Said the court, "We decline to suspend the usual requirement of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes." (Indianapolis v. Edmond.)
In Illinois v. Lidster, the Supreme Court recently approved the use of a checkpoint to try to locate witnesses to a crime. One week after a hit-and-run motorist killed a bicyclist, police set up an informational checkpoint at the site of the collision, at the same time of night, to try to locate possible witnesses who might customarily use that road at that time of night, on that same day of the week. Each driver was stopped for 10 to 15 seconds, was asked about having seen anything, and was given a flier containing details and a request for helpful information.
When Robert Lidster came through the checkpoint, officers noticed his symptoms of intoxication and arrested him for driving under the influence. He challenged the lawfulness of his detention.
What was significant in this case, according to the court, was that "The stop's primary purpose was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others."
Although the Supreme Court has never directly ruled on the constitutionality of using checkpoints to examine license and registration compliance, it has strongly suggested that such checkpoints would be permissible.
In Delaware v. Prouse, the court disapproved random car stops to check for license and registration, but added, "This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative."
And in the Edmond case, the court repeated that "In Delaware v. Prouse we suggested that a similar type of roadblock with the purpose of verifying drivers' licenses and vehicle registrations would be permissible."
A proper checkpoint would likely require site selection by supervisors, attendance by uniformed personnel, a non-discretionary formula for stopping vehicles (every vehicle, or every third, etc.), and very brief delays.
Even before the recent terrorist activity and the D.C. Sniper case arose, the Supreme Court had been careful to point out that extraordinary situations would alter the constitutional balance. For example, when the court invalidated the Indianapolis narcotics checkpoint in the Edmond case one year before the World Trade Center attacks, there was language in the court's opinion making allowance for special security needs:"Our holding does not affect the validity of border searches or searches at places like airports and government buildings, where the need for such measures to ensure public safety can be particularly acute. The Fourth Amendment would almost certainly permit an appropriately tailored roadblock set up to thwart an imminent terrorist attack or to catch a dangerous criminal who is likely to flee by way of a particular route."
Based on this language and the recent ruling in Lidster, it appears that law enforcement now has the tools to use checkpoints as reasonably necessary for homeland security purposes. The leeway granted by the court's language in Edmond would undoubtedly allow roadblocks near potential terrorist targets, such as airports, dams, power plants, malls, and amusement parks, where intelligence might indicate a heightened risk, and would certainly allow strategic roadblocks after any terrorist incident or other dangerous crimes, to net the perpetrators. Additionally, the Lidster ruling permits checkpoints to locate witnesses or to pass out informational fliers to motorists following a serious incident. Naturally, advance checkpoint planning is imperative.
Attorney Devallis Rutledge, a former police officer and prosecutor, defends
officers and agencies at Manning & Marder, Kass, Ellrod, Ramirez.