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A recent video has surfaced showing Florida drivers who, when stopped at a DWI checkpoint, hold up a sign asserting their rights and their license.  The sign instructs the stopping officer that the driver: “chooses to remain silent, refuses to consent to a search, and demands their lawyer,” while also stating that the driver will comply with lawful orders and will display all required documentation through their window.  The sign, espoused by a local attorney, takes advantage of a loophole in Florida checkpoint law requiring drivers to only “display” documentation, with no mention as to whether or not they have to roll down their window.  

The legality, effectiveness, and general common sense of this tactic has been the subject of much debate; but it led me to think about how we arrived at this (check) point, where United States citizens have to utilize a loophole to enjoy one of civilized mans’ most comprehensive and valued rights: the right to be let alone. Olmstead v. United States, 277 U.S. 438, 478 (1928) rev’d on other grounds, 389 U.S. 347 (1967).  No one would deny the horrific effects of drunk driving, nor the need for law enforcement to deter and stop intoxicated drivers.  Even the Supreme Court has repeatedly lamented the tragedy of drunk driving.  South Dakota v. Neville, 459 U.S. 553, 558 (1983).  Despite the severity of the evil they aim to remedy, sobriety checkpoints, which are usually operated at night at an unannounced location, seem eerily analogous to the type of random searches by British soldiers on the King’s Highway that our Founding Fathers sought to protect against when they ratified the Fourth Amendment. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 460 (1990) (Stevens, J., dissenting).  Some level of particular, individualized suspicion has always been a core component of the protection of the Fourth Amendment; so how did we get here? See Delaware v. Prouse, 440 U.S. 648, 654-55 (1979).

One of the first cases to permit random, blanket vehicle stops at checkpoints was Martinez-Fuerte in 1976.  United States v. Martinez-Fuerte, 428 U.S. 543, 545 (1976).  In that case, the Supreme Court attempted to help address America’s immigration problem by permitting brief questioning of all vehicle-occupants at a fixed checkpoint about 66 miles inland from the border. Id. at 545, 547.  The Court rationalized that the because the intrusion on drivers was minimal and brief the checkpoints could be tolerated, despite the lack of any individualized suspicion for stopping each vehicle. Id. at 566.  This reasoning provided the framework and rationale for later cases allowing DWI checkpoints. See Sitz, 496 U.S. at 450.  However, these immigration checkpoints differed from DWI checkpoints later allowed in Sitz in one critical and consequential way: DWI checkpoints are not permanent. See Id. at 447.  A surprise, nighttime checkpoint is significantly more intrusive and burdensome than a fixed one that a driver can anticipate encountering.  Certainly a person has less of an expectation of privacy when they’re crossing a national border compared to when they’re taking a ride on a secluded road in the wee hours of the morning.  

What frightens me most is the reliance on the rationale that the degree and worthiness of the targeted evil (in the Court’s sole, unbridled discretion), is determinative of the level of warrantless, suspicion-less intrusion they are willing to allow.  This cannot be the standard.  If it were, law enforcement could justify checkpoints on every public street corner in the interest of reducing the crime rate.

Once we give the government the power to intrude based on a perceived evil, the only thing restraining them is their own discretion.  I’m reminded of the sheik who refused to let his camel put its nose in the tent, knowing that once the large, powerful animal felt the cool air, he would want to stick his neck in, and then his first hump, and then his second.  Rizzo Mario & Whitman Glen, The Camel’s Nose is in the Tent: Rules, Theories and Slippery Slopes, 51(2) UCLA L. Rev. 539-592 (2003).  The camel, like our state and federal government, is much too powerful for the sheik, or the people, to restrain when they decide they want to stick their nose in.  Maybe it’s time to put a sandal to the camel’s nose, and tell him to stay out of the tent until he can articulate an objective, reasonable reason for why he should be let in, like the Fourth Amendment requires.

For more information and opinions on DWI’s, checkpoints, and individual rights, contact Corey V. Parton at Parton & Associates, PLLC.

This article is intended for informational purposes only.  Each case is different and must be analyzed on it’s own facts and merits, so nothing in this article should be construed as or relied upon as legal advice.

Written by Attorney Corey V. Parton.

Researched and edited by Brittny M. Kaltenbach.