Checkpoint Follies

In a doctrinally bankrupt decision, the Supreme Court in Michigan Dep't of State Police v. Sitz, majority opinion by Chief Justice William Rhenquist, held that there is a caveat in the Fourth Amendment written in ink only visible to six member of the court that allowed an exception to seize people who have given the police no reason in the world to be seized if the state can come up with a really good story about why it wants to.  Sobriety field testing was just such a story.

The court only had a few conditions in letting the cops have their way: that it be truly random, and not used as a pretense to profile drivers of a color the cops didn't like, and that its randomness be reflected by an advance plan of what they would do, when and where they would do it. Because it would be pretty easy to claim an ad hoc roving checkpoint whenever the police decided they needed to make some collars for their quotas otherwise.

The idea was that an operational plan would be filed in advance of a checkpoint, and it would reflect the random manner of stopping otherwise innocent people.  Whether every third car, maybe sixth, whatever, but that was as far as the court would let them go.

Still, this proved too hard for cops in Florida.  From WTSP:

So let's go back to that DUI checkpoint last December. Pasco Sheriff's deputies, Florida Highway Patrol troopers, and Tarpon Springs Police officers were in charge. The operational plan they filed stated they were going to pull over every third vehicle. Daniels noticed on the police's own squad car video recordings that the three agencies were breaking the rules. The video clearly shows the flagman at the front of the checkpoint wasn't following the plan and flagging in three and four cars at the time.

Darn those dashcams. So Jason Sammis, a lawyer representing someone caught in the net, took this to the state attorney to show that the cops ignored the operational plan, and rendered the checkpoint flagrantly unlawful.  The state attorney reacted, well, in a curious fashion.

[I]nstead of dropping the cases, the state attorney's office took a new tactic and it got ten law enforcement officers who worked that night to sign affidavits saying the operational plan was followed, which was a bald-faced lie.

After all, if ten officers swear to a lie, then it must be true.  But the state's attorney claimed it was an honest mistake:

A spokesman says Assistant State Attorney Vin [irony alert] Petty missed that fact while he was at the checkpoint, and when he first watched the video, and that's why he had officers sign the affidavits. The police agencies also claim they had no idea they were violating the law.

Clearly, there is no reason to expect that either the Assistant State Attorney or the multitude of officers from various departments would have any clue as to what the lawful requirements of a checkpoint might be. That would require training, perhaps even reading a Supreme Court decision (if not the Classic Comics version), and would take time away from keeping our roads safe.  Or perhaps the people involved were intellectually challenged, making counting by threes beyond their ken, and thus better suited for work at the Department of Justice.

The very notion of checkpoints, where people for whom no suspicion exists are seized, is a facial affront to the core of the Fourth Amendment, that no person be subject to unreasonable search or seizure.  Checkpoints, by definition, provide no reason. Even random, they elevate the state's concern that people are having too much fun over the citizens right to not be seized unless there is reason to believe he is breaking the law. 

But even if the Supreme Court majority is willing to shut its eyes as tight as possible, and picture an exception in the law to appease the MADD gods, would it kill the police to formulate a lawful plan and execute it properly?  Perhaps a remedial course in counting by threes would help?  Or maybe just stop lying in affidavits to cover your flagrantly unlawful conduct?

Or maybe its time to revisit the concept of random checkpoints because it's nearly impossible for the defendant to know whether they've been conducted lawfully?  This time, there was a dashcam video that enabled eagle-eyed Sammis to see that the plan was totally ignored, but eventually the cops will figure out that if they point their cruiser the other way, no one will be the wiser.

And since I don't have access to the dashcam checkpoint video, and can't imagine it would be particularly fun to watch even if I did, here's a totally different video that offers a bit more to ponder.










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