, that if certain standards had been met and the officers did not exercise unbridled discretion, a roadblock or checkpoint for the purpose of checking driver's licenses and vehicle registrations would pass constitutional muster.

THE "REAL" ROADBLOCK PRECEDENT!

In Michigan Dep't. of State Police v. Sitz, 496 U.S. 444 (1990), the Court upheld the State's use of highway sobriety checkpoints. In doing so, the Court analyzed the issues according to the framework set out in Martinez-Fuerte. Utmost in mind, said the Court, was the State's interest in curbing drunk driving. By contrast, the objective intrusion upon a motorist resulting from a stop of approximately 25-seconds was found to be slight. As to the subjective intrusion, the checkpoint was set up pursuant to guidelines formulated by the department and uniformed officers conducted the operation. The use of these procedures served to alert motorists of an official police operation, at which all drivers were stopped, as opposed to the use of random stops, where intrusions such as fear and anxiety were likely imposed upon those randomly chosen by an officer. Additionally, the program had proven to be effective because it led to the arrest of two drunken drivers out of the 126 stopped. The threat to public safety posed by drunken drivers has been well documented and often provides the sole justification for the use of a roadblock.

If the common strand here seems to be highway safety, then why not validate a drug stop? Well, said the Court, we never approved of a "checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing." If you fail to make the distinction between the case at bar and prior opinions of this Court, you are not alone. Would a driver sniffing cocaine present a lesser hazard to others as one drinking alcohol? The majority opinion does not really address or explain the distinction (or the lack thereof). Drug trafficking is simply labeled "ordinary criminal activity." Should we assume that drunk driving is extraordinary criminal activity compared to the measly act of trafficking in drugs?

The majority explained that the checkpoint programs previously approved by the Court were those designed to serve purposes closely related to problems of policing the border or ensuring highway safety. Because the Indianapolis checkpoint was primarily set up for the purpose of uncovering ordinary criminal activity of drug trafficking, it contravenes the Fourth Amendment in permitting a suspicionless interference with motorists' rights.

The State emphasized the severity of the drug problem and the Court agreed, stating that it is a problem that is "daunting and complex, particularly in light of the myriad forms of spin-off crime that it spawns." Nonetheless, the majority concluded that the gravity of that threat could not be the deciding factor. In determining whether individualized suspicion is required, courts must consider the nature of the interests threatened and their connection to the particular law enforcement practices at issue. The Court is reluctant to add exceptions to the general rule of individualized suspicion where law enforcement officers primarily pursue their general crime control ends.

The State further argued that the Indianapolis checkpoint program was justified by its lawful secondary purposes of keeping impaired motorists off the highways and verifying that motorists are driving with current and valid licenses and registrations. But the Court did not agree with this argument either, and stressed their concern that such a rule would open the floodgate for law enforcement to establish checkpoints for virtually any purpose so long as it included a license or sobriety check.

THE DISSENTERS CALLED IT "HOGWASH"!

The dissenters complained that this case is simply a natural extension of the Martinez-Fuerte and Sitz cases. Looking at the facts, the District Court found that another purpose of the roadblock was to check driver's licenses and vehicle registrations. Also, there were written directives to look for evidence of impairment. The use of roadblocks to look for impairments in drivers was validated in Sitz, and the use of roadblocks to check for driver's licenses and vehicle registrations was, at least implicitly recognized in Delaware v. Prouse. End of story!

The dissent argued that because law enforcement had valid reasons for conducting the roadblock stops, it should be constitutionally irrelevant that the officers also hoped to interdict drugs. They relied on Whren v. United States, 517 U.S. 806 (1996), where the Court held that an officer's subjective intent would not invalidate an otherwise objectively justifiable stop of an automobile. In Whren, the reasonableness of an officer's discretionary decision to stop a vehicle turned on whether there was probable cause to believe that a traffic violation had occurred. By contrast, the reasonableness of a highway checkpoint, such as the one at issue in City of Indianapolis v. Edmund, turns on whether it effectively serves a significant State interest without causing more than a minimal intrusion on the motorist. The stop in Whren was objectively reasonable because the police officers had witnessed a traffic violation. The dissent argued that the roadblocks in this case should be objectively reasonable because they serve the substantial interests of preventing drunk driving and ensuring the general safety of drivers, by checking for vehicle registrations and driver's licenses, with minimal intrusion on motorists.

Once the constitutional requirements for a particular seizure are satisfied, the subjective expectations of the police officers are irrelevant, said the minority. Subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional. It is the objective effect of the State's actions on the individual's privacy interests that triggers the Fourth Amendment protection. Because the objective intrusiveness of a valid seizure does not turn upon anyone's subjective thoughts, neither should the constitutional analysis.

Further, added the dissenters, the seizure here was objectively reasonable in that it lasted only two to three minutes, and it did not involve a search. The subjective intrusion was likewise limited by the fact that signs indicating the roadblocks were clearly marked and operated by uniformed officers. Every vehicle was directed in the same manner. The only difference the dissenters find between this case and Sitz was the presence of a narcotics dog, and there is no indication in the record that the stop took longer because of the canine sniff.

Finally, said the minority, the checkpoints' success rate (49 arrests for offenses unrelated to drugs) merely serves to confirm the State's legitimate interest in preventing drunken driving and ensuring the proper licensing of drivers and registration of vehicles.

The dissenting justices admonished the majority for using a newfound law enforcement primary purpose test arguing that it will cause continuous uncertainty and litigation over the "purpose" of any seizure. Indeed, law enforcement officials designing roadblocks and checkpoints will never be sure of their validity, since a court might later find that a forbidden (or hidden) purpose exists. This may also discourage law enforcement from using the roadblock strategy altogether, which may result in more hazardous activity on the road.

It is likely that the irreconcilable discourse expressed in this opinion will resurface if and when the issue of roadblock rationale comes again before the Supreme Court. While the discourse itself may need revisiting to resolve these issues, as it should, let's hope that the result of the second go-around offers more direction and peace of mind to both law enforcement and to poor, mislead motorists, for whom the law purports to protect.