A former client reached out to me this week asking me how traffic safety checkpoints, or “roadblocks” are constitutional. The issue is a relevant again as the City of Mobile Police Department has renewed its roadblock efforts that were controversial under the Sam Jones administration. Mayoral candidate Sandy Stimpson campaigned against the practice and said that the traffic safety checkpoints were ineffective. Stimpson also said that he didn’t believe they were a solution to the “public safety problem.” Stimpson after his election but before his swearing in noted in August 2013: “Unless I’m convinced otherwise by those on the ground, then that’s where I stand.” Stimpson while
not eliminating the practice, scaled back on traffic safety checkpoints to areas of necessity in line with the administration’s “hot-spot” policing efforts. Colby Cooper, the mayor’s then chief of staff noted in 2014, “Checkpoints are a tool in the tool box of policing…The mayor doesn’t want to take off the table the tools our police force needs to make Mobile the safest city in the future…We rely on police to use them judiciously,” Cooper said. “We are not using them in any other matter that doesn’t make this the safest city in America.”
And that was the position Chief James Barber took as well as he promised to “scale back” the use of traffic safety checkpoints.
Yet now in 2017, we seen renewed efforts by the city’s new chief of police to re-employ the traffic safety checkpoints. There we two checkpoints conducted this week. The results as published on the City of Mobile Police Department website note: “There were 96 tickets issued and 12 vehicles towed. Mobile police made 10 arrests, totaling two felony charges and 24 misdemeanor charges. Below is a breakdown of the results.”
Are these checkpoints legal? You can find significant litigation over their use. Traffic safety checkpoints are investigative stops based on absolutely no evidence of wrongdoing. This has serious Fourth Amendment implications. The stops are considered “seizures” under the Fourth Amendment. Ex Parte Jackson, 886 So.2d 155 (Ala. 2004) These checkpoints are warrant-less and suspicion-less stops of every citizen who happens to enter the designated checkpoint area. With that in mind, you can see why courts eye their propriety with such exacting standards. The Alabama Court of Criminal Appeals went so far as to hold “This Court has long held that license checks, sobriety checkpoints, and roadblocks are not intrinsically unconstitutional. ” See Mclnnish v. State, 584 So.2d 935, 936 (Ala.Crim.App.1991).
This is hardly a ringing endorsement of their use. Justice Clarence Thomas has opined, “Indeed, I rather doubt that the framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.” [Justice Clarence Thomas, dissenting in City of Indianapolis v. Edmond, 121 S.Ct.447,462 (2000)] Like so many other Fourth Amendment issues, the devil is in the details. Keep reading.
PURPOSE OF THE ROADBLOCK
The United States Supreme Court has held that there must be a specific law enforcement purpose apart from general law enforcement concerns. A good example of this was in Hagood v. Town of Town Creek, 628 So. 2d 1057, 1059 (Ala. Crim. App. 1993) where the city police chief said the purpose of their roadblock was to curb criminal activity at a crime infested apartment complex. The chief testified, “We had so much going on at The Town of Town Creek Apartments over there, fighting, drunk and disorderly over there. The town wanted us to tighten up a bit there and we could catch a lot of it there on the street before it got in there…” The court invalidated this roadblock. See 4. W. Lafave, Search and Seizure: A Treatise on the Fourth Amendment” §9.7 (b), at 551 (4th ed.2004) “[A] general roadblock ….established on the chance of finding someone who has committed a serious crime…” is “quite clearly” unconstitutional.
The United States Supreme Court has only authorized roadblocks in four scenarios, and they are based on a specific law enforcement concern:
- Stops gathering information concerning a recent crime in the area when the questions asked during the stop did not seek self-incriminating information; (Illinois v. Lidster, 540 U.S. 419, 124 S. Ct. 885, 157 L. Ed. 2d 843 (2004)
- Stops the checking driver’s licenses (Texas v. Brown, 460 U.S. 730, 103 S. Ct. 1535, 75 L. Ed. 2d 502 (1983);
- Stops checking sobriety of drivers (Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990)
- Stops checking for the presence of illegal aliens.
Beyond these proscribed specific law enforcement concerns (ensuring highway safety and policing the border) , roadblocks for “general law enforcement purposes” are unconstitutional. A roadblock whose primary purpose “is ultimately indistinguishable from the general interest in crime control … violate[s] the Fourth Amendment.” City of Indianapolis v. Edmond, 531 U.S. 32, 48, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000). See also Hagood v. Town of Town Creek, 628 So. 2d 1057 (Ala. Crim. App. 1993) (noting that the “general interest in law enforcement simply does not outweigh the liberty interests of those seized, however brief the seizure may be”).
The courts have balanced the individual’s privacy and fourth amendment rights against unreasonable search and seizures against law enforcement’s public safety function. Inevitably tension has arisen in striking a fair balance between the two competing interests. Generally speaking the courts have evaluated the propriety of a fixed traffic checkpoint, i.e. its reasonableness under the Fourth Amendment, thru the prism of a three part test enunciated in Brown v. Texas, 99 S.Ct. 2637 (1979):
- the gravity of the public concerns served by the seizure;
- the degree to which the seizure advances the public interest; and
- the severity of the interference with individual liberty.
The Alabama state courts have paid fidelity to this standard as well. In Cains v. State, 555 So. 2d 290 (Ala. Crim. App. 1989), the Alabama Court of Criminal Appeals ruled that traffic stops of vehicles at fixed checkpoints are reasonable if:
- they are performed according to a neutral and objective plan;
- are supported by strong public interest, and
- and are minimally intrusive to the individual being stopped
Neutral and Objective Plan
The State must present evidence showing that the checkpoint was “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” More on officer discretion below.
Must the Checkpoint Policy /Plan Be Written?
No. “Although we hold today that a written plan is not required by the Fourth Amendment, we strongly suggest that having a previously established plan that is in writing before the execution of the checkpoint is the best practice.” Ogburn v. State, 104 So. 3d 267, 275 (Ala. Crim. App. 2012) . See also Connell v. State, 141 So.3d 1108 (Ala.Crim. App. 2013), cert.denied, (October 11, 2013) holding:
Thus, Ogburn stands for the proposition that the State, in sobriety-checkpoint challenges, has the burden of establishing the existence of a “plan embodying explicit, neutral limitations on the conduct of individual officers,” 104 So.3d at 274, and that the State may do so by either submitting a previously established written plan into evidence or by eliciting oral testimony of a witness who can “articulate the full details of the previously established plan.” 104 So.3d at 275.”(emphasis added)
STRONG PUBLIC INTEREST
Both the state and federal courts have held that the public has an interest in making sure that drivers of vehicles are properly licensed and that the vehicles they are driving are registered and equipped with safety devices. See Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). The Alabama Court of Criminal Appeals stated in Hagood v. Town of Town Creek, 628 So. 2d 1057 (Ala. Crim. App. 1993)]:
“‘The state’s interest in enforcing its registration and licensing laws and the difficulty in enforcing the laws by any other method” … [has] been held sufficient to outweigh a minor intrusion upon persons stopped at roadblocks conducted for [that] purpose.’
NTSA claims “Checkpoints enhance the visibility of overall impaired driving enforcement efforts and contribute significantly to general and specific deterrence. Literature reviews show that checkpoints are associated with reductions in alcohol related fatalities—a median decrease of 20 percent.
ARE THEY MINIMALLY INTRUSIVE TO THE INDIVIDUAL MOTORIST?
Manner of Operation of Roadblock
The manner in which roadblocks are a source of much constitutional debate and litigation. “The manner of operation and the physical characteristics of a roadbock affect the intrusiveness of the stop.” Cain v. State, 555 So. 2d 290 (Ala. Crim.App.1989). In examining this factor, Alabama courts look to a 13 part analysis in determining if the traffic stop is minimally intrusive to a motorist, and therefore reasonable for Fourth Amendment purposes. While no single factor is dispositive, all are relevant and include:
- The degree of discretion, if any, left to the officer in the field;
- The location designated for the roadblock;
- The time and duration of the roadblock;
- Standards set by superior officers;
- Advance notice to the public at large;
- Advance warning to the individual approaching motorist;
- Maintenance of safety conditions;
- Degree of fear or anxiety generated by the mode of operation;
- Average length of time each motorist is detained;
- Physical factors surrounding the location, type and method of operation;
- The availability of less intrusive methods for combating the problem;
- The degree of effectiveness of the procedure; and
- Any other relevant circumstances which might bear upon the test.
These factors are mere guideposts and no one factor is conclusive in this calculus, rather they are “helpful considerations to take into account when determining whether the officers conducted the stop pursuant to an ‘objective standard.'” Ex parte Jackson, 886 So. 2d 155, 163 (Ala. 2004)- coincidentally this was a Mobile County Sheriff roadblock case.
Ever wonder why the police give advance notice to the public of where the checkpoints will be? Look no further than #5 above.
Unfettered Officer Discretion Disallowed
A significant factor in the the intrusiveness/reasonableness of the stop is that the officer must conduct himself pursuant to an established policy strictly limiting the officer’s authority. For instance ask:
- What is the policy as to stopping vehicles- is it every car or every third car?
- Is there a supervisor not in the field motioning the stopping officer to ensure compliance with the roadblock guidelines?
- were officers given any particular instructions before the checkpoint began concerning how they were to conduct the checkpoint or concerning the extent of their discretion (could the officer wave a friend, family member, fellow off-duty officer, judge, prosecutor through while stopping everyone else?)
In short if officer fails to act in compliance with the pre-approved plan, he acts outside the protection of the law and the privacy rights and liberty of the motorists he stops are violated.
Who Has the Burden of Proof to Show that Road Block is Constitutional?
The Government has the burden of proof to establish the constitutionality of a roadblock or fixed traffic safety checkpoint. Hagood v. Town of Town Creek, 628 So.2d 1057, 1062 (Ala. Cr. App. 1993).
Can I Avoid a Roadblock?
Avoiding a roadblock gives the police independent grounds, apart from the reasonableness of the roadblock, to stop you. Remember, police do not need probable cause to stop you here. They need no reason to stop you at all provided they comply with the above mentioned guidelines. So if you pull out of a line of traffic for whatever reason, you give the officer a reasonable and articulate suspicion to stop you.
A case in point is Smith v State, 515 So. 2d 149 (Ala. Crim. App. 1987) where “Trooper Smith testified that he observed appellant’s vehicle come around a curve in sight of the roadblock and turn rapidly into a driveway approximately 200 yards from the roadblock. This act made Trooper Smith suspect that appellant was attempting to avoid the roadblock and could possibly be guilty of some traffic violation. Thus, his initial investigatory questioning of appellant was justified.” An argument may be made that a roadblock style analysis may not even apply here because defendant was not stopped at a roadblock and therefore has no standing to assert the protections of the Fourth Amendment attendant roadblocks. So avoidance of a roadblock may constitute an independent reasonable and articulate suspicion for the officer to stop you.
But What About Terry?
Generally speaking, police may seize you only if they have a reasonable and articulate suspicion that you are engaged in criminal activity [i.e. a “Terry stop” pursuant to Terry v. Ohio, 392 US 1 (1968)]. In roadblock cases, all cars are stopped (seized) without suspicion. How can this be reconciled with Terry? Some of the leading legal authorities justify it as a less intrusive stop than a traditional Terry stop.
“a principal safeguard in the provision is that the roadblock must be applied to all or most of the cars travelling in a particular direction. Thus the humiliation implicit in being singled out as an object of suspicion is absent. Moreover the expense to law enforcement agencies and public intolerance of the inconvenience impose a check on unreasonable recourse to this power.”
However, the real reason is the courts. The United States Supreme Court has read the suspicion requirement out of the Fourth Amendment in the fixed traffic checkpoint scenario. As the Alabama Court of Criminal Appeals held in Cains v. State, 555 So. 2d 290 (1989):
“In a series of decisions stemming from the immigration control cases, the United States Supreme Court has rejected the individualized suspicion requirement for fixed, non-random automobile checkpoints or roadblock stops, and instead has established some criteria for ‘a plan embodying explicit, neutral limitations on the conduct of individual officers…stops at fixed checkpoints or roadblocks are reasonable if they are carried out pursuant to a neutral and objective plan, are supported by a strong public interest, and are only minimally intrusive to the individual motorist.,”
See why the traffic safety checkpoint plan is so important?
So back to the original question-Are traffic safety checkpoints legal? The answer hopefully by now is crystal clear….Maybe.
DID YOU KNOW?
12 states do not allow traffic safety checkpoints;and most do because state constitution prohibits. These states are:
- Rhode Island
SHOULD GOVERNMENT BAN DUI CHECKPOINT CELL PHONE APPS?
Despite that fact that notice of checkpoints should be published to the public, recently authorities spoke out against DUI Checkpoint cell phone applications that provided notice to the public of the location of roadblocks. Watch this Reason TV piece. Besides the fact that many police jurisdictions advertise the roadblocks themselves, the authorities presume that everyone who uses the app is guilty of something. Many folks just don’t want to be hassled with the intrusion and delay and are guilty of nothing. Also if the purpose behind the roadblock is too keep impaired drivers from driving, wouldn’t such applications serve that purpose as well? Finally, if the government seeks to regulate this speech, it raises serious First Amendment concerns as well.
 Model Code of Pre-Arraignment Procedure 266 (1975)
Here are other state court decisions on the constitutionality of sobriety checkpoints.
Articles of Interest
ABOUT THE AUTHOR
Matt Green is a solo practitioner who represents personal injury and victims of criminal wrongdoing. He served as a municipal court traffic court judge in the City of Mobile and the City of Saraland for nearly a decade. Before that Matt prosecuted major felonies, traffic homicides, and violent crimes in the Baldwin County District Attorney’s Office. He teaches trial advocacy to Mobile Police Cadets and speaks to the Mobile County Court Referral Victim Impact Panel. Matt also defends the constitutional rights of his clients. He may be reached at 251.434.8500 or by e-mail at firstname.lastname@example.org
The Alabama State Bar, Rules of Professional conduct, Rule 7.2 (e), requires the following language in all attorney communications: No representation is made that the quality of the legal services to be performed is greater than the quality of legal services performed by other lawyers.