Pubdate: Wed, 04 Oct 2000 Source: New York Times (NY) Copyright: 2000 The New York Times Company Contact: 229 West 43rd Street, New York, NY 10036 Fax: (212) 556-3622 Website: http://www.nytimes.com/ Forum: http://forums.nytimes.com/comment/ Author: Linda Greenhouse SUPREME COURT CONSIDERS USE OF DRUG CHECKPOINTS WASHINGTON, Oct. 3 - It has been 10 years since the Supreme Court upheld the use of drunken-driving checkpoints on city streets, and nearly twice that long since the court ruled that the airport police could use drug-detecting dogs to sniff passengers' luggage. So it was perhaps inevitable that the justices would be confronted with the question they considered today: Can the police, by adding a trained dog, turn a sobriety checkpoint into a constitutionally permissible way of checking motorists for drugs? If the question was obvious enough, the answer was not. The court upheld sobriety checkpoints in 1990 as public health and safety measures, a method of getting dangerous drivers off the road that was sufficiently distinct from ordinary law enforcement as to not require the suspicion of individual wrongdoing that the Fourth Amendment usually imposes on a search or seizure. But that rationale was not available for this case, an appeal by the City of Indianapolis of a federal appeals court's ruling that its drug roadblocks, which it used quite successfully for four months in 1998, amounted to a "dragnet search for criminals" that violated the Fourth Amendment. Indianapolis was not looking for impaired drivers who were using drugs; it was looking for drivers who were using their cars to transport drugs through the city's streets. While the justices today appeared sympathetic to the city's goals, they worried aloud about the consequences of validating the checkpoints. How, for example, could the court avoid issuing a decision that in upholding the automobile checkpoints would logically also validate pedestrian checkpoints, a prospect the justices clearly found troubling? "If we sustain the search here, we'd be required to do the same thing if, in a given neighborhood, drug distribution is done on foot," Justice David H. Souter said to A. Scott Chinn, the Indianapolis corporation counsel. What was the difference between stopping pedestrians and stopping cars? the justice wanted to know. People in cars already have a lower "expectation of privacy," Mr. Chinn replied, and a checkpoint for pedestrians would be regarded as so much more intrusive as to make it a different case. But pedestrians actually have less privacy, Justice Ruth Bader Ginsburg objected. "On a street, there you are," she said. "Everyone can see you. The rationale you're offering would apply just as much. If there is a distinction based on the expectation of privacy, I don't see it." Eventually, a way of limiting checkpoints to automobiles did present itself, and several justices seized on it with almost palpable relief. The Clinton administration had entered the case on behalf of Indianapolis, and an assistant solicitor general, Patricia A. Millett, told the court that the automobile drug checkpoints could be viewed simply as adjuncts to the check for licenses and registrations that the city already conducted at the roadblocks. "The entire scope of the seizure" was justified by the license and registration checks, Ms. Millett said, noting that driving a car was a highly regulated activity and that motorists expected to be stopped occasionally. After Ms. Millett concluded, the tide of the argument, which had been running against the city, appeared to turn, as justices who had expressed strong doubts about the city's position now turned their skepticism on the lawyer for the other side. Kenneth J. Falk, legal director of the American Civil Liberties Union's Indiana affiliate, had brought the class- action lawsuit against Indianapolis on behalf of the city's drivers. Justice Antonin Scalia, who earlier had characterized the implications of the city's argument as "scary," now asked Mr. Falk, "So long as they have the authority to stop the car, what difference does it make if they have another purpose?" And Justice Souter asked why, "if we assume the license check is in fact a genuine, bona fide purpose, does the dog taint the search?" Mr. Falk said that beyond the fact that "a dog cannot check licenses," the real objection was that the addition of a drug-detecting dog converted a regulatory program of checking a driver's paperwork into a tool of criminal investigation without probable cause. "If we break down the barrier here and allow a seizure without cause, we will have seizures of persons on the streets," Mr. Falk said. The court could not ignore the "programmatic purpose" of the drug checkpoints, he insisted. The question of discerning the real purpose behind a particular law enforcement technique is a difficult one under the court's precedents. In a 1996 decision, Whren v. United States, the court held that as long as the police activity was objectively reasonable - stopping a car with a broken taillight, for example - it was irrelevant whether that action was a pretext for another goal, like a search for drugs. In his opinion striking down the Indianapolis checkpoints, Judge Richard A. Posner of the United States Court of Appeals for the Seventh Circuit said that while the motives of an individual officer were irrelevant, that was not the end of the inquiry; "the purpose behind the program is critical to its legality," Judge Posner said. In this case, he said, it was clear that the purpose was not to check licenses but to "catch drug offenders" and that the Fourth Amendment's requirements therefore applied. During the argument today, Justice John Paul Stevens started to make the same distinction between inquiring into the individual police officer's purpose and the purpose behind a program as a whole. But time ran out before Mr. Falk could fully take advantage of Justice Stevens's helping hand. The case, City of Indianapolis v. Edmond, No. 99-1030, is being followed closely by cities and law enforcement organizations. A brief from the National League of Cities indicated that other cities would adopt the Indianapolis program if it were upheld. - --- MAP posted-by: Jo-D