| [8] | The opinion of the
court was delivered by: Posner, Chief Judge.
Argued April 12, 1999
A class action has been brought to enjoin the City of Indianapolis from
setting up roadblocks to catch drug offenders, a practice that the
plaintiffs claim violates the Fourth Amendment. The plaintiffs' motion for
a preliminary injunction was denied on the ground that the City's practice
is lawful, precipitating this interlocutory appeal under 28 U.S.C. sec.
1292(a)(1). The legality of drug roadblocks has divided the other courts
that have been asked to decide the issue. Compare United States v.
Huguenin, 154 F.3d 547, 554-55 (6th Cir. 1998); United States v.
Morales-Zamora, 974 F.2d 149 (10th Cir. 1992); Galberth v. United States,
590 A.2d 990 (D.C. 1991), and Wilson v. Commonwealth, 509 S.E.2d 540 (Va.
App. 1999), which held them illegal, with Merrett v. Moore, 58 F.3d 1547
(11th Cir. 1995), and State v. Damask, 936 S.W.2d 565 (Mo. 1996), which
held them legal. This is our first case. Because it was decided by the
district court on a very skimpy stipulation of facts, our ruling on the
legality of the City's program is necessarily tentative.
Six times between August and November of last year, the City's police
department set up roadblocks on Indianapolis streets to catch drug
offenders. A total of 1,161 cars were stopped at these roadblocks--for how
long is unclear but the police endeavor to operate the checkpoints in such
a manner that the stop does not exceed five minutes. During the stop, the
police demand the driver's license and car registration, peer through the
car's windows into its interior, and lead a drug-sniffing dog around the
car. The stopping of the 1,161 vehicles resulted in 55 drug-related
arrests, meaning that 5 percent of the total number of stops resulted in
successful drug "hits," and 49 arrests for conduct unrelated to drugs, such
as driving with an expired driver's license, for an overall hit rate of 9
percent. The City is continuing the program.
Stopping a car at a roadblock is a seizure within the meaning of the Fourth
Amendment, Whren v. United States, 517 U.S. 806, 809-10 (1996); Michigan
Dept. of State Police v. Sitz, 496 U.S. 444, 450 (1990), even though the
sequel--the peering into the car windows and the sniffing of the car by the
dog outside--does not rise to the level of a search as that
term of the amendment has been interpreted by the Supreme Court. United
States v. Place, 462 U.S. 696, 707 (1983); Texas v. Brown, 460 U.S. 730,
739-40 (1983); United States v. Ware, 914 F.2d 997, 1000 (7th Cir. 1990);
United States v. Rodriguez-Morales, 929 F.2d 780, 788-89 (1st Cir. 1991).
Whether the seizures effected by Indianapolis's drug roadblocks are
reasonable may depend on whether reasonableness is to be assessed at the
level of the entire program or of the individual stop. If the former, these
roadblocks probably are legal, given the high "hit" rate and the only
modestly intrusive character of the stops. In many Fourth Amendment
contexts, the reasonableness of a practice is held to depend on the balance
between its benefits (usually non-pecuniary) and its costs (ditto). E.g.,
Wyoming v. Houghton, 119 S. Ct. 1297, 1300 (1999); Whren v. United States,
supra, 517 U.S. at 817; Skinner v. Railway Labor Executives' Ass'n, 489
U.S. 602, 619 (1989); Camara v. Municipal Court, 387 U.S. 523, 536-37
(1967); Dimeo v. Griffin, 943 F.2d 679, 681 (7th Cir. 1991) (en banc). The
benefits of a random system of searches or seizures, such as vehicle stops
pursuant to a roadblock system, are a function of, first, the probability
that the stop will result in an arrest or a seizure of contraband or
evidence of crime, and, second, the gain to the achievement of a lawful
governmental goal that such an arrest or seizure will produce. The costs
are a function of the harm that the stop will cause to the property or
privacy of the people whose cars are stopped. In the case of Indianapolis's
drug-roadblock program, the probability of a "hit" is high (vastly higher
than, for example, the probability of a hit as a result of the screening of
embarking passengers and their luggage at airports, see National Treasury
Employees Union v. Von Raab, 489 U.S. 656, 675 n. 3 (1989)), and the
deterrence of drug offenses produced by these hits advances the strong
national, state, and local policy of discouraging the illegal use of
controlled substances. The cost--in delay, anxiety, and invasion of
privacy--to the drivers and passengers stopped for five minutes at a
roadblock and subjected to a visual inspection of the interior and a sniff
by a dog is small, though it is greater than the cost of the normal airport
screening and (like that screening) is incurred in all stops while the
benefit from the program is obtained only when there is a hit.
But courts do not usually assess reasonableness at the program level when
they are dealing with searches related to general criminal law enforcement,
see, e.g., Whren v. United States, supra, 517 U.S. at 810, rather than to
primarily civil regulatory programs for the protection of health, safety,
and the integrity of our borders. E.g., Michigan v. Tyler, 436 U.S. 499,
504-06 (1978); United States v. Martinez-Fuerte, 428 U.S. 543 (1976);
Camara v. Municipal Court, supra; Platteville Area Apartment Ass'n v. City
of Platteville, No. 98-3070, 1999 WL 436477 (7th Cir. June 18, 1999).
Because it is infeasible to quantify the benefits and costs of most law
enforcement programs, the program approach might well permit deep inroads
into privacy. In high-crime areas of America's cities it might justify
methods of policing that are associated with totalitarian nations. Cf.
Brown v. Texas, 443 U.S. 47 (1979). One can imagine an argument that it
would be reasonable in a drug-infested neighborhood to administer drug
tests randomly to drivers and pedestrians. Although there is nothing in the
text of the Fourth Amendment to prevent dragnet searches (read literally,
the text requires only that searches and seizures be "reasonable" and
confines the requirement of "probable cause" to searches or seizures made
pursuant to warrant), the Supreme Court has insisted that "to be reasonable
under the Fourth Amendment, a search ordinarily must be based
on individualized suspicion of wrongdoing," save in cases of "special need"
based on "concerns other than crime detection." Chandler v. Miller, 520
U.S. 305, 313-14 (1997) (emphasis added); see also Vernonia School District
47J v. Acton, 515 U.S. 646, 653 (1995); United States v. Martinez-Fuerte,
supra, 428 U.S. at 560-61; Terry v. Ohio, 392 U.S. 1, 27 (1968).
Program-level justifications for searches in support of specific regulatory
programs do not carry over to general criminal law enforcement. See, e.g.,
Chandler v. Miller, supra, 520 U.S. at 313-14; New York v. Burger, 482 U.S.
691, 716 n. 27 (1987); Michigan v. Tyler, supra, 436 U.S. at 508; Donovan
v. Dewey, 452 U.S. 594, 598 n. 6 (1981); Abel v. United States, 362 U.S.
217, 226 (1960); Michigan v. Clifford, 464 U.S. 287, 294 (1984) (plurality
opinion); United States v. $124,570 U.S. Currency, 873 F.2d 1240, 1244 (9th
Cir. 1989).
The qualification in "ordinarily" must not be overlooked. When the police
establish a roadblock on a route that they know or strongly suspect is
being used by a dangerous criminal to escape, the probability is high not
only of apprehending the criminal but also of preventing him from engaging
in further criminal, or otherwise hazardous, activity incidental to his
escape. See, e.g., United States v. Harper, 617 F.2d 35, 40-41 (4th Cir.
1980). So the roadblock is allowed even though it is likely to "seize" some
individuals who are not suspected of wrongdoing.
But here the roadblock is meant to intercept a completely random sample of
drivers; there is neither probable cause nor articulable suspicion to stop
any given driver. Even so, we can imagine cases in which, although the
police do not suspect anyone, a roadblock or other dragnet method of
criminal law enforcement would be reasonable. We may assume that if the
Indianapolis police had a credible tip that a car loaded with dynamite and
driven by an unidentified terrorist was en route to downtown Indianapolis,
they would not be violating the Constitution if they blocked all the roads
to the downtown area even though this would amount to stopping thousands of
drivers without suspecting any one of them of criminal activity. See
Maxwell v. City of New York, 102 F.3d 664 (2d Cir. 1996); Norwood v. Bain,
143 F.3d 843, 845-50 (4th Cir. 1998), aff'd (so far as pertinent), 166 F.3d
243, 245 (4th Cir. 1999) (en banc) (per curiam); United States v. Williams,
372 F. Supp. 65 (D. S. Dak. 1974); Brinegar v. United States, 338 U.S. 160,
183 (1949) (Jackson, J., Dissenting); 4 Wayne R. LaFave,
Search and Seizure: A Treatise on the Fourth Amendment sec.
9.6(a) (3d ed. 1996); American Law Institute, A Model Code of
Pre-Arraignment Procedure sec. 110.2(2) (1975). When urgent considerations
of the public safety require compromise with the normal principles
constraining law enforcement, the normal principles may have to bend. The
Constitution is not a suicide pact. But no such urgency has been shown here
The Supreme Court has upheld the validity of roadblocks in less extreme
cases, however, and it is on these that the City pitches its defense of its
program. The Court upheld sobriety checkpoints--roadblocks at which drivers
are checked for being under the influence of alcohol or (other)
mind-altering drugs--in Michigan Dept. of State Police v. Sitz, 496 U.S.
444 (1990), and roadblocks designed to intercept illegal immigrants, in
United States v. Martinez-Fuerte, supra. The Court has not, however, ever
held or stated that all roadblock programs (even those not vulnerable to a
charge of delegating too much discretion to individual police officers) are
consistent with the Fourth Amendment. On the contrary, the amendment would
be violated if "the roadblock was a pretext whereby evidence of narcotics
violation might be uncovered in 'plain view' in the course of a check for
driver's licenses." Texas v. Brown, supra, 460 U.S. at 743 (plurality
opinion); see also United States v. Ortiz, 422 U.S. 891 (1975).
Randomized search programs have been upheld that involved the
compelled provision of urine samples for drug testing of law enforcement
officers, jockeys, railroad workers, and other classes of employee, e.g.,
Vernonia School District 47J v. Acton, supra; National Treasury Employees
Union v. Von Raab, supra, 489 U.S. at 665-66; Skinner v. Railway Labor
Executives' Ass'n, supra; Dimeo v. Griffin, supra, as well as
administrative searches conducted without any basis to suspect any
particular individual of wrongdoing, but rather pursuant to a program of
inspections incidental to a general scheme of licensing or other
regulation. E.g., New York v. Burger, supra; Michigan v. Tyler, supra;
Camara v. Municipal Court, supra; In re Establishment Inspection of Skil
Corp., 846 F.2d 1127 (7th Cir. 1988). But again the Court has not granted
carte blanche.
Many of the cases we have cited do involve criminal prosecutions, however,
and we must consider how they can be squared with the principle that the
requirement of individualized suspicion is to be relaxed only on the basis
of (as the Supreme Court said in the Chandler case, an example of a
systematic search program that did not pass constitutional
muster) "concerns other than crime detection." The answer is that the
concern which lies behind the randomized or comprehensive systems of
inspections or searches that have survived challenge under the Fourth
Amendment is not primarily with catching crooks, but rather with securing
the safety or efficiency of the activity in which the people who are
searched are engaged. Consider employment drug tests for transport workers,
as in the Skinner case. The employee who uses drugs will perform badly in
his work, to the detriment of fellow employees or the general public; and
the most effective preventive measure may be to test all or a random
selection of applicants or employees. Similar are sobriety checkpoints,
which are designed to protect other users of the road from the dangers
posed by drunk drivers; administrative searches that are ancillary to
concededly lawful systems of inspection; and the use of metal detectors and
x-ray machines to screen entrants to government buildings and embarking air
travelers. United States v. Herzbrun, 723 F.2d 773, 775-76 (11th Cir.
1984); United States v. Edwards, 498 F.2d 496 (2d Cir. 1974) (Friendly,
J.); United States v. Davis, 482 F.2d 893, 908-10 (9th Cir. 1973). These
cases rest on the commonsense principle that employers and other
proprietors (such as the state as the owner of public roads), including the
quasi-proprietor that is the government in heavily regulated industries,
see, e.g., United States v. Biswell, 406 U.S. 311, 316-17 (1972), have a
right to take reasonable measures to protect the safety and efficiency of
their operations. These measures, moreover, usually make only limited
inroads into privacy, because a person can avoid being searched or seized
by avoiding the regulated activity, though we hesitate to put much weight
on this point; people are unlikely to feel they can afford to "ground"
themselves in order to avoid airport searches.
Indianapolis does not claim to be concerned with protecting highway safety
against drivers high on drugs. Its program of drug roadblocks belongs to
the genre of general programs of surveillance which invade privacy
wholesale in order to discover evidence of crime. Imagine if 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.
We mentioned cases that allow the police or the Border Patrol to set up
roadblocks to intercept illegal immigrants, a form of "contraband" to which
illegal drugs might be analogized. Other cases allow custom searches of the
luggage of people entering the United States. For examples of both types of
case, see United States v. Montoya de Hernandez, 473 U.S. 531, 537 (1985);
United States v. Martinez-Fuerte, supra; United States v. Ramsey, 431 U.S.
606, 616-19 (1977); United States v. Johnson, 991 F.2d 1287, 1290-92 (7th
Cir. 1993). But such cases depend ultimately on sovereign powers over
foreign relations, foreign commerce, citizenship, and immigration (see,
e.g., Harisiades v. Shaughnessy, 342 U.S. 580, 586-89 (1952) (Jackson, J.))
that states and cities do not possess. Martinez-Fuerte involved searches
well inland from the border, but the Court emph
We are mindful of the paradoxical implication that the Fourth Amendment,
though originally limited to federal law enforcement, may pinch the states
more tightly. But the paradox need not detain us. Indianapolis makes no
attempt to defend its roadblocks on the basis that it is trying to exclude
a harmful substance or dangerous persons. Though that may be the ultimate
aim, the City concedes that its proximate goal is to catch drug offenders
in the hope of incapacitating them, and deterring others, by criminal
prosecution. The program has no regulatory purpose that might be compared
to that of the immigration laws, which seek to exclude and deport illegal
immigrants rather than just to prosecute them for criminal violations of
the immigration laws.
It is true that in the course of looking for drugs in vehicles stopped at
its drug roadblocks, the Indianapolis police often discover violations of
the traffic laws. If the purpose of the roadblock program were to discover
such violations, and if a program having such a purpose could be justified
under the cases that allow searches and seizures without individualized
suspicion of wrongdoing, then the seizure, in the course of such searches,
of drugs that were in plain view would be lawful. Texas v. Brown, supra;
United States v. Trevino, 60 F.3d 333, 336 (7th Cir. 1995). But the first
"if" has not been shown. It is necessary in this regard to distinguish
between two kinds of purpose, that of the program's designers and that of
the police officers manning the roadblocks. The test for the lawfulness of
a particular search or seizure is an objective one; the
motives of the officer carrying out the search or seizure are
irrelevant. Whren v. United States, supra, 517 U.S. at 811-13; United
States v. Villamonte-Marquez, 462 U.S. 579, 584 n. 3 (1983); Scott v.
United States, 436 U.S. 128, 138 (1978); cf. Graham v. Connor, 490 U.S.
386, 397 (1989). But 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. New York v. Burger, supra, 482 U.S. at 716 n. 27. "[T]he
exemption from the need for probable cause (and warrant), which is accorded
to searches made for the purpose of inventory or administrative regulation,
is not accorded to searches that are not made for those purposes." Whren v.
United States, supra, 517 U.S. at 811-12 (emphasis in original); see also
Texas v. Brown, supra, 460 U.S. at 743 (plurality opinion). Leading a
drug-sniffing dog around a car cannot be justified by reference to a desire
to detect traffic violations, and so the use of the dog at the City's
roadblocks shows--what is anyway not contested--that the purpose of the
roadblocks is to catch drug offenders. We are not asked to decide whether,
if the primary purpose were to detect drunken drivers, the dog could be
added to the roadblock scenario on the theory that since a sniff is not a
search, the incremental invasion of privacy would be
negligible, or at least would not violate the Fourth Amendment.
It can be objected that requiring consideration of purpose injects too
large an element of uncertainty into the interpretation of the amendment,
and that purpose may be difficult to determine when it is corporate in
nature. But law like politics is the art of the possible and often requires
imperfect compromises. Inquiry into purpose is one method of identifying
and banning the most flagrantly abusive governmental conduct without
handcuffing government altogether. The alternative would be to rule that
either all roadblocks are illegal or none are, which would be akin to
punishing all killings identically because the "objective" fact is that
someone has died.
To summarize, we have identified four exceptions to the principle that a
search or seizure is forbidden by the Fourth Amendment unless
there is a basis for believing that a particular search or
seizure, as distinct from a program of universal or randomized searches or
seizures, will yield evidence or fruits or instrumentalities of crime. The
first exception, illustrated by the roadblock set up to catch a fleeing
criminal, is where there is a suspect--the police have identified the
criminal and have only to find him--but it is infeasible to avoid an
indiscriminate search or seizure of other persons, persons
not suspected of crime, as well. The second exception, illustrated by the
hypothetical dynamite case, is where no specific person is under suspicion
but the circumstances make it impossible to prevent a crime without an
indiscriminate search. The third exception is the regulatory
search, the objective of which is to protect a specific
activity rather than to operate as an adjunct to general criminal law
enforcement. The last exception is the prevention of illegal importation
whether of persons (a power limited to the federal government, Saenz v.
Roe, 119 S. Ct. 1518 (1999)) or of goods. On the basis of the record
compiled in the preliminary-injunction proceedings--a record essentially
limited to the parties' stipulation of facts--the Indianapolis roadblock
program has not been shown to fit any of these exceptions, and thus the
lawfulness of the program has not, as the district Judge believed, been
established. As that was the only ground on which she denied the
preliminary injunction, her order cannot stand.
|
Whether there may be other grounds for denying the preliminary injunction,
or whether on a fuller record the Indianapolis program might pass Fourth
Amendment muster, are issues for the district court to decide in the first
instance. We are not enthusiastic about the use of the Constitution to
squelch experiments in dealing with serious social problems. The high hit
rate of Indianapolis's roadblock scheme suggests that Indianapolis has
placed the roadblocks in areas of the city in which drug use approaches
epidemic proportions; and if so the roadblocks might be justified by
reference to the second exception, as illustrated by such cases as Maxwell
(involving a flurry of drive-by shootings), Norwood (threat of violence at
a rally of motorcycle gangs), and Williams (Indian insurrection). But this
is not argued either.
Reversed