Supreme Court's curious math: How a lawful seizure plus a non-search add up to a Fourth Amendment violation in City of Indianapolis v. Edmond, The

Meehan, Kevin E

I. INTRODUCTION

also held, for nearly twenty years, that exposure of an object to a canine sniff in a public place is simply not a "search," and therefore does not even trigger Fourth Amendment protection.4 Moreover, the Court is on record as repeatedly holding that subjective motivation cannot invalidate objectively reasonable behavior.5

When these rulings are taken together, it would seem safe to assume that if a police department carefully sets up checkpoints to meet all the requirements of Supreme Court precedent, and then, without increasing the duration of the brief seizure, had a dog sniff a vehicle's exterior, such a checkpoint would be found lawful under the Fourth Amendment, regardless of the subjective intent behind the objectively reasonable official behavior. The Court's holding in City of Indianapolis v. Edmond, however, has proved such logic to be wrong.6

The problem with simply combining the prior rulings together is that such an approach fails to consider the new judicial math. With the Court's new formulas, a checkpoint, which is even more restrictive on police power7 than those found lawful in the past, can now be seen as violating the Fourth Amendment.8 A canine sniff, previously a constitutional cipher, can now bring an entirely new dimension to any Fourth Amendment seizure problem.9 Moreover, the Court's latest arithmetic enables it to ponder the innermost minds of many police collectively, even though it cannot delve into the mind of an individual officer.10

(whether by citizens or officials) only when they are "written clearly and simply."12 The ruling in Edmond defies this basic logic, and therefore runs the risk of causing confusion on the streets.

This Article begins in Part II with a review of the precedent regarding checkpoints, canine sniffs, and the impact of subjective motivations on objectively reasonable official conduct. Part III presents Edmond; its factual background, lower court rulings, and Supreme Court decision. Finally, Part IV explores Edmond's dramatic changes in course and discusses its potential effects on future cases involving Fourth Amendment balancing of interests.

II. BACKGROUND

A. The Checkpoint Precedent

In describing the choice of checkpoint location, Justice Powell emphasized the administrative nature of these decisions. In Martinez-Fuerte, he asserted, "the location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources."19 The Court specified the factors weighed by such officials:

The Border Patrol believes that to assure effectiveness, a checkpoint must be (i) distant enough from the border to avoid interference with traffic in populated areas near the border, (ii) close to the confluence of two or more significant roads leading away from the border, (iii) situated in terrain that restricts vehicle passage around the checkpoint, (iv) on a stretch of highway compatible with safe operation, and (v) beyond the [twenty-- five]-mile zone in which "border passes" are valid.20

When describing the layout of the checkpoints, Martinez-- Fuerte noted that the government had placed, at various intervals before the stops, large black on yellow signs with flashing yellow lights warning motorists, "ALL VEHICLES, STOP AHEAD, 1 MILE" and "WATCH FOR BRAKE LIGHTS."21 At the actual checkpoint, the Court specified that two more signs, declaring "STOP HERE-U.S. OFFICERS" were posted, accompanied by flashing red lights over the highway.22 Additionally, Justice Powell found it important to note the orange traffic cones routing traffic into two lanes, the full dress uniform of the U.S. Border Patrol agents, the floodlights used for nighttime operation, and the flashing red lights on the official U.S. Border Patrol vehicles, which were blocking the unused lanes.23

operation of the checkpoint. A "point" agent visually screened all northbound vehicles, which the checkpoint brought to a virtual halt.24 Although most cars were allowed to proceed, the point agent had the discretion to determine if "further inquiry [was] in order" for certain motorists.25 Such drivers were then directed to a secondary inspection area, where, for approximately three to five minutes, occupants were asked about their immigration and citizenship status.26 The decision to direct a vehicle to the secondary inspection area was to be "based on something suspicious about a particular car"; however, this suspicion need not consist of any "articulable" suspicion.27 Justice Powell, in his formulation of the issue before the Court, again reiterated that the government stopped motorists "even though there [was] no reason to believe the particular vehicle contain[ed] illegal aliens."28

After its detailed recitation of the facts of the case, Marinez-Fuerte turned to assessing the reasonableness of the checkpoint seizures. Justice Powell determined that in the particular context of government action in the absence of probable cause,29 the Court "delineat[ed] the constitutional safeguards" by a balancing analysis wherein it "weighed the public interest against the Fourth Amendment interest of the individual."30 Since the stops in Martinez-Fuerte were conducted without any indivudualized suspicion, the Court began its balancing in order to decide whether reasonable suspicion was a prerequisite to a valid stop.31

indicates that the Court might have placed its thumb on the scales. Even before it analyzed the constitutional question, it was considering the government's interests in the case.32 Justice Powell declared that, "[ilt has been national policy for many years to limit immigration into the United States."33 Maintaining this policy by stopping illegal entrant flow from Mexico posed "formidable law enforcement problems."34 Further, the court noted that it remained relatively easy for individuals to enter, without detection, the United States from its 2000-mile-long border with Mexico.35 Thus, much of the government's case was established even before the balancing was to begin.

During the actual balancing, the significance of the government interest was therefore taken as a given, leaving the only question to be the interest in employing permanent checkpoints as the means to carry it out.36 Here, the Court accepted the government's identification of permanent checkpoints as "the most important of the traffic-checking operations" for their absence would "offer illegal aliens a quick and safe route into the interior."37 Justice Powell dramatically envisioned the checkpoints as "apprehend[ing] many smugglers and illegal aliens who succumb to the lure of such highways."38 Any reasonable suspicion requirement on checkpoint operation would be impractical due to the heavy traffic flow and the ability of the smugglers to disguise their operations.39 Martinez-Fuerte thus concluded that the government has a great need to make routine checkpoint stops.40

Martinez-Fuerte deemed any objective intrusion to involve "only a brief detention" during which "[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United States."43 The Court further downplayed any invasion by noting that "[n]either the vehicle nor its occupants are searched, and visual inspection of the vehicle is limited to what can be seen without a search."44

In considering the degree of subjective intrusion resulting from a permanent checkpoint, the Court assessed any such impact on the motorist by contrasting it with the more intrusive "roving patrol" stops.45 Roving patrols that operate on seldom-traveled roads at night might subjectively frighten those who are stopped.46 In Brignoni-Ponce, the Court condemned random roving patrol stops because they "would subject the residents of . . . [border] areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers . . . [who] could stop motorists at random for questioning, day or night," based on unreviewable discretion.47 The permanent checkpoints did not intrude similarly on the motoring public, because:

chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops.48

Justice Powell conceded "some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure."49 He continued, however, "the Fourth Amendment imposes no irreducible requirement of such suspicion."50 With this constitutional escape hatch, and the balance of interests tipping in the state's favor, the Martinez-Fuerte Court held that the stops and questioning at permanent checkpoints "may be made in the absence of any individualized suspicion."51 The Court further ruled that "it is constitutional to refer motorists selectively to the secondary inspection area" because the intrusion is "sufficiently minimal that no particularized reason need exist to justify it."52

equipment violations, or any suspicious activity.55 Further, "[t]he patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General."56 Instead, on a whim, he decided to stop Prouse's vehicle.57

The Court, in an opinion written by Justice White, condemned the officer's unbridled and unconstrained discretion as "the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent."58 Prouse contrasted such a roving patrol with Martinez-Fuerte's checkpoint stops, which the Court saw "in a different light" because their intrusions on motorists were appreciably less.59 Indeed, Justice White took care to preserve the government's power to perform checkpoints, stating: "This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative."60

The next case cited for checkpoint law not only lacked facts regarding checkpoints, but cars. In Brown v. Texas, police in a cruising patrol car observed the defendant and another man in an alley, walking in opposite directions away from each other.61 The officers, lacking any reason to suspect the defendant of wrongdoing, seized and ultimately arrested him for failing to identify himself.62

interference by law officers."64 Specifically, the Court held, this calls for a weighing of three factors: "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."65 The main concern in balancing these three considerations was to protect the individual from "the unfettered discretion of officers in the field."66 The Fourth Amendment could limit the power of the officer on the beat in one of two ways: either (1) the officers were to be limited by basing their actions on a specific level of suspicion, or (2) "the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers."67 This second option includes the explicit guidelines that restrict officer discretion at checkpoints.

The Court revisited checkpoints in Michigan Department of State Police v. Sitz.68 In Sitz, the Court was as dutiful in recounting the factual details of the checkpoint as it had been in Martinez-- Fuerte. Chief Justice Rehnquist, who wrote the Court's opinion, noted that the director of the state police appointed a "Sobriety Checkpoint Advisory Committee" which established guidelines "setting forth procedures governing checkpoint operations, site selection, and publicity."69 The committee had representatives from state and local police forces, as well as state prosecutors and the University of Michigan Transportation Research Institute.70

warranted, conduct further sobriety tests."73 If indicated, officers would arrest the motorist; otherwise, drivers would resume their journey immediately.74

Chief Justice Rehnquist then considered the actual operation of Sitz's checkpoint. The checkpoint was set up only once. 5 It ran in Saginaw County for seventy-five minutes, stopping 126 vehicles for an average of about twenty-five seconds.76 Of two drivers detained for field sobriety testing, one "was arrested for driving under the influence of alcohol."77 A third person who drove through the checkpoint without stopping was ultimately pulled over and arrested for driving under the influence.78

In assessing the reasonableness of Sitz's sobriety checkpoints, the Court expressly applied the balancing analysis developed in Martinez-Fuerte and Brown.79 In weighing Brown's first prong, "the gravity of the public concerns served by the seizure," the Court found the size of the government interest to be enormous.80 Chief Justice Rehnquist declared:

No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion. The anecdotal is confirmed by the statistical. Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries and more than five billion dollars in property damage.81

meaning by first explaining what it did not mean.82 Chief Justice Rehnquist stated, "[t]his passage from Brown was not meant to transfer from politically accountable officials to the courts the decision as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger."83 The Fourth Amendment left this choice among various options to the officials who make the policy decisions regarding how to allocate the "limited public resources, including a finite number of police officers."84 The Court, therefore, refused to conduct an examination of effectiveness, opting instead to lower the standard to whether any empirical evidence existed to support the effectiveness of the government program. 85

Under this reformulated prong, Prouse could be seen as rejecting random license check stops because there was no empirical evidence that such seizures promoted roadway safety.86 Conversely, Martinez-Fuerte and Sitz passed the "advances the public interest" test because each avoided "a complete absence of empirical data" of effectiveness.87 Although concededly low (the Chief Justice calculated that Martinez-Fuerte was 0.12% effective while Sitz was 1.6% effective), these two checkpoint programs had some impact on the concerns they were meant to address, and therefore were deemed to sufficiently advance government interests for Fourth Amendment purposes.88

appear identical.91 Thus, the "'objective' intrusion, [as] measured by the duration of the seizure and the intensity of the investigation, [was] minimal."92 As for the subjective intrusion on motorists, this was not to be measured by the fear and surprise of the guilty that they might be caught at a checkpoint.93 Rather, the Court was to focus on the "fear and surprise engendered in law-abiding motorists by the nature of the stop."94 Since the sobriety "checkpoints [were] selected pursuant to the guidelines, and uniformed police officers stop every approaching vehicle," its brief stops were essentially the same as those previously found reasonable.95

B. Canine Sniffs Fail to Trigger Fourth Amendment Application

A dog's sniff of luggage in public is not a Fourth Amendment search.102 This simple rule stands in marked contrast not only to the complex checkpoint balancing test described above, but also to the Court's other search precedent. The current definition of a Fourth Amendment search came from Katz v. United States,103 a case in which FBI agents electronically eavesdropped on a call a gambler made from a telephone booth.104 In considering whether the Fourth Amendment applied to the FBI's surveillance, Justice Harlan, in a concurring opinion, formulated what came to be recognized as the rule defining a Fourth Amendment "search."105 He understood the rule to be "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.'"106 As clear from its own terminology, this test necessitates that the courts weigh the reasonableness of expectations in any case, and therefore forces an in-depth analysis of the particular facts each new intrusion creates. Thus, to apply the Katz rule, the Court has had to perform detailed analyses of facts in a wide variety of contexts, including government trespass on open fields,107 police sifting through trash,108 and officers squeezing soft luggage.109

Court in Place, noted that the usual intrusions accompanying a typical search do not occur during a canine sniff; no luggage is opened, no noncontraband items are exposed to public view, and no owner is subjected to inconvenience and embarrassment.11 Further, the dog's sniff disclosed only the "limited" information of the presence of narcotics, "a contraband item."112 Justice O'Connor therefore concluded that "exposure of respondent's luggage, which was located in a public place, to a trained canine-did not constitute a 'search' within the meaning of the Fourth Amendment."113 Further, the Place Court did not even entertain the notion that a canine's sniff was a seizure. Therefore, for Fourth Amendment purposes, a dog's sniff in public constitutes an absolute Constitutional nullity.

C. The Irrelevancy of an Official's Subjective Motivation

the interior of the truck.119

Whren and his fellow defendants moved to suppress the evidence, voicing concern over the use of traffic stops "as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists."120 Specifically, the defendants here believed that the vice officers' grounds for approaching the Pathfinder, "to give the driver a warning concerning traffic violations," were merely a pretext for following a hunch that the youths were engaged in drug-dealing activity.121

Justice Scalia, writing for the Whren Court, showed little patience for the pretext argument. He declared that, with rare exception, the Court had "[n]ot only ... never held . . . that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but [it has] repeatedly held and asserted the contrary."122 Among the precedent Whren relied on was the pronouncement in Scott v. United States123 that "[s]ubjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional."124 Justice Scalia also reiterated Scott's declaration that, "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action."125

Yet, the defendants did not couch their contentions in terms of the ulterior motives of a particular officer. Justice Scalia described the defendants did not coach their contentions in terms of the ulterior motives of a particular officer. Justice Scalia described the defense approach as follows:

entertain Fourth Amendment challenges based on the actual motivations of individual officers, petitioners disavow any intention to make the individual officer's subjective good faith the touchstone of "reasonableness." They insist that the standard they have put forward-whether the officer's conduct deviated materially from the usual police practices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons given-is an "objective" one.126

Justice Scalia first rejected the defendant's analysis as missing the point of the Court's precedent on ulterior motivation, which was "simply that the Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent."127 Next, he mocked it as unworkable "virtual subjectivity," speculating "it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a `reasonable officer' would have been moved to act upon the traffic violation."128 Finally, the Whren Court noted that police departments' enforcement practices varied from place to place. The Court therefore refused to "accept that the search and seizure protections of the Fourth Amendment are so variable ... and can be made to turn upon such trivialities."129

seats."132 When Agent Cantu squeezed Bond's green canvas bag, he felt a "brick-like" object, rompting him to seek and acquire consent to open the luggage.133 The resulting search recovered a brick of methamphetamine.134

Chief Justice Rehnquist, authoring the Bond opinion, considered Agent Cantu's squeeze to be a search due to his feeling the bag "in an exploratory manner."135 Interestingly, in light of Whren's prohibition against considering an officer's subjective intent, the Court failed to simply distinguish Whren from Bond as a case involving police action in the context of probable cause.136 Instead, Chief Justice Rehnquist made the following broad statement regarding subjective motivation, without the qualifications mentioned later in Edmond: "The parties properly agree that the subjective intent of the law enforcement officer is irrelevant in determining whether that officer's actions violate the Fourth Amendment."137 Then, to avoid the perception that it had divined the officer's actual intent, the Court in Bond merely asserted, without explanation, that, "the issue [in Bond] is not [Agent Cantu's] state of mind, but the objective effect of his limiting it to situations where police were acting with probable actions."138 it Considering that Edmond would latter dodge Whrely by limiting it to situations where police were acting with probable cause, it is curious that the Court, in an opinion merely one year earlier, did not choose this easy option. It would seem that the Court in Bond was not aware of this escape route, believing instead that subjective intent was irrelevant, regardless of the existence or absence of probable cause in the case.

III. CITY OF INDIANAPOLIS v. EDMOND

A. Facts

checkpoint in a location which [would] minimize the interference with normal traffic flow."145

Authorities disseminated to 146 the public information regarding the date of each checkpoint. Further, according to the affidavit of Indianapolis Police Sergeant Marshall DePew checkpoints were usually operated during daylight hours.147 Drivers approaching the checkpoint were alerted by lighted signs reading, "NARCOTICS CHECKPOINT __ MILE AHEAD, NARCOTICS K-9 IN USE, BE PREPARED TO STOP."148 The actual checkpoint was "identified by marked police cruisers with flashing lights."149

Each checkpoint, run by about thirty officers, would stop only a predetermined number of vehicles.150 The stopped vehicles "were met by a team of police officers, at least one of whom was in full uniform."151 Following the written directives, an officer "informs the driver that he or she has been stopped at a narcotics checkpoint, asks to see a driver's license and vehicle registration, and checks for signs of driver impairment. Simultaneously, other officers walk around the vehicle's exterior [sic] a narcotics-- detection dog that sniffs for narcotics."152

VEHICLE OUT OF SEQUENCE."155 Although the city agreed to limit each stop to five minutes or less, officers achieved an average time of two to three minutes or less.156 Should traffic become congested, police "would either suspend operation of the checkpoint or institute traffic control measures until the back-up had cleared."157

Out of the 1,161 motorists stopped at Indianapolis's checkpoints, 104 drivers were arrested, resulting in an "effectiveness" rate, or "hit" rate of 9%.158 These "arrests were divided almost equally between narcotics offenses (fifty-five arrests) and other crimes (forty-nine arrests)."159 At least two of these 1,161 drivers detained at the checkpoints found them to be improper. Seized motorists James Edmond and Joell Palmer filed a lawsuit on behalf of themselves and the class of drivers already stopped or subject to future stops by Indianapolis's checkpoint program. 160 Edmond and Palmer contended that the roadblocks violated the Fourth Amendment, and thus they "requested declaratory and attorney's relief for the class, as well as damages and attorney's fees for themselves."161

B. Lower Court Rulings

1. The District Court

individualized suspicion for the primary purpose of determining if they possess or are under the influence of illegal drugs."163 Chief Judge Barker began her analysis of this Fourth Amendment issue by starting with the basics; the checkpoint stops were indeed seizures and as such would typically trigger a requirement of "individualized suspicion of wrongdoing."164 The district court, however, in Edmond v. Goldsmith, also recognized that, "the Supreme Court has held that individualized suspicion is unnecessary when the seizure is a brief stop for questioning or observation at a sobriety or immigration roadblock."165 In the particular context of checkpoints, Chief Judge Barker noted that the Supreme Court had determined reasonableness by what she termed the "Brown balancing test,"166 in which "the intrusion on the individual's Fourth Amendment rights" were weighed against the "promotion of legitimate governmental interests."167 Plaintiffs argued that such balancing could only be performed when the government demonstrates "a special need for the checkpoints beyond the normal need for criminal law enforcement."168 The district court countered that the Court itself, in Sitz, had already rejected Edmond's and Palmer's analysis by holding that the "special needs" requirement did not apply to "cases dealing with police stops of motorists on public highways."169

interest was "beyond serious dispute," noting that the Court has labeled the narcotics industry as "one of the greatest problems affecting the heath and welfare of our population"172 and creating a "veritable crisis in law enforcement."173

The district court next considered Brown's second factor of effectiveness in addressing the government concern.174 Here, Chief Judge Barker took heed of Sitz's warning not to take on the role of policy maker in deciding which alternative is most effective.175 Instead, she recognized that the courts' role was merely to see whether "the checkpoints are at least reasonably effective as a tool for advancing the government's interest."176 Thus framed, the analysis then became a simple math problem, where the number of arrests at the checkpoint was divided by the number of vehicles stopped.177 The resulting "effectiveness ratio" of 4.7% (a result of dividing the 1,161 vehicles stopped by the fifty-five arrests) was clear proof that the Indianapolis drug checkpoints were "substantially more effective" than checkpoints previously found reasonable by the court.178 The Indianapolis program was over twice as effective as Sitz's sobriety checkpoints (having an effectiveness ratio of only 1.6%) and over nine times more effective than the Martinez-Fuerte immigration checkpoints (having a 0.5% effectiveness ratio).179

three factors which Sitz used to decide the level of objective intrusion: (1) "duration of the stop itself," (2) "the intensity of any questioning," and (3) the intensity of any visual inspection that might attend the questioning.182 All that then remained for objective intrusion was to check these three analytical boxes. Chief Judge Barker noted that the typical duration of a stop at an Indianapolis checkpoint was approximately two to three minutes, a time length "consistent with checkpoints approved by the Supreme Court in both Sitz and Martinez-Fuerte.183 Again, this analysis simply came down to numbers; the Indianapolis checkpoint stops lasted longer than Sitz's twenty-five seconds, but shorter than Martinez-Fuerte's three to five minutes.184 Edmond v. Goldsmith disposed of the second objective intrusion factor, dealing with the intensity of questioning, with relative ease. The drug checkpoint officers asked for a motorist's license and registration, which the district court deemed to be fairly non intrusive.185 The third factor, the intensity of inspection during questioning, caused Chief Judge Barker to consider the canine sniff of the vehicles' exteriors.186 Although warranting a closer look by the court, the dog's sniffs were still "minimal and thus ... acceptable," even when combined with the license and registration check.187

and with advance release to the public and media of checkpoint dates of operation.190 As to the second "subjective intrusion" factor relating to officer discretion, Chief Judge Barker noted that Indianapolis gave the supervising officer at the scene power to change the stopping sequence, but only so as to avoid "traffic backups or ensnarlments," which themselves constituted a seizure.191 Thus, discretion was granted here to restrict invasion of individual rights.192 The court then noted, however, "[fln all other respects, the policy directs that the on-scene officers operate without discretion."193 Since the Chief of Police's official guidelines "strictly regulated" the officers' actions, the Edmond court held that the motorist's subjective intrusion was minimal.194

Chief Judge Barker concluded her balancing analysis in Edmond v. Goldsmith by directly comparing it to the Supreme Court in Martinez-Fuerte and Sitz.195 She noted that in Sitz, in the context of investigating and arresting persons for the crime of drunk driving, the Court "simply applied the Brown balancing test and determined that the magnitude of the drunk driving problem, coupled with the effectiveness of the checkpoints, outweighed the minimal intrusion on motorists."196 This was in spite of the fact that, besides the "shear magnitude of the drunk driving crisis," the Court simply did not bother to "identify any other special or regulatory need to justify the use of checkpoints to combat drunk driving."197 Moreover, the only way Sitz could be reconciled with Martinez-Fuerte was if Sitz's scope was not limited to a noncriminal purpose of ensuring highway safety.198 Chief Judge Barker reasoned:

the basis that sobriety checkpoints relate directly to highway safety. Prior to Sitz, however, the Supreme Court in Martinez-Fuerte upheld a checkpoint away from the international border to search for illegal aliens, which need obviously had no direct relation to highway safety.199

Further, just as Martinez-Fuerte prevented explaining Sitz away as a safety case, Sitz prevented distinguishing Martinez-- Fuerte as a mere administrative purpose case. Chief Judge Barker explained this logical bind as follows:

Absent the holding in Sitz, it might be argued that immigration checkpoints are distinguishable from narcotics checkpoints because immigration checkpoints advance an administrative purpose, not a criminal one. Sitz, however, explicitly disposes of that contention, holding that it is permissible for a checkpoint to implicate possible criminal sanctions, i.e. arresting drivers for drunk driving. Together, Sitz and Martinez-Fuerte make it clear that an otherwise valid checkpoint is not unconstitutional simply because its primary purpose is to interdict narcotics traffic.200

Thus, the combination of Supreme Court precedent placed the district court into a box. If Sitz allowed checkpoints to arrest motorists for crimes and Martinez-Fuerte supported checkpoints based on reasons other than road safety, then the district court could not prevent Indianapolis's checkpoint, even if it had a criminal investigation aim and a purpose beyond road safety.

2. The Seventh Circuit Court of Appeals

reference to any guidelines from Supreme Court precedent, the Edmond court identified two levels at which the reasonableness of a particular seizure could be analyzed: (1) the level of "the entire program," and (2) the level of "the individual stop."201 Chief Judge Posner then casually noted that if the Indianapolis checkpoints were subjected to the "entire program" analysis, then they would probably be found "legal, given the high 'hit' rate and the only modestly intrusive character of the stops."202 He supported this conclusion with a brief cost-benefit analysis.203 The benefit to the government included advancing "the strong national, state, and local policy of discouraging the illegal use of controlled substances."204 In contrast, the cost to motorists, being "stopped for five minutes at a roadblock and subjected to a visual inspection of the interior and a sniff by a dog" was "small."205

"[s]topping a car at a roadblock is a seizure within the meaning of the Fourth Amendment, even though the sequel-the peering into the car windows and the sniffing of the car by the dog outside-- does not rise to the level of a search as that term of the amendment has been interpreted by the Supreme Court."208

Yet, apparently, the Edmond court was unaware of its fundamental error in equating seizures with searches. For instance, Chief Judge Posner conceded that the "Supreme Court has upheld the validity of roadblocks" in what he called "less extreme cases."209 He then cited Sitz and Martinez-Fuerte as illustrations, seemingly oblivious that both of these cases involved mere seizures of motorists.210 Then, in an attempt to limit the scope of Sitz and Martinez-Fuerte over random stops, Edmond v. Goldsmith slipped back into a discussion of "randomized search programs."211

The blunder into search precedent ultimately led the court of appeals to ponder the issue of pretext. Chief Judge Posner cited the search case, New York v. Burger,212 to warn against a "pretext for a dragnet search for criminals."213 In entering the area of divining official motivation, Edmond v. Goldsmith recognized that, "[i]t can be objected that requiring consideration of purpose injects too large an element of uncertainty into the interpretation of the amendment, and that purpose may be difficult to determine when it is corporate in nature."214 In response, Chief Judge Posner could only lament, "law like politics is the art of the possible and often requires imperfect compromises."215

Judge Posner deemed the motive of the individual officer on the beat to be irrelevant.218 In contrast, the "purpose behind the program" was "critical to its legality."219 The court of appeals apparently found no inconsistency here with its previous rejection of assessing the reasonableness of the checkpoints at the program level.220

Chief Judge Posner then identified four program purposes that would allow exceptions to the Fourth Amendment's prohibition against suspicionless search or seizures.221 These were: (1) roadblocks "to catch a fleeing criminal,"222 (2) a case where "no specific person is under suspicion but the circumstances make it impossible to prevent a crime without an indiscriminate search"223 (as in a case where police received a tip that dynamite is planted at a city's core), (3) the regulatory search, 224 and (4) the prevention of illegal importation of goods or persons.225 Since the Indianapolis checkpoint program fell outside these four exceptions, it was deemed to violations in the Fourth Amendment.226

In search rules to seizures and constructing, however, Chief Judge Posner shunned lis2z of four traditional signposts supplied in to Supreme of Court's checkpoint precedent. Instead, the Edmond court chose to construct innovations in this area of Fourth Amendment law by applying search rules to seizures and constructing a new list of four exceptions to the requirement of particularized suspicion.227

C. The Supreme Court's Edmond Decision

created by the court of appeals. Instead, it embarked on an entirely new line of reasoning. Edmond caused the determination of reasonableness of the Indianapolis checkpoint seizures to pivot on a novel and previously taboo concept: subjective government motivation.229 In framing the issue in the first paragraph of the opinion, Justice O'Connor, writing for the Court, highlighted the purpose behind official action, stating, we now consider the constitutionality of an highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics."230 Indeed, for an inquiry previously banished from Fourth Amendment doctrine,231 the "purpose" behind government action strangely predominated as a theme throughout the Court's opinion. Justice O'Connor's opinion is riddled with over two-dozen references to "purpose."232 When synonyms such as "desigh,"233 "intene,"234 and "motivation"235 are considered, these words border on a compulsive tic.

gravity of the drunk driving problem and the magnitude of the State's interest in getting drunk drivers off the road weighed heavily in our determination that the program was constitutional."239 Further, although Prouse indicated approval of certain suspicionless checkpoints, it, like Sitz, had "the common thread of highway safety" running through it.240

Edmond then turned its attention to the circumstances regarding the Indianapolis checkpoint program. The Court began simply enough by recognizing that "[i]t is well established that a vehicle stop at a highway checkpoint effectuates a seizure within the meaning of the Fourth Amendment."241 Further, it noted settled law when stating, "[t]he fact that officers walk a narcotics-- detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search."242 After this brief respite, however, the Court lapsed back into its motivation fixation. Despite the lack of intrusiveness of the brief seizure and the non-search, the Court continued to distinguish the Indianapolis checkpoints from previously approved programs due to "purpose."243

drunk drivers are, of course, law enforcement activities, and law enforcement officers employ arrests and criminal prosecutions in pursuit of these goals.247 The Court, however, rejected the city's equation of roadblock cases, warning,

[i]f we were to rest the case at this high level of generality, there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.248

This passage demonstrates that perhaps Indianapolis's argument came perilously close to exposing the dangers underlying the entire process of balancing competing interests in the Fourth Amendment context. Whatever the reason, the city's contention caused the Court to establish its first limit on its purpose analysis; the factor to be weighed here was not the government's "ultimate purpose," but its "primary purpose."249 For the Court, however, wearing blinders against seeing the ultimate purpose might have been easier said than done. In applying its own "primary purpose" analysis, the Edmond Court itself could not avoid looking down the road. It declared, "[t]he primary purpose of the Indianapolis narcotics checkpoints is in the end to advance `the general interest in crime control.'"250

behind that interest to determine whether the government's `primary purpose' is valid.'"252 Justice O'Connor fended off this reasoning by drawing a distinction between "`the actual motivations of the individual officers involved" and the roadblock's overall programmatic purpose.253 The Edmond Court framed this difference as follows: "while '[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,' programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion."254 Thus, the "primary purpose" was to include neither the ultimate goals of the program, nor the individual aims of the officers carrying out the program.

Yet, the Court's "primary purpose" formulation was in need of still further clarification. In an effort to support its program, Indianapolis argued that it was justified by its "lawful secondary purposes of keeping impaired motorists off the road and verifying licenses and registrations."255 The Edmond Court refused to consider such secondary purposes, for if such reasons could be advanced to support a roadblock, "law enforcement authorities would be able to establish checkpoints for virtually any purpose so long as they also included a license or sobriety check."256 Government could therefore employ "secondary purposes" as a foot in the door for other, less proper purposes. Thus, secondary purposes must be banished from consideration.

echoed those found proper in both Martinez-Fuerte and Sitz.258 Further, the walking of a drug-detecting dog around each car's exterior did not somehow elevate and "transform the seizure into a search."259 Instead, the Court distinguished Edmond from earlier checkpoint cases based on purpose.260 Here again, much in the Indianapolis program would escape the Court's ire. The Court did not contest that the ultimate purpose of the checkpoints in Indianapolis mirrored those in Martinez-Fuerte and Sitz.261 Further, nothing about the subjective motives of the officers in charge of the checkpoints was condemned or even found to be relevant.262 Finally, the Court characterized the secondary purposes of Indianapolis's checkpoints as "lawful."263 Thus, most of what the officials did and thought in Indianapolis was perfectly proper. The Edmond Court, however, discovered one fatal flaw in the Indianapolis checkpoint plan: primary purpose. Justice O'Connor summed it up by stating, "[b]ecause the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from general interest in crime control, the checkpoints violate the Fourth Amendment."264

IV. POTENTIAL CONSEQUENCES OF EDMOND'S RATIONALES

A. Edmond's Oblivion to Checkpoint Precedent Casts the Court's Balancing Test into Confusion

checkpoints' own large black and yellow flashing signs.266 As previously demonstrated in Part II above, from 1976, when Martinez-Fuerte was handed down, until 1990, when Sitz was decided, the Court consistently applied its balancing analysis between government and individual interests to determine the reasonableness of checkpoints.267 Indeed, Martinez-Fuerte's rulings are so well established that the Court has cited this case when considering issues well beyond the checkpoint context. The Court has mentioned the established law of Martinez-Fuerte in such situations as the drug testing of United States custom employees,268 grade school athletes,269 and candidates for public office.270 Finally, the standard balancing test for checkpoints in both Martinez-Fuerte and Sitz received recognition in Ferguson v. City of Charleston,271 a case decided in the same term as Edmond.

of checkpoints, Indianapolis officials not only matched the restrictions on intrusion crafted in Martinez-Fuerte and Sitz, but also exceeded them. Officers in Martinez-Fuerte had the discretion to choose which vehicles would be sent to the "secondary inspection area" based on something less than "any articulable suspicion."276 In contrast, officers in Edmond were given no such standardless discretion, instead they were limited to stopping a "predetermined number of vehicles"277 and explicitly forbidden to "STOP ANY VEHICLE OUT OF SEQUENCE."278 Therefore, the number and detail of similarities between Edmond and the Court's checkpoint precedent indicates that Indianapolis officials not only respected the mandates of Martinez-Fuerte and Sitz but also used them as a blueprint for crafting their own program.

It thus would have been reasonable for Edmond's city officials to believe that, by adhering to the requirements delineated in prior checkpoint cases, they had ensured that the same balancing of the competing interests test would be used to assess their own checkpoints. Such a conclusion perhaps seemed particularly safe in light of Martinez-Fuerte's express declaration that in the Court's previous cases dealing with traffic checking operations, it has "weighed the public interest against the Fourth Amendment interest of the individual."279 The Edmond Court, however, never struck this balance of interests, because, as discussed in Part III above, it believed that a new variable, the city's "primary purpose," prevented such analysis.

balance of interests would have been had the Court not been derailed into divining the government's primary purpose.

As noted in Part II, the Court further refined Martinez-- Fuerte's balance of the interests in two later cases, Brown and Sitz. Brown outlined a three-pronged test to assess the "reasonableness of seizures that are less intrusive than a traditional arrest."280 The three factors to be balanced were: (1) "the gravity of the public concerns served by the seizure," (2) "the degree to which the seizure advances the public interest," and (3) "the severity of the interference with individual liberty."281 Sitz, in turn, refined this test to even greater precision. The second factor of advancing public interest involved merely identifying the existence of any empirical evidence showing effectiveness.282 Further, Sitz expanded on the third variable of interference on the individual by fully assessing the "subjective" and "objective" intrusions.283

likewise remain daunting and complex,"287 it echoed Martinez-- Fuerte's recognition that, "[i]nterdicting the flow of illegal entrants from Mexico poses formidable law enforcement problems."288

Moreover, had the Court weighed the second prong of Brown's test, "the degree to which the seizure advances the public interest," it would have realized that Edmond's public interest not only matched that in prior checkpoint case law, but also exceeded it. Due to Sitz, measuring effectiveness has become merely an exercise of avoiding "a complete absence of empirical data" connecting the police program to furthering the government need.289 Thus, the Court has previously upheld as effective checkpoints with 0.12% and 1.6% effectiveness or "hit rates."290 In Edmond, the Indianapolis checkpoints dwarf the effectiveness of these previously approved roadblocks, coming in with an overall effectiveness rate of 9%.291 Edmond's checkpoints were thus over five times as effective as those found reasonable in Sitz, and seventy-five times as effective as those accepted in Martinez-- Fuerte.

measures would be instituted to prevent delays due to traffic congestion.295

Finally, Indianapolis has established a strong case regarding the minimal nature of the subjective intrusion of their checkpoints on motorists. Edmond's city officials could have certainly satisfied the "subjective intrusion" test as applied in the government-friendly atmosphere of Martinez-Fuerte, for Indianapolis's fixed checkpoints could easily be seen as less intrusive than the roving patrols criticized by Martinez-Fuerte.296 Like the permanent checkpoints in California and Texas, the Indianapolis fixed roadblock guarded against interference with traffic, taking motorists by surprise, and performing abusive and harassing stops.297

This portion of Brown's balancing test, however, has been refined over the decades to consider whether "checkpoints are selected pursuant to guidelines, and uniformed police officers stop every approaching vehicle."298 The police in Edmond followed the lead of officials in Martinez-Fuerte and Sitz in virtually every particular. Indianapolis's checkpoints employed the regularized stopping of motorists who were warned by large flashing signs and exposed to the sights of officers in uniform next to marked vehicles-all according to previously drafted written directives.299 Therefore, if imitation is the sincerest form of flattery, Indianapolis should have had the immigration officials in California and Texas and the State Police in Michigan preening their feathers.

primary purpose, the adherence to the checkpoint precedent's standard three prongs is a wasted exercise. Indeed, the Court itself, as demonstrated in Edmond, will not bother with weighing the facts by the Brown test. Thus, Edmond's defiance of its own checkpoint precedent has injected uncertainty into a rule previously enjoying decades of consistency.

B. Edmond Turned the Canine Sniffs from a Constitutional Cipher into the Crucial Factor Determining a Fourth Amendment

Violation

For all the similarities between Edmond and Sitz, which was the last checkpoint case where the Court applied the Brown balancing test, one detail in Edmond stands out as completely new: the canine sniff.300 As indicated in United States v. Place,301 the canine sniff should have no constitutional significance, for it simply does "not constitute a 'search' within the meaning of the Fourth Amendment."302 Further, the Edmond Court itself determined that walking "a narcotics-detection dog around the exterior of each car at the Indianapolis checkpoints does not transform the seizure into a search."303 Moreover, the canine sniff is simultaneously performed in the few minutes it takes the police to perform the stop and, therefore, does not lengthen the seizure of the motorist.304 In the Edmond dissent, the Chief Justice recognized the controlling impact made by a dog's sniff in the majority's opinion. He noted:

dog is not a "search" within the meaning of the Fourth Amendment because it does not require physical intrusion of the object being sniffed and it does not expose anything other than the contraband items. And there is nothing in the record to indicate that the dog sniff lengthens the stop.305

This led Chief Justice Rehnquist to conclude that, "[t]he State's use of a drug-sniffing dog, according to the Court's holding, annuls what is otherwise plainly constitutional under our Fourth Amendment jurisprudence: brief, standardized, discretionless, roadblock seizures of automobiles."306

immigration and drunk driving did not trigger any difference in treatment under the Fourth Amendment.311 Thus, the only fact remaining to affect outcome of "primary purpose" is the existence of the dog walking around cars.

The Edmond Court thus transformed the canine sniff from a Fourth Amendment nullity to an unacknowledged dispositive factor in checkpoint litigation. Drug-detecting dogs, therefore, have been consigned to constitutional limbo. Doctrinally, the mere existence of a canine sniff does not create a Fourth Amendment search or a seizure. Factually, however, if a dog is present to sniff for contraband, this one circumstance could so alter the purpose of the checkpoint so as to change it from a lawful safety perusal to an illegal action in support of a "general interest in crime control."312 Thus, dogs in the future may create confusion for police and courts, for although no rule in law prohibits their use, their presence may in fact undermine the constitutionality of an entire program.

C. Edmond's Inconsistent View of Government Purpose Signals that Official Motivation is Relevant to Fourth Amendment Litigation, Unless of Course It Is Not

Court again flogged the applicability of the balancing test to brief seizures in Brown, where the Chief Justice explicitly stated that the "reasonableness of seizures that are less intrusive than a traditional arrest" depends on "a balance between the public interest and the individual's right."315 Yet, blind to these clear rulings, Edmond has now interpreted the "primary purpose" rule into the balancing test as if it were always a part of checkpoint precedent.316

Edmond's invention of a "primary purpose" rule is all the more remarkable in light of Whren's declaration that the Court has repeatedly refused to hold, in the Fourth Amendment context, that subjective motivation invalidates objectively justifiable behavior.317 On the contrary, Whren flatly stated that subjective intent alone "does not make otherwise lawful conduct illegal or unconstitutional."318 Justice O'Connor, mindful of Whren, attempted to distinguish it as involving the "subjective intent of an officer," while Edmond considered the larger picture of "purpose at the programmatic level."319 Whren, however, had ridiculed a similar dodge as "virtual subjectivity" where courts would have even more difficulty probing the "collective consciousness of law enforcement" than they would that of a single officer.320 Whren also rejected assessing enforcement practices at the departmental level because, with variation from place to place, the Fourth Amendment, turning on the triviality of geography, would become inconsistently applied. The Edmond Court, in creating its "programmatic purpose" formula, failed to even acknowledge, let alone address, any of these concerns voiced by the Whren Court. This selective memory in Edmond's reinterpretation of Whren failed to convince all members of the Court; in particular, Justice Scalia, the author of Whren, who chose to join with the dissent in Edmond.

probable cause.321 She asserted, "Whren, therefore, reinforces the principle that,321 while '[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,' programmatic purposes may be relevant to the validity of Fourth Amendment intrusions undertaken pursuant to a general scheme without individualized suspicion."322

The trouble with this reasoning is that the Court failed to make use of it in Bond, a case where it would have been particularly appropriate. Bond is a case of particular relevance to Edmond, for it too involved official action at a checkpoint.323 In Bond, the Court had to finesse the issue of subjective intent when it held that a government official's squeezing of a bag "in an exploratory manner" constituted a Fourth Amendment search.324 To counter the charge that its "exploratory manner" discussion ran afoul of Whren, Bond awkwardly stated that it took issue not with the agent's intent, but with his actions325. If Edmond's argument to distinguish Whren, that the agent in Bond was simply not operating in a context where he had probable cause to support his actions, had truly existed, it would seem that Bond would have rushed to use it. Bond's failure to take this relatively easy tack suggests that such a course did not actually exist until later invented in Edmond. Thus the Bond Court felt compelled to rely on a different, weaker rationale.

V. CONCLUSION

vehemently held that official subjective motivation simply cannot invalidate objectively reasonable action.328 The math here seems clear enough: one reasonable seizure (the checkpoint stop), plus no Fourth Amendment search (the canine sniff), plus a Constitutional irrelevancy (official subjective intent) equals a lawful seizure under the Fourth Amendment. After all, does not 1 + 0 + 0 = 1?

Not so according to the Court's new math in Edmond. Now, a dog sniff, which cannot even trigger Fourth Amendment application, can cause a violation of the right against unreasonable search and seizure. Further, subjective intent, which before would not even merit the Court's attention in a Fourth Amendment case, now determines whether a traditional balancing test will even be employed.

KEVIN E. MEEHAN, PH.D.*

GEORGE M. DERY, III**

* Assistant Professor, California State University Fullerton, Division of Political Science and Criminal Justice, Former Executive Director, Orange County Youth and Family Services, Santa Ana, California; Ph.D., 1995, Social Ecology, Criminology, Law and Society, University of California Irvine; M.A., 1979, Social Ecology, University of California Irvine; B.S., 1972, Virginia Polytechnic Institute, Blacksburg, Virginia.

** Professor, California State University Fullerton, Division of Political Science and Criminal Justice; Former Deputy District Attorney, Los Angeles, California; J.D., 1987, Loyola Law School, Los Angeles, California; B.A., 1983, University of California Los Angeles.

We would like to thank our research assistant, Scott Ditfurth, B.A., 2002, Criminal Justice, California State University Fullerton.

Copyright University of Memphis Summer 2002
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