US Supreme Court Briefs

K~ U~LA~L~~
No. 99-1030
IN Tiw
F 2
~iupr~rnL' (court of tI~ ~riteb ~'tat~

Crv~ ()F 1NI)IANAI'( )I,IS, INDIANA, AN!) SUEPIILiN

GOiiy~MnI. IN his ()I:I:ICIALCAPACITY AS MAYOR OPlUE
Criv ov INDIANAPOLIS,

V.


JANILN I1)NIONI), fYI AL.,

Respondents.


On Writ Of Certiorari to the
I Inited Statc~ (oud of Appeals
I'or the Seventh Circuit



BRIEF OF TilE
NA'I'IONAI. IJKA(;IJIK OF (:ITIES, NATIONAL (;OVII{NORS' ASSOCIATION, NATIONAL
ASSOCIATION OF CouNTIES, COUNCIL 01' STATE
GOVERN M ENTS. INIERNATIONAI, CITY/(:OUNTY
MANAGEMENT ASSOCIATION, INTERNATIONAL
MUNICiPAl. LA~VYERS ASSOCIATION, AN!)

11.5. CONFERENCE OF MAYORS
AS A MW! CURIA F St I~PORTING PETITIONERS


RICHARD RUDA *
Chief Counsel
JAMES I. CROWLEY STATE AND LOCAL LEGAL CENTER
444 North Capitol Street, NW Suite 345 Vashinglon D.C. 2000!
(202) 434-4850
* ( ounsel of Record for the Ainici Curiae

W#L.ON - E.ie Pq,NTINo Co.. I.~c. . 7A9-0096 - WAU~'N~YON. DC. 20001
QUESTION PRESENTED

Whether checkpoints at which . law enforcement officers briefly slop vehicular traffic, check motorists' licenses and vehicle registrations, look for signs of impairment, and walk a 'narcotics detection" dog around the exterior of each stopped automobile are unlawful under the Fourth Amendment.































(i)
TABLE OF CONTENTS
Page

QUESTION PRESENTED
TABLE OF AUTHORITIES iv
INTEREST OF THE AMICI CUI?IAE I
SUMMARY OF ARGUMENT -
ARGUMENT 6

INDIANAPOLIS' ROADBLOCK PROGRAM
SATISFiES THE FOURTH AMENDMENT 6

A. Bro~~'n v. Texas Provides The Standard For Determining The Constitutionality Of
Indianapolis' Checkpoints 8

B. A Primary Purpose Of Inuerdicting Drug
Offenders Does Not Render Indianapolis'
Program Violative Of The Fourth
Amendment 18
CONCLUSION 27

















('ii)
iv
Cases
TABLE OF AUTHORITIES
Page
Brown v. Texas. 443 U.S. 47 (1979) passun
Camaro v. Municipal ('out-i. 387 U.S 523
(1967) 21
Chandler v. Miller, 520 U.S. 305 (1997) 19
Delaware p. Prouse. 440 U.S. 648 (1979) 9. II, 16
I lorida ~'. Rover, 460 U.S. 491 (1983) 25
Ga/bet-i v. United States, 590 A.2d 990 (D.C.
1991) 26
hop-ron p. ('abjonija. 496 U.S. 128 (1990) 25
Maryland v. Buje, 494 U.S. 325 (1990) 22
Michigan ~'. Summers. 452 U.S. 692 (1981) 22
Michi~'an Depi. of Slate Police i'. Sit:. 496 U.S.
444 (1990) J)(ISSIUI
New York v. Burger. 482 U.S. 691 (1987) 24
Pennsylvania ''. Mi,nms, 434 U.S. 106 (1977) 8
Soul/i Dakota ~'. Oppennan. 428 U.S. 364
(1976) 24
Texas v. Brown, 460 U.S. 730(1983) 25
Terry v. Ohio, 392 U.S. 1(1968) 5, 20,21
Treasury Employees v. Von Raab. 489 U.S. 656
(1989) 12
United .~tOte5 I'. Brh4itofli-POIWe. 422 U.S. 873
(1975) 8,9
United Suites i'. Martinec-Fuerte, 428 U.S. 543
1976) fl055ltfl

United States v. McFavden, 865 F.2d 1306 (D.C.
Cir. 1989) 26
United States i'. Mendenhall, 446 U.S. 544
(1980) 1,7, 14
United States v. Orti:. 422 U.S. 891 (1975) 10
United States i'. Place, 462 U.S. 696 (1983) passmnt
United States v. Robinson, 414 U.S. 218 (1973) ... 21, 22
Wh,'en v. United States, 517 U.S. 806 (1996) 5.24
V


TABLE OF AUTHORITIESContinued
Statutes Page
md. Ann. Code 9-24-1-1 md. Ann. Code 9-24-18-5
16
16
Other Autholities

Brief for Petitioners, Michigan l)cpt. of State Police ". Sit:. 496 U.S. 444 (1990) 6, 24
U.S. Department of Justice, Bureau of Justice Statistics. Drugs, Crime and the .hmstice System
(1992)
U.S. Department of Justice, Bureau of Justice Statistics, D WI Qifenders under Correctional
Supervision (1999) 24
U.S. Departlnent of Justice, Drug Enforcement
Administration. Table. Percentage of Adult
Males Testitig Positive t~r An~ I)rug at Time
of Arrest drtigstats.htm> 14
U.S. Department of Justice, Drug Enforcement
Administration, Table. Percemmma~'e of Adult
Males Testing Positive fbm~ Specific Drugs at
Time of Arrest in 1998 http://www.usdoI.
~zov/dea!stats/drugstats. htm 14
U.S. Department of Transpotiation, National
Highway Traffic Safety Administration
Drug Impaired Driving ht tp://wvw. nht sa.dot.
gov/people/outreaclilsalc ~obii I Sqp!xveb/iddrug
html 23, 23-24, 24
U.S. Department of Transportation. National
Highway Traffic Safety Administration.
Technical Report. Evaluation of Checkpoint
Tetmnessee: Tennesse&s Statewide Sobriety
Checkpoint Program http://www.nhtsa.dot.
~ov/pcop1e/inj ury/researchlCheh IennlChkptF
N.html 17

INTEREST OF THE AMICI CURIAE

Amnici are organizations xx'hose members include state, county, and municipal governments and officials throughout the United States. Anzici have a strong interesi in legal issues that affect state and local governments.

As Justice Powell wrote, "[tihe public has a compelling in-terest in detecting those who would traffic in deadly drugs for pet-sonal profit. Few problenm affecting the health and wel-fare of our population, particularly our young, cause greater concern than the escalating use of controlled substances." United States v. Mendetihall. 446 U.S. 544, 561 (1980) (Pow-ell, J.. concurring). The drug trade (lestroys lives and fami-lies, causes clime, ruins nei~Thborhoods, disrupts schools, strains the health care systems of urban areas, and harms business, industrv and workplaces. See U.S. Department of Justice, Bureau of Justice Statistics, !),-u~s, Crimne. and the .Iu.s-tice System mm 7- 14 (1992)'

The pervasiveness and extent of the harms caused by drug trafficking mandate innovative approaches to law enforce-ment efforts. Like other States and local govemments, Indi-anapolis has initiated a highly effective program of drug checkpoints, which is modeled on the programs upheld by this Court in Michigan Dept. of State Police i'. Sit:. 496 U.S. 444 (1990), and United State~.~ v. Martimme:-Fuerte, 428 U.S.
543 (1976). The program is conducted undet' strict guidelines which constrain police discretion and involves only a brief delay to motorists. The sole difference between Indianapolis'

Pursuant to Rule 37.3 of the Rulcs of this Couti, the parties have con-sented to the filing of this brief ainicus curiae. Their letters of consent have been filed with the Clerk of the Court.

Pursuant to Rule 37.6. c,vliici statc that this brief was not authored in whole or in part by counsel for a party. and no pi'~o!~ or entity, other than (ulilci or their members. made a mnoiictarv contribution to the preparation or submission of this brief.
3
program and those which the Court has previously upheld is that each car is subject to a non-invasive dog sniff. See United States v. Place. 462 U.S. 696. 707 (1983). This, how-ever, does not render the program a violation of the Fourth Amendment's prohibition against unreasonable seizures.

Acknowledging that under existing Fourth Amendment doctrine "these roadblocks probably are legal," Pet. App. 3a, the court of appeals devised a novel rule to invalidate the program. According to the court, "the purpose behind the program is critical to its legality" and 'litihe program must be a bona fide effort to implement an authorized regulatoty p01-icy rather than a pretext for a dragnet search for criminals." Id. at lOa. This rule is inconsistent with the text of the Fourth Amendment and this Court's cases, which use an objective inquiry to assess the reasonableness of police procedrtres. it threatens other constitutionally reasonable police procedures whenever they are used primarily for general criminal law enforcement.

Because of the importance of the issue to amici and their members, this brief is submitted to assist the Court in its resolution of the case.

SUMMARY OF ARGUMENT

A police roadblock is a seizure under the Fourth Amendment. but the Fourth Amendment prohibits only those seizutes that are unreasonable. The constitutionality of a roadblock is thus determined by "weighing . . . the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interterence with individual liberty." Brotvn i'. Texas. 443 U.S. 47. 51(1979). Applying this test, the Court has twice upheld roadblocks. See Michigan I)e/)t. of Stmte Police i'. Sit:, 496 U.S. 444 (1990); United States t'. Martinec-Fuerte, 428 U.S. 543 (1976).
Indianapolis' program is likewise constitutional. The distribution, sale and use of illegal drugs is one of this country's most pressing problems. The roadblocks clearly advance the public interest as the program has resulted in an arrest rate of 4.7 percent for drug offenses and 4.3 percent for driving offenses.

Nor does the program unreasonably interfere with individual liberty. The roadblocks are carried out under a plan which imposes "explicit, neutral limitations on the conduct of individual officers," Browmm i. Texas, 443 U.S. at 51, and does not permit deviation from the l)Iocedure absent additional justification. Moreover, the location of the roadblocks is selected weeks in advance by officers at the supervisory level.

The level of objective intntsion is only marginally greater than that of sobriety checkpoints, which the Sit: Court charac-terized as "minimal." 496 U.S. at 452. The average duration of a stop is two to three minutes or less. Pet. App. 28a, 57a, a shorter period than that upheld in Marti,me:-Fuerte. See 428 U.S. at 547. The only significant difference between Indian-apolis' program and those upheld in Martine:-Fuerte and Sit:
is the dog sniff. A dog sniff, however, is a limited non-invasive procedure that does not require a driver to open car doors, the glove compartment, or the trunk. "It does not expose noncontraband items that otherwise would retnain hidden from public view" and "discloses only the presence or absence of narcotics, a contraband item." United States t'. Place, 462 U.S. 696, 707 (1983). There is "no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedtrc. id. Indeed, the Court has held that a dog sniff is not "a 'search' within the meaning of the Fourth Amendment." Id. The objective intru-sion of Indianapolis' roadblocks is thus well within the range of constitutional reasonableness.

4 5
The subjective intrusion of Indianapolis' program "the fear and surprise engendered in law-abiding motorists by the nature of the stop," Sit:. 496 U.S. at 452 does not render it constitutionally unreasonable. Motorists are provided with
'visible signs of the officers' authority,"' id. at 453 (quoting Marrine:-Fucrte, 428 U.S. at 558) including signs announc-ing the checkpoint and the ptesence of thirty police officet's and several cruisers. Motorists can also see that the pi'oce-dure is conducted in a regularized manner. Finally, having a (log led around the exterior of one's car does not create fear and anxiety in a "law-abiding motorist[1," id. at 452, to any greater degree than police walking around the car to check for working lights, a valid license plate, and inspection sticker. It is also far less likely to generate fear and anxiety than the selective refetTals for further questioning, even in the absence of articulable suspicion, which the Court upheld in Martimme:Fuerte. See 428 U.S. at 560.

The court of appeals acknowledged that if the reasonableness of Indianapolis' program "is to be assessed at the level of the entire program . . . these roadblocks probably are legal, given the high 'hit' rate and the only modestly intntsive char-acter of the stops." Pet. App. 3a. The court failed, however, to follow this Court's precedents. reasoning instead that "courts do not usually assess reasonableness at the program level when they are dealing with searches related to general criminal law enforcement rather than to ptimarily civil regu-latory programs for the pt'otection of health, safety, and the integrity of our borders." Id. at 4a. Because Indianapolis acknowledged that the primarv purpose of its t'oadblocks was to interdict drug offenders, the court held the pt'ogram unconstitutional.

The court of appeals' contention that courts do not assess the i'easonableness of l)olice procedures t'elated to general criminal law enforcement by conducting program-level balancing cannot be squared with cases such as Mamiine:-Fuemte
and Sit:, which employed this approach. It ignores that in Marrine:-Fuerre. each of the non-governmental parties had been indicted for multiple felony offenses. And while Sir:
did not arise out of a criminal prosecution. the Court was surely cognizant of the consequence for those found at a roadblock to have been driving under the influence. It also ignores other cases in which this Court has relied on programmatic justifications to uphold police procedures related to general etiminal law enforcement See. e.g.. Tern' v. Ohio. 392 U.S. 1(1968).

This Court's cases also refute the court of appeals' contention that inquiry into a program's purpose "is critical to its legality," and because Indianapolis' "program has no regulatory purpose," it is constitutionally unreasonable. Pet. App. lOa. Aside from the fact that the district court found that Indianapolis' program had the secondary purpose of checking driver's licenses and vehicle registrations, this Court has "nevet' held, outside the context of inventory search or admin-istrative inspection . . . that an officer's motive invalidates objectively justifiable behavior under the Fourth Amend-ment." Wh,'en v. United Statcs. 517 U.S. 806. 812 (1996). Furthermore, in Sir: the Court expressly rejected the conten-tion that "there must be a showing of some special govern-mental need 'beyond the normal need' for criminal law en-forcement before a balancing analysis is appropriate." 496 U.S. at 450. That the government's purpose is to enforce the criminal law as opposed to a regulatory program is not probative of whether police conduct that does not amount to a search is constitutionally reasonable.

The court of appeals' inquiry into purpose is also unworkable, as shown by the court's suggestion that the result might be different "if the primaiy purpose were to detect drunken drivers" because "the dog could be added to the roadblock scenario on the theoty that since a sniff is not a search. the incremental invasion of privacy would be negligible." Pet.

6

App. I La. Rather than engage in an inquiry which the Fourth Amendment provides no standard for resolving, courts should examine the intrusiveness of the procedures used at a roadblock to determine whether the interference with individual liberty is so severe as to render it constitutionally unreasonable. Because Indianapolis' procedures do not unt'easonably intrude on motorists' liberty, the program is constitutional.

ARGUMENT

INDIANAPOLIS' ROADBLOCK PROGRAM SATISFIES
THE FOURTH AMENDMENT

The court of appeals failed to follow settled Fourth Amendment principles in striking down Indianapolis' highly effective roadblock program. The court acknowledged that "[i]n the case of indianapolis' drug-roadblock program, the probability of a 'hit' is hiab " that "the deterrence of drug offenses produced by these hits advances the strong national, state, and local policy of discout-aging the illegal use of controlled substances." and that "[tihe costin delay, anxiety, and invasion of privacyto the drivers and passengers stopped for five minutes at a roadblock and subjected to a visual inspection of the interior and a sniff by a doa is small
Pet. App. 4a, thus demonstrating that the program satisfies the three-part test of Brown v. Texas, 443 U.S. 47 (1979W

Viewing the program as a "methodli of policing associ-aled with totalitarian nations. Pet. App. 4a-5a, the court of appeals failed to apply the Bin-ann test. It did so notwithstand-ing that Michigan J)ept. of State Police v. Sit:. 496 U.S. 444 (1990), applied this test in upholding sobriety checkpoints for dri.vets 'un(ler the influence of alcohol or controlled sub-st~. tees. ' Brief for Petitioners at 6, Sit: (No. 88-1897); see

2 Indeed, the cost to motorists is even less than this .as thc district court found that "lal typical stop lasts 2 to 3 minutes i~et. App. 28a inciting I)epew Aff. I 5. Pet. App. 57a-5~u.
7

also Pet. App. 7a (Sit: upheld "roadblocks at which drivers are checked for being under the inlluence of alcohol or (other) mind-altering drugs"). According to the court of ap-peals, "the purpose behind the pi-ogrammi is critical to its legal-ity." Id. at lOa. In the court's view, because the City's pro-gram "is meant to intercept a completely random sample of drivers [and] there is neither probable cause not' articulable suspicion to stop any given driver," id. at 6a. it is constitu-tionally unreasonable unless it is "a bona fide effort to im-plement an authorized regulalory policy rather than a pretext for a dragnet search for criminals." id. at lOa. Because the city openly acknowledged that the program's primary pur-pose is "to interdict unlawful drugs." id. at S Ia (stipulation), the court held that Indianapolis' roadblocks violate the Fourth Amendment.

As explained below, the court of appeals' rule is unhelpful in determining whether lndianapoii( roadblocks are reason-able under the Fourth Amendment. While "inquiry into pur-pose is one method of identifying and banning the most fla-grantly abusive governmental conduct," Pet. App. I Ia. inter-dieting drug offenders is as indisputably valid and compelling a governmental purpose as "detectFimzl dtunk drivers Pet. App. lOa I Ia; see United States i'. Mendeminhall, 446 U.S. 544, 561 (1980) (Powell, J.. concurring). Moreover, the Brown t'. Texas standard identifies "the most flagrantly abusive governmental conduct," Pet. App. I Ia, because it examines "the degree to which the ~eiztmre advances the public interest." 443 U.S. at 51. Indianapolis' roadblocks are only minimally more intrusive to motorists than the roadblocks upheld in Sit:
and United States v. Martine:-Fuerze. 428 U.S. 543 (1976). The incremental intrusion of a dog sniff which itself is not a search, see United States v. I~lace, 462 U.S. 696 (1983) does not render Indianapolis' roadblocks constitutionally unreasonable. While law enforcement experts might disagree over the best methods for inrerdicting drug offenders, the Court has made clear that the Fourth Amendment leaves it to

8 ()
politically accountable state and local officials to choose among constitutionally reasonable alternatives. See Sit:, 496 U.S. at 453-54.

A. Brown v. Texas Provides The Standard For Determining The Constitutionality Of Indianapolis' Checkpoints

It is well settled that police roadblocks or " 'checkpoint stops are 'seizures' within the meaning of the Fourth Amendment."' Sir:. 496 U.S. at 450 (quoting Map-tine:Fuerte. 428 U.S. at 556). The Fourth Amendment, however, does not prohibit all seizures but only those which are unreasonable. See id.; see also United States i. BrignomiiPonce. 422 U.S. 873, 878 (1975). "The teasonableness of seizures that are less intrusive than a traditional arrest depends "'"on a balance between the public interest and the individual's rk~ht to personal security free fi'om arbitrary interference by law officers."'" Bt-ou'n v. Texas. 443 U.S. at 50 (quoting Penttsvlvania v. Mitnnms. 434 U.S. 106, 109 (1977) (quoting Bt~ignoni-Pomwe. 422 U.S. at 878)). The Court has further explained that "[cionsideration of the constitutionality of such seizures involves a weighing of the gravity of the public con-cerns served by the setzure, the degree to which the seizure ad ances the public interest, and the severity of the inteifer-ence with individual liberty." Id. at 50-5 I.

The essential concern in assessing the reasonableness of a setzure short of arrest is to protect "the individual's right to personal security free from arbitrary intetference by law officers. Brignoni-Ponce. 422 U.S. at 878. See Sir:. 496 U.S. at 450; Bt-on'm,. 443 U.S. at 51. "[T]he Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of a particulam' individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Bt~owtm, 443 U.S. at 51. Thus, while the Court has held that random
stops of motorists which are not based on individualized suspicion are constitutionally unreasonable, see Delaware v. Prouse, 440 U.S. 648. 663 (1979); Brignoni-Ponce. 422 U.S. at 882-84. it has twice upheld roadblocks conducted by officers whose discretion has been properly circumscribed to protect against arbitramy police conduct .See Sit:, 496 U.S. at 450-53; Martine:-Fuerte, 428 U.S. at 559-64.

I. In Martine:-Fuerte, the Coumi held that the Border Patrol's operation of fixed roadblocks to detect illegal aliens, which were established on major highways in Southern California and Texas 65 to 90 miles from the Mexican border, were reasonable under the Fourth Amendment notwithstanding that the government did not have teasonable suspicion to stop any single vehicle. See 428 U.S. at 545-50. The Court began its Fourth Amendment analysis by noting "the substantiality of the public interest in the practice of routine stops for inquiry at permanent checkpoints," and that "~r]outine check-point inquiries apprehend many smugglers and illegal aliens who" use "important highways" as a quick and safe route into the interior." Id. at 556-57. The Court thus concluded that the government's "need to make routine checkpoint stops is great." Id. at 557.

The Court then examined the degree to which the stops intruded on Fourth Amendment interests. The Court observed that the proceedure "involves only a brief detention of travelers during which all that is required of the vehicle's occupants


Although the court of appeals disminguishcd Martiuec-Fuerre on the ultiniatclv soscreirn
ground that it '~dependledi on powers over foreign
relations, foreign commerce. citizenship, and immigration that states and cities do not possess. Pet. App. 9a (citation umitted, the Sitc Court ex-tensivelv relied on Marminc:-Fucrmc in upholding Michigan~s sobriety checkpoints. See. e.g.. 496 U.S. at 45() ("Ma rriue:-Fuerme. which utilized a balancing analysis in approving highway checkpoints for detecting ille-gal aliens, and Bruit,, v. Texas, are the relevant authorities here.") (Cita tions omined.

10 II
is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States," Id. at 558 (internal quotations and citation omitted). Furthermore, "Injeither the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search." Id. While noting that "[tihis objective intrusion" also existed with the roving patrol stops which the Court held unconstitutional in BrignoniPommce, the Court explained that "we view checkpoint stops in a different light because the subjective intrusionthe generating of concern or even fright on the part of lawful travelersis appreciably less in the case of a checkpoint stop." Id. This is so, the Court reasoned, because " 'talt traffic checkpoints the mototist can see that other vehicles are being stopped, lie can see visible signs of the officers' authority, aiJ he is much less likely to be frightened or annoyed by the intrusion."' U (quoting United States v. Orti:, 422 U.S. 891, 894-95 (1975)).

The Mat-rine:-Fuet'te COLIrt also found it significant that "checkpoint operations both appear to and actually involve less discretionary enforcement activity." Id. at 559. As the Court explained, "[tljhe regularized manner in which established checkpoints at-c operated is visible evidence, reassuring to law-abiding motorists, that the stops are duly authorized and believed to serve the public interest." Id. The Court noted with approval that "[tjhe location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources." who are "unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class." Id. Because "field officers may stop only those cars passing the checkpoint, there is less room for abusive or hat'assing stops of individuals than there was in the case of roving-patrol stops." Id.
Adhering to these principles, the Court in Delaware v. Prouse held unconstitutional random spot checks of a driver's license and vehicle registration which are not based on "at least articulable and reasonable suspicion." 440 U.S. at 663. In particular, the Court noted that "thor Fourth Amendment purposes, we . , . see insufficient resemblance between spo-t'adic and random stops of individLtal vehicles making their way through city traffic and those stops occasioned by road-blocks where all vehicles are bt'ought to a halt or to a near halt, and all are subjected to a show of the police power of the cotnmunity." Id. at 657.

Moreover, absent some degree of individualized suspicion. the Court could not "conceive of any legitimate basis upon svhich a patrolman could decide that slopping a particular driver for a spot check would be more productive than stopping any other driver." Id. at 661. It is "[t~his kind of standardless and unconstrained discretion I which 1 is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent." Id. Thus, while the Court held unconstitutional the spot check at issue in Prouse. it explained that

"tt]his holding does not preclude the... States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblocktype stops is one possible alternative." Id. at 663.~


4

In a concurring opinion. Justice Hlackmun. joined bY Justice Powell. likewise endorsed "the ioadblock slop for all riaftic" as an example of "less intrusive spot checks that do not involve ilit' unconstrained exercise of discretion.' 440 U.S. at 663-64 (quoting hi. at 663. Justice Black-mun further expressed the view that - other not purely random stops (such as everx' 10th car to pass a given point that equate with, but are less intru six-c than, a 100% roadblock stop' ;'ic constitutionally reasonable. Id. at
464.

12

In Sirz. the Court upheld Michigan's sobriety checkpoints. The Sit: Court began by rejecting the motorists' argument adopted by the court of appeals in this case that application of the Browit balancing test was improper absent "a showing of some special governmental need 'beyond the normal need' for criminal law enforcement."' 496 U,S, at 450 (quoting Tf asz4 Etnplovees t', Von Raah, 489 U.S. 656, 665-66 (1989)). Von Raab, the Court explained, did not "t'epudiate our prior cases dealing with police stops of motorists on pub-lic high ways. Mat'tine:-Euem'te, which utilized a balancing analysis in approving highway checkpoints for detecting ille-gal aliens, and Brou'm? v, Texas, are the t'elevant authorities here,"~ 496 U.S. at 450 (citations omitted),

Turning to the balancing test, the Court observed that "[njo one can seriously dispute the magnitude of the dntnken driv-ing problem or the States' interest in eradicating it," Id. at 451, As for the interference with motorists' Fourth Amend-ment interests, the Couti characterized the objective intrusion as "slight," adding that "IwJe see virtually no difference be-tween the levels of intrusion on law-abiding motorists from the brief sops necessary to the effectuation of these two types of checkpoints, which to the average motorist would seem identical save for the nature of the questions the checkpoint officers might ask." Id.

The Cout-t next rejected the Michigan court's conclusion that the subjective intrusion on motorists was substantial because the checkpoints had "the potential to genei'ate fear and surprise in motorists," Id. at 452, The Court explained that "[t!Ihe 'fear and surprise' to be considered are not the natural fear of one who has been drinking over the prospect of being


.'iir~ s reliance on Marti,,e--F,,c,-tc demonstrates the erroneousness of ihe court of appeals view, see Pet. App. 9a. that the Fourth Amendment imposes greater restrictions on stale than federal officials in conducting roa(lblocks.
13

stopped at a sobriety checkpoint but, rather, the fear and surprise engendered in law-abiding motorists by the nature of the stop." Id. Noting that the "checkpoints are selected pur-suant to the guidelines, and uniformed police officers stop every approaching vehicle," the Court concluded that "[tihe intrusion resulting from the brief stop at the sobriety checkpoint is for constitutional purposes indistinguishable from the checkpoint stops we upheld in Martinec--I~'uerre," Id. at 453.

Finally, the Couti addressed "'the degree to which the seizure advances the public interest."' hi, (quoting Brown, 443 U,S, at 51), In this regard, tl te Court explained tha "litlihis passage . . was not meant to transfer from politically accountable officials to the cotirts the decision as to which among reasonable alternative law enfot'cement techniques should be employed to deal with a serious l)ublic danger." Id. While "[e]xperts in police science might disagree over which of several methods of apprehending drunken drivers is preferable as an ideal," the Fourth Amendment leaves "the choice among such teasonable alternatives [tol the governmental officials who have a unique understanclin~ of, and a responsibility for, limited public resources, including a finite number of police officers." hi. at 453-54. Noting that "the record from one of the consolidated cases in Martincc-Fuerze showed that in the associated checkpoint, illegal aliens were found in only 0.12 percent of the vehicles passing throtigh the checkpoint," and that "Iit]he ratio of illecal aliens (letected to vehicles stopped , , was approximately 0.5 percent, the Court con-cluded that the Michigan checkpoint's arrest rate of 1,6 per-cent demonstrated the effectiveness of the program. Id. at
455'

2. Applying the principles of these cases, it is clear that Indianapolis' drug roadblock progratn satisfies the Fourth Amendment, The distribution, sale, and use of illegal dn.tgs remains one of this country's most le~~ng problems. "The public has a compelling interest in detecting those who would

14
raftic in deadly drugs for personal profit. Few problems affecting the health and welfare of our population, particularly our young, cause greater concern than the escalating use of controlled substances." United States t'. Mendenhall, 446 U.S. at 561 (Powell. J., concurring). Indianapolis is not im-mune from the harms caLtsed by drug trafficking and drug abuse.~' "[T]he magnitude" of the problem and the City's "interest in eradicating it" are uncontestable. Sir:, 496 U.S. at 451,

Nor can there be any dispute as to whether the drug roadblocks sufficiently "advancefl the public interest." Sit:, 496 U.S. at 453. Indianapolis conducted six roadblocks at which 1.161 cars were stopped See Pet, App. 2a, 55a. These stops yielded 55 arrests for drug offenses, 49 arrests/citations for driving offenses, and 5 arrests for other offenses. See id. As a percentage of the vehicles stopped, the roadblocks re-sulted in arrests and citations at a rate of 4.7 percent for drug offenses and 4.2 percent for driving offenses. These results demonstrate that Indianapolis' program was substantially more effective than those which the Court upheld in Sir: and Mat'tine:-Fuerte, See Sit:. 496 U.S. at 454-55 (1.6 % arrest rate for (Irunk driving demonstrated that t~oadblock advanced State's interest); Marzimte:-Fue,-te. 428 U.S. at 554 (0.12 % atTest rate),

(F


According to U.S. DEA statistics, 66.8 percent of adult males arrested in Indianapolis test positive for drug use in 1998. Since 1993. no less than 60 pci-cent of adult males arrested in indianapolis have tested positive for dnig use . See U.S. Depai-tment of Justice. Drug En-forcernent Administration. Table. Percenra~e of Adult Males Tesmiu~' Posimive for Au~ Drug am Time of Arrest in visited May 12, 2000) diii p://www.usdoi .gov/dea/stats/(lnigst~its.j~l iii>. In 1998. 34.2 percent of Indianapolis' arreslees tested positive for cocaine, 45.1 percent tested positive for marijuana. and 1.8 tested positive for opiates. 5cc Table. Per-centage of Adult Males Tcsmin~' Positive for Specific l)rugs at flute of Ar-rest iii 1998 (visited May 2. 20(X)) .
IS

Nor does Indianapolis' program unreasonably "interferefl with individual liberty." Bran-n v. Texas. 443 U.S. at 51. The roadblocks were "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Id. Roadblock locations "are selected at the supervisorial level weeks in advance based on geographic suitability, taking into consideration area crime statistics and the ability to locate the checkpoint in a location which will minimize the intetfet'ence with normal traffic flow" while "permit[ting] ob-servation of traffic approaching the checkpoint." Pet, App. 56a (affidavit of Sergeant DepewX

Moreover, "[tihe checkpoints are begun with [al predetermined number of cars being stopped" and each "vehicle is processed in exactly the same fashion as all other vehicles," id. at 57a, with all drivers being asked to present their license and registration while a drug (letection dog walks around the car. See id. at 54a. 57a. The next group of cars is not stopped until the last stopped car has been processed and allowed to depart. See id. at 57a. 'liNlo deviations ft'om" the car selec-tion procedure are "permitted and under no circumstances are random stops peniiitted or utilized." Id. Further investiga-tion is impermissible absent additional justification such as a driver's failure to present a valid license, plain view observa-tion of contt'aband or a weapon, or a dog alert, which estab-lishes probable cause. See Pet. App .53a-54a. Indianapolis' procedure thus circunisetibes the discretion of field officers to an even greater extent than the l)roce(luie upheld in Martine:-Fuem-te, svhich allowed for the selective referral of motorists "to the secondary inspection area ... on the basis of criteria that would not sustain a roving-patrol stop." 428 U.S. at 563.

Furthei-more, Indianapolis' roadblocks do not unreasonably intntde on motorists' Fourth Amendment interests. The degree of " 'objective intrusion"' as "mcasw'ed by the dura-tion of the seizure and the intensity of the investigation" is only marginally greater than that of sobriety checkpoints,

16

which the Sir; Court characterized "as minimal." 496 U.S. at 452 (citation omitted). If a motorist presents a valid license and registration "and there is no probable cause presented by the officer's plain-view, plain smellj] examination, or a dog alert," the motorist is allowed to proceed. Pet. App. 57a. The average duration of such a stop is two to three minutes ot' less,7 see id. at 28a. 57a. a period of shorter duration than that upheld by the Court in Martine:-Fuerte. See 428 U,S. at
547.

The only significant difference in the level of "objective in-trusion" between Indianapolis' program and those approved in Sit: an(l Martine:-Fuerte is the dog sniff. But the incre-mental intrusion of a dog sniff conducted on a public street, where the dog's presence is lawful~ is too insubstantial to render Indianapolis' program constitutionally unreasonable, A sniff "by a well-trained narcotics detection dog" of the ex-terior of a car is a non-invasive procedure as it does not re-quire a driver to open cat- doors, the glove compartment or the trunk. Sec United States v. Place, 462 U.S. 696, 707 (1983). "It does not expose noncontraband items that otherwise would remain hidden from public view" and "discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities some-thing about the contents of fa car], the information obtained is limited." Id. Indeed, there is "no other investigative pro-

When a motorist fails to present a valid license and registration. the police run a iecords check utilizing the on-scene mobile data terminal. which "may take an additional 15 seconds to two minutes." Pet. App. 58a: see also hi. at 52a. A driver's failure to carry a license and registia-tion is more than adequate justification to conduct further investigation. See Prouse. 440 U.S. at 658 c'lTlhe States have a vital interest itt ensui-ing that only those qualified to do so are permitted to opei~ate motor vehi-cles. that these vehicles are fit for safe operation. and hence that licensing, registrali on. and vehicle inspection requirements are being observed." . Sec at~o. e.g.. Ind. Ann. Code 9-24-I-I trequiring licenses): 9-24-18-5 (prohibiting driving while license is suspended or revoked).
17

cedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure." Id. In short, a sniff is not "a 'search' within the meaning of the Fourth Amendment," Id. The intrusion is no greater than that which is constitutionally permissible at either a sobriety or immigration checkpoint.8

Likewise, the " 'subjective' intrusion' of Indianapolis' checkpoints "the fear and surprise engendered in law-abiding motorists by the natut-e of the stop," Sit:, 496 U.S. at 452 (citation omitted) does not render the program constitutionally unreasonable. Motorists are provided with "visible signs of the officers' authority," id. at 453 (citations omitted), including lighted signs which identify the checkpoints as a
"NARCOTICS CHECKPOINT _ MILE AHEAD, NARCOTICS K-9 IN USE, BE I~REPARLD TO STOP," Pet.
App. 57a. the presence of "approximately thirty" police offi-cers including uniformed patrolmen, and police cruisers. Id. at 52a. Furthermore, motorists can see that the procedure is conducted in a regularized manner, with all cars receiving the same tnitial pt'ocessing .See Sit:, 496 U.S. at 453. Finally, having a dog led around the exterior of one's car does not create fear and anxiety in a "law-abiding motorist[}," id. at 452, to any greater degree than police walking around the car


In I 994-~5. the State of Tennessee, with the assistance of a National Highway Traffic Safety Administr~tion erant. conducted an extensive statexvide sobtiets- checkpoint program, in which officers 'ttsed passive alcohol sensors in flashlights to dctcct the odor of alcoholic beverages." See U.S. DOT. NHTSA. Technical Repot-t. Evaluation of Checkpoint Teunessee: Tennessee's Statewide Sobriety (heckpoint Program. Execu-tixe Summary at 4 < http://s~ iihtsa.Jot.~'ov/peoplelinjui-y/research lChekTennlChkptTN.html>. Such tlc'ices are functionally indistinguish-able from drug detection dogs. in that they reveal only the presence or absence of alcohol odors in a driver s breath. An affirmance of the court of appeals' judgmeni would raise a '~etious question regarding the consti tutionality of such noninvasive devices as passive alcohol detection sensors.

19
18
to check for working lights, a valid license plate and inspection sticker. And it far less likely to generate fear and anxiety in a law-abiding motorist then the selective referrals to a secondary inspection area fot' further questioning which the Court upheld in Mnriine:-Fuer,e. See 428 U.S. at 560,

As the forgoing demonstrates, Indianapolis' program causes only an incremental interference with motorists' lib-erty, which is of insufficient magnitude to render it unconstitutional. The program's high degree of effectiveness demonstrates that it "advances the public interest." Brown, 443 U.S. at 51, and is thus constitutionally t'easonable. Because the program satisfies the Brott'n standard, the court of appeals en'ed in invalidating it.

B, A Primary Purpose Of Interdicting Drug Offenders
Does Not Render Indianapolis' Program Violative Of The Fourth Amendment

The court of appeals acknowledged that if the reasonableness of Indianapolis' program "is to be assessed at the level of the entit'e program... these roadblocks pt'obably are legal. given the high 'hit' rate and the only modestly intrusive charactet' of the stops." Pet. App. 3a. The court failed to follow controlling precedent, however, explaining that "courts do not usually assess reasonableness at the program level when they are dealing with searches related to general criminal law en-forcement rather than to primarily civil t'egulatorv programs for the proteclion of health, safety, and the integrity of our borders," Id. at 4a (citation omitted. According to the court, "[bjecause it is infeasible o quantify the benefits and costs of most law enforcement progt'ams, the program approach might well pemlit deep inroads into privacy." Id.

Evidently concluding that Indianapolis' program amounts to a "dragnet search" a term which neither the cout't of appeals nor this Court have ever defined the court further reasoned that "[allthough there is nothing in the text of the
Fourth Amendment to prevent dragnet searches . . . the Supreme Court has insisted that 'to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing,' save in cases of 'spe-cial need' based on 'concerns other than crime detection."' 1(1. at Sa (quoting Chandler t. Miller 5'0 U.S. 305, 313-14 (1997) (emphasis added by court of appeals)). In the court of appeals' view, "[p]i'ogram-level justifications for searches in support of specific regulatot'y programs do not carry over to general criminal law enforcement." Id. l~ecause Indianapolis acknowledged that the primary purpose of the roadblocks was to intet'dict drug offenders, the court held the program uncon-stitLitional.

I. The court of appeals' reasoning finds scant support in this Coui't's Fourth Amendment jurisprttdence. The court's fit'st contention that it is improper to assess the reasonableness of Indianapolis' roadblocks "at the program level" by a balancing analysis because courts do not do so "when they are dealing with searches related to general criminal law enforcenient rather than to primarily civil regulatory programs, Pet. App. 4a simply ignores numei~ous cases in which this Court has done l)tecisely that, includint~ the most relevant au-thority of Martine:-Fuerte and Sit2.

In Martinec-I-~ue'te, each of the non-governmental parties was a person who had been indicted on multiple counts of


Implicit in the court of appeals statenteilt is the suggestion that Indi-anapolis' roadblock stops are searches br l)urposes of the Fourth Amendment. Both Shc and Martiuc Juertc characterized the initial stop and questioning as a "seizure." Scc .S'irz, 4% U.S. 450-51: Mailiste:-I7uerre. 428 U.S. di 556. Moreover, in Plucc. the Court held that a do~ sniff is not "a 'search' within the ueaning of the Fourth Amendment'' because ii is "limited both in the mariner in ss rich the information is Ob-tained and in the content of the information icsealed by the procedure.'' 462 13.5. at 707. 'ro the extent the cohn of appeaL analyzed lndianal)olis' progrant as a search. it was uristakert.

20 .21
illegally transporting aliens in violation of the former 8 U.S.C. 1324(a)(2); several of the defendants had also been charged with other felony offenses. See 428 U.S. at 547-49. While Sir: did not involve the appeal of a criminal prosecution, the Court was obviously cognizant that the consequence for those fbund to have been "driving under the influence" was their aiTest, See 496 U.S. at 448.

Notwithstanding the serious criminal consequences facing those apprehended in Martine:-Fue,'re and Sit:, in both cases the Court analyzed the reasonableness of the police conduct at the program level by weighing, in the aggregate, the benefits to the public interest against the costs to the motoring public. In Martine:-Fuerte, the Court expressly noted that lt'Thutine checkpoint inquiries appt'ehend many smugglers and illegal aliens," that the government's "need to make routine checkpoint stops is great." and that "lr]outine checkpoint stops do not intrude ~itnreasonably] on the motoring public." 428 U,S. at 557-58. In Sit:, the Court explicitly rejected the argument "that there must be a showing of some special gov-ernmental need 'beyond the notmal need' for criminal law enforcement before a balancing analysis is appropriate." 496 U.S. at 450, The Court thereupon observed that " 'Idirunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage,"' and that "the weight bearing on the other scale the measure of the intrusion on motorists stopped briefly at sobriety checkpoints
is slight." 496 U.S. at 451 (citation omitted).

WhiTe the court of appeals en'oneously viewed the pt'ograms at issue in Martine:-Fuerte and Sir: as being "primal'ily civil regulatory programs." this Court's Fourth Amendment jurisprudence contains numerous cases relying on progt-ammatic justifications to uphold police procedures "related to general criminal law enforcement." Pet. App. 4a, Fot' example, in Terry t'. Ohio, 392 U.S. 1 (1 968). the Court held
that a police officer has the authotitx' to conduct a pat down search for weapons on less than probable cause. The Court relied on FBi statistics which detailed the number of police officers killed or wounded in the line of duty nationwide, noting that "Aineijean criminals have a long tradition of armed violence, and every year in this countty many law enforcement officers are killed in the line of duty, and thousands more are wounded." Id. at 23. 24 n.2 I.

The Court also acknowledged that "a limited search of the outer clothing for weapons constitutes a severe, though brief, intrusion upon cherished personal security, and it must surely be an annoying, frightening, and perhaps humiliating experience." Id. at 24-25. In holding that a police officer could conduct a pat down search on the basis of an articulable reasonable suspicion, the Court did exactly what the court of appeals asserted that courts do not do "assess reasonableness at the program level" of a search "related to general criminal law enforcement." Pet. App. 4a, See also 392 U.S. at 21 r'there is 'no t'eady test for determinitw reasonableness other than by balancing the need to search br seize] against the invasion which the seai'ch br seizurel entails"') (quoting Camaro t'. Municipal Court. 357 U S 3~3, 536-37 (1967)).

The Cortt't took the same approach in United Stares i'. Rob-inson. 414 U.S. 218 (1973), upholding a police officer's au-thority to conduct a search incident to art'est notwithstanding the absence of probable cause to believe the alTestee was cat'-lying a weapon or evidence. The Cowl refused to limit "the bt'eadth of the general authority to search incident to a lav~'ful custodial arrest on an assumption that persons an'ested for the offense of driving while their licenses have been revoked at'e less likely to possess dangerous weapons than at'e those ar-rested fot' other crimes." Id. at 234. In the Court's view, this assumption rested on "a rather speculative judgment," which was refuted by FBI statistical data "indicatling] that a signifi-cant percentage of murders of police of licers occurs when the

23
officers are making traffic stops." Id. at 234 & n,5 (citations omitted). As the Court explained, "[t]he danger to the police officer flows from the fact of the atTest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest." ld.

Recognizing the necessarily "ad lice judgment" involved in a search incident to arrest, the Coui't held:

The authority to search the person incident to a lawful custodial atTest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable in-trusion under the Fourth Amendment; that intrusion be-ing lawful, a seaj'ch incident to the arrest requires no ad-ditional justification.

Id. at 235. See (lIsa Maryland i'. Bide. 494 U.S. 325, 332-34 19Q0) (determining reasonableness of protective sweep of premises where arrest occui's by balancing governmental intel :st 'n police safety against arrestee's Fourth Amendment interests); Place, 462 U.S. at 703-04 (rejecting argument that "absent some special law enfot'cement interest such as officer safety, a generalized intet'est in law enforcement cannot justify an intrusion on an individual's Fourth Atnendment interests in the absence of pt'obable cause"); Michigan v. Summers, 452 U.S. 692, 702-03 (1981) (upholding detention of occupant of house being searched on less than probable cause, reasoning that "[allthough no special danger to the po-lice is suggested by the evidence in this record, the execution of a warrant to search foi' nai'cotics is the kind of transaction that may give rise to sudden violence or frantic efforts to con-ceal or destroy evidence").

As the foregoing demonstrates, the Court routinely analvzes the reasonableness of police procedures "related to gen-
eral criminal law enforcement" by conducting "program level" assessments and balancing. Pet. App. 4a. Contraiy to the view of the court of appeals, this approach does not "permit deep inroads into privacy," id., as numerous cases demonstrate. See, e.g., Place, 462 U.S. at 703-10 (conducting bal-ancing but holding unreasonable a ninety-minute seizure of a suspect's luggage to arrange a drug sniff that was supported by a reasonable suspicion but not probable cause), Brown v. Texas, 443 U.S. at 50-53 (holding unreasonable a discretion-ary seizure to t'equire a person to identify' himself which was not supported by "a reasonable suspicion" of criminal activ-ity).

2. The Cout't's cases likewise refute the coLtrt of appeals' contention that inquiry into the progi'ani s purpose "is critical to its legality," and because "[tihe program has no regulatory purpose," it is constitutionally unreasonable, Pet. App. lOa. The first flaw in this reasonttw is that the district court found that "a secondaiy purpose of the checkpoints is to check driver's licenses and vehicle registrations. Id. at 44a. In-deed, out of the program's 109 arrests and citations, 49 were for driving-related offenses ..Ye id. at 55a. The court of ap-peals was clearly mistaken in asserting that the program "has no regulatoty purpose." Id. at I Oa tO


H) Even if not intended, it is etear that the use of a drug-sniffing dog advances the substantial state interest in promotittg highway safety. Ac-cording to NHTSA, "lalleohol and other dntes create a serious highway safety problem among the general driving poputation." See U.S. Department of Transportation. National Highway Traffic Safety Administration. Dru'~ hmo paired 1)rim'imtg I visited May II. 200{b . NI-ITSA "estimates that drugs are used by approximately 10 to 22 percent of drivers involved in crashes, often in combination with alcohol." Id. A 1992 NI-tTSA study of the deaths of I X8~ driveux indicated that "alcohol was found in 51.5 percent of the drivers, and other drugs were found in 17.8 percent of the drivers." Id. A NHTSA stnd of "non-fatally injured drivers found that "12 percent of all drivers tested positive for drugs

24

The second flaw is that while some of the Court's cases suggest that inquiry into purpose is sometimes relevant in assessing the validity of certain intrusions, almost every case has involved police conduct amounting to a search. See, e.g., New Yo,'k v. Bur~e,; 482 U.S. 691. 7 13-16 (1987) (upholding warrantless inspections of closely regulated businesses); South Dakota i'. Opperinan, 428 U.S. 364. 376 (1976) (oh-serving in dictum that "there is no suggestion" that an inven-tory search of a car "was a pretext concealing an investigatory police motive"). The Court has, however, "never held, out-side the context of inventory search or administrative inspec-tion . , that an officer's motive invalidates objectively jttsti-fiable behavior tinder the Fourth Amendment." Whren t. L~ 11c' States, 517 U.S. 806, 812 (1996), In any event, there can be no claim of pt'etext here, where Indianapolis openly




other than alenhol ... and 23.5 percent of drivers less than 21 years old tested positive for drugs other than alcohol." Id. NHTSA further states that "Is Itudies of drug incidence among dtivers arrested for motor vehicle offenses have found drugs in 15 to 50 percent of drivers. The higher rates typically are mote prevalent antong drivers who have been arrested for impaired or reckless driving but who were not impaired by alcohol, as shown by low blood alcohol concentration I BAQ levels." Id.

NIITSA also suggests a high degree of marijuana use by teenagers while driving. Id. According to NHTSA. twenty percent of high school seniors reported that they smoke marijuana in a car." id. This figure is greater than the percentage of students who acknowledge drinking alco-holic beverages in cars. Id. A recent Department of Justice survey which conducted personal interviews with DWt offenders indicates that 9.5 per-cent of jailed DWI offenders reported using drugs at the time of their ar-rest. U.S. Department of Justice. Bureau of Justice Statistics, DWI Offrmzderv nuder Correctional Supervision II (Table 16) (1999).

Drug checkpoints are thus an important adjunct to alcohol sobriety checkpoints: indeed, the procedures upheld in Sitc checked for drivers wl~m ss'ere tinder the influence of both alcohol and drugs e~' Brief for Petitioners at 6, Sir:: see also Pet. App. 7a.
25

acknowledged that one of the purposes of' the proram was to conduct a "narcotics checkpoint." Pet. App. 57a.

To the extent the court of appeals engaged in an objective inquiiy into the City's purpose. the Court's cases suppot the view that a purpose of general criminal law enforcement does not preclude application of the Broit'n test in assessing the reasonableness of a setzure. In Sit:, the Court expressly rejected the contention that "there must be a showing of some special governmental need 'beyond the normal need' for criminal law enforcement before a balancing analysis is appropriate," and held that the B,-ort'n standard controlled. 496 U.S. at 450. See also Florid t'. Rover, 460 u.s. 491, 498-99 (1983) (noting that in Brignoni-Ponce the government's purpose of enforcing immigration laws "was sufficient to warrant temporary detention for limited questioning" and declining to suggest "that a similar rationale would not wan'ant temporary detention for questioning on less than pi-obable cause where the public interest involved is the suppression of illegal transactions in dt'ugs or of any other serious crime"). That the government's purpose is to enforce the criminal law as opposed to a regulatory program is not probative as to whether


The court of apl)eals reliance on dictum tront the plurality opinion in Texas in'. Brotm'u, 460 U.S. 730 II ~)83~. is utisplaced. See Pet. App. 7a (''the amendment would be violated if 'the roadblock was a pretext whereby evidence of narcotics violation mieht be tmncovcred in "plain view" in the course ot a check for driver's licenscs"' (quoting 460 U.S. at 743). The referenced language did ttot address the validity of the initial stop hut rather whether the police properly sei,ed evidence in plain view. the discovery of which was then required to be "inadvertent." At the time. a showing of pretext would have defeated a police claim that evidence had been discoveted inadvertently. 1' hat requirement has since been over-ruled. See Hor;o,t v. California. 496 U.S. 125. I ~7-42 199()). The objec-tive inquiry established by Ham'ro,t and Whrc,m demonstrates that where the
t)olice have a constitutionally val it I basis ft u a xtin p. it cannot be chal-lenged as being pretextual.

26

police conduct that does not amount to a search is constitutionally reasonable,

3. This Couti should t'eject the court of appeals' approach because it is unworkable and "injects too large an element of uncertainty into the interpretation" of the Fourth Amendment, P t. App. I Ia. Indeed, the court of appeals suggested that the result might be different "if the primary purpose were to de-tect drunken drivers" because "the dog could be added to the roadblock scenario on the theory that since a sniff is not a search, the incretnental invasion of privacy would be negligi-ble." ki. Just how a court would determine whether a road-block program's primary purpose was detecting drunk drivers (or reducing traffic congestion) as opposed to catching drug
0
offenders is unclear. - The Fourth Amendment does not answer the question, just as it says nothing that suggests why police practices which are undertaken for the purpose of enforcing the criminal law are more objectionable than those undertaken to enfoi'ce regulatom'v programs,

Contrary to the view of the court of appeals, "the alternative" is not "to rule that either all roadblocks are illegal or none ate," Id, at I Ia. Rather, consistent with Brotta. Martine:-Fuerte. and Sit:, a coumi should examine the intt'usiveness of the procedui'es used in conducting a roadblock to deter-mine whether "the interfet'ence with individual liberty" is so severe as to render it constitutionally unreasonable. Brown. 443 U.S. at 51. Thus, a t'oadblock, at which police om'der
27

without some articulable basis evet'v driver and passenger out of their car to conduct a mot'e thorotigh plain view examination of a car's interior, might well be so intrusive as to render it unconstitutional. But where, as here, police discretion has been properly circumscribed, a roadblock that results in a brief delay to motorists and uses a non-tnrrusive measure that "discloses only the presence or absence of narcotics, a contraband item," Place, 462 U.S. at 707, is clearly within the range of constitutionally reasonable practices under the Fourth Am'~hdment.

CONCI AISION

The judgment of the court of appeals should be reversed. Respectfully submitted.

R~ t tARt) Rtit )At
Chief Counsel
JAMIIS I. CR )WLEY

ST.TE AN!) Lo AL LUGAL CENTER
444 North Capitol Street, NW.
Suite 345
Washington. D.C. 20001
202 4344~5()

rCt)ttnsel of Record for the May 15, 2000


Compare United States in'. McFavden. 865 F.2d 1306, 1307-08 (D.C.
Cir . 1989) tupholding checkpoint whose "principal purpose was to allow
police to check for a driver's license and vehicle registration" even though
it "facilitated a narcotics enforcement effort" and police testitied "that the~' were hopeful that the roadblocks would also have a 'halo' or 'spin-off effect of deterring (1mg traffineking" ), with Galbert in'. United States. 590 A.2d 990. 999 (D.C. 1991.) (asserting that a roadblock "addressed to problems of general law enforcement ... is antithetical to the Fourth Amendment"

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