City of Indianapolis, Indiana v. Edmond

Americans for Effective Law Enforcement, Inc. (AELE), as a national not-for-profit citizens organization, is interested in establishing a body of law making the police effort more effective, in a constitutional manner. It seeks to improve the operation of the police function to protect our citizens in their life, liberties, and property, within the framework of the various state and federal constitutions.

AELE has previously appeared as amicus curiae over 100 times in the Supreme Court of the United States and over 35 times in other courts, including the Federal District Courts, the Circuit Courts of Appeal and various state courts, such as the Supreme Courts of California, Illinois, Ohio, and Missouri.

The International Association of Chiefs of Police, Inc. (IACP), is the largest organization of police executives and line officers in the world. Founded in 1893, the IACP, with more than 17,000 members in 112 countries, is the world’s oldest and largest association of police executives. IACP’s mission, throughout the history of the association, has been to identify, address, and provide solutions to urgent law enforcement issues.

The National Sheriffs’ Association (NSA), is the largest organization of sheriffs and jail administrators in America, consisting of over 40,000 members. It conducts programs of training, publications, and related educational efforts to raise the standard of professionalism among the nation’s sheriffs and jail administrators. While it is interested in the effective administration of justice in America, it strives to achieve this while respecting the rights guaranteed to all under the Constitution.

Amici are national and state professional associations representing the interests of law enforcement agencies at the state and local levels. Our members include: (1) law enforcement officers and law enforcement administrators who are charged with the responsibility of overseeing the operation of roadblock procedures within the bounds of the law; and (2) police legal advisors who, in their criminal jurisdiction capacity, are called upon to advise law enforcement officers and administrators in connection with such matters, including the formulation and implementation of policy on the subject.

Because of the relationship with our members, and the composition of our membership and directors– including active law enforcement administrators and counsel–we possess direct knowledge of the impact of the ruling of the court below, and we wish to impart that knowledge to this Court.

STATEMENT OF THE CASE

The Indianapolis Police Department operated what was called a "checkpoint" program. Motorists were briefly stopped and examined in order to determine whether they were impaired and whether their driving documents were in order. One of the objectives of the checkpoints was to discover narcotics traffickers. This was done by walking a drug detection dog around a stopped car while the motorist's documents were being checked. The Department was interested in driver impairment, regulatory issues, and interrupting the flow of illegal narcotics in the city.

Written procedures were established in advance for the program. The locations of the checkpoints were selected weeks in advance by police supervisors, based on geographical suitability, taking into consideration area crime statistics and the ability to locate the checkpoint in a location which would minimize interference with normal traffic flow. Drivers approaching each of the pre-determined locations were warned, with lighted signs, that they should be prepared to stop for a "narcotics checkpoint" and that a "narcotics K-9" would be in use. Only a pre-determined number of cars approaching a given checkpoint location was stopped. All other traffic was permitted to continue without interruption until the last of the vehicles initially stopped was processed. Once the last of the initially stopped cars left, a new group of motorists (the same predetermined number) was stopped. The procedure was followed without deviation and with a minimum of discretion by police officers.

Motorists were stopped at the checkpoint and approached by police officers, at least one of whom was in full uniform. Motorists were requested to show their driver's license and motor vehicle registration. Officers looked for any signs of DUI, including alcohol odors, slurred speech, or disorientation. During the time that a motorist's documents were being checked, a drug detection dog was walked around the car. If the motorist's documentation proved to be in order, and there was no cause for any further detention (such as signs of driving impairment, a positive dog "alert," or the discovery of outstanding warrants), the motorist was allowed to proceed without delay. The checkpoints were operated in a manner to ensure that no motorist was stopped for more than five minutes, unless grounds for a longer detention were discovered during the stop, with the average stop lasting only two to three minutes.

Six of these roadblocks were conducted in accordance with the program during a four month period. Under the program 1,161 vehicles were stopped and 104 motorists were arrested-an effectiveness rate of 9%. The arrests were divided approximately equally between narcotics offenses (55 arrests) and other crimes (49 arrests).

The Seventh Circuit Court of Appeals, Edmond v. Goldsmith, 183 F.3d 659 (7th Cir. 1999), ruled that the roadblock program violated the Fourth Amendment. The court was not persuaded by the arrest rates of 5% for drugs and 9% overall, because the city had as one of its purposes to interdict drug offenders in the hope of incapacitating them and deterring others, as well as checking for driver impairment and traffic and vehicle related violations. Judge Easterbrook dissented in a separate opinion.

SUMMARY OF ARGUMENT

Amici take the position that the Court should approve multipurpose roadblock programs similar to that utilized by the city of Indianapolis in this case. Our position is that such programs are permissible under the Fourth Amendment.

We take this position on the basis that precedents of the Court have established that one of the purposes of a constitutional roadblock can be enforcement of the criminal laws. We also note that the Court has repeatedly held that the proper inquiry in Fourth Amendment cases is one of objective analysis, rather than subjective analysis.

Even though there is conflict in the lower courts on this issue, the better-reasoned cases on the subject approving such roadblock programs are firmly supported by this Court's precedents. We also submit that the public interest in dealing with the serious problem of illegal drugs in our communities and the threat to traffic safety posed by drugged drivers indicates the need for a multilevel approach to law enforcement efforts. Roadblock programs are an effective tool for dealing with the problem, as indicated by the Indianapolis program.

As police administrators and related officials, amici point to the need for a clear statement from the Court on the propriety of such programs, so that uniform and consistent policies and rules can be adopted and implemented by law enforcement agencies. This need is underscored by the existence of the aforementioned conflict on the legal issues in the lower courts.

ARGUMENT

THIS COURT SHOULD RULE THAT MULTI-PURPOSE ROADBLOCKS SUCH AS THOSE UTILIZED BY THE CITY OF INDIANAPOLIS IN THIS CASE DO NOT VIOLATE THE FOURTH AMENDMENT.

A. THIS COURT'S CASES PERMIT A ROAD-BLOCK PROGRAM WHERE ONE OF ITS PURPOSES IS ENFORCEMENT OF THE CRIMINAL LAWS.

As dissenting Judge Easterbrook in the case below said, "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." 183 F.3d at 669.

This Court approved a roadblock to search for alien smuggling in United States v. Martinez-Fuerte, 428 U.S. 543, 555 (1976). Alien smuggling is a violation of the criminal law. The Court noted that the "practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use." Martinez-Fuerte, 428 U.S. at 560-61 n.14. It then focused on "[t]he regularized manner in which established checkpoints [were] operated," and the "visible evidence, reassuring to law-abiding motorists, that the stops [were] duly authorized and believed to serve the public interest." It concluded that "stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by a warrant." Id. at 559, 566.

While many more cases leading from Martinez-Fuerte to the present could be cited on this point, the one case from this Court most analogous to the instant case is Michigan Dep't of State Police v. Sitz, 496 U.S. 444 (1990). Sitz involved a roadblock program designed to regulate traffic safety and identify and arrest drunk drivers. DUI and its related offenses are violations of the criminal law.

Significantly as to Sitz, the court below rejected its application to the roadblock involved in the instant case, concluding that this Court's cases foreclose a roadblock intended to enforce criminal laws, and that this Court has required a "special need" based on concerns other than crime detection before dispensing with a requirement of individualized suspicion. In point of fact, this rationale was flatly rejected by this Court in Sitz. Sitz unequivocally stated that no such "special needs" must be shown in "cases dealing with police stops of motorists on public highways." 496 U.S. at 450.

As noted, the roadblock program in Sitz involved both a regulatory aspect (traffic safety on the highways) and a criminal aspect (DUI and related criminal offenses). This Court did not say that the fact that the police were interested in enforcing the criminal laws of the state of Michigan violated the reasonableness requirement of the Fourth Amendment as it pertains to roadblocks. There is no conceptual or operational difference between Sitz and the instant case.

As indicated in the Statement of Facts, the police in this case operated a roadblock program, inter alia, to inspect automobile regulatory documents and to determine impairment of drivers. They were also interested in discovering narcotics, an element that relates to both impairment and an independent criminal offense. Indeed, it is fair to infer that the police would have made an arrest for any traffic-related or non-traffic-related criminal offense properly discovered during the procedure.

As part of the operation, a drug detection dog walked around stopped cars. The use of the dog did not add to the length of time a car was stopped. The use of the dog was not a "search." Its alert would establish probable cause for the existence of narcotics, a criminal offense. United States v. Place, 462 U.S. 696 (1983).

Sitz, thus, should have been sufficient authority to approve the roadblock in the court below. The fact that it was not sufficient for the court below indicates a fundamental misunderstanding by that court of the roadblock jurisprudence of this Court starting with Martinez-Fuerte and culminating in Sitz. It also demonstrates a fundamental misunderstanding of the principles of law established by this Court as discussed in Section B.

B. THIS COURT HAS REPEATEDLY HELD THAT THE PROPER INQUIRY IN FOURTH AMENDMENT JURISPRUDENCE IS AN "OBJECTIVE" RATHER THAN "SUBJECTIVE" DETERMINATION.

The decision of the court below is based on concepts of Fourth Amendment jurisprudence long since discarded by most courts, never embraced by this Court, and recently flatly rejected by this Court in the context of automobile stops.

In case after case, this Court has held that the validity of a search or a seizure under the Fourth Amendment "turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time," not on the officer's state of mind at the time the challenged action was taken. Maryland v. Macon, 472 U.S. 463, 470-71 (1985) (quoting Scott v. United States, 436 U.S. 128, 136 (1978)). This "objective test' has been applied in a variety of Fourth Amendment contexts. See, e.g., Whren v. United States, 517 U.S. 806, 813 (1996) (rejecting the concept of pretextual traffic stops and the use of a subjective test in the Fourth Amendment context); Horton v. California, 496 U.S. 128, 137-38 (1990) ("plain view" seizures); Graham v. Connor, 490 U.S. 386, 397-99 (1989) (force necessary to effect an arrest); United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983) (allegedly "pretextual" boarding of vessel). In Florida v. Bostick, 501 U.S. 429 (1991), the Court upheld suspicionless bus sweeps by police officers, a new and increasingly useful tool in the effort to stem narcotics trafficking. The Court adopted a "totality of the circumstances" standard, an essential part of the objective test as later articulated in Whren for traffic stops. Amicus AELE filed a friend of the court brief in Bostick supporting the type of stops involved in that case, stops which bear a relationship to roadblocks in their absence of individualized suspicion.

C. ALTHOUGH THE LOWER COURTS ARE DIVIDED ON THE ISSUE, THE POSITION APPROVING SUCH ROADBLOCK PROGRAMS IS WELL-SUPPORTED BY THIS COURT'S PRIOR DECISIONS.

While the cases are split on the issue of multipurpose roadblocks, amici submit that the better-reasoned view utilizing the objective analysis adopted by this Court supports such programs. The leading case is Merrett v. Moore, 58 F.3d 1547 (11th Cir. 1995). In Merrett the Eleventh Circuit Court of Appeals upheld a Florida program that is indistinguishable from that adopted by the city of Indianapolis.

Florida law enforcement officials in Merrett put into place a roadblock program that concededly was intended to intercept narcotics traffickers. The checkpoints were clearly marked with traffic control devices (such as traffic cones or flashing lights) and warning signs. Officers stopped passing traffic, checked for safety defects, and examined each driver's license and registration. Stopped vehicles were sniffed by a narcotics dog while the driver's documentation was being checked, and "most people experienced only a slight delay" in the process. 58 F.3d at 1540.

In approving the program, the court also rejected the argument that "the operation was an invalid pretextual seizure" because "Florida conducted the roadblock operation at issue for the purpose of exposing the cars to the drug sniffing dogs." Id. at 1550. The court, in effect, rejected the pretextual argument rejected by this Court one year later in Whren.

The Merrett court "adopt[ed] a totally objective rule: a state may conduct a mixed-motive roadblock as long as one purpose presented for the roadblock could validly justify the roadblock, even if no roadblock would have been put in place but for the state's desire to hunt for unlawful drugs." Id. at 1551 (emphasis added). Since the license and registration roadblocks themselves were constitutional, the court further rejected the proposition that the use of a narcotics dog "without an individualized reasonable suspicion of drug-related criminal activity amounted to an unconstitutional search." 58 F.3d at 1553, citing United States v. Place, 462 U.S. 696 (1983). It said that "[s]o long as the use of the dogs did not make the delay caused by the roadblocks unreasonable . . . the state's decision to use dogs at the roadblocks does not make the operation unconstitutional." 58 F.3d at 1553.

Amici submit that while the courts are split on the issue, an application of this Court's objective analysis approach to Fourth Amendment issues and its clear rejection of the "pretextual" issue, point in one direction: approval of the type of roadblock program utilized in the instant case.

D. THE PUBLIC INTEREST IN DEALING WITH THE ENORMOUS PROBLEM OF DRUGS IN OUR URBAN AREAS PROVIDES SOUND POLICY FOR APPROVING THE TYPE OF ROADBLOCK PROGRAM INVOLVED IN THIS CASE.

It is beyond dispute that the problems of driving while impaired by alcohol or other drugs is a major concern for our communities. The roadblock program utilized by Indianapolis in this case addresses that problem in a way fully approved by this Court in Sitz.

It is likewise beyond dispute that the interest of communities such as Indianapolis in detecting the transportation of narcotics on the highways is compelling. As noted by this Court eleven years ago in NTEU v. Von Raab, 489 U.S. 656, 668 (1989), drug trafficking is "one of the greatest problems affecting the health and welfare of our population." The Court said then that the problem had become a "veritable national crisis in law enforcement." Ibid., quoting United States v. Montoya de Hernandez, 473 U.S. 531, 538 (1985). If anything, the problem has grown, not receded, since the Court made this prophetic statement.

Amici know from our personal experience as police administrators that the existence of drug trafficking- even to the point of well-known "drug bazaars," open air drug markets in our cities where drug peddlers drive into neighborhoods and openly set up shop to sell drugs from their cars, and the sale of drugs in our schools-is a problem no less important than that of traffic law enforcement and impaired driving. We speak from experience in informing the Court that multipurpose roadblock programs can make a substantial contribution to addressing all of these problems. That such programs can do this without infringing on the rights of our law-abiding citizens is established by the precedents of this Court. The "balancing of interests" approach adopted by this Court for checkpoint stops in Texas v. Brown, 460 U.S. 730 (1983), should seal the fate of such programs in the constellation of legitimate constitutional concerns.

Amici endorse the balancing of interests test of Brown, the objective analysis approach of Graham v. Connor, Whren, Sitz, and other cases, and the rejection of the secondary purpose issue disposed of in Whren. We are concerned, however, about the division of authority on the topic of roadblock programs in our lower courts.

The Court's resolution of the issues in this case will, hopefully, give clear guidance for policy development and implementation. Our concern with policy, however, goes beyond that of designing and implementing rules of conduct. Our larger policy responsibility includes effective law enforcement for our communities. We see first-hand the devastating effect of drugs in our communities. Many of our communities are badly injured by rampant drug usage. We need weapons that comport with constitutional protections to deal with the problem of drug trafficking, drug bazaars, open air drug markets, crack houses, and the like. From a community policy and planning perspective, this problem is as great, if not greater, than that of traffic and safety regulation and DUI drivers. Law enforcement administrators need the kind of roadblock programs utilized in this case in order to meet community safety needs that result from illegal drugs.

The Court has been responsive to these and related problems in Texas v. Brown, Florida v. Bostick, Sitz, Whren, and other cases. The constitutional basis for roadblock programs such as that utilized in Indianapolis is not novel. The results of the Indianapolis program are outstanding (an overall effectiveness rate of 9%).

We echo the words of Judge Easterbrook in the dissent below, that there are many ways to approach drug law enforcement-among them the use of informers, infiltrators, forceful searches with warrants, etc. Unless the police abandon "high crime areas" as not policeable, they must consider traditional enforcement techniques. Should officers recruit more students and gang members to inform on each other? Should the police encourage neighbors to denounce each other, a technique employed by totalitarian governments?

The Indianapolis program, we suggest, is reasonable, proportioned and effective. Its importance for highway safety as well as drug enforcement cannot be doubted. In a 1990-91 National Highway Traffic Safety Administration (NHTSA) study of 1,882 fatally injured drivers from seven states, alcohol was found in 51.5% of the drivers, and other drugs were found in 17.8% of the drivers. Studies of drivers injured in crashes or cited for traffic violations also show that many of those drivers have used drugs. In an ongoing NHTSA study of non-fatally injured drivers in Rochester, New York, 12% of all drivers tested positive for drugs other than alcohol (43 of 360 cases), and 23.5% of drivers less than 21 years old tested positive for drugs other than alcohol (4 of 17 cases). Studies of drivers taken for medical treatment have shown positive drug rates ranging from below 10% to as high as 30 to 40%. Studies of drug incidence among drivers arrested for motor vehicle offenses have found drugs in 15 to 50% of drivers.

In another study by NHTSA, literature published from 1980 through 1985 was reviewed to update a previous "state of knowledge" report produced in 1980. The project found that drugs other than alcohol are detected in 10 to 22% of accident-involved drivers, and that drugs alone (i.e., without alcohol) are found in 3 to 15% of accident-involved drivers. It was also found that the majority of drug-using drivers have high levels of alcohol in combination with the drugs. National Highway Traffic Safety Administration, Office of Program Development and Evaluation, Compendium of Traffic Safety Research Projects 1985-1995.

In the absence of constitutional impediment, the Indianapolis program is an approach that our communities should be allowed, as a matter of local government policy-making, to choose for themselves. An application of this Court's established precedents to the facts of this case will make that choice available for local government.

CONCLUSION

Amici urge this Court to uphold the constitutionality of the roadblock program involved in this case on the basis of its precedents and sound judicial policy.

Respectfully submitted,

WAYNE W. SCHMIDT, ESQ.
Executive Director
Americans for Effective Law Enforcement, Inc.

JAMES P. MANAK, ESQ.
Counsel of Record

Counsel for Amici Curiae

GENE VOEGTLIN, ESQ.
International Association of Chiefs of Police, Inc.

RICHARD WEINTRAUB, ESQ.
National Sheriffs' Association

BERNARD J. FARBER, ESQ.

Of Counsel

Note: This copy of the brief was reformatted to webpage size. The Table of Authorities and the addresses of counsel has been omitted.

CLICK HERE TO RETURN TO AELE HOME PAGE

CLICK HERE TO RETURN TO LIST OF "FRIEND OF THE COURT BRIEFS"