In its 2000 decision in Indianapolis v. Edmond, the US Supreme Court held that the city's effort to attack the drug trade by holding a checkpoint to look for drugs was an unconstitutional violation of the Fourth Amendment's protection of the right to be free from unwarranted searches and seizures. But in the years since then, a handful of departments across the county, usually in the South, have brazenly trumpeted their resort to drug checkpoints.
nighttime driving checkpoint
The latest department to step into the breach was Louisiana's Beauregard Parish Sheriff's Office, which held such a checkpoint last Thursday night near the town of Starks. Following the lead of sheriff's deputies, the local newspaper was all over the story.
"Narcotics checkpoint a success," blared the headline in Monday's Derrider Daily News story on the police action. The article went on to explain how, following complaints of drug dealing in the neighborhood, police decided to take action:
"The Beauregard Parish Sheriff's Office set up a Narcotics Checkpoint Thursday night near Starks, Louisiana," the local paper reported. "Due to several complaints coming from the Fields area, the BPSO put together a joint operation with the help of Sheriff Ricky Moses and the DeRidder city police department. The operations utilized several BPSO deputies as well as the new Drug Interdiction team led by Detectives Dale Sharp and Greg Hill. Seven police units total were used for the operation in addition to four other units performing regular patrols."
The checkpoint resulted in three arrests for marijuana and hydrocodone possession, a quarter pound of marijuana being tossed from an unknown vehicle's window, and a number of traffic citations.
"If this really was a drug checkpoint, it is clearly unconstitutional," said Steve Silverman, executive director of the constitutional rights defense group Flex Your Rights. "If people went to court and fought it, the evidence would be dismissed -- unless they consented to a search. The sheriff down there must know checkpoints like this are constitutionally questionable, but they can still ask people to consent, and they know how to phrase that request in such a way that people are likely to consent," he said.
"If they are stopping and searching people without probable cause, that would appear to violate Edmonds, but we don't know for sure that's what they were doing," said Marjorie Esman, head of the ACLU's Louisiana affiliate. "Drug checkpoints are unconstitutional, but these guys sound like they are straight up trying to do one," said Esman.
While the Supreme Court has held drug checkpoints to be unconstitutional, it has allowed the use of checkpoints whose primary purpose is protecting certain safety-related governmental interests. Thus sobriety checkpoints are lawful, as are checkpoints to check drivers' licenses and motor vehicle registrations, as well as checkpoints designed to search for illegal aliens near the border. This week, the sheriff's office was busy arguing that it wasn't an unconstitutional drug checkpoint after all, merely a safety check.
"They're really safety checkpoints," backpedaled Beauregard Parish Sheriff's Office Chief Deputy Joe Toler. "The newspaper has its own spin on it," he said, adding that the warning signs specified a safety checkpoint, not a drug checkpoint.
The newspaper article certainly did have a spin, but that spin was provided by Beauregard Parish Deputy Dale Sharp, head of the department's new drug interdiction team. "The Narcotics Checkpoint's main objective was to get the narcotics off of the street," the article said before quoting Sharp: "Anything off of the streets is not in the hands of kids or anyone else," Sharp said in the article.
Sharp also bragged that more checkpoints could be coming soon. "Definitely," says Sharp. "As more complaints come in, we will be doing more."
But Chief Deputy Toler was sticking to the official line. "There just happened to be narcotics officers out there, and it just so happened that we did our safety checkpoint in a certain area where they place is known for drug trafficking," he said. "It just so happened they were all in the right place at the right time," he added.
Drivers and vehicles were not searched without consent, Toler said. "Everyone pretty much consents," he said.
"You can still refuse a search at a checkpoint," said Silverman. "They are not constitutionally allowed to search you just because they set up a checkpoint. You can say, 'I know you guys are just doing your job, but I have to go somewhere, am I free to go?' If they search you without probable cause and without your consent and they find something, you'll get arrested, but it's highly likely the charges will be thrown out. If not, it could go all the way to the Supreme Court."
It appears the sheriff's office is playing a pretty transparent game. They set up the checkpoint because of drug traffic complaints, they searched for drugs, and they had drug detection dogs on the scene -- not, presumably, to assist in reading drivers' licenses. But as long as police are careful to say the right things -- "It's a safety checkpoint" -- they can get away with it.
Flex Your Rights' Silverman also pointed out another permutation in law enforcement drug checkpoint tactics: the drug checkpoint that isn't. "If you see a warning that says drug checkpoint ahead, don't throw your stuff out the window, don't exit at the nearest ramp, don't do a sudden u-turn to get away, because it's not a drug checkpoint ahead, but a ruse by police," said Silverman. "The Supreme Court has held that drug checkpoints are an unconstitutional infringement on your Fourth Amendment rights, but that doesn't mean police can't try to fool you. At those fake drug checkpoints, they will have officers waiting to see who throws what out his window, or who suddenly exits to avoid the nonexistent checkpoint, and they will find a reason to stop you."
So, driving public, if you see a large warning sign that screams "Drug Checkpoint Ahead!" it is either a ruse or an unconstitutional law enforcement activity. But if you run across a sign that warns "Safety Checkpoint Ahead!" know that it is just as likely that police are looking for drugs in the guise of public safety as they are for expired drivers' licenses.