Dissent
Easterbrook, Circuit Judge, Dissenting.
Roadblocks in Indianapolis check for both driving and drug offenses.
Someone driving a car without a license, or with drugs, can expect arrest.
The program is spectacularly successful as roadblocks go; 9.4% of those
stopped are arrested, with the reason equally divided between driving and
drug crimes. Roadblocks with much lower rates of success have been held
consistent with the fourth amendment. United States v. Martinez-Fuerte, 428
U.S. 543 (1976) (0.12% success rate); Michigan Department of State Police
v. Sitz, 496 U.S. 444 (1990) (1.6% success rate). Yet my colleagues declare
that the fourth amendment forbids what Indianapolis has done, because its
primary purpose is to enforce the criminal laws. Martinez-Fuerte approved a
roadblock to search for alien smuggling, a violation of a
criminal law; Sitz approved a roadblock to search for drunk
driving, a violation of a criminal law. So how can the fact that possessing
drugs violates the criminal laws doom this program? One would suppose that
our case is a fortiori from Sitz, because alcohol, marijuana, and cocaine
all are drugs, any of which can impair a driver's performance. If the
Constitution allows a roadblock to intercept alcohol users, how can it
condemn a roadblock to intercept marijuana and cocaine users?
My colleagues' answer is that everything depends on the "primary" or "real"
motive for the roadblock. Thus if Indianapolis set out to find people
driving without licenses and only later added a dog to sniff for drugs (a
step that does not entail a search or seizure of any kind,
see United States v. Place, 462 U.S. 696 (1983)) in cars that already were
stopped, then the program would pass constitutional muster. But if the City
first decides to search for drugs, then adds license checks
to make better use of the time while the dog does its work, then the
program is invalid. If a city starts a license + drug program, then its
validity depends on the primary motivation: if to search for
people not legally entitled to drive, the program is valid; if to
search for people not legally entitled to carry drugs,
invalid. If a program is designed primarily to search for
people using drugs in the car, and only secondarily to locate drugs in the
trunk, then it is valid; if it is designed primarily to
search for carried drugs, and only secondarily for ingested
drugs, then it is invalid.
Why should the constitutionality of a roadblock program turn on what its
promoters think (or the order in which its components were approved),
rather than on what happens to the citizenry? Over and over, the Supreme
Court says that the reasonableness inquiry under the fourth amendment is
objective; it depends on what the police do, not on what they want or
think. Whren v. United States, 517 U.S. 806, 811-13 (1996); Graham v.
Connor, 490 U.S. 386, 397 (1989); Maryland v. Macon, 472 U.S. 463, 470-71
(1985); Scott v. United States, 436 U.S. 128, 136-38 (1978). The majority
believes that things are otherwise when a program's design is in issue:
"the purpose behind the program is critical to its legality. The program
must be a bona fide effort to implement an authorized regulatory policy
rather than a pretext for a dragnet search for criminals."
Slip op. 10 (emphasis in original). Where does "purpose" come into the
fourth amendment? Not from its text; reasonableness fairly screams an
objective inquiry. Not from its history; my colleagues do not mention the
amendment's genesis. Not from the Supreme Court's cases. None of the
opinions my colleagues cites requires a tour through the heads of the
programs' sponsors. None suggests that the Constitution blesses a program
in which a criminal-investigation component is added to a
regulatory-enforcement one, while condemning an identical program in which
the criminal-investigation component comes first. When the Supreme Court
speaks of "regulatory" programs, such as the searches of business premises
in New York v. Burger, 482 U.S. 691 (1987), or Marshall v. Barlow's, Inc.,
436 U.S. 307 (1978), it asks what the programs do, not what the sponsors of
the programs had in mind. So far as the fourth amendment is concerned,
there is no difference between a roadblock originally designed to catch
drug peddlers and also used to catch drunk drivers, and a roadblock
originally designed to catch drunk drivers and also used to catch drug
peddlers. Only observable differences in police behavior enter into the
calculus of "reasonableness."
To be consistent, therefore, my colleagues should say that the fourth
amendment would not permit the Michigan Department of State Police to add a
drug-detection dog to the roadblock program sustained in Sitz. That
Conclusion would be so jarring, given received doctrine that a dog's sense
of smell is not a search and requires no justification, that
it could not be sustained. Yet if a dog may be added to the program
sustained in Sitz, it can't matter to "reasonableness" whether some of the
program's sponsors thought the dog more important than the breathalyzer.
The trial envisaged by my colleagues--one 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--has no relation to the objective
standard that a "reasonableness" benchmark demands.
What has led the majority to its search for the "primary
purpose" behind a program, and thus to the startling Conclusion that a
given program may be constitutional or not today depending on what the
Mayor thought last year, is its belief that "[p]rogram-level justifications
for searches . . . do not carry over to general criminal law enforcement."
Slip op. 4-5. Indianapolis has adopted a program that is objectively
reasonable given its minimal intrusion and substantial success (slip op.
3), but my colleagues say that only "regulatory" programs may be justified
in this manner. Without a distinction between criminal and regulatory
searches, it would be impossible to understand Camara v. Municipal Court,
387 U.S. 523 (1967), which holds that a warrant may be issued without
probable cause, despite the text of the fourth amendment, provided the
government really isn't looking for anything in particular. But none of the
Supreme Court's cases equates "regulatory search" with
"regulatory purpose"; the Court's line is objective, while my colleagues'
is subjective.
For every statement suggesting that criminal law enforcement may not be
justified at the program level, it is easy to find another to the
contrary--often in the same opinion. For example, my colleagues quote a few
words from Chandler v. Miller, 520 U.S. 305, 313-14 (1997). That very
opinion contains this passage (id. at 308): "Searches conducted without
grounds for suspicion of particular individuals have been upheld, however,
in 'certain limited circumstances.' See Treasury Employees v. Von Raab, 489
U.S. 656, 668 (1989). These circumstances include brief stops for
questioning or observation at a fixed Border Patrol checkpoint, United
States v. Martinez-Fuerte, 428 U.S. 543, 545-550, 566-567 (1976), or at a
sobriety checkpoint, Michigan Dept. of State Police v. Sitz, 496 U.S. 444,
447, 455 (1990), and administrative inspections in 'closely regulated'
businesses, New York v. Burger, 482 U.S. 691, 703-704 (1987)." This treats
the roadblock and regulatory cases as independent, undermining the
proposition that roadblocks are improper when they seek evidence of crime.
Consider what Brown v. Texas, 443 U.S. 47, 51 (1979), had to say: "the
Fourth Amendment requires that a seizure must be based on specific,
objective facts indicating 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." (Emphasis added.) Lots of avowedly
criminal searches are justified at a program level. After making a
custodial arrest, the police may conduct a complete search of
the person, including the contents of any packages he may be carrying.
United States v. Robinson, 414 U.S. 218 (1973). After entering a dwelling
to make an arrest, police may conduct a visual "protective sweep" of other
rooms to ensure that armed occupants there do not pose a risk. Maryland v.
Buie, 494 U.S. 325 (1990). The list of searches and seizures justified in
the aggregate, without regard to person-specific cause, is quite long.
Roadblocks are just another example. See Wayne R. LaFave, 4
Search and Seizure sec.sec. 9.4(j), 9.6(b) (3d ed. 1996).
Interpretation of the fourth amendment is not a model of intellectual
consistency. See Akhil Reed Amar, Fourth Amendment First Principles, 107
Harv. L. Rev. 757, 757-61 (1994). Cases create oodles of cubbyholes. My
colleagues want to take as a fundamental doctrine that criminal
investigations require person-specific cause, and conform all fourth
amendment law to it. I suppose one could go in a different direction and
treat auto searches or housing inspections as the paradigm. But our job as
an inferior court is not to pick favorite passages from the hundreds of
fourth amendment opinions the Supreme Court has issued, but to apply the
principles devised for the most closely analogous cases. This is a
roadblock case. To figure out how to handle a roadblock case, we must look
at how the Supreme Court has handled other roadblock cases.
Neither Sitz nor Martinez-Fuerte involved a regulatory inspection, yet in
each the Court assessed reasonableness at the program level. Michigan
searched for drunk driving and the United States for alien smuggling.
Because both programs were designed to enforce the criminal laws, a simple
criminal-regulatory distinction won't fly. This impels my colleagues to
proclaim a multivariate approach under which the reasonableness of criminal
investigations will be assessed at the program level if some other
condition holds--if there is a really pressing need (the
search for a terrorist), if the reason for the stop is
closely related to the dangers of driving (the search for
drunk drivers), if the stop is justified by some "special" governmental
power. So much for the organizing principle with which the majority begins.
Why use a principle that disintegrates at first application?
Neither Sitz nor Martinez-Fuerte uses the approach my colleagues devise.
Let's work through the line of reasoning that actually appears in these
opinions.
First, the privacy interest of drivers is diminished relative to the
interests of people at home or in the office. E.g., Wyoming v. Houghton,
119 S. Ct. 1297 (1999); Carroll v. United States, 267 U.S. 132 (1925).
Carroll is close to the mark, because there the Court sustained the
search of a vehicle for closed bottles of alcohol, which
during Prohibition was treated the same way marijuana and cocaine are
treated today. Recognition that drivers have a diminished expectation of
privacy is missing from my colleagues' opinion. Instead they analogize a
roadblock to a program under which "the government set up a metal detector
outside each person's home and required the person to step through it
whenever he entered or left, in order to determine whether he was carrying
a gun for which he lacked a permit. A principle that justified a drug
roadblock would justify such surveillance." Slip op. 8. No, it wouldn't;
the special treatment of automobiles provides a stopping point. One may
question this treatment as an original matter, but it is entrenched.
Second, the invasion of privacy at a roadblock is slight. Detention is
short, the search superficial. Indeed, the use of a dog is
not a "search" at all. A roadblock administered the way
Indianapolis handles its program is less intrusive than the
search of one's person and belongings at an airport, another
familiar kind of "roadblock" (and one that, like the Indianapolis program,
is designed to find evidence of crime, such as carrying weapons aboard an
aircraft). Cases since Sitz and Martinez-Fuerte describe roadblocks in
these terms--as reasonable in light of the minimal intrusion, not because
they are "regulatory" or conducted with an approved "motive." See, e.g.,
United States v. Villamonte-Marquez, 462 U.S. 579, 587-88 (1988), and the
passages from Chandler and Brown quoted above.
Third, a small invasion can be justified by aggregate success. "Probable
cause," the level of suspicion adequate to support a custodial arrest that
may last for days, is something less than a 50% likelihood; "reasonable
suspicion," enough to support a frisk, means substantially less than
"probable cause," see United States v. Chaidez, 919 F.2d 1193 (7th Cir.
1990); and as a brief stop is less intrusive than a frisk, an even lower
probability of detecting crime suffices. Martinez-Fuerte holds a
probability under 1% will do for a roadblock, and in Indianapolis the
probability is much greater. (The probability of finding a bomb in an
airport search must be less than one in ten million, given
the volume of air traffic, but Judges think this sufficient given the
gravity of the evil being detected. Can my colleagues believe that drugs
are so harmless that a 5% detection rate makes a search
unreasonable even when the intrusion is slight?)
Fourth, the principal risk in allowing stops of vehicles without
person-specific cause is that the officers will abuse the discretion thus
conveyed. Some officers will stop people for the "offense" of DWB ("driving
while black"); other officers, though pure of heart, may make stops at
times or in places that leave the drivers apprehensive about their safety.
Delaware v. Prouse, 440 U.S. 648 (1979), holds that the fourth amendment
does not tolerate standardless discretion in making stops, and the Court
suggested that Delaware use instead the roadblock or checkpoint approved in
Martinez-Fuerte. Cf. Chicago v. Morales, 67 U.S.L.W. 4415 (U.S. June 10,
1999). 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. So the concern that led to
Prouse is missing, and the first three considerations show that the
roadblock is reasonable.
Because Martinez-Fuerte so clearly involves criminal law enforcement, the
majority creates still another special rule: "such cases depend ultimately
on sovereign power over foreign relations, foreign commerce, citizenship,
and immigration". Slip op. 8. Any implication that the Court in
Martinez-Fuerte relied on such a special power would be incorrect. The
checkpoints were between 65 and 90 miles inland. The Court's point was not
that Congress has extra powers to conduct domestic searches for aliens, but
that "traffic-checking practices . . . appropriately are subject to less
stringent constitutional safeguards." 428 U.S. at 555. Although
Martinez-Fuerte involved immigration, never did the Court say that
enforcement of this body of laws should be especially easy. See
particularly 428 U.S. at 561-62:
[Here] we deal neither with searches nor with the sanctity of private
dwellings, ordinarily afforded the most stringent Fourth Amendment
protection. See, e.g., McDonald v. United States, 335 U.S. 451 (1948). 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. United States v.
Ortiz, 422 U.S., at 896 n. 2; see Cardwell v. Lewis, 417 U.S. 583, 590-591
(1974) (plurality opinion). And the reasonableness of the procedures
followed in making these checkpoint stops makes the resulting intrusion on
the interests of motorists minimal. On the other hand, the purpose of the
stops is legitimate and in the public interest, and the need for this
enforcement technique is demonstrated by the records in the cases before
us. Accordingly, we hold that the stops and questioning at issue may be
made in the absence of any individualized suspicion at reasonably located
checkpoints.
Everything the Court wrote about the checkpoints in Martinez-Fuerte can be
said about the roadblocks in Indianapolis.
Treating Martinez-Fuerte as exemplifying a "border exception" or
"immigration exception" to normal fourth amendment principles turns that
amendment on its head. The fourth amendment reflects antipathy toward
efforts to enforce the customs laws by searching warehouses for dutiable
goods. See Leonard W. Levy, Original Intent and the Framers' Constitution
234-46 (1988); Telford Taylor, Search, Seizure and
Surveillance, in Two Studies in Constitutional Interpretation 23-44 (1969).
Inland searches based on the national government's power over immigration
and importation (Martinez-Fuerte was not a border search)
should be evaluated under the fourth amendment's normal "reasonableness"
standard; instead my colleagues treat the immigration power as a reason to
reduce the force of the fourth amendment. As a side effect, the national
government, the object of the fourth amendment, winds up with greater
freedom to conduct searches and seizures than state and local governments,
which have been brought within the fourth amendment only indirectly. Any
approach that carries this "paradoxical implication" (slip op. 9) must be
rejected. Giving the national government more leeway than the states to
conduct searches, and treating immigration and customs searches as
especially easy to justify, are so at war with the text and history of the
Constitution that they cannot be sustained.
Searches by the national government pose a serious threat to the citizenry;
searches by local governments pose less, because movement within the
country is easy. Some cities enforce their drug laws by heavy reliance on
spies, infiltrators, informers, turncoats, wiretaps, and nighttime searches
where battering rams smash through doors; others may substitute more civil
methods, such as roadblocks where the only imposition is a five-minute wait
with man's best friend outside. Which of these is most like the "methods of
policing that are associated with totalitarian nations" (slip op. 4)?
Police and prosecutors today ply people with favors so that friends and
family become informers; lying about their identity, agents wheedle their
way into strangers' confidences; they search trash in the
hope of finding an incriminating scrap. Scaling back these tactics (none of
which requires person-specific justification) in favor of roadblocks would
make enforcement of the drug laws a good deal more reasonable. Or so at
least the people may conclude.
One glory of a federal society is that the people may choose for themselves
not only laws but also law-enforcement methods. State A may employ extra
police to follow a high-probability-of-detection and low-sentence approach;
State B may choose fewer police, fewer intrusions on privacy, but higher
sentences for those who are caught. Each may be reasonable. Indianapolis
selected a roadblock system, one that may catch any of its drivers. If this
strikes the wrong balance, the people may throw out of office those who
adopted it. Given the modest intrusion that roadblocks create for personal
privacy, this is a legitimate choice for the public to make. The real
threat to civil liberties comes from the national government, not from
law-enforcement variations that can be avoided by driving a few miles to
the east or west. Local governments should have more, not less, leeway than
does the national government to decide how the tradeoff between privacy and
effective law enforcement shall be handled