Road Rules

When a checkpoint isn't really a checkpoint, the constitutional forecast is cloudy

Jun 16, 2004 at 4:00 am
Due north out of Alton on a sparkling spring Saturday afternoon, Highway 100 all but unlocks the land.

Few, if any, roads in the bi-state area can rival this unfettered stretch of riverside asphalt, which whips the motorist past sailboats galore and the island of Brussels at the underrated confluence of the Mississippi and Illinois rivers. For a moment there -- fifteen miles' worth of moments, actually -- a driver could be forgiven for thinking he was on Highway 101, negotiating the turns of the Oregon coast next to imposing natural bluffs, unimpeded by such modern suburban hassles as stoplights and gridlock.

Approaching Grafton, the three highest priorities of the relaxed Saturday day-tripper are likely to be antique shopping, riverside strolling and ice cream. Such are the charms of old-town Grafton that can instantly transport the blight-weary St. Louisan.

But at the Grafton Visitors Center comes a significant buzz-kill -- namely, a mysterious police roadblock marked "Security Checkpoint" where every third or fourth motorist is asked to delay his cone-licking, trinket-picking Saturday aspirations in order to convince an Illinois State Trooper that he hasn't consumed too much early-afternoon Thunderbird to stay in his lane.

"We ask you for your driver's license," says trooper Doug Francis, a safety-education officer for the Illinois State Police. "We're just looking for drunk drivers and people who don't have driver's licenses. One statistic that comes to mind is, during daylight time, approximately one in fifty drivers is intoxicated. At night, it goes to one out of ten."

Nighttime would seem the right time for DUI roadblocks, but in the middle of the afternoon in small-town Illinois on a scenic river road?

"That's what's puzzling," says Ed Yohnka, director of communications for the American Civil Liberties Union's Illinois chapter. "The problem is, this all gets incredibly confusing as to what your rights are. The Supreme Court has ruled that sobriety checkpoints are constitutional because the view is that they are activated and done in pursuit of highway safety."

The specific ruling Yohnka refers to is Michigan Department of State Police v. Sitz, a 1990 case where the highest court in the land struck down a Michigan State Court of Appeals ruling that said a DUI checkpoint in Saginaw County violated the Fourth Amendment, which protects citizens against illegal search and seizure. In writing the majority opinion, Chief Justice William Rehnquist concluded that the state's interest in preventing drunken driving -- a law-enforcement tactic specific to highway safety -- outweighed the "intrusion upon individual motorists who are briefly stopped" and, as a result, was not in violation of the Fourth Amendment.

Similar rationale has been used by the Supreme Court to clarify the constitutionality of stops set up to verify valid vehicle registration and even to check and see if passing motorists know anything about unsolved hit-and-run accidents (Illinois v. Lidster, 2004). As long as it's in the name of highway safety, police roadblocks are apparently fine by Rehnquist and Company.

But if there's one form of checkpoint about which the Supreme Court has been crystal clear, it's those set up specifically to search for and seize illegal narcotics. The primary purpose of such roadside drug checkpoints, held Justice Sandra Day O'Connor in the high court's 2000 Indianapolis v. Edmond ruling, "is indistinguishable from the general interest in crime control." Therefore "the checkpoints violate the Fourth Amendment," wrote O'Connor for the majority. Put another way, pulling motorists to the side of the road without pretext in an attempt to detect possession of drugs, firearms or, say, Cuban cigars is not specific to highway safety and is invalid as a primary-search mechanism.

So at face value, it would appear that the "K-9 Drug Checkpoint One Mile Ahead" sign operated near Interstate 55/70's Black Lane exit is in direct violation of Indianapolis v. Edmond and is therefore baldly unconstitutional.

But looks can be deceiving, and in the still-emerging field of law-enforcement-checkpoint constitutionality, deception can often be better than playing it straight.

As for the K-9 checkpoint, the Collinsville Police Department's motives for wanting to nail drug smugglers appear to be legit.

"We routinely arrest major drug traffickers here," says Major Ed Delmore, the Collinsville Police Department's assistant chief of police and a veteran narcotics officer. "Interstates 44, 55 and 70 all come into St. Louis. Forty-four, of course, ends, and 55 and 70 pass through Collinsville as one roadway. So it's natural that a vast majority of drugs coming from the southwest pass through here."

Fair enough, but what about the unconstitutional sign?

"That's not really something that we talk about," demurs Delmore. "We are aware of [Indianapolis v.] Edmond. We handle our operations in a constitutional manner."

Delmore and his charges are indeed very aware of Edmond, which is why they're operating what's called a "ruse checkpoint." In actuality there is no K-9 drug checkpoint one mile ahead, as advertised. That would be unconstitutional, and Delmore knows it. Instead, the Collinsville Police Department stations a couple of cruisers on Black Lane, mere feet from a quaint exit ramp most often utilized as a back-door shortcut to the Fairmount Park racetrack.

The idea here is to dupe actual drug dealers into abruptly exiting at Black Lane, with alert local officers prepared to pull them over should their nervous maneuvering prove recklessly erratic. This is the exact ploy that resulted in Todd Mack getting busted for drug possession on June 24, 1999, in Lincoln County, Missouri. Chugging along Highway 61 in the dead of night, Mack spotted a sign set up by the Troy Police Department that read: "Drug Enforcement Checkpoint One Mile Ahead," which prompted him to exit sharply onto the sleepy Old Cape Au Gris exit, where he was pulled over by an awaiting squad car.

Mack's case went all the way to the Missouri Supreme Court, which in February 2002 reversed a Lincoln County Circuit Court ruling in upholding the arrest, based on the grounds that "the Troy checkpoint was intended to generate the suspicious conduct necessary to constitute individualized suspicion by deceiving drivers engaged in criminal activity into exiting the highway to avoid the checkpoint they thought would be at the next exit."

So the Collinsville P.D. would appear to be in the clear. Not so fast: The Mack ruling stands in direct conflict with a parallel Federal Circuit Court ruling in United States v. Green (2001), which found that a similar ruse checkpoint on Interstate 44 in Missouri fell under the purview of Edmond and was therefore unconstitutional.

"You've got a state supreme court decision saying it's legal and an Eighth Circuit ruling that says it's not," says Saint Louis University School of Law professor Roger Goldman. "Until it's resolved by the U.S. Supreme Court, you're going to have this sort of never-never land."

And that's bad news for motorists, says the ACLU's Yohnka.

"Where conflict exists, police are likely to push the envelope," says Yohnka. "Americans for years have understood that they have the right to travel freely without interference from police, without having to produce identification or without interruption. Those expectations have been seriously lowered these days."