US Supreme Court Briefs

No. 99-1030

IN THE
Supreme Court of the United States

CITY OF INDIANAPOLIS, INDIANA, AND
BART PETERSON. IN HIS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF INDIANAPOLIS, INDIANA,
Petitioners
V.
JAMES EDMOND AND JOELL PALMER,
ON THEIR OWN BEHALF AND ON BEHALF OF
A CLASS OF THOSE SIMILARLY SITUATED,
Respondents

On Writ of Certiorari to the
United States Court of Appeals
br the Seventh Circuit

REPLY BRIEF FOR PETITIONERS

A. SCOTT CHINN
CORPORATION COUNSEL FOR THE
CITY OF INDIANAPOLIS
Counsel of Record
ANTHONY W. OVERHOLT
OFFICE OF CORPORATION COUNSEL
Suite 1601, City-County Building
200 East Washington Street
Indianapolis. Indiana 46204
(317) 327-4055
MATTHEW R. GUTWEIN
THOMAS M. FISHER
APRIL E. SELLERS
BAKER & DANIELS
300 North Meridian Street
Indianapolis. Indiana 46204
(317) 237- 0300
Counsel for Petitioners

August 7, 2000




WL5ON-EJ'ES PRINHNG Co., NC. (202) 789-0096 WASHINGTON, 0. C. 20001


TABLE OF CONTENTS
Page
TABLE OF AUTHORITWS ii
ARGUMENT 2
CONCLUSION 15






























(i)



CASES:
iii
ii

TABLE OF AUTHORITIES

Page

Board of Educ. of Kiiyas Joel Village Scli. Dist.
v. Grumet, 512 U.S. 687 (1994) 14, IS
Bond v. United States, 120 S.Ct. 1462 (2000) 10
Brown v. Texas, 443 U.S. 47 (1979) pass an
Chandler v. Miller, 520 U.S. 305 (1997) 6
Delaware v. Prouse, 440 U.S. 648 (1979) 8, 9
Donovan v. Dewey, 452 U.S. 594 (1981) 6
Griffin v. Wisconsin, 483 U.S. 868 (1987) 6
Michigan v. Clifford, 464 U.S. 287 (1984) II
Michigan v. Tv/er, 436 U.S. 499 (1978) I I
Michigan Dep't of State Police x'. Sit, 496 U.S.
444 (1990) passun
National Treasury Employees Union v. Von
Raah, 489 U.S. 656 (1989) 4,6
New Jersey v. T.L.O., 469 U.S. 325 (1985) 6
New York v. Burger, 482 U.S. 691 (1987) 6
Pennsyl~'ania v. Mirnrns, 434 U.S. 106 (1977) 6
Rawlings v. Kentucky, 448 U.S. 98 (1980) 6
Skinner v. Railway Labor Executives' Ass'n, 489
U.S. 602 (1989) 6
Texas v. Brow,i, 460 U.S. 730 (1983) 14
Torres v. Puerto Rico, 442 U.S. 465 (1979) 3
United States i'. Bajakalian, 524 U.S. 321
(1998) 11
United States v. Brignoni-Ponce, 422 U.S. 873
(1975) 6

United States v. Martinez-Fuerte, 428 U.S. 543
(1976) passlul
United States v. Mendenhall, 446 U.S. 544
(1980) 6
Uiiited States v. Place,462 U.S. 696 (1983) 13
United States i'. Villamonte-Marqiiez, 462 U.S.
579(1983) 13
TABLE OF AUTHORITIESContinued
P
age

United States v. Wilson, 7 F.3d 828 (9th Cir.
1993), cert. denied, 511 U.S. 1134(1994) II
Vernonia Sc/i. Dist. 47.1 v. Acton, 515 U.S. 646
(1995) 6
Whren v. United States, 517 U.S. 806
(1996) 9, 10,
14, 15

CONSTITUTION~
U. S. Const. amend. IV passini





IN THE



~upr~me Qourt of t~W ~niteb ~tat~

No. 99-1030


CITY OF INDIANAPOLIS, INDIANA, AND
BART PETERSON. IN HtS OFFICIAL CAPACITY AS MAYOR OF THE CITY OF INDIANAPOLIS, INDIANA,
Petitioners.
V.


JAMES EDMOND AND JOELL PALMER,
ON THEIR OWN BEHALF AND ON BEHALF OF A CLASS OF THOSE SIMILARLY SITUATED,
Respondents.


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


REPLY BRIEF FOR PETITIONERS


Respondents divide Fourth Amendment jurisprudence into two neat parts based on the government's state of mind. According to respondents,
searches and seizures that the government conducts primarily for criminal-investigatory purposes invariably must be supported by cause, while searches
and seizures that the government conducts primanly for non-criminal-investigatory purposes in some circumstances may be pursued without cause.
Resp. Br. 11,
20-21. As a threshold matter, respondents' criminal/non-


2

criminal distinction finds no home in the text of the Fourth
Amendment. And although this case is about automobile-
checkpoint seizures, respondents construct their binary model
based on search cases within the "special needs" doctrine.
Thus, respondents examine regulatory-search, inventory-
search, and drug-testing-search cases (id. at I I - 16), and then
strain to square those unrelated cases with the precedenls
relevant hereUnited States i'. Martinez-Fuerte, 428 U.S. 543
(1976), Michigan Dep't of State Police ii. Sit:, 496 U.S.
444 (1990), and Brown i'. Texas, 443 U.S. 47 (1979). Rcsp.
Br. 16-25. Respondents' global Fourth Amendment theory
fails because Martine:-Fuerte and Sit: establish definitively
that police may conduct automobile checkpoints for criminal-
investigatory purposes.

Equally unsound is respondents' argument that the Court
should disregard the City's other checkpoint justitications
(checking licenses, registrations, and for impairment) because
the City's "dominant purpose" is to interdict drugs. Resp. Br.
34-37 n.12. The City's alternative justifications are
indisputably legitimate, and respondents concede thaI courls
will sometimes find it "impossible" to determine whether
criminal-investigatory interests supply the "dominant purpose
behind checkpoints ostensibly conducted for other purposes.
Id. at 37 n.12. The test respondents offer to evaluate these
"impossible" situations demonstrates what the City has
explained in this case: the constitutionality of a police
checkpoint does not turn on the governmenl's motivation.

ARGUMENT
I

1. Martin e:-Fuerte and Sit: cannot be recast as special-
needs or administrative-search cases. Contrary to respondents'
assertions, Martine:-Fuerte did not decide to apply a balancing
test to checkpoint stops based on Congress's power over
immigration and border controls. The
3

Court nowhere even mentioned the checkpoints' border- and
immigration-control purposes as justifications for applying a
balancing test. In noting that the govemment's interests were
"legitimate and in the public interest," the Court merely was
balancing the interests at stake. Martinez-Fuerte, 528 U.S. at
562. And in deciding to apply a balancing test to the
checkpoints, the Court appropriately focused on motorists'
reduced expectations of freedom of movement and privacy in
Iheir automobiles, 1101 on Congress's power over immigration
and border controls. Id. at 561. Governments at all levels
subject motorists to detailed regulations and limits. For
example, the government forces motorists to stop at railroad
crossings, stoplights and stop signs, and the police stop cars at
checkpoints to search for fugitives and missing persons. All
motorists, not merely those crossing international borders,
have reduced expectations of freedom of movement and
privacy.

Further, that Martinez-Fuerte characterized immigration-
control checkpoints as "legitimate and in the public interest"
hardly signals a special Fourth Amendment status not
applicable to checkpoints that state and local governments
employ for other sound reasons. For example, Sit: approved a
state's sobriety checkpoints, thus proving that Congress s
immigration- and border-control powers are not special in this
regard. And while Thrres v. Puerto Rico, 442 U.S. 465, 472-
73 (1979), confirms the unremarkable proposition that
immigration- and border-control powers reside only with the
federal government, states and cities have general police
powers that allow them to enact narcotics and traffic-safety
laws and to establish checkpoints to enforce them. Those
local powers are on equal Fourth Amendment footing with
Congress's border-control powers. But under respondents'
theory, the Border Patrol could operate a checkpoint in
Detroit (which, like the checkpoint in Martinez-Fuerte, is
within 100 miles of an international border) using trained dogs
to sniff contraband, but the Detroit police would be





4
precluded from operating the same checkpoint in the same
location using the same minimally intrusive techniques.

Similarly, in deciding to apply Brown balancing. Sit: did
not rely on, or even mention, any 'non-criminal
investigatory purpose. Resp. Br. 22. Rather, Sit:
acknowledged that at least two people had been arrested at
Michigan's sobriety checkpoints (Sit:, 496 U.S. at 448), and
in applying Brown the Court referred to checkpoints as a
"law el1forcenlent technique" and as a means of
"apprehending drunken drivers." Id. at 453. Respondents
acknowledge (as they must) that Sit: expressly eschewed
reference to "special needs"i.e., non-criminal-investigatory
needsto jtist iCy applying Brown. Resp. Br. 23.
Consequently, contrary to respondents' assertion, Sit: did
indeed "authorize police stops which are designed solely or
primarily for purposes of normal police investigation" (id.),
so long as such stops pass Brown balancing.'

Equally unhelpful is respondents' argument that the Court's
decision to apply a balancing test to immigration and


The Court in Sit: was confronted with, and rejected. thc very
argument that respondents advance herethat criminal-investigatory
checkpoints should be treated differently from other kinds of checkpoints.
Indeed, the position of the American Civil Liberties Union (co-counscl for
respondents) in this case that sobriety checks are no, ftr the purpose of
criminal investigation marks a dramatic departure from the position it
took on behalf of respondents in Sit:, where it argued that "the sci,.urc ol
motorists under the Michigan State Police sobriety roadblock is dcsiguied
to serve only one purposethe enforcement of criminal laws against drunk
driving. Such roadblocks are instituted to detect and arrcst intoxicated
drivers. Quite clearly, these roadblocks serve no special nced. ~beyond the
normal need for law entbrcement."' Sit: Resp. Br. II. The Court agreed and
applied Brown v. Texas, 443 U.S. 47. 5t)-51 (197')) (which supplies a
criniinal investigation standard), rather than National Treasury
Employees Union v. Von Roab, 489 U.S. 656, 665-66 ( 198')) (which
supplies a ~~special needs" standard). Mi('higan Dept ('I Stan Pot ice v.
Sit:, 496 U.S. 444, 449-50 (199t)).
5

sobriety checkpoiivs may be justified because "criminal
prosecution is not the principal or ultimate goal of the
program.' Resp. Br. 17. To say that prosecution for
smuggling illegal aliens furthers the government's public-
policy goal of curbing illegal immigration, or that prosecution
for drunk driving furthers the government's public-policy goal
ol preventing accidents, does not distinguish these
prosecutions from any other. Just as "jjt]he need to keep
imminently unsafe drivers off the road is a non-criminal
investigatory interest" (id. at 22), so too is the need to keep
imminently utisafe narcotics off the street a non-criminal-
investigatory interest. And just as "interdicting the flow of
illegal entrants" irno the United States before illegal aliens
reach large labor markets serves "the public interest"
{Mariine:-Puerte, 428 U.S. at 552. 562), so too does
interdicting the flow of illegal narcotics before the drugs
reach consumer markets serve the larger public interest.
Whenever the government pursues an investigation to
enforce the lawcriminal or civilthe government furthers its
interest in protecting the health, safety and welfare of the
citizenry. That is why the underlying public policy promoted
by the checkpoints played no part in the Court's decisions to
employ Fotirth Amendment balancing tests in Martine:-
1~'uerte and Sit:.

2. To make their theory work, respondents also recast
Brou,i v. Texas, 443 U.S. 47 (1979). Respondents assert that
I3rown balancing applies only in non-criminal-investigatory
cases, such as administrative- and regulatory-search and
seizure cases. Resp. Br. 20. But Brown itself was a criminal
investigation case. See Brow,i, 443 U.S. at 48-49. And in
articulating the Fourth Amendment balancing test, Brown
specifically contemplated seizures in the criminal-
investigatory context, stating, "~t]he reasonableness of
seizures that are less intrusive than a traditional arrest ~~''~'
depends on a balance between the public interest and the
individual's right to personal security free from arbitrary





6

interference by law officers."' Brown, 443 U.S. at 50 (quoting
Pennsylvania v. Mimms, 434 U.S. 106, 109 (19771; United
States v. Brignoni-Ponce, 422 U.S. 873, 878 (1975)). The
Court subsequently has applied Brown balancing only in
criminal-investigatory contexts. In Sit, the Court applied it
to sobriety checkpoints designed to detect criminal conduct.
496 U.S. at 453. And in Rawlings v. Kentucky, 448 U.S. 98.
110 n.5 (1980), the Court cited Brown balancing as the
proper standard where the police "temporarily detainji a
person at the scene of suspected drug activity to secure a
search warrant See also United States v. Mendenhall, 446
U.S. 544, 561 (1980) (Powell, J., concurring) (applying
Brown balancing to DEA officers' stop of an airline passetiger
fkr the purpose of investigating drug trafficking).

Meanwhile, in non-criminal-investigatory, or "special
needs," cases, the Court has never relied on Brown. In New
Jersey t'. T.L.O., where Justice Blackmun characterized
administrative-search cases as presenting "special needs.
beyond the tiomial need for law enforcement," neither the
Court nor Justice Blackmun cited Brown in deciding to use a
balancing test to review a school principal's search of a
student's purse. 469 U.S. 325, 337, 351 (1985). Likewise. the
Court has not cited Brown in cases reviewing govertimenl
inspections of closely regulated businesses or tn cases
reviewing drug-testing programs. See New York t'. Burger.
482 U.S. 691. 702-04 (1987); Donovan v. Dewey, 452 U.S.
594, 598-604 (1981); Chandler v. Miller, 520 U.S. 305. 313-
2() (1997); Vernonia Sch. Dist. 47J v. Acton, 5 15 U.S. 646.
652-53 (1995); National Treasury Employees Union v. on
Raah, 489 U.S. 656, 665-66 (1989); Skinner v. Railway
Labor Executives' Ass'n, 489 U.S. 602, 619 (1989). See also
(hi//in
v. Wisconsin, 483 U.S. 868, 873-77 (1987) (analyzitig the
search of a probationer's apartment under the "special nculs"
doctrine, and not citing Brow,i).
7

Nor has the Court's use of Brown in the criminal-
investigatory context opened the door to unrestricted
searches .itid setzures. as respondents portend. Resp. Br. 32-
33. Brown requires an inquiry not only into the weight of the
asserted governmental interest, but also into the degree of
intrusion the governmental action imposes on individuals.
Brown, 443 U.S. at 51. Like Marti,te:-Fuerte and Sit:, this case
coticerns only brief seizures of automobiles, not searches of
pedcstri~tns, who have higher expectations of freedom of
tnoveinent and privacy than do motorists. Under
circumstances more personally invasive than the brief
seizures at issue here, the degree of intrusiveness may
outweigh the government's asserted interest.

Respondents' argumetn that the City's checkpoints are
overly intrusive (Resp. Br. 40) under Brown also is
insupportable. The Court in Martine:-1"uerte and Sit: held
that checkpoints are permissible because the obvious police

presence and use of uniform procedures reduce innocent
motorists subjective fear and alarm. Martine:Fuerte, 428
U.S. at 558; Sit:, 496 U.S. at 453. Here, the police post signs
to advise motorists that they are approaching a narcotics-
detection checkpoint where a "K-9" will be used and station
tn~rked cruisers near the checkpoints. Pet. App. 57a.
Moreover, officers have no discretion over how to operate
the checkpoints: detailed, written guidelines require officers
to stop only predetermined sequences of cars and instruct
officers what to say, what to observe, and what to do.2 Id. at


- While the IPD devotes 30 otficers to each checkpoint, it is not
the case, as respondents imply (Resp. Br. 42), that all 30 officers
approach each car. Rather, the otltcers must manage numerous cars at once,
and their attention is divided among various tasks, including checking
licenses and registrations with motorists, using the computer to check for
valid licenses and for outstanding warrants, handling the narcotics dog,
and ensuring the overall safety and efficiency of the checkpoint. Had the
City tlesoted fewer officers, the stops would have lasted longer, and





8 9

26a-27a. Thus, the City's checkpoints protect motorists from
exactly the kinds of arbitrary or excessive intrttsions ihe
Court has invalidated in connection with automobile stops.
See, e.g., Delaware v. Prouse, 440 U.S. 648, 661 (1979).

Furthermore, respondents suggest that dog sniffs yield
"uncertain" results and therefore are likely to cause triolorisis
greater "fear and surprise." Resp. Br. 40-41. But they do not
explain why the reaction of an officer concerning a driver's
sobriety is likely to be more "certain" than the reaction of a
narcotics-detection dog with superior olfactory capabi lit ics
and fewer distractions. See id. at 41. More fundamentally. the
mere possibility that a dog sniff at the City's checkpoinls may
yield a false positive in a particular instance is not properly
before the Court. "As pursued in the lower courts. the instant
action challenges only the use of . . . checkpoitiis generally."
Sit:, 496 U.S. at 450. This case is not about what happens
after the stops in individual cases: any unconstitutional police
or narcotics-dog conduct occurring after the stops remains
subject to case-by-case jtidicial review. Indeed, respondents
have repeatedly disclaimed any challenge to the dog sniffs in
this case. Resp. Br. 41 n.14:
Resp. Seventh Cir. Reply Br. 3 n. I.

II

Respondents argue that the City's additional justifications
for its checkpointsto conduct license, registration, and
sobriety checksmerely amount to a disingenuous "scheme to
keep drivers seized" during the dog sniff. Resp. Br. 35. They
urge the Court to look behind the City's additional purposes
and invalidate the checkpoints because the City also has an
"overriding" drug-interdiction purpose. Id. at 36. But in
stating that there is no evidence of the City's other


respondents surely would have complained even more that the stops'
duration renders them unreasonable.
interests, respondents ignore the tecord; in arguing that the
Court may disregard the City's asserted interests, they
contradict the Court's precedents; and in urging the Court to
determine the relative priorities of municipal and law
enlorcement officials, they propose an impractical and elusive
inquiry that they themselves do not embrace and ultimately
concede to be unworkable.

I. Respondents are flatly wrong when they argue that the
City is uninterested in conducting license, registration, and
sobriety checks. Resp. Br. 34-38. According to the City's
checkpoint guidelines, the officers' first actions are to check
licenses and registrations and to "Illook for signs of
impairment." Pet. App. 53a; compare with Sit:, 496 U.S. at
447 ("drivers farel briefly examined for signs of
itiloxication."). Consequently, nearly half of the arrests at the
checkpoints were not related to narcotics. Pet. App. 2a-3a.
Based on this evidence, the district court specifically found
that the City's checkpoints' "stated and actual purposes
include" natcotics checks "a,td checking licenses and
registrations." id. at 43a-44a. Further, Sit: held that checking
nlotorists' sobriety is a valid justification for a checkpoint,
and Prouse, 440 U.S. at 658, 663, established that checking
licenses and registrations vindicates a "vital" interest that can
justify a checkpoint. Thus, the City need not "present some
evidence that public concern over license and registration
issues justifies a roadblock." Resp. Br. 37 n. II.

2. These additional interests justify the City's
checkpoints, notwithstanding the City's other motivations.
The central teaching of Wliren v. United States. 5 17 U.S.
806, 8 13 (1996), is that the police may stop a motorist as
long as there is a legitimate objective reason to do so, even if
the officers' subjective motivaflons for the stop are improper.
Respondents do not offer a principled explanation for why
checkpoints ritiist be judged based on the City's programmatic
motivations while a particular seizure may not be judged





10

based on an officer's motivations. Whren's rationale for
insisting solely on an objective inquiry applies equally where
officers have no individualized suspicion (see Bond v. United
States, 120 S.Ct. 1462, 1465 n.2 (2000)) and instead follow
the express directives of city policymakers. And while the
City has admitted that drug interdiction is a principal purpose
for the checkpoints, Whren explained that the basis for
rejecting a subjective inquiry does not rest solely, "or even
principally," on the difficulty of obtaining evidence of the
government's intent. Whren, 517 U.S. at 814. Rather, the
"principal basiswhich applies equally to attempts to reach
subjective intent through ostensibly objective meansis
simply that the Fourth Amendment's concern with
'reasonableness' allows certain actions to be taken in certain
circumstances, whatever the subjective intent." U. In other
words, it is precisely the Fourth Amendmeiit's concern for
reasonablenessby nature an objective inquirythat precludes
judging the City's checkpoints based on the motivations
behind them.

An additional problem is that, notwithstanding the City's
candor in this case, respondents' methodology would reqttire
courts reviewing future checkpoints to "plumb the collective
consciousness of law enforcement" (Whren, 517 U.S. at 815)
and determine whether an improper purpose "overrides" a
permissible one. Such an undertaking would be highly elusive
and, indeed, more difficult than detetmining the subjective
intent of a single law enforcement officera practice the
Court has rejected. Id. Modern law enforcement programs are
developed with input from multiple officials and groups and,
consequently, serve multiple purposes, such as preventing
crime, deterring disfavored behavior, promoting public safety,
stimulating economic development, and instilling community
pride.

Respondents do not propose a reliable framework (nor
does one exist) for courts to consider these various interests
and to
II

arrive at a sitigle, overriding "programmatic purpose."
Itistead, they merely cite Michigan i'. Cli/j'brd, 464 U.S.
287, 297-98 (1984), for the proposition that courts will find
primary purpose "not by looking into the thought processes
of those involved, but by reaching reasonable conclusions
based on the evidence before the Court." Resp. Br. 36. But
Cltfford invalidated a search that occurred alter the
government had exhausted its administrative needs. Clifford,
464 U.S. at 297 ("Because the cause of the fire was then
known, the search of Ihe upper portions of the house . . . could
only have been a search to gather evidence of the crime of
arson.") (emphasis added); see also Michi~an v. Tyler, 436
U.S. 499, 5 1 1-12 (1978) (invalidating fire and police
officers' follow-up searches that occurred after exigency
period had passed). With checkpoint slops, however, the
government pursues multiple purposes simultaneously. In
such circumstances, any material intrusion under the Fourth
Amendment is the same regardless of purpose, and courts will
find it immeasurably more difficult (arid ultimately pointless)
to try to determine whether an overriding improper purpose
exists. For example, some police dogs are trained to detect
not only drugs, but also humans and currency. United States Br.
I; see also United States v. Wi/so,,, 7 F.3d 828, 832 (9th Cir.
1993), cert de,tied, 511 U.S. 1134 (1994); United States v.
Bajakajian, 524 U.S. 321, 324 (1998). Thus, when the
Border Patrol uses a dog at a checkpoint to sniff for illegal
aliens, the dog simultaneously sniffs for drugs. Irrespective of
whether the Border Patrol's "dominant purpose" is to check
for illegal aliens or for drugs, the Border Patrol's conduct is
identical. But under respondents' theory, the government's
identical conduct, which imposes the identical deoree of
intrusion upon motorists, will be treated differently depending
upon the government's "dominant purpose."

Further, respondents do not elaborate how courts would
undertake such a case-specific inquity. In his dissent below,
Judge Easterbrook wartied that a checkpoint trial will be "one





12

at which officials of Indianapolis will testify about their
motivations in approving the roadblock program, and the
district judge must make credibility findings to resolve the
fourth amendment objection." Pet. App. ISa. Because the
City has a new mayor since the initial formulation of the
checkpoint policy, this inquiry is even more complex in this
case. Is the current administration stuck with the publicly
stated positions of the prior administration? May the new
mayor credibly disavow the prior administration's purposes
while conducting the checkpoints in the exact same manner?
Nor is it clear whether a judge or a jury would decide this
credibility issue. But regardless who decides, respondents'
theory would inevitably lead to different conclusions about
identically operated checkpoints. Decisions about
constitutionality would depend not on the conduct of police,
but on the content of the government's press releases and
public statements (here from the prior city administration).
Resp. Br. 35-36.

Judge Easterbrook also pointed out the disconnection
between the motivations behind checkpoint programs and
the Fourth Amendment inquiry: "[ljjf a dog may be added to
the program sustained in Sit:, it can't matter to
'reasonableness' whether some of the program's sponsors
thought the dog more important than the breathalyzer." Pet.
App. ISa. That respondents are willing to argue here that the
City is not sufficiently motivated by its asserted license-
check and driver-impairment interests, despite stipulated
evidence and the IPD's conduct to the contrary,
demonstrates how unrelated their approach is to an objective
inquiry and how muddled their alternative inquiry would be.
See Resp. Br. 34-
35.
3. Ultimately, respondents themselves recognize that the
constitutionality of a checkpoint does not, contrary to their
global theory, turn on the government's motivation.
Respondents concede, as they must, that with mixed-motive
13

checkpoints it can be "impossible" to determine the
government's primary purpose. Resp. Br. 37 n. 12. In such
cases, they assert, if the government's "criminal
investigatory purposes increase the intrusiveness of the
search or seizure in any way over what the government
would otherwise have conducted in pursuit of its legitimate
regulatory goals," the checkpoint (asstiming it is conducted
without cause) should be declared invalid. Id. Thus,
respondents assert that, in ~~tmpossible" cases, the
government's need for cause to conduct a search or seizure
depends on the intrusiveness of the government's actions,
not on the government's purpose. Respondents'
"impossibility" test highlights the incurable defects in their
global theory, and this new twist is inconsistetit with
precedent and unworkable.
As an initial matter, tespondents' novel proposal amounts
to a back-door method of invalidating law enforcement
practices the Court has long approved under the Fourth
Amendment, such as minimally intrusive dog sniffs and
plain-view observations. Notwithstanding the lawfulness of
minimally intrusive dog sniffs (United States v. Place, 462
U.S. 696. 707 (1983)), under respondents' theory they
presumably would be invalid (absent cause) because of what
they supposedly reveal about the government's motivations.
Similarly, though United States v. VillamonreMarque:, 462
U.S. S79 (1983), upheld a maritime document-inspection
stop where "visual inspection of the Ivesselli is limited to
what can be seen without a search" (id. at 592, quoting
Martine:Fuerte, 428 U.S. at 558), including an officer's
peering through an open hatch (id. at 583), under
respondents' theory, this non-search "visual inspection"
would invalidate the stop because it was "intrusive to some
degree" (id. at 592) and was attributable only to a
criminalinvestigatory purpose (see id. at 583). Respondents'
theory would, in short, require overruling P/ace's holding that
a minimally intrusive dog sniff is not subject to Fotirth
Amendment review, as well as ~'illantoitte-Marque: and
possibly other precedents. See,





14
e.g., Texas v. Brown, 460 U.S. 730, 739-40 (1983) (plurality
opinion of Rehnquist, J.) (stating that an officer's shining a
flashlight into a car stopped at a license checkpoint and
shifting his position to gain a better view for criminal
investigation purposes are not subject to challenge under the
Fourth Amendment); Martine:-Fuerte, 428 U.S. at 558
(upholding an automobile checkpoint where "visual
inspection of the vehicle is limited to what can be seen
without a search.").

Furthermore, respondents' "impossibility" test is sure to
yield inconsistent results. The precise circumstances where a
court would find it "impossible" to discern the government's
primary purpose for a search or seizure are undefined and,
more likely, undefinable. Does "impossibility" arise merely
where there is "some evidence [of] public concern" (Resp.
Br. 37 n.l 1) related to the asserted regulatory interest? Or is
there a way to prioritize conflicting evidence that resolves
the dilemma, i.e., does the mayor's word count more than
the police chief's? Nor do respondents state whether
"impossibility" is a matter for a jury or a judge to decide, or,
if a juty is to determine "impossibility," whether the trial
would be bifurcated for an initial "impossibility"
determination. As with respondents' more general inquiry
into programmatic purpose, these lingering questions would
inevitably lead to disparate treatment of identical
checkpoints, and they show how far removed respondents'
theory is from the inquiry into reasonableness established in
Martine:-Fuerte, Sit:, Drown and Whren.
IS
one that would resolve all Foumrth Amemidment cases based
on whether criminal investigation is the primary purpose for
police conduct. However, "the same constitutional principle
may operate very differently in different contexts * * *
[a]nd setting forth a unitary test for a broad set of cases may
sometimes do more harm than good." Id. In this case,
respondents' Grand Unified Theory crumbles as soon as it is
applied. To focus on the government's primary purpose
would enmesh the Court in secotid-guessing the motivations
of municipal leaders and police officers and would contradict
Martine:-Fuerte, Sit:, Brown and Whren. The Court instead
should reaffirm those cases and uphold the City's
checkpoints.
CONCLUSION
The Court should appeals.
reverse the judgment of the court of
Respectfully submitted,


A. SCOTT CHiNN
CORPORATION COUNSEL FOR THE CITY OF INDIANAPOLIS
Coutisel of Record
ANTHONY W. OVERHOLT
OFFICE OF CORPORATION COUNSEL
Suite 1601, City-County Building
200 East Washington Street
Indianapolis, Indiana 46204
(317) 327-4055
* * * *
"It is always appealing to look for a single test, a Grand
Unified Theory that would resolve all the cases that may
arise
under a particular Clause." Board of Educ. of Kiiyas .Joe/
Village Sch. Dist. v. Grumet, 512 U.S. 687, 718 (1994)
(O'Connor, J., concurring). Respondents propose such a
Grand Unified Theory of the Fourth Amendment in this
case,
August 7, 2000
MATTHEW R. GUTWEIN
THoMAS M. FISHER
APRIL E. SELLERS
BAKER & DANiELS
30() North Meridian Street
In(lianapolis, Indiana 46204
(317) 237-0300 CowtselJ~r Petitioners


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