US Supreme Court Briefs

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I ANUS Ii N1 INI ) A NI) J )IiIA, PA! MfR.




On Writ of ( ~Crtiorari to the
I oiled States ( 'ourt of Appeals
(or (lit' Seventh Circuit



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Iiidianapolis, Indiana 46204
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Wri ( 'FM I 'I IN I N~ 0 _ a - (''02) 709-009( WASI INI I ON. U. 1). 20001

Whether checkpoints at which law enforcement officers briefly stop 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 uto~nobile are unlawful under the Fourth Amendment.










Petitioners are the City of Indianapolis, Indiana, and Bart Peterson. in his official capacity as Mayor of the City of Indi-anapolis. On January I, 2000, while the parties were engaged in briefing on the petition for certiorari, Mayor Peterson suc-ceeded Stephen Goldsmiih as Mayor of Indianapolis and, tI - .~refure, has been substituted as a party in this case.

Respondents are James Edmond and Joell Palmer, on their own behalf and on behalf of a certified class of motorists who have been stopped or are subject to being stopped at certain roadway checkpoints in Indianapolis.











A. The Fourth Amendment Permits Police to Use Checkpoints to Detect Crime
B. The City's Checkpoint Program Is Rea-sonable Under the Fourth Amendment's
Balancing Test

1. The City has vital interests in stem-Ining the tide of illegal drugs, ensuring that motorists comply xvith license and registration requirements, and arresting drivers who are impaired

2. The City's brief checkpoint stops are minimally intrusive



3. The City's checkpoints significantly advance its substantial interests, as evidenced by their high hit rate


A. Mardnez-Fuerte and 5hz Upheld Checkpoints that Vindicated Normal Law Enforcement Purposes

I. Maruinez-Fuerte and Sitz leave no doubt that checkpoints designed to detect evidence of criminal conduct are permissible

2. Marlinez-Fuerre and 5hz are not "special needs" or administrative search cases

3. The "special needs" doctrine does not supply the proper Fourth Amendment analysis for the City's checkpoints

4. A revisionist interpretation of Marlinez-Fuerte and 5hz as "special needs" cases poses troubling federalism prohlems

B. Even If the "Special Needs" Doctrine Governs, the City's Checkpoints Satisfy It





Abel v. United States, 362 U.S. 217 (1960) 28
Almeida-Sanche: v. United States, 413 U.S. 266
(1973) 10. 19,26
Bond 'i'. United Stares. 120 S. Ct. 1462
(2000) 20, 33, 34, 35
Breithaupt v. Abram, 352 U.S. 432(1957) 17
Brown v. Texas, 443 U.S. 47 (1979 passim
California v. Ciroolo, 476 U.S. 207 (1986) 33
Cainara i'. Municipal Court, 387 U.S. 523
(1967) possim
Chandler v. Miller, 520 U.S. 305 (1997) 27, 29
Delai~'are i'. P rouse, 440 U.S. 648 (1979) passim
Donovan v. Dewey, 452 U.S. 594 1981) 28
Frank v. Ma,yla,id, 359 U.S. 360 (1959) 28
Graham v. Connor, 490 U.S. 386(1989) 35
Horton i'. California, 496 U.S. 128 (1990) 32, 33
Irvine v. california. 347 U.S. 128 (1954) 30, 31
Maryland v. Macon, 472 U.S. 463 (1985) 35
Merrert v. Moore, 58 E.3d 1547 (11th Cir.
1995),cerr. denied,519 U.S. 812(1996) 35
Michigan i'. Clifford, 464 U.S. 287 (1984) 27,28
Michigan v. Tyler. 436 U.S. 499 (1978) 28
Michigan Dep 't of State Police i'. Sir:, 496 U.S.
444 (1990) passnhl
National Treasu ~y Employees Um mion i'. Von
Roab, 489 U.S. 656 (1989) passimn
New Jersey v. T.L.O., 469 U.S. 325 (1985) 26, 27, 28
New York v. Burger, 482 U.S. 691 (1987) 26,27,28
Scott v. United States, 436 U.S. 128 (1978) 33, 35
Skinner v. Railway Labor Lvecutives Ass 'n, 489
U.S. 602 (1989) 8, 27, 29
South Dakota v. Neville, 459 U.S. 553 (1983) 17
Texas v. Brown, 460 U.S. 730(1983) 32
United States v. Riswell, 406 U.S. 311(1972) 33
United States v. Brignoni-Ponce, 422 U.S. 873



vi xii
United States v. Marrine:-Fuerre, 428 U.S. 543
(1976) passim
United States v. Mendenhall, 446 U.S. 544
(1980) 14
United Stares v. Montoya de Hernande:, 473
U.S. 531 (1985) 14
United States v. Qi-tic, 422 U.S. 891 (1975) 18, 32
United States v. Place, 462 U.S. 696 (1983) passim
United States v. Robinson, 414 U.S. 218 (1973) 35
United States v. Villamnonre-Marque:, 462 U.S.
579(1983) 33,34
Vernonia Sch. Dist. 47J i'. Acton, 515 U.S. 646
(1995) 7,14,27,29
Whren 1'. United States, 517 U.S. 806
(1996) p05511)1
Wolf ". Colorado, 338 U.S. 25(1949) 30

U. S. Const. Amend. IV 1)O551~~1
U. S. Const. Amend. XIV 2,31
8 U.S.C. 1324(a)(2) r
28U.S.C. 1254(1)
Ind. Code * 9-25-4-1(1997) 17
Indianapolis and Marion County, md., Rev. Code
201-3 13
251-101 13
25J-21l 13
251-212 13
253-103 13

Bureau of Justice Statistics, Substance Abuse and Treatment, State and Federal Prisoners, 1997
(January 1999 15
Henrick Harwood, et al., The Economic Costs Qf
Alcohol And Drug Abuse In The United States
1992(1998) 15
David M. Kennedy, United States 1)ep't of Jus-tice, National Institute of Justice, Closing The
Market: Controlling The I)rug Trade in
Tampa, Florida (April 1993) 16
Nelson B. Lasson, The History m,id Development
of the Fourth Amendment to the United States
Constitution (1937) 31
4 Wayne R. LaFave, Sean 71 and Seizure: A Trea--
tise on the Fourth Anrcnd,neit 10.8(d) (2d
ed. 1987) 17
Leonard W. Levy, Original Intent and the Fram--
ers' Constitution (1988) 30
Office of National Drug Control Policy, Drug
Policy Information Ck'aringhouse Fact Sheet
(March 2000) 14, 15
Office of National Drug Control Policy, Drug
Policy Information Clearinghouse: Indianapo--
lis, Indiana, Profile of Drug Indicators (De--
cember 1999) 16
Telford Taylor, Two Studies in Constitutional In--
terpretation (1969) 30
United States Dep't of Justice, 1)rug Enforce--
ment Administration, Operations Pipeline and
Convoy (visited May 10, 2000) www.usdoj.--
gov/dea/programs/pipecon.htm 16
United States Dep't of Justice, Nalional Institute
of justice, 1998 Annual Report on Drug Use
Among Adult and Juvenile Arrestees (April
1999) 15

~'uprenw %~ourt of t~w Thiiteb ~tat~
No. 99-1030



On Writ of Ccrtiorari to the
United States Court of Appeals
for the Seventh Circuit



The opinion of the court of appeals (Pet. App. la-23a) is reported at 183 F.3d 659 (7th Cir. 1999). The opinion of the district court (Pet. App. 24a-48a) is repoiled at 38 F. Supp. 2d 1016 (S.D. Ind. 1998).


The court of appeals entered its judgment on July 7, 1999. The court denied a timely petition (or rehearing on August 18, 1999. On November 1, 1999, Justice Stevens extended the time for filing a petition for a wri! of certiorari to and in-cluding December 16, 1999. The petition for a writ of certiorari was filed on December 15, 1999. The Court granted the petition on February 22, 2000. The Court's jurisdiction rests on 28 U.S.C. 1254(1).

The relevant constitutional provision is the Fourth Amendment to the United States Constitution (made applicable to the states and their local governments by the Due Proc-ess Clause of the Fourteenth Amendment):

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.


I. In August 1998, the City of Indianapolis (City) began operating a roadway-checkpoint program. Under the program, the Indianapolis Police Department (IPD) administers the checkpoints at fixed locations according to specific written guidelines. Pet. App. 25a-27a. IPD supervisors select checkpoint locations weeks in advance "based on geographical suitability, taking into consideration area crime statistics and the ability to locate the checkpoint in a location which [wouldi minimize the interference with normal traffic flow
." Id. at 56a. When operating the checkpoints, JPD officers post lighted signs to warn approaching motorists that they should be prepared to stop for a "narcotics checkpoint" where a "narcotics K-9" will be in use. Id. at 57a. To further warn motorists, the IPD positions marked cruisers near the checkpoints. Id.

Officers stop a predetermined number of vehicles in sequence as they approach a checkpoint. While officers process these stopped vehicles, other traffic continues without interruption. After processing each stopped vehicle, officers stop
a new group of the same predetermined number of motorists. The guidelines permit no deviations from this procedure. Pet. App. 57a.

A team of officers, at least one of whom is dressed in full uniform, approach each stopped vehicle. An officer informs the driver that he or she has been stopped at a narcotics checkpoint, asks to see a driver's license and vehicle registration, and checks for signs of (Iriver impairment. Simultaneously, other officers walk around the vehicle's exterior a narcotics-detection dog that sniffs for narcotics. Pet. App. 57a. An officer investigates further only if he or she develops individualized suspicion of a regulatory violation, driver impairment, a threat to officer safety, or a narcotics or other crime. Id. Otherwise, the officers allow stopped motorists to leave without further delay. Id.

The IPD officers attempt to stop no motorist for longer than five minutes (unless officers discover grounds for a longer detention). Pet. App. 51 a. The average stop lasts only two to three minutes. id. at 57a. The Il~D's checkpoint pro-cedures prevent processing delays and traffic back-ups. Id. If traffic becomes congested, officers "would either suspend operation of the checkpoint or institute traffic control meas-ures until the back-up had cleared." Id. at 58a.

The City operated six checkpoints between August and November of 1998. The IPD stoppe(l a total of 1,161 vehicles and arrested 104 motoristsan effectiveness (or "hit") rate of nine percent. Arrests were divided almost equally between narcotics offenses (fifty-five arrests) and other crimes (forty-nine arrests). Pet. App. 3a-4a.

2. Respondents James Edmond and Joell Palmer, who a!lege being stopped at a checkpoint, brought this action in the United States District Court for the Sotmi hem District of Indi-ana on behalf of themselves and other similarly situated mo-If a driver does not produce a driver's license, officers run a computer
check (using computer terminals located in police vehicles at the check-point) to determine whether the driver has a valid license and whether any outstanding warrants exist for the driver. Pet. App. 58a.

4 5
torists. Respondents allege that the City "violated the Fourth Amendment by using roadblocks to seize motorists without individualized suspicion for the primary purpose of determining if they possess or are under the influence of illegal drugs." Pet. App. 32a. They sought an injunction to prohibit the City from using checkpoints. Id. at 25a.

The parties stipulated to the material facts and to the certi-fication of a class consisting of all motorists stopped, or who are subject to being stopped, at checkpoints "maintained by the City of Indianapolis in an attempt to interdict and curtail unlawful drugs and unlawful drug use." Pet. App. 25a n.1, 30a. The district court denied respondents' preliminary in-junction motion. Id. at 25a. The court first concluded that the constitutionality of the checkpoints should be analyzed under the balancing test articulated in Brown v. Texas, 443 U.S. 47 (1979). Pet. App. 34a. The court rejected respondents' contention that the court could balance the interests implicated by a checkpoint only if the government demonstrates a "special need" for conducting the checkpoint that goes beyond the ordinary need to enforce criminal laws. Id. at 34a-35a. The court explained that in upholding the constitutionality of sobriety checkpoints, this Court held that no such showing is required in "cases dealing with police stops of motorists on public highways." Id. at 35a (quoting Michi-gan Dep t of State Police v. Sitz, 496 U.S. 444, 450 (1990)).

Turning to the balance of interests at stake, the district court concluded that the City's interest in interdicting narcotics users and traffickers not only is "beyond serious dispute"
but is alsogiven the sizable proportion of arrests-significantly advanced by the checkpoints. Pet. App. 35a-36a. With respect to the intrusions on motorists, the court found that law-abiding motorists would know that the stops hai been officially authorized (and so would not be unduly alarmed by them) and that the IPD's guidelines adequately restrict the officers' discretion. id. at 37a. The court also
concluded that the brief detetit ion of a motorist to check his or her license and registration "is fairly non intrusive" and that any intrusion from "having a dog sniff the exterior of a motorist's vehicle" is "similar to that of an officer looking for contraband in plain view." Id. at 39a-40a. "Overall," the court concluded, "the checkpoints ... are targeted effectively and are limited sufficiently to combat the city's drug crisis with minimal intrusion on motorists." Id. at 40a.

3. A divided court of appeals reversed. Pet. App. Ia. Writing for the majority, Chief Judge Posner acknowledged that if "reasonableness is to be assessed at the level of the entire program," rather than at the level ot "the individual stop," then "these roadblocks probably are legal, given the high 'hit' rate and the only modestly intrusive character of the stops." Id. at 3a. The court believed, however, that it must review each individual stop because "courts do not usually assess reasonableness at the program level when they are dealing with searches related to general criminal law enforcement." Id. at 4a. In the court's view, the City's program was aimed at "general criminal law enforcement" and was "meant to intercept a completely random sample of drivers," but "there is neither probable cause nor art iculable suspicion to stop any given driver." Id. at 5a-6a. For those reasons, the court held, the program was unconstitutionalat least absent some "urgent considerations of the public safety," such as a belief that "a car loaded with dynamite and driven by an unidentified terrorist was en route to downtown Indianapolis." Id. at 6a. The City's failure to establish "such urgency," the court concluded, required the City to comply "with the normal principles constraining law enforcement." Id.

Referring to Sitz, the court concluded that sobriety check-points are permissible at the program level because they are not concerned "primarily with catching crooks," but are "de-signed to protect other users of the road from the dangers posed by drunk drivers." Pet. App. 8a. And referring to

6 7
United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the court believed that checkpoints to intercept illegal immigrants are sui generis because they "depend ultimately on tCon-gress's] sovereign powers over foreign relations, foreign commerce, citizenship, and immigration." Pet. App. 9a.

Finally, the court of appeals acknowledged that the City's program "often discover~s~ violations of the traffic laws," and that the City's checkpoints could be constitutional "[i]f the purpose of the roadblock program were to discover such vio-lations." Pet. App. lOa. But it concluded that the City's checkpoint program cannot be upheld on that basis because "purpose. . . is critical to... legality," and the City's use of a narcotics dog "showswhat is anyway not contestedthat the purpose of the roadblocks is to catch drug offenders." Id. at lOa-1 Ia. The court suggested that the situation might be different "if the primary purpose were to detect drunken driv-ers'~ because in that case "the dog could be added to the road-block . . . on the theoiy that since a sniff is not a search, the incremental invasion of privacy would be negligible." Id. at I I a.

Judge Easterbrook dissented. Pet. App. I 3a. He observed that, contrary to the majority's view, Martinez-Fuerte and Sitz permit courts to analyze checkpoints at the program level where the checkpoints are used to enforce the criminal laws. Ia. Explaining that the inquiry under the Fourth Amendment is "objective," Judge Easterbrook also rejected the majority's focus "on the 'primary' or 'real' motive for the roadblock." Id. at 13a-14a. According to Judge Easterbrook, '11510 far as the fourth amendment is concerned, there is no difference be-tween a roadblock originally designed to catch drug peddlers and also used to catch drunk drivers, and a roadblock origi-nally designed to catch drunk drivers and also used to catch drug peddlers." Id. at I 5a.

Judge Easterbrook also observed that neither Sitz nor Martinez-Fuerle used the majority's analytical approach, but that
both cases balanced the "slight" intrusion resulting from a checkpoint against the success of the checkpointso long as the officers' discretion is adequately constrained by objective guidelines. Pet. App. 18a-20a. Here, hc noted, "Indianapolis was at pains to establish a rigorous protocol for its stops. Roadblocks are fixed; the number of cars selected for inspection is fixed; the procedure following a stop is fixed." Id. at 20a. Finally, he rejected the majority's characterization that Martinez-Fuerte turned on "a 'border exception' or 'immigration exception' to normal fourth amendment principles. . .," a theory that would have the anomalous effect of giving the federal government "greater freedom to conduct searches and seizures than state and local governments ld. at 21a-22a.

I. The City's checkpoints are constitutionally indistinguishable from the checkpoints upheld in United States v.
Martinez-Fuerte, 428 U.S. 543 (1976). and Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990). As in MartinezFuerte and 5Hz, the City's interests in operating the checkpoints outweigh the checkpoints' minimal intrusion on motorists.

First, "[ilt is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods." Vernonia Sch. Dist.
47J v. Acton, 515 U.S. 646, 673 (1995). Because of the ease with which drugs are concealed and transported in automobiles, the City's interest in using checkpoints to battle illegal drugs is substantial. The City also uses the checkpoints to check licenses and registrations and to look for signs of driver impairmentactivities this Court has deemed important. See Delaware v. Prouse, 440 U.S. 648, 658 (1979); Sitz. 496 U.S. at 454-55.

10 II
constitutional because they are "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown v. Texas, 443 U.S. 47,51(1979).

A. The Fourth Amendment Permits Police to Use
Checkpoints To Detect Crime

Martinez-Fuerte and Sitz control this case. MartinezFuerte. recognizing that "surreptitious entries" of illegal aliens from Mexico "pose[J formidable law enforcement pT b1e~ns," upheld the constitutionality of fixed highway checkpoints that the United States Border Patrol operated up to 100 miles inland from the Mexican border. 428 U.S. at 552, 558. The sole purpose of those checkpoints was to catch violators of criminal immigration laws. The Court upheld the checkpoint program because the government's substantial interest in preventing illegal immigration outweighed indi-vidual motorists' interests in being free from the minimally intrusive stops. Id. at 556-57. A central concern of the Court in balancing these interests was that law enforcement discre-tion be limited to prevent abusive stops. See id. at 559. In contrast to roving patrol stops, "routine checkpoint stops do not intrude similarly on the motoring public," and "check-point operations both appear to and actually involve less dis-cretionary enforcement activity." Id. at 559. See also United
States v. Brignoni-Ponce, 422 U.S. 873, 882 (1975) (holding that a roving police unit could not stop motorists without in(lividualized suspicion of wrongdoing); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973) (striking down roving patrols that gave individual officers far-reaching discretion to make suspicionless stops to uncover illegal aliens).

Martinez-Fuerte foreshadowed the Court's decision in Brown v. Texas, 443 U.S. 47 (1979), which more specifically announced a three-part balancing test for determining the rea-sonableness of seizures that are not based upon individualized suspicion and are less severe than arrest. In Brown, the
Court explained that the constitutionality of the seizure depended on "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 interference with individual liberty." Id. at 51. The Cotirt emphasized that balancing these interests must ensure that an "individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field." Id. To vindicate this concern, "[t]linc Fourth Amendment requires that a seizure must be based on specific, objective facts indi-cating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." hi. (emphasis added).

That same year, in Delawarc v. Promise, 440 U.S. 648, 663
(1979), the Court struck down random stops to check for drivers' licenses and registrations, but observed that "questioning of all oncoming traffic at roadblock-type stops" would be perfectly valid under the Fonrth Amendment. Prouse rec-ognized that "the permissibility of a particular law enforce-ment practice is judged by balancing its intrusion on the indi-vidual's Fourth Amendment interests against its promotion of legitimate governmental interests." 1(1. at 654. The Court added that "[un (hose situations in which the balance of inter-ests precludes insistence upon some qtiantum of individual-ized suspicion,' other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not 'subject to the discretion of the of1~cial in the field.'
Id. at 654-55. Prouse stressed the "danger to life and property posed by vehicular traffic and * * the difficulties that even a cautious and an experienced driver may encounter," and concluded that the public has a "vital interest in ensuring that only those qualified to do SO are permitted to operate mo-tor vehicles, that these vehicles are fit for safe operation, and hence that licensing, registration, and vehicle inspection requirements are being observed." hi. at 658.

12 13
Drawing upon the teachings of Brown and Prouse, MichigJ ~p't of State Police v. Sitz, 496 U.S. 444, 449-50 (1990), upheld sobriety checkpoints and thus reaffirmed Mar-tinez-Fuerte':s holding that fixed checkpoints used to detect criminal activity comply with the Fourth Amendment so long as the discretion of individual officers is limited. In Sitz, p0-lice stopped all vehicles passing through the checkpoint and briefly examined the drivers for signs of intoxication. Sitz, 496 U.S. at 447. If a driver showed signs of intoxication, the police would investigate further, sometimes administering sobriety tests. Id. Police would arrest the driver if the additional investigation showed the driver was intoxicated. Id. Drivers not exhibiting signs of intoxication were allowed to proceed after a brief stop. Id.

Relying on Brown, Sitz held that where police stop motorists based on a procedure embodying neutral criteria rather than individual suspicion, courts determine reasonableness by balancing: (I) the state's interest; (2) the effectiveness of the procedure in furthering that interest; and (3) the level of intru-sion into individual privacy caused by the procedure. 496 U.S. at 449-50. The state's interest in eradicating illegal drunk driving, the Court ruled, outweighed motorists' Fourth Amendment interests in not suffering the "slight" objective intrusion caused by the brief stops. Id. at 451. With respect to motorists' subjective views, the Court concluded that the "fear and surprise" the checkpoint stops may impose on law-abiding drivers also would be minimal because, as in Martinez-Fuerte, "[alt traffic checkpoints the motorist can see that other vehicles are being stopped, he can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion." Id. at 452-53 (quot-ing Martinez-Fuerte, 428 U.S. at 558). Subjective intrusion on motorists was also minimal because the "checkpoints are selected pursuant to the guidelines, and uniformed police officers stop every approaching vehicle." Id.
With respect to the remaining Browim balancing factorthe effectiveness of the checkpointsSit: held that it "was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be ctnployed 2 Id. at 453. "[F]or purposes of Fourth Amendment analysis," the Court stated, "the choice among such reasonable alternatives remains with the governmental officials who have a unique understanding of, and a responsibility for, limited public re-sources, including a finite number of police officers." Id. at

B. The City's Checkpoint Program Is Reasonable Un-der the Fourth Amendment's Balancing Test

When compared to the interests at slake in Martinez-Fuerte and Sitz, the City's interest in operating its checkpoints plainly outweighs individual motorists' interests in being free from a brief, minimally intrusive, non-discretionamy stop. As Judge Easterbrook stated below, "[olne would suppose that our case is afortiori from Sit:." Pet. App. 13a.

1. The City has vital interests in stemming the tide of illegal drugs, ensuring that motorists comply with license and registration requirements, and arresting drivers who are impaired.

The IPD uses the checkpoints to accomplish several law-enforcement and public safety ends. Officers conduct a dog sniff of stopped cars, review drivers' licenses and registra-tions and look for signs that drivers arc itnpaired. Pet. App. 26a. The City has a substantial interest in pursuing each of

2 The Mayor of Indianapolis is the elected pnblic official accountable for IPD operations. The Mayor exercises hiring and firing authority over the I)irector of Public Safety, who in turn is responsible for the daily op-erations of the tPD, including hiring the Chief of t~olice .See Indianapolis and Marion County, Ind., Rev. Code ( 1995) ~ 201-3, 251-101, 251-211, 251-212, 253-103.

14 15
these goals. See Sitz, 496 U.S. at 451; Brown, 443 U.S. at 51; Martinez-Fuerte, 428 U.S. at 556-57.

Narcotics Detection: The Court has often recognized that the scourge of illegal drugs presents one of the "greatest prob-lems affecting the health and welfare of our population" (Na-tio,mal Treasury Employees Union v. Von Raab, 489 U.S. 659, 668 (1989)) and has created a "veritable national crisis in law enforcement" (United States v. Mon toya de Hernandez, 473 U.S. 531, 538 (1985)). Thus, "[flhe public has a compelling interest in detecting those who would traffic in deadly drugs for personal profit." United States v. Mendenhall, 446 U.S. 544, 561 (1980) (Powell, J. concurring). See also Vernonia Sc/i. Dist. 47J v. Acton, 515 U.S. 646, 673 (1995) ("[lIt is hard to think of a more compelling government interest than the need to fight the scourge of drugs on our streets and in our neighborhoods."). Justice Powell commented on the im-mense hurdles law-enforcement officials face in combating clandestine drug operations:

Much of the drug traffic is highly organized and conducted by sophisticated criminal syndicates. The profits are enormous. And many drugs . . . may be easily conce~led. As a result, the obstacles to detection of illegal conduct may be unmatched in any other area of law enforcement.

United States v. Place, 462 IJ.S. 696, 704 n.5 (1983) (quoting Mendenhall, 446 U.S. at 561-62 (Powell, J., concurring)).

Illegal drug use and trafficking continue to engender crime-prevention and law-enforcement crises. The Office of National Drug Control Policy recently reported that "Idirugrelated offenses and drug-using lifestyles are major contributors to the 11.5. crime problem ... ." Office of National Drug Control Policy, Drug Policy Information Clearinghouse Fact Sheet 1 (March 2000). Drug trafficking itself "tends to be associated with the commission of violent critnes," and "murders related to narcotics still rank as the fourth most
documented murder circumstance out ol twenty-four possible categories." Id. at 4. A 1997 national survey of prison inmates showed that thirty-three percent of state prisoners admitted to committing their offenses while under the influence of drugs. Bureau of Justice Statistics, Substance Abuse and Treatment, State amid Federal Prisoners, 1997 1 (January 1999). In Indianapolis, the correlation between drug use and crime is even greater: In 1998, 66.8 percent of male arrestees and 67.1 percent of female arrestees tested positive for drugs at the time of their arrests. United States Dep't of Justice, National Institute of Justice, 1998 Annual Report on Drug Use Among Adult and Juvenile Arrestees 42 (April 1999).
The conclusion is inescapable: "The evidence indicates that drug users are more likely than nonusers to commit crimes, that arrestees frequently were under the influence of a drug at the time they committed their offense, and that drugs generate violence." Office of National Drug Control Policy, Drug Policy Information Clearinghouse Fact Sheet 4 (March

Crime is not the sole problem attributable to illegal drugs. A recent study the United States Department of Health and Human Services commissioned estimates that in 1992 alone the "economic cost to society" of drug abuse and dependence in the United States was $98 billion. Ilenrick Harwood, et al., The Economic Costs of Alcohol and Drug Abuse in the United States 1992, 1-1 (1998). By 1995, the study estimates, the annual economic cost of drug abuse was $1 10 billion. Id. at 1-9. The total economic cost includes the direct costs the government incurred for law enforcement as well as lost pro-ductivity, wages, and health-care costs attributable to drug abuse. Id. at 1-3 (Table 1.1).

Furthermore, the ease with which drugs may be concealed in automobiles poses special problems for law enforcement. In Martinez-Fuerte, the Court concluded that the flow of traf-fic is simply too heavy to permit the "particularized study of a

16 17
given car that would enable it to be identified as a possible carrier of illegal aliens." 428 U.S. at 557. That logic applies with even more force to the concealed transportation of nar-cotics, and authorities have determined that automobiles pro-vide secretive transportation that is critical to the drug trade. The Drug Enforcement Administration has initiated Opera-tion Pipeline specifically to detect and seize illegal narcotics being transported to drug markets in automobiles. See United States Department of Justice, Drug Enforcement Administra-tion, Operatiomis Pipeline amid Convoy (visited May 10, 2000) . And local authorities charged with eradicating open-air drug markets have concluded that "when you eliminate the drive-by trade, you eliminate a lotmaybe the biggest partof the retail market" for illegal drugs. David M. Kennedy, United States Department of Justice, National Institute of Justice, Closing the
Market: c'ontrolling the I)rug Trade in Tampa, Florida, 8 (April 1993) (quoting Tampa Police Major Bert Hatcher).

To be sure, the City uses checkpoints to enforce the law. But the checkpoints are geared toward far broader goals of preventing crime and improving community safety. The checkpoints are one part of the City's multi-faceted effort to prevent the social costs of illegal drugs. Within this program is the Indianapolis Weed and Seed Initiative, which is an inter~agency initiative that "weeds out," among other problems, drug use and trafficking in targeted neighborhoods, and then "seeds" the neighborhoods through social and economic revi-talization. Office of National Drug Control Policy, Drug Pol-icy Information Clearinghouse: Indianapolis. Indiana, Profile of I)rug Indicators 2 (December 1999). Another part of the program is the Safe Neighborhood Task Force, which works to eradicate drug markets in the community through, for ex-ample, citizen pickets of (Irug markets, demonstrations against landlords who rent properties to drug dealers, citizen patrols designed to intimidate drug dealers, and police check-points. Id. at 3. Indianapolis has made it a priority to battle
the social tragedy of drug use and distribution, and the checkpoint program is one front of that battle.

License and Registration Checks: As with the State of
Delaware in Prouse, Indiana has a vital interest in requiring that its motorists have proper licenses and registrations. Furthermore, as does Delaware, Indiana requires drivers to prove they have a minimum amount of insurance before they may register their cars. Ind. Code 9-25-4-1 (1997). Thus, the City's use of checkpoints to check automobile licenses and registrations vindicates a number of "legitimate" and "vital" government interests. See Delaware v. Prouse, 440 U.S. 648, 658-59 (1979).

Sobriety Checks: In Sitz, the Court concluded that "[n]o one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." 496 U.S. at 451. The Court quoted sexeral sources underscoring the "astounding figures" for deaths and property damage owing to drunk driving. Id. (citing I?reithaupt v. Abram, 352 U.S. 432, 439 (1957); 4 Wayne R. LaFave, Search And Seizure: A Treatise On The Fourth Amendment 10.8(d), 71 (2d ed.
1987)); Sitz noted that the Court has "repeatedly lamented the tragedy" associated with drunken driving deaths. Id. (quoting South Dakota v. Neville, 459 U.S. 553, 558 (1983)). The City's checkpoints vindicate these interests as well.

2. The City's brief checkpoint stops are mini-mally intrusive.

In terms of both objective and subjective intrusion, the City's checkpoint stops are materially identical to those upheld in Martinez-Fuerte and Sitz. As with the stops in those cases, the IPD's checkpoint Stops are brief, lasting between two and three minutes on average. Pet. App. 57a. LPD officers' inquiries are also limited. An officer asks each driver to produce a valid license and registration and briefly checks the driver for signs of drug or alcohol impairment; simultaneously, another officer walks a drug-sniffing dog around the

18 19
exterior of the car. Id. Only if there is probable cause that the motorist has committed a crime or poses a threat to officer safety does the IPD conduct a longer, more extensive check of the vehicle. Id.

IPD officers operate the checkpoints to minimize whatever subjective intrusion or "fear and surprise" motorists might feel upon encountering the checkpoints. See Sitz, 496 U.S. at 452. [PD supervisors, not individual officers, determine well in advance the checkpoints' locations. Pet. App. 56a. IPD officers post road signs warning motorists that they are ap-proaching a police narcotics checkpoint, and they post marked police cruisers nearby, with flashing lights, to rein-force the message that the checkpoints are being operated by police. Id. at 57a. Motorists are not pulled over individually but are ordered to stop along with all other cars in a prede-termined sequence. Id. At least one of the officers who ap-proaches each vehicle is in full uniform. Id. Thus, any stoppe(l motorist can observe that other motorists are being stopped and that the officers have visible signs of authority.
See Sitz, 496 U.S. at 453; Martinez-Fuerte, 428 U.S. at 558;
United States v. Ortiz, 422 U.S. 891, 894-95 (1975).

Furthermore, as in Sitz, the IPD operates its checkpoints aceor(ling to (letailed, written guidelines that limit the officers' discretion. The guidelines set forth the procedures for officers to follow at each stage of the encounter. Pet. App. 26a-27a. The guidelines instruct officers exactly what to say to motorists ("ask driver for license and registration. Advise the citizen that they are being stopped briefly at a drug checkpoint") and what to observe ("Look for signs of impairment, conduct open view exatnination of vehicle from outside vehicle."). Id. The guidelines describe conditions when an officer may ask a driver to step out of the car or search the car for a weapon or contraband. Id. Significantly, thL guidelines' final paragraphs communicate in no uncertain terms that officers lack discretion:


ld. at 54a.

The City thus assuages the Court's expressed concerns that unbridled discretion in the hands of police officers can cause a substantial Fourth Amendment intrusion. See [)elaware v.
Prouse, 440 U.S. 648, 661 (1979); United States v. BrignoniPonce, 422 U.S. 873, 882 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973). As with the checkpoints in Martinez-Fuerte and Sitz, the City's checkpoints cause only a minimal intrusion on mototists' Fourth Amendment interests.

It bears emphasis that the IPD's tise of the narcotics-detection dog does not present an independent intrusion of constitutional significance. In United States v. Place, 462 U.S. 696 (1983), the Court held that the government's use of a trained dog to sniff the exterior of luggage at an airport did not constitute a search under the Fourth Amendment. The Court explained that a dog sniff is far less intrusive than a search:

20 21
A "canine sniff' by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconven-ience entailed in less discriminate and more intrusive investigative methods.

Id. at 707. The uniquely limited intrusiveness of a dog sniff ("We are aware of 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 procedure," id.) applies equally to the I.PD's instructing a dog to sniff the exterior of a vehicle. A sniff does not require the IPD to open any compartment of the vehicle or to expose noncontraband items to public view, and the sniff discloses only the presence of illegal narcotics, a contraband item. See Bond v. U,iited States, 120 5. Ct. 1462, 1466 (2000) (Breyer, J.j liss ~nting) (commenting on "the accepted police practice of using dogs to sniff for drugs hidden inside luggage"). And because the sniff is conducted while an officer checks the driver's license and car registration and looks for signs of im-pairment, the sniff does not further infringe the motorist's freedom of movement.

In any event, respondents challenge only the initial stop, not the use of the narcotics-detection dog. Respondents' Seventh Circuit Reply Brief at 3 nI.
3. The City's checkpoints significantly ad-vance its substantial interests, as evidenced by their high hit rate.

The final component of the balancing test is "the degree to which the seizure advances the public interest." Brown v. Texas, 443 U.S. 47, 51(1979). The City's program, with a total hit rate of 9.4 percent, is far more successful than the checkpoint programs upheld in Martimmez-Fuerte and Sitz. In Martinez-Fuerte, the checkpoints detected illegal aliens in only . 12 percent of the cars passing through the checkpoint. 428 U.S. at 554. In Sitz, police arrested 1.6 percent of the drivers. 496 U. S. at 455. The City's hit rate is divided almost equally between arrests for narcotics violations (fiftyfive arrests, or 4.74 percent) and other violations or crimes (fifty-four arrests, or 4.65 percent). Pet. App. 13a, 55a. Even if the only relevant hit rate were of narcotics arrests, the City's checkpoints would still be tnore successful than those upheld in Martinez-Fuerte and Sitz.
* * * *

Brown balancing applies in this case with particular ease. Martinez-Fuerte and Sitz are the proper precedents for the Court to weigh the City's interests against the degree of Fourth Amendment intrusion of the checkpoints. The City vindicates interests of the utmost significance when it inter-diets illegal narcotics, enforces license and registration laws, and arrests drunk drivers. Given the stops' brevity and the checkpoints' tightly controlled operation, individual motorists suffer only a minimal intrusion on their Fourth Amendment rights. And the checkpoints' high hit rate confirms that the City is acting reasonably.


The Seventh Circuit concluded that, because the City's primary goal in operating its checkpoints is to interdict drugs,

-) 3
its checkpoints belong in a different jurisprudential category than the roadblocks upheld in Sitz and Martinez-Fuerte and therefore may not be justified under the Fourth Amendment "at the program level." Pet. App. 4a. But the Seventh Circuit was wrong to conclude that Sitz and Martinez-Fuerte are based on this Court's "special needs" jurisprudence. It was also wrong to hold that, in any event, the City does not pursue any "special needs" that justify the roadblocks.

A. Martinez-Fuerte and Sitz Upheld Checkpoints that Vindicated Normal Law Enforcement Purposes

I. Martinez-Fuerte and Sitz leave no doubt that checkpoints designed to detect evidence of criminal conduct are permissible.

The officers in Martinez-Fuerte and Sitz operated their checkpoints with the same ultimate purpose: to arrest those suspected of committing crimes. In Martinez-Fuerte, Border P~.rol officers arrested each of the defendants on suspicion of illegally transporting aliens, a violation of 8 U.S.C. 1324 (a)(2). United States v. Martinez-Fuerte, 428 U.S. 543, 545, 550 (1976). Federal authorities prosecuted the defendants for smuggling illegal aliens, and at their trials, each defendant sought to suppress evidence that the Border Patrol officers discovered at the checkpoints. Id. at 545. The motions of Amado Martinez-Fuerte and Rodolfo Sifuentes were unsuccessful, and they were convicted of transporting illegal aliens. Id. at 548, 550. The Court reviewed the constitutionality of the Border Patrol's checkpoints following appellate review of these criminal cases. See id. at 55 1.

Martinez-Fuerte stressed the importance of the checkpoints in handling "law enforcement problems." 428 U.S. at 552. The Court also noted that federal authorities would routinely prosecute smugglers such as the Martine:-Fuerte defendants whom Border Patrol agents apprehended. ld. at 553 n.9. The Court was well aware that the Border Patrol checkpoints were
directly targeted at criminal activity and were designed to detect evidence used in criminal prosecutions. And, notably, the Court expressed no reservations about how evidence discovered at the checkpoints might be ttsed. Ultimately, the Court affirmed the convictions of Martinez-Fuerte and Sifuentes and thus approved the government's use of vehicle checkpoints to discover evidence of criminal conduct. Martinez-Fuerte, 428 U.S. at 567.

Similarly, the sobriety checkpoints in Sitz were targeted at identifying and arresting drunk drivers. The Michigan Department of State Police and state prosecutors helped develop the roadblocks, which were operated with the local Sheriffs Department's assistance. Michigan I)cp 't. of State Police v. Sitz, 496 U.S. 444, 447-48 (1 ~)90). The guidelines governing the checkpoints' operation spec i fical I y directed that "[s]hould the field tests and the officer's observations suggest that the driver was intoxicated, an arrest would be made." Id. at 447. The respondents in Sitz argued that the Court should not ap-ply the Brown balancing test precisely because the Michigan State Police used the checkpoints for normal law enforcement purposes. ld. at 450. The Court, well aware of the criminal-investigation ends behind the sobriety checkpoints, rejected the respondents' arguments that the balancing test was im-proper. Id. It employed the Brown balancing test and upheld the criminal-investigatory sobriety checkpoints. Id. at 455 (citing Brown v. Texas, 443 U.S. 47, 50~5l (1979)).

2. Martinez-Fuerte and Sitz are not "special needs"
or administrative search eases.
Contrary to the Seventh Circuit's understanding (Pet. App. 4a), the Court's checkpoint cases turn on motorists' reduced expectations of privacy and freedoni of movement, not special needs or administrative necessity. In reviewing the constitutionality of immigration checkpoints, Martinez-Fuerte relied on C'amara v. Municipal Court, 387 U.S. 523 (1967), for the proposition that "the Fourth Anmendrnent imposes no


irreducible requirement of [individualizedi suspicion." Martinez-Fuerte, 428 U.S. at 561. Camara upheld a local government's ability to conduct inspections of private dwellings for housing-code violations without first obtaining either the occupant's consent or a warrant predicated on individualized suspicion. Ca,nara, 387 U.S. at 537. In place of individualized suspicion, Martinez-Fuerte explained, the Court in Camara "examined the government interests advanced tojus-tify such routine intrusions 'upon the constitutionally pro-tected interests of the private citizen' ... and concluded that un ~er tae circumstances the government interests outweighed those of the private citizen." Martinez-Fuerte, 428 U.S. at 561 (quoting ('amara, 387 U.S. at 534-35). Though acknowledging that the case before it presented circumstances substantially different from those present in Camara, the Court nonetheless deemed Camnara's analysis appropriate:

We think the same conclusion [as in Camara] is appropriate here, where we deal neither with searches nor with the sanctity of private dwellings, ordinarily afforded the most stringent Fourth Amendment protection. * * * As we have noted earlier, one's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence. * * * And the reasonableness of the procedures followed in making these checkpoint stops makes the resulting intrusion on the in-terests of motorists minimal.

ld. at 56 1-62 (citations omitted).

Thus, Camnara justified a balancing approach based on the administrative necessity that made individualized suspicion unworkable in the housing inspection context. Camara, 387 U.S. at 537. Martinez-Fuerte (and later Sitz) justified a bal-ancing approach based on motorists' reduced expectations of privacy and of freedom of movement. 428 U.S. at 561. When the government has a substantial interest in preventing and deterring crime that is specific to, or well-masked by, the

use of cars on public roadways, the minimally intrusive and relatively non-threatening nature of checkpoint stops permits reasonableness testing at the program level. Significafitly, Martinez-Fuerte was not the first time the Court followed the Camara approach in the automobile context. In United States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975), the Court, fol-lowing C'amara, employed a reasonableness balancing test to roving immigration patrol stops. Only after concluding that the Border Patrol officers' discretion was so unfettered that it threatened a degree of intrusion on individual privacy and free passage that outweighed the government's interest did the Court conclude that individualized suspicion was neces-sary. Id. at 882.

To emphasize that its decision to apply the balancing test did not turn on administrative necessity, Martinez-Fuerte noted that the "administrative" purpose of many common checkpoint stops (including those to enforce license and registration requirements, safety requirements, and weight limits) "is of limited relevance in weighing their intrusiveness on one's right to travel." Martinez-Fuerte, 428 U.S. at 560 n. 14. Thus, the Seventh Circuit misunderstood the rationale supporting Martinez-Fuerte when it char~tcterized it as one of a number of cases relating to "primarily civil regulatory pro-grams." Pet. App. 4a.

The Seventh Circuit's misreading of Martinez-Fuerte is even more apparent in the court's assertion that MartinezFuerte's holding "depend[sI ultimately on sovereign powers over foreign relations, foreign commerce, citizenship, and immigration." Pet. App. 9a. The Martimmez-Fuerte majority opinion nowhere expresses reliance on ('ongress's exclusive power over immigration (or anything else) to override gener-ally applicable Fourth Amendment Ii mitations on government action. In fact, as if anticipating this very misinterpretation, Martinez-Fuerte specifically disclaimed any such reliance:

26 27
Congress has expressly authorized persons believed to be aliens to be interrogated as to residence, and vehicles "vithin a reasonable distance" from the border to be searched for aliens. * * * Our prior cases have limited significantly the reach of this congressional authorization, requiring probable cause for any vehicle search in the interior and reasonable suspicion for inquiry stops by roving patrols. *** We understand, of course, that nei-ther long-standing congressional authorization nor widely prevailing practice justifies a constitutional viola-ion.

428 U.S. at 566 n.19. Furthermore, as the Court alluded, if Congress's immigration power provided an implicit Fourth Amendment override, Almneida-Sanchez v. United States, 413 U.S. 266 (1973), and I3rignoni-Ponce, 422 U.S. 873 (where Border Patrol officers were executing the commands of Con-gress in making their roving patrols) not only would have reached the opposite conclusion, but also would have had no reason to engage in an extended Fourth Amendment analysis.

3. The "special needs" doctrine does not supply
the proper Fourth Amendment analysis for the
City's checkpoints.

The Seventh Circuit ultimately confused the rationales supporting Martinez-Fuerte and Brown with the rationale supporting the analysis in Fourth Amendment administrative search cases. In New Jersey v. T.L.O., 469 U.S. 325 (1985), Justice Blackmun, concurring, stated: "Only in those excep-tional circutnstances in which special needs, beyond the nor-mal need for law enforcement, make the warrant and prob-able-cause requirement imnpracticable, is a court entitled to substitute its balancing of interests for that of the Framers." T.L.O., 469 U.S. at 351 (Blackmun, J., concurring) (emphasis added). Following T.L.O., the Court has relied on Justice Blackmun's formulation and has equated the government's various needs for conducting administrative searches with the "special needs" that Justice Blackmun identified. In New
York v. Burger, 482 U.S. 69 I, 702 (1987), for example, the Court upheld the warrantless inspection of a junkyard for required administrative documentation based on the state's "special needs" in enforcing junkyard licensing requirements. The Court also has held that the government may require law enforcement officers and train operators to submit to drug tests regardless of individualized suspicion based on "special governmental needs, beyond the normal need for law enforcement," in its employees' safe performance of their duties. See National Treasury Employees Union v. Von Raub, 489 U.S. 656, 666 (1989); Skinner v. Railway Labor Execu-tives' Ass'n, 489 U.S. 602, 619 (1989). And recently, the Court reined in the use of the "special needs" doctrine when it held that the state of Georgia (lid not have a special need for subjecting political candidates to drug testing. Chandler v. Miller, 520 U.S. 305, 318 (1997).

The cases at the core of the "special needs" doctrine have not addressed the brief, low-intensity seizures attendant to an automobile-checkpoint stop. They have instead grappled with, and significantly limited, much more invasive and laborious government searches of people and their businesses, belongings, homes, and hotel rooms. See, e.g., Chandler, 520 U.S. at 321-22 (invalidating a law requiring candidates for office to pass a drug test); Vernonia 5dm. Dist. 47J v. Acton, 515 U.S. 646, 665 (1995) (upholding random drug testing of students who participate in interscholastic sports); Von Raab, 489 U.S. at 677 (upholding mandatory drugs tests for United States Customs Service employees seeking transfer or promo-tion to sensitive positions); Skimmer, 489 U.S. at 633-34 (up-holding mandatory drug and alcohol testing for railway em-ployees involved in train accidents or who violate safety rules); Burger, 482 U.S. at 7 17 (upholding administrative inspections of private automobile junkyards); T.L.O., 469 U.S. at 345 (upholding search of a sttident's purse); Michigan
v. Clifford, 464 U.S. 287, 294-95 (1984) (limiting the scope of fire investigators' search of a home based on an admi~inis-

28 29
trative warrant); Donovan v. Dewey, 452 U.S. 594, 603 (1981) (upholding a federal health and safety inspection of a mine); Michigan v. Tyler, 436 U.S. 499, 511 (1978) (limiting the justifiable range of a search of a burned store for evidence of the cause of the fire); Abel v. United States, 362 U.S. 217, 228-29 (1960) (upholding execution of an administrative war-rant based on less than probable cause to search a suspected illegal alien's hotel room).
The requirement that the government have a "special need" beyond ordinary crime detection to conduct the search is grounded in the invasive nature of the searches at issue and, in some cases, the limits of the state or federal statutes author-izing the searches. See, e.g., Clifford, 464 U.S. at 298; Dono-van, 452 U.S. at 602. Without such limits, government actors may be tempted to abuse the searches at the expense of highly valued privacy expectations. Where a minimally invasive, brief vehicle stop is at issue, there is no similar need to adopt a rigid distinction between criminal investigation needs and "special needs." ~

Camara itself rejected the strict crime/regulatory distinction em-braced by the Seventh Circuit in this ease. Overturning Frank i'. Mary-kind. 359 IJ.S. 360. 365 (1959), the Court in Iamara reiected the notion that "the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal be-havior." Garnara v. Municipal Court, 387 U.S. 523, 530 (1967). The Court also recognized the futility of crafting strict crime/regulatory dis-tinctions. considering that all civil regulatory requirements are in some way backed up by the threat of criminal sanctions. Id. at 531. This skep-ticism of drawing a strict distinction between a city's criminal law inter-ests and its regulatory interests hears directly on this case. While the City intends for offenders apprehended at the checkpoints to be prosecuted, such prosecutions support the important regulatory and public-policy needs that prompted the City to operate the checkpoints: to interdict ille-gal drugs and to keep the streets safe. These are needs that the City may-and doespursue apart from employing criminal investigations. Thus, the checkpoints cannot be strictly characterized as a form of crinii-nal investigation.
The "special needs" doctrine thereftwe does not preclude the Court's use of a "program level" balancing test to analyze brief, slightly intrusive automobile checkpoint seizures. In-deed, Sitz expressly rejected such incompatibility. Relying on Von Raab, the respondents in Sitz argued that the checkpoints could not be upheld at the program level because the state's only purpose was to enforce ordinary criminal law, and not to pursue some "special need." 496 U.S. at 449-50. The Court expressly dismissed this argument in terms that underscore the test to be applied in this case:

[lit is perfectly plain from a reading of Von Raab, which cited and discussed with approval our earlier decision in United States v. Martinez-Fuerte * * that it was in no way designed to repudiate our prior cases dealing with police stops of motorists on public highways. Marti,iez-Fuerte, supra, which utilized a balancing analysis in ap-proving highway checkpoints for detecting illegal aliens, and Browmz v. Texas, supm-a, are the relevant authorities here.

496 U.S. at 450 (citation omitted)f Thus, the "special needs" cases do not control here.

Chandter implicitly acknowledges the separate lines of authority be-tween the "special needs" balancing cases and the checkpoint balancing cases. In stating that "a search ordinarily must he based on individualized suspicion of wrongdoing . . . [blut that] particularized exceptions to the main rule are sometimes warranted based on special needs, beyond the normal need for law enforcement," the Coun did not cite 5hz, Martinez-Fuerte, or any other checkpoint case. tnstead, tIre Court cited core special needs cases: Veownia Sch. fist. .17J r'. Ar~'r:, 515 U.S. 646 (1995); Skimmer v. Railway Labor Executives Ass n. IX) U.S. 602 (1989); and National Treasury Employees Union v. Von Raub, 489 U.S. 656 (1989). See Chandler v. Miller, 520 U.S. 3n5, 313 (1997). That the Court relied upon Von Roab in C/rand/em, a "special needs' case, and distinguished Von Roab in 5hz, a checkpoint case, demonstrates the peaceful coexistence of the two lines of suspicionless search arid-seizure authority that apply in two different contexts.

4. A revisionist interpretation of Martinez-Fuerte and Sitz as "special needs" cases poses troubling federalism problems.

To read Martinez-Fuerte and Sitz as turning on government justifications beyond the need for ordinary law enforcement not only would be inaccurate, but would also free Congress of significant Fourth Amendment constraints while simultane-ously inhibiting states and municipalities from experimenting with innovative law-enforcement techniques. The Seventh Circuit found that Martinez-Fuerte did not control here be-cause Martinez-Fuerte rested on an enumerated power of the federal government. Pet. App. 9a. This revisionist interpreta-tion of Martinez-Fuerte creates an anomaly troubling to fed-eralism. The Framers adopted the Fourth Amendment to limit the federal government as a reaction to the abuse of in-ternational trade and customs powers they had suffered as colonists when Crown officials exercised unfettered discre-tion in searching colonists' warehouses for dutiable goods.
See Leonard W. Levy, Original Intent and the Framers' Con-stitution 234-46 (1988); Tel ford Taylor, Two Studies in Con-stitutional Interpretation 23-44 (1969). See also Pet. App. 22a. Anti-federalists such as Richard Henry Lee complained about the federal government's similar powers under the Constitution. Levy, Origimial Intent at 244-45. Intending to derail ratification, Lee proposed a bill of rights, including re-strictions on searches and seizures. Id. at 241. But under James Madison's political guidance, re-drafted versions of Lee's proposal instead justified ratification as a prophylactic against potential federal government abuses similar to those that enraged the colonists. See id. at 241-46. And until in-corporation, the Fourth Amendment constrained only the fed-eral government. Similar curbs on state police authority were left entirely to the states and their constitutions. See Irvine v. C'alifornia, 347 U.S. 128, 134 (1954) ("Never until June of 1949 [in W6lf v. Colorado, 338 U.S. 25 (1949)1 did this Court
3 1

hold the basic search-and-seizure prohibition in any way applicable to the states under the Fourteenth Amendment.").

Nothing in this Court's subsequent cases or tn the text, structure, or history of the Constittttion explains why the Fourth Amendtnent passed through the Fourteenth with greater limitations on state and local governments than on the federal government. To the contrary. as Judge Easterbrook observed, such an interpretation is "at war" with the Constitu-tion's text and history. Pet. App. 22a. At the Constitutional Convention, Patrick Henry protested that the potential op-pressiveness of "federal sheriffs" acting under distant superi-ors was greater than that threatened by local officers. Nelson
B. Lasson, The History amid Develapmnent of the Fourth Amendment to the United States Constitution 92 (1937). This historical predicate for the Fourth Amendment remains true now, not in the least because "Is]earches by the national gov-eminent pose a serious threat to the citizenry; searches by lo-cal governments pose less, because movement within the country is easy." Pet. App. 22a.

Especially given the severity and intractability of the war against drugs, municipalities need flexibility in developing new law enforcement techniques. The Seventh Circuit inter-preted Sitz to preclude local experimentation with law enforcement techniques rather than to leave states and municipal governments to explore a variety of reasonable options. That reading improperly inhibits federalistn's promise of state and local flexibility and innovation, as exemplified by the City's checkpoints.

B. Even If the "Special Needs" l)octrine Governs, the City's Checkpoints Satisfy It
If, as the Seventh Circuit believed, this Court's checkpoint cases could be understood as "special needs" cases, the City's checkpoints still are constitulional. The City has special needs to check drivers' licenses and vehicle registrations and

to detect driver impairment. It makes no difference to the legality of the stops that the IPD officers simultaneously use their unaided powers of observation to detect whether motorists are engaging in other crime. Likewise, it should make no difference that the officers also lead a narcotics-detection dog around the cars' exteriors to sniff for drugs.

Yet, notwithstanding the City's sufficient "special needs" for its checkpoints, the Seventh Circuit disallowed the checkpoints because vindicating these "special needs" is not the City's primary purpose. Pet. App. lOa-l Ia. According to the court below, it might be different if the City's primary purpose were to check licenses and registrations or to check for driver impairment, and the dog were added as a mere afterthought. Id. at lOa, I Ia. But because narcotics interdiction is foremost on the City's agenda, the court ruled, the City's other justifications for the checkpoints are constitutionally insufficient. 6 Id. at 7a, 11 a.

'rhe Court consistently has held that police officers' subjective intentions have no place in Fourth Amendment analysis. In Whren v. United States, 517 U.S. 806 (1996), the


For its proposition that an inrproper purpose destroys the checkpoints' validity, the Seventh Circuit cited dictum from the plurality opinion in Texas i'. Brown, 460 U.S. 730 (1983), which upheld a search of an auto-mobile based on an officer's plain-view observation of drug parapherna-lia, hut noted that there was no "suggestion that the roadblock was a pre-text whereby evidence of narcotics violation might be uncovered Id. at 743 (plurality opinion of Rehnquist, J.). Any significance this plu-rality statement may initially have born was negated in horton v. fJ'al(for-nia, 496 U.S. 128, 141 (1990), where the Court overturned the "inadver-tence" requirement of the plain-view doctrine and reduced that doctrine to a wholly objective inquiry as to whether the incriminating evidence was in plain view. And in Wlrren v. United Stares, 517 U.S. 806, 812 (1996), tire Court rejected a "pretext" argument based solely on outdated dictum. The Seventh Circtiit also cited United States v. Ortiz, 422 U.S. 891 (1975). See Pet App. 7a. However, Ortiz does not even mention the "pretext"
ISS re.
Court held that an objectively reasonable stop for a moving
traffic violation was valid notwithstanding that police officers may have intended to find evidence of drug possession or trafficking. "[T]he fact that [a policel officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." Id. at 813 (quoting Scott v. United States, 436 U.S. 128, 138 (1978)) (internal quotation marks omitted). Thus, because the officers had a legitimate basis for stoppin' the car, any ulterior motive could not invalidate the stop, and any otherwise permissible action they may take during the stop as a result of that ulterior motive (such as to observe what is in plain view) is permissible. See id. at 812; see also United States v. VillamonteMarquez, 462 U.S. 579, 584 n.3 (1983) (holding that officers' drug detection motive did not invalidate an otherwise proper boat seizure conducted pursuant to suspicionless maritime document-inspection program); (Inited States v. !3iswell, 406 U.S. 311, 315 (1972) (upholding suspicionless inspection of pawn shop based on the government's interest in regulating firearms and preventing violent crime, despite the consequent prosecution of pawn shop proprietor).

Recently the Court confirmed that Whren applies to actions police take without individualized suspicion. In Bond v. United States, 120 5. Ct. 1462 (2000), the Court addressed whether law enforcement officers may handle bus passen-gers' luggage "in an exploratory manner" without individual-ized suspicion of wrongdoing. hi. at 1465. Though declaring such government action unreasonable under the Fourth Amendment, the Court was careful to sttess that its decision did not turn on whether the otlicer had a subjective law enforcement intent. Citing Wlmren and California v. Ciraolo, 476 U.S. 207, 212 (1986), the Couti stated that "the st.tbjective intent of the law enforcement officer is irrelevant in determining whether that officer's actions violate the Fourth


Amendment.* * * This principle applies to the agent's acts in this ease as well: the issue is not his state of mind, but the objective effect of his actions." Id. at 1465 n.2. The Court thus has established that where the government articulates and pursues a legitimate interest for a suspicionless stop, courts should tiot look behind that interest to determine whether the government's "primal)' purpose' is valid.

I Icre, ll~D officers use checkpoints to check licenses and registrations an(l for sigtls that (Irivers are itnpaired constitutionally permissible conduct under Sitz and l~rouse. The City has acknowledged that a principal purpose in operating the checkpoints is to interdict illegal narcotics. Under (Immited States v. I~lace, 462 U.S. 696, 707 (1983), the City's use of the narcotics-detection dogs to pursue its narcotics interdiction interest is no ditferent from the Whren officers'

I)lait1-~'iew observation of the car they stopped for traffic vio lations. The same issue would face the Court if IPD officers tnerely were to pursue their interest in detecting illegal nar-cotics by way of a plain-view observation of stopped cars rathct than by way of narcoticsdetection dogs (except the checkpoints would be less effective).

Furthermore, to allow the City's admitted principal purpose of drug inter(lictit)n to invalidate the IPD's constitutionally reasonable actions would indeed lead to an "incongruous re-sult." See Villamonte-Marqucz, 462 U.S. at 584 n.3. The citizens of Indianapolis have elected a tiew mayor since the lf~D last operated its checkpoints. Under the Seventh Cir-cuit's .stan(lard. the legitimacy of future checkpoints would turn entirely on whether the new mayor and his adtninistra-tive appointees have the same priorities as the prior admini-stration, and not on what ll~l) officers do at the checkpoints. This is an tintenable stan(lar(l given the various interests that goverumetit leaders must meld in forming public policy. Of-ten, municipal and police leaders hope to achieve multiple ol jectives when they authorize particular lawenforcement
activities, including checkpoints. The jmorities of the mayor. the chief of police, police department supervisors, and ofli cers on the stteet properly may changc' x' ith each checkpoint, even though the police operate sttccessie checkpoints in the identical manner. To require the City hr "prove" that its mo-tive is proper (or alternatively, to require a challertging plain-tiff to prove that it was not) ;rsumes ~r rrnity and solidity of purposes and motives tha is unlikely ever to occur. Such an inquiry will produce results far too attenuated to be meaning-ful and will merely frustrate the efforts 4 police to engage in objectively reasonable law-entrcement conduct. See Whren, 517 U.S. at 815 (observing thc difficulty of "plumb[ing] the collective consciousness of law enforcerirent" in determining Fourth Amendment reasonableness).

The City's checkpoints fall within the long line of cases es-tablishing that objective reasonableness is the touchstone for Fourth Amendment compliance. See, er,'., Bomzd v. United States, 120 5. Ct. 1462, 1465 n.2 (2000): Whren, 517 U.S. at 812; Graham r'. Conmmor, 490 IS. 386, 397-99 (1989); Mary-land v. Macon, 472 U.S. 463, 470-71 (1985); Scott, 436 U.S. at 138; United States r. Robinson, 414 t iS. 218, 236 (1973).
If the City pursues a legally adequate programlevel justification for the checkpoints, then there is no Fourth Amendment violation. The IPD's objectively reasonable actions in check-ing drivers' licenses and registrations and looking for signs of driver impairment are sufficient under the "special needs" (loctrine (if it applies here at all), notwithstanding that the City uses the checkpoints to achieve a primary goal of inter-dieting illegal drugs. See Merrett r'. Moore, 58 F.3d 1547, 155051(11th Cir. 1995), (cml. denied. 519 U.S. 812 (1996). The Court should, therefore, analyze under the Fourth Amendment balancing test the objective conduct of the offi-cers operating the checkpoints and conclude that the check-points are reasonable.



'Ihe Court should reverse the judgtnerit of the court of ap-peals.

Respectfully submitted,

A. Sto'rrCtttNN

( ~ounsel ~f Reomd
ANTHONY W. Ovt-iRuot:r
Suite 1601, City-County Building
200 Fast Washingtot~ Street
Indianapolis, Indiana 46204
(317) 327-4055

MAurtltiw R. (;tJTwEIN TttoMAs M. HsIwR At'Rtl. IL. SHIERS l3AKIt~ & l)ANIEI.S 30t) North Meridian indianapolis. Indiana 46204 (317) 237-0300
May 5.20(K) (~ou,r.velfor I~etitioners

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