Among the constitutional protections afforded to Americans by the bill of rights is the Fourth Amendment prohibition against unreasonable searches and seizures. Of course, under the fourth amendment, police officers are not permitted to arrest or search a person without a warrant or probable cause. There are, however, a number of exceptions to this general rule, one of which is the use of properly conducted sobriety checkpoint to stop motorists who otherwise do not exhibit any suspicious behavior. Although “a roadblock or checkpoint stop is a seizure within the meaning of the Fourth Amendment,” People v. Scott, 63 NY2d 518, 524 , individualized suspicion is not required to stop an automobile passing through a checkpoint which is “carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers.” Brown v. Texas, 443 US 47, 51 ).
In 1990, the US Supreme Court decided the case of Michigan Dept. of State Police v. Sitz 496 US 444 (1990), which examined the constitutionality of a police checkpoint that operated for 75 minutes, stopped 126 vehicles and only arrested one motorist for drunken driving. The court in that case established a balancing test, derived in part from Brown v. Texas, to analyze the constitutionality of such checkpoints: the court considered (1) the state's interest in preventing drunken driving; (2) the extent to which the program could be reasonably said to advance that interest, and (3) the degree of intrusion on motorists. Due to the fact that states have a significant interest in preventing drunk driving to promote public safety, sobriety checkpoints are generally held to be constitutional so long as they are conducted according to a reasonable, predetermined plan of stopping vehicles (eg stopping every vehicle; every other vehicle; every 5th, etc). A checkpoint is not constitutionally permissible if it leaves discretion in the hands of individual officers to pick and choose which cars are stopped in the absence of some other indication of probable cause that the driver is drunk.
In a recent New York case, People v. Castimer (2008NY074229; decided November 10, 2009; Published in the New York Law Journal 11/16/2009), Manhattan police officers had set up a sobriety checkpoint on East 61st Street between First and Second Avenues, near the approach to the Queensboro Bridge on Saturday, October 4, 2008. “The checkpoint, meant to detect and deter intoxicated drivers, was mounted as part of Operation Cold Sober, an initiative of the Chief of Patrol of the New York City Police Department. In order to create the checkpoint, police parked patrol cars and arranged orange traffic cones along the roadway, ultimately causing all traffic to narrow into a single lane. Approaching vehicles were alerted to the existence of the roadblock by flares and flashing turret lights.” (Castimer)
Before the commencement of the checkpoint, a sergeant had met with his officers “to establish the protocol for that day’s checkpoint. During the operation of the checkpoint, every car was to be stopped, with the exception of livery vehicles and taxicabs. A uniformed officer was assigned to flag down each approaching passenger car. After a brief conversation in which the motorist was informed of the reason for the checkpoint, those drivers suspected of being intoxicated or impaired were to be directed into a “chute”-a makeshift traffic lane set up at the side of the road in order for the police to safely conduct further investigation.” (Castimer)
The defendant in this case, as he drove through the checkpoint, was stopped by a police officer. When the officer approached the defendant’s vehicle to inspect his driver’s license, the officer smelled alcohol and directed the defendant to the “chute.” A breathalizer test later confirmed that the defendant was intoxicated. The defendant also admitted to the officers he had been drinking.
The defendant did not dispute his intoxication in this case; his argument was, rather, that he was unlawfully seized because the checkpoint was unconstitutional. Castimer’s argument was based on the fact that the sergeant “testified that when traffic became heavy enough to back up onto First Avenue, his officers were authorized to let cars through without stopping them, in order to avoid a jam.” (Castimer) It was the defense’s contention that “in allowing for traffic-based deviations from the protocol to stop every passenger car, the otherwise-uniform plan here was transformed into an arbitrary and unconstitutional one.” (Castimer)
The court, however, found several flaws in the defense’s argument in this case. Specifically, the court found, as a preliminary matter, that, under this checkpoint plan, when traffic became heavy, the officers were not authorized “to conduct arbitrary stops of whatever cars they might capriciously choose to target.” Instead, under the plan, “when necessary to avoid gridlock, the police were empowered either to allow all cars through until traffic cleared, or to stop, say, every second, or third, or fourth, car, rather than every one. Neither option violated the constitutional requirement that the procedure ‘afford little discretion to operating personnel’ (Scott, 63 NY2d at 526)” (Castimer). Second, there was no evidence that suggested that on the morning the defendant was stopped, traffic conditions ever actually required the police to deviate from their lawful plan to stop every car. Finally, the court attacked the defendant’s argument based on the principle that “‘Fourth Amendment rights are personal’ (People v. Wesley, 73 NY2d 351, 359 ) and, ‘like some other constitutional rights, may not be vicariously asserted’ (Alderman v. United States, 394 US 165, 174  [citations omitted]; accord People v. Rodriguez, 69 NY2d 159, 163 ). That is to say, the defendant cannot assert a defense based on the possible fourth amendment violations of other motorists. So long as the defendant’s own fourth amendment rights were protected throughout his stop, the arrest was constitutional and cannot be struck down on the basis of a potential violations of another motorist’s rights at a different point in time.
So long as drunk driving remains a significant safety concern, sobriety checkpoints like that in Castimer may become commonplace. Drivers and practitioners in the field should therefore beware of the holding in Castimer, as courts are likely to continue to rule in favor of police departments – and against individuals' fourth amendment rights – when it comes to the constitutionality of such checkpoints.
If you have been arrested for a DWI, or other criminal offense, be sure to seek the advice of experienced defense counsel.
-Catherine Shearn, Law Intern