A Checkpoint Primer

November 16, 2016

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A Checkpoint Primer

The Fourth Amendment  states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The paragraph seems straight forward enough and courts have ruled that to detain a person is to “seize” him. So if you are stopped and detained you are seized and your seizure must be reasonable. But there is also a significant body of case law that authorizes police to set up roadblocks and detain drivers and riders in states that do not have laws forbidding checkpoints and roadblocks.

Here is a brief primer on how the meaning of how the meaning of reasonable has evolved.

People v. De la Torre

The grandfather of all roadblock court decisions is a California appeals court case from 1967 titled People v. De la Torre. The California legislature passed a law, Vehicle code 2814, which said: “Every driver of a passenger vehicle shall stop and submit the vehicle to an inspection of the mechanical condition and equipment of the vehicle at any location where members of the California Highway Patrol are conducting tests and inspections of passenger vehicles and when signs are displayed requiring such stop.”

Fernando De la Torre was out on a Saturday night. He was tipsy and he was arrested for driving under the influence. He was convicted  and he appealed on the grounds that the traffic stop was an unconstitutional dragnet. The stop was, in fact, a defacto sobriety checkpoint. A lower court agreed with De la Torre and dismissed his case.

The state appealed and the appeals court ruled ‘‘Upon holding Vehicle Code section 28141 unconstitutional on its face the trial court granted defendant’s motion to dismiss the action. Thus our task is strictly limited. We are not called upon to determine the guilt or innocence of the defendant, nor whether the Vehicle Code section was being used as a subterfuge by the police, nor whether an otherwise constitutional statute was being unconstitutionally applied to this defendant. We determine and hold only that Vehicle Code section 2814 properly used in accordance with the in¬tent of the Legislature expressed therein is constitutional.”

That obscure, state court decision was the hole in the dike

United States v. Martinez-Fuerte

The leak became noticeable in a U.S. Supreme Court case titled United States v. Martinez-Fuerte. Martinez-Fuente was stopped at a border patrol checkpoint on the San Diego Freeway in San Clemente, California. The checkpoint is about 73 miles north of the Mexican border and it is still there. Legally the Border Patrol is authorized to conduct searches in a border zone that extends 100 miles inland from international borders and at virtual borders, like international airports, no matter where they might be. The defendant was transporting two Mexican nationals north to Los Angeles. They admitted they were in the country illegally and he was charged with two counts of illegally transporting aliens.

Martinez-Fuente wanted his passengers statements suppressed. The Supreme Court ruled seven to two that the checkpoint did not violate the fourth amendment because it wouldn’t be practical to get search warrants for all the cars that passed through the checkpoint and that the inconvenience to motorist was “minimal.” It is legal, under Martinez Fuerte, to use profiling and to detain someone for further questioning because they look suspicious.

Delaware v. Prouse

Both of the above cases, were cited in 1979s Supreme Court decision, Delaware v. Prouse. In Prouse, the Court ruled that police could stop anybody for any reason as long as they treated everybody equally and did not arbitrarily decide to stop some people and let others continue on their way. It was a curious decision and it referenced People v. De la Torre, the California decision from a dozen years before. Justice Byron “Whizzer” White, a former All American football player, cautioned that “people are not shorn of all Fourth Amendment protection when they step from the sidewalks into their automobiles.” And then he wrote it would be alright to stop people and check their vehicle registrations at a “checkpoint,” like the one that caught De la Torre driving drunk. Police couldn’t set up sobriety checkpoints but they could stop you, make you roll down your window and hand over your papers.

The state had the right, the court ruled, to enforce roadblocks that promoted traffic safety as long as they didn’t search the stopped vehicles without probable cause.

Michigan Dept. of State Police v. Sitz

The Court decided that sobriety checkpoints were legal in 1990 in a case titled Michigan Dept. of State Police v. Sitz.

Michigan had started setting up roadblocks to catch drunk drivers. Drivers had to stop, roll down their windows and converse with police. If the cop smelled alcohol or detected slurred words or some other impairment, the driver could be detained and given a field sobriety test.

Justice John Paul Stevens thought that stopping 126 cars to find two drunk drivers was unreasonable but the rest of the court disagreed. Most of the court sought a balance between the rights of citizens to be let alone and the “interest” of government. The Court decided that the Michigan State Police had a preexisting “substantial government interest,” that the impact on sober drivers was “negligible” and that a brief interrogation to try to find reasonable suspicion of driving drunk was not unconstitutional.

City of Indianapolis v. Edmond

The Supreme Court took another look at checkpoints in 2000 in City of Indianapolis v. Edmond.

That case finally put a limit on what police could do at checkpoints. In a nutshell, that decision said that after De la Torre, Martinez-Fuerte, Prouse and Sitz the police could stop you, compel you to produce your papers, make you talk to them and even profile you based on your appearance or other intangible factors but they couldn’t greet everybody with a drug sniffing dog.

That was the bright and shining line between freedom and tyranny. On the free side of the line they couldn’t greet you with a drug sniffing wonder dog, which, as everyone knows, only “alerts” if you are actually in possession of drugs. On the free side of the line they can’t so that to you unless you are at a border crossing. Or in an airport.

The way American police get around Edmond is by putting up signs that say “Drug Checkpoint Ahead.” If you voluntarily pull over they can ask to search your car. Legally, there is no checkpoint, just a sign. You don’t have to consent to a search. You don’t have to roll down your window or talk to police. You don’t even have to stop but most people think they do. And if you make an illegal U-turn or you throw something away they can stop you for that. And, then they can contrive to have a dog sniff you.

You might have to explain all this to your public defender sometime.


10 Responses to “A Checkpoint Primer”

  1. Thunderbird Says:

    The Constitution and administrative law are two different things. The courts of today are administrative courts. These administrative courts do not recognize the constitution. Federal and State statutes are written in administrative law. When we walk into an administrative court answering to a charge against us and make a plea according to administrative procedure then we are making a contract with the court and we are bound to that contract. Then the court can proceed under the color of administrative law.

    The fourth amendment to the constitution was written under the color of constitutional law which is common law. Common law and administrative law are apples and oranges of a different kind. When we realize this then we can approach the court in an intelligent way.

  2. swampy Says:

    @rw, exactly. There was an infamous “Drug stop/checkpoint” in the East-bound lanes of I-20 in northern Louisiana. The sign stating: “Drug checkpoint ahead” was actually set up about a quarter of a mile ahead of a wooded exit. The exit was the checkpoint. They were looking mainly at out-of-state tags, Hispanics, elderly couples, most anyone heading East from West. They did catch a guy once that was towing a boat with a million bucks stashed in the hull.

  3. Jim Bob Says:

    I have had the “pleasure” of being on the receiving end of a search involving a drug dog. Just like everyone else I know that went through the same experience, they would say that the dog “gave his indicator that there was “something there” after they did a full walk around the vehicle and we could either “cooperate” and make it easy on ourselves which will go a long way with them or they now had reason to impound the vehicle and would tear it apart to locate everything in it…..funny thing, that drug dog, because I would watch that thing intently and I guess it’s indicator is a blank stare or maybe it gave a secret wink I didn’t notice but that dog didn’t do ANYTHING when they walked around. It acted just like a happy little dog that was going on a walk in a circle. It never barked, sat down, jumped up or on or stopped at any particular spot and stared at it. I don’t know, maybe the dog and the officer were telepathically linked…

  4. Becca Says:

    @RLG – That was a really enjoyable video except for the fact that they were all too damn chatty. NEVER talk to the Police!!! Nothing good can or will ever come from talking to the Police. This is my favorite video.

  5. david Says:

    Supreme court “Opinions”, as every Supreme Court report begins, are just what it says they are.

    However, the 4th. Amend. protection is NOT an “Opinion” of the people.

    2) The jury hearing a case vote their decision(read:opinion), and THEIR opinion INCLUDES, overturning ANY statute passed passed by a corrupt legislature of career politicians who have no comprehension of law or justice, in other words, jury nullification of legislative law.

  6. rw Says:

    I’ve been a OTR trucker for 37 years. I’ve seen all kinds of roadside inspections but I’ve only seen that drug inspection excuse once. It was at night traveling north on I35 out of tx into ok. I saw the sign and was like huh there’s no where up here to stop. About 100 yards or so past the sign was an exit. This exit goes to a frontage road that runs about a mile parallel to 35 and just ends in the middle of nothing. Only way out is to turn around and come back just like went in. Never seen anyone exit there before but this night there was a lot of traffic taking that exit. Turned was no inspection on 35. The inspection was down at the end of the frontage road where they wanted to know why you where there.

  7. TX_Biker Says:

    Eventually it will be illegal to ride in a pack, wear anything that shows you are part of a collective of like minded individuals, or possibly even ban Motorcycles from cities (see France). When will we say enough is enough? Where is the line that we will not allow them to cross?

  8. Sieg Says:

    Ya know, I sound like a broken record, (a record is a round, flat, disc, made of a sort of vinyl material with stiffeners added, weighing about 150 grams, with grooves cut into it, allowing a primitive machine, once common in homes to produce sound from it)but the Constitution is no longer the law of the land. That may change, radically-one can hope-but I wouldn’t count on it.

    For now, realize, you have no Constitutional rights, especially if you are an enemy of the state. You have whatever rights the gun-thug in front of you says you have, and no more. If you are lucky and get around him, there are legions more waiting for you.

    Given all that, I always expect a search. Wouldn’t even keep something illegal in my home. Kinda like the Joint, ya know?

    Welcome to the Gulag, zek. Your papers, and don’t make me ask twice.


  9. Shyster Says:


    Google Ingersoll v. Palmer. Hope you are well.


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