Drug Checkpoints and the Sheriff of I-44

Supreme Court decisions hit home: Drug Checkpoints and ìthe Sheriff of I-44î

This article originally appeared in the Winter 2001 edition of Liberties, the newsletter of the ACLU/EM.

By Denise Lieberman
ACLU/EM Legal Director

They call him the Sheriff of I-44. He says his tactics are helping to keep drugs out of Phelps County and put money in the county coffers through forfeiture seizures. But now, Phelps County Sheriff Don Blankenshipís drug interdiction efforts are getting strict scrutiny in the wake of a recent Supreme Court ruling.

For years, Sheriff Blankenship and his deputies have operated drug checkpoints along a 32-mile stretch of Interstate 44 that runs through Phelps County. The checkpoints operate by posting signs along the highway for a drug checkpoint ahead on the road. But the real checkpoint is actually off a quiet highway exit just past the posting. Blaneknship says that motorists who take the exit, which has no services, are suspicious because they are likely trying to avoid the checkpoint. Blankenship and his deputies even conduct the roadblocks on their off days to make sure they arenít taking away from other crime-fighting activities.

ìWould you rather I go fishing on my day off?î Blankenship is reported as asking in a Kansas City Star article. ìOr would you rather I take dope off somebody that could go to somebodyís kid? It seems like an easy answer.î

But itís not an easy answer when it comes to the constitutional rights of those getting stopped under Blankenshipís program.

In the past few years, the Supreme Court has taken a particular interest in the Fourth Amendment, reexamining where its boundaries really lie. Fundamental questions of what is probable cause and when can police stop and search citizens have dominated a number of the high courtís recent decisions. Last year, in Florida v. JL, the court ruled that an anonymous tip is not enough to stop and frisk a person, and in Bond v. US that the random squeezing of bags constituted a search requiring probable cause. On the flip side, in Illinois v. Wardlow, the Court also ruled last year that police do have probable cause to stop and search a person who not otherwise engaged in suspicious behavior but who runs away when the police approach in a high crime area.

And the Supreme Court has already boldly spoken on the issue this year, in one of its earliest and sure to be most prominent decisions of the term, a case brought by the ACLU. In this case, Indianapolis v. Edmond, the Supreme Court ruled on Nov. 28, 2000, that drug checkpoints are unconstitutional. This story has its origins in the Midwest, in an Indianapolis Police program designed to interdict unlawful drugs.

Indianapolis police set up checkpoints in which police stopped and examined the inside of cars while drug-sniffing dogs circled the car. If the dog alerted to drugs, a warrantless search was performed. The locations of the checkpoints were chosen by neighborhood crime statistics. Nevertheless, the program wasnít too successful. Just 5 percent of cars stopped had drugs. After James Edmond and Joell Palmer were stopped at one of the cityís roadblocks, they contacted the ACLU, which brought a class action lawsuit on behalf of Indianapolis motorists.

The Supreme Court soundly rejected the program. In its opinion, Justice Sandra Day OíConnor said that the reasoning behind the Indianapolis roadblocks ñ that the benefit to the public outweighs the inconvenience, cannot justify the use of unconstitutional methods by police. ìIt this case were to rest on such a high level of generality, there would be little check on the authoritiesí ability to construct roadblocks for almost any conceivable law enforcement purpose,î she wrote.

The Court held that because the primary purpose of the program was to interdict criminal activity that the full requirements of the Fourth Amendment must apply. The court distinguished this kind of program from sobriety checkpoints that are aimed at removing dangerous drivers from the roads, and has even found that roadblocks to verify driversí licenses and registrations are permissible to promote highway safety. But where the purpose is ordinary criminal wrongdoing, the Court made clear that police must have individualized probable cause to stop and search motorists.

The Supreme Courtís decision appears to overturn an earlier Missouri case that upheld the use of checkpoints like the oneís employed by Blankenship. The Missouri Highway Patrol has stopped using the checkpoints, and the Missouri Sheriffís Association has sent notices to sheriffs statewide to advise them of the decision. But Blankenship says he will continue his program.

Blankenship contends that motorists who take the empty exit after seeing his signs are suspicious because they appear to take the exit to avoid the checkpoint. Blankenship says that this creates the suspicion they need to stop and search those cars if the drivers can not explain why they took the exit. ìThis operation, like all others, is based on stops supported by reasonable articulable suspicion,î Blankenship wrote in response to the ACLU/EMís recent letter to the Sheriff.  ìPlease be assured that no suspicionless stop will be made in Phelps County for drug interdiction purposes.î 

That remains to be seen. But one thing is clear: our democracy suffers if we allow the ends to justify the means. As the Supreme Court wrote in November; ìWe cannot sanction stops justified only by the generalized and ever-present possibility that interrogation and inspection may reveal that any given motorist has committed some crime.î

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