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The chilling loophole that lets police stop, question and search you for no good reason

Cops are increasingly using this legally murky tactic to scrutinize private citizens


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Simon Davis-Cohen
September 23, 2014 3:45PM (UTC)
This article originally appeared on AlterNet.

AlterNetCheckpoints occupy a unique position in the American justice system. At these roadside stations, where police question drivers in search of the inebriated or “illegal," anyone can be stopped and questioned, regardless of probable cause, violating the Fourth Amendment’s protection against “general warrants” that do not specify the who/what/where/why of a search or seizure. Though the Supreme Court agrees that checkpoints skirt the Fourth Amendment, the Court has been clear that the “special needs” checkpoints serve, like traffic safety and immigration enforcement, trump the “slight” intrusions on motorists’ rights.

We have checkpoints for bicycle safety, gathering witnesses, drug trafficking, “illegal” immigration and traffic safety. Many states, like California, require cops to abide by “neutral” mathematical formulas when choosing which drivers to pull over (like 1 in every 10 cars). In reality, these decisions are left to the discretion of individual police officers, which results in a type of vehicular stop and frisk.

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That’s why people in Arizona have sued the Department of Homeland Security for its wanton deployment of immigration checkpoints in their state. Among their complaints are racial profiling, harassment, assault and unwarranted interrogation, and detention not related to the express “special need” of determining peoples’ immigration status.

A key legal detail about checkpoints is that they cannot be used for crime control, as that would require individualized probable cause. But legal scholars argue that non-criminally-minded checkpoints are also illegal. They point out that the Fourth Amendment protected the colonists from being searched for non-criminal “wrongdoing.” Doing nothing wrong at all, they argue, is not grounds to be searched or have your property seized.

Regardless, unlike DUI checkpoints, these immigration checkpoints, expanded by the 2006Secure Fence Act, are only allowed within 100 miles of the continental United States’ border. But that’s a big perimeter. Nine of the country’s 10 largest cities, entire states and some two thirds of the US population reside within this constitutionally exempt zone.

At these checkpoints—some of which have become permanent fixtures on the highway—people are forced to stop when flagged down, again regardless of probable cause. But the extent to which people are legally obliged to answer officers’ questions is unclear and seemingly arbitrary. Not surprisingly, the military's immigration checkpoints have garnered outspoken criticism from across the political spectrum. Legalized by the Supreme Court in1976, these checkpoints seem to have taken on a new momentum in the post-9/11 era. (Private militias have even taken to setting up their own versions.)

DUI checkpoints, on the other hand,  deemed constitutional in 1990, monitor roadways in 38 states. But they have been outlawed by 12 others that have invoked states’ rights to increase federal civil liberty protections. In the Court’s 1990 opinion, Chief Justice William Rehnquist wrote that states’ interest in eradicating drunk driving is indisputable and that this “interest” outweighed “the measure of the intrusion on motorists stopped briefly at sobriety checkpoints,” which he described as “slight.”

In the dissent, William Brennan reminded the Court that, “some level of individualized suspicion is a core component of the protection the Fourth Amendment provides against arbitrary government action.” In pulling people over at random, checkpoints remove this individualized component.

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Today, the practice seems to be experiencing a renaissance of sorts. With the help of local police, private government contractors have used the tactic to collect anonymous breath, saliva and blood ( DNA) samples of American motorists for the federally funded National Roadside Survey of Alcohol and Drugged Driving. Participation in the survey is voluntary, despite the confusion that may come with uniformed police asking for bodily fluids. Motorists are offered $10 for cheek swabs and $50 for blood samples. These practices have sparked considerable public outrage; law enforcement officials in St. Louis, Missouri and Fort Worth, Texas have stated their intent to limit their future participation in the study.

The survey, a project of the National Highway Transportation Safety Administration (NHTSA) and the Office of National Drug Control Policy (ONDCP), is contracted out to the Pacific Institute for Research and Evaluation. One of PIRE’s top scientists was recently appointed to a head position at the National Institute of Health; PIRE advocates the lowering of the illegal blood alcohol concentration; and PIRE studies the virtues of sobriety checkpoints and the role of race in fatal car crashes.

PIRE’s survey also represents a new focus on the part of NHTSA and ONDCP on drugged drivers. As drunk driving has, thankfully, seen a decline in recent decades, drugged driving provides a new justification for maintaining existing checkpoints. According toHigh Times, checkpoints have been deployed for Colorado’s “Drive High, Get a DUI” campaign.

The White House's 2011 National Drug Control Strategy argues for the need to place drugged driving “ on par” with drunk driving and announces their goal to reduce drugged driving by 10% by 2015.

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To get a sense of what “on par” with DUIs might mean, look no farther than the recent (August 13 to Labor Day) mass deployment of DUI checkpoints for the federal “Drive Sober or Get Pulled Over” campaign. Across the country, more than 10,000 police departments and law enforcement agencies participated, including entire states like DelawareKentucky,Connecticut and New York.

Citizens were warned: “DUI Checkpoints: Every Week, Everywhere.” Drivers were advisedYou can't hide from the consequences.”

But the effectiveness of these checkpoints is suspect. A 2009 study, previously published on AlterNet, found that the net affect of California DUI checkpoints had less to do with drunk driving than it did with the seizure of vehicles from unlicensed drivers by local police. The number of vehicles confiscated from checkpoints was found to be seven times the number of drunk driving arrests. A to the study, most of the cars are taken from minorities, often undocumented immigrants.

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The funding stream from seizures and impoundments, together with grant money from the state, has created an incentive system that discriminates against poor minority communities and encourages excessive overtime police shifts, the study showed.

And in New York City, the NYPD has established numerous illegal checkpoints. The gap between the military and law enforcement’s intention to fulfill “special needs” and the supposedly beneficial effects of their efforts is steadily expanding. As the express “needs” expand to include antiterrorism and as our reasonable expectations of privacy steadily get chipped away, we’d be wise to keep our own check on any checkpoints that undercut basic civil liberties. Rehnquist was wrong; the intrusions are turning out to be much more than “slight.”


Simon Davis-Cohen

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