Pubdate: Thu, 20 Jan 2000 Source: Dayton Daily News (OH) Contact: http://www.activedayton.com/partners/ddn/ Forum: http://www.activedayton.com/entertainment/forums_chat/ Author: Sharen Shaw Johnson Bookmark: MAP's link to Ohio articles is: http://www.mapinc.org/states/oh WHY CARE ABOUT A PUSHER'S RIGHTS? We All Lose Far More Than We Gain From Dayton Traffic Checkpoints It probably seemed like a good idea at the time. On June 8 and June 20, 1988, the Dayton Police Department set up checkpoints in every police district but downtown to inspect the licenses and other papers of every driver who passed through. Among more than 2,100 cars stopped, police arrested 159 people for driving without a license, issued 224 traffic citations, served 48 warrants, recovered three stolen cars and made six felony arrests. So what's the problem? Oh, just this nagging little question on the part of the Montgomery County Public Defender's Office and others that as a law-enforcement mechanism, the checkpoints mauled Dayton drivers' constitutional rights--specifically, the Fourth Amendment, which guarantees that Americans be free from unwarranted police intrusion into their lives. The public defender's office, which inevitably ended up representing some of those nabbed in the sweep, was so concerned that it challenged the checkpoints' constitutionality. The public defender won in trial court, but the city appealed. Last week, the 2nd District Court of Appeals ruled 2-1 that the checkpoints were legal. Two appellate judges found that police had enough of a public-safety interest in removing unlicensed drivers from the streets that the checkpoints fell within U.S. Supreme Court guidelines. Now the Montgomery County Public Defender's Office says it will appeal that decision, all the way to the U.S. Supreme Court if necessary. All this over a traffic ticket? Can't these guys take a hint? No, and thank heavens they can't--because this isn't really about a traffic ticket or even about recapturing a stolen car. It's about a freedom the men who wrote our Constitution considered so important they spelled it out plainly in the Bill of Rights. The Fourth Amendment limits what the government may do under the guise of law enforcement; it says flatly that citizens going about their lawful business shall be free from unwarranted government interference. This still is a strange and wonderful concept in several parts of the globe, where governments contend that they have the right to control their citizens' movements. But it has been such an intrinsic American freedom for more than two centuries, many of us have come to think it's the natural order of things. The Fourth Amendment is what passes today for constitutional white noise. Which makes no less disturbing its decade-long evisceration by the Supreme Court. A conservative majority has so whittled our Fourth Amendment privacy rights, many legal scholars say, that in effect we no longer have them. How bad can it be? The court has narrowed the definition of "search" until it's no longer a search--and you have no right to complain--if the cops hover over your yard in a helicopter with high-powered binoculars, perch on a tree limb to peer inside your bedroom, browse through your trash and your bank records or eavesdrop on your cellular calls. Most recently, the court ruled that it's OK for immigration agents to board a bus, pat down luggage at random and arrest passengers if they find contraband such as drugs. No one is going to lose any sleep over drug dealers. In fact, most recent surveys and polls show that Americans want their justice system to be tougher on criminals. Pick a dozen Americans randomly, tell them the Supreme Court is waging war on criminal defendants' rights and they'd probably form a cheering squad for the justices. The Dayton appellate ruling, by Judges James A. Brogan and Thomas J. Grady, certainly is consistent with these activist federal rulings. It cites Supreme Court rulings that allow such checkpoints for nabbing drunken drivers and undocumented immigrants, and states that Dayton proved to the two judges' satisfaction that the public's interest in getting unlicensed drivers off the streets outweighs the police intrusion into our personal lives. It's just that the lone dissent seems far more compelling. In opposing the checkpoints, Judge Frederick N. Young noted that nationally, drunken drivers have caused some 25,000 deaths per year; waves of undocumented immigrants strain taxpayer-funded social services in border states. Government, in other words, has a compelling interest in stopping both practices. But if the Dayton checkpoints serve a similarly pressing public need, Young wrote, the city failed to show it. The public defender's office says it'll ask the entire five-judge appellate bench to rule on the case, in hopes that the remaining two judges will side with Young. Let's hope so, even if it means a thief or two slips through the net, at least this time. David Cole is a Georgetown University Law Center professor and volunteer staff attorney with the Center for Constitutional Rights. As he explained in The Legal Times, our Fourth Amendment rights "are constitutional in nature precisely because criminal defendants and suspects are, as a group, unlikely to receive protection through the political process. When the Supreme Court abandons them as well, it has failed to live up to its most important obligation." It may be among our justice system's hardest lessons: We pare another's rights--even the most reprehensible among us--only by also shaving our own. - --- MAP posted-by: Eric Ernst