Forensic-Evidence.com: Police Procedures / Roadblocks: Some Are Good, and Some Are Bad, Say Courts

The checkpoint in Lidster was called an "informational" roadblock and had been set up by the Lombard, Illinois, police department at the location of a previous hit-and-run accident. Between 6 and 12 police vehicles participated in the roadblock, which was under the command of a police lieutenant. The department had a standard policy on roadblocks, but no guidelines existed on how to set up a roadblock to obtain information about crimes or to seek witnesses. The department's plan of the day was to stop all eastbound traffic and pass out flyers to the drivers about the accident in the hope that eyewitnesses would be located who could provide information about the unsolved mishap and who could perhaps identify the wrongdoer or his/her car, which was suspected to be a Ford Bronco or a full-sized pickup truck.

An officer would stand in the center of the street wearing an orange reflective vest with the word "Police" stenciled on the vest, stop every car, and hand out a flyer that described the incident and what information the police were seeking. When Lidster's minivan almost hit the officer, the latter was not aware that Lidster had done anything wrong, but he approached him, asked Lidster to produce his driver's licence and insurance card, and asked why Lidster had almost run into the officer. Lidster explained he sought to go through because another officer had already stopped him at the roadblock. The officer, who now began to suspect that Lidster had perhaps been drinking, directed him to pull onto a side street for a sobriety test, which test was conducted by a second officer. Lidster failed the test and was arrested for driving under the influence of alcohol. His motion to suppress the evidence having been denied, he was convicted as charged and appealed. The Illinois Appellate Court reversed the conviction and held that the roadblock violated the Constitution.

The Illinois Supreme Court agreed with the appellate court that the roadblock was unconstitutional, and relied heavily on United States Supreme Court's language in the Edmond case. After explaining how the Court had upheld as valid a properly organized sobriety checkpoint that was aimed at removing drunken drivers from the roads as well as brief suspicionless stops of motorists at a fixed border checkpoint to intercept illegal aliens, the Illinois state high court quoted from Edmond as follows:

"We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. Rather, our checkpoint cases have recognized only limited exceptions to the general rule that a seizure must be accompanied by some measure of individualized suspicion. We suggested [in Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391 (1979)] that we could not credit the 'general interest in crime control' as justification for a regime of suspicionless stops. Consistent with this suggestion, each of the checkpoint programs that we have approved was designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety."

In the Edmond case some ingenious arguments had been made and rejected by the Court, on how the drug checkpoint could be upheld under the Sitz and border stop decisions. The petitioners had argued that, after all, arresting people who transport narcotics are, just like drunk drivers, arrested and convicted of these crimes. Both the arrest of drunken drivers, the safeguarding of our borders, and the preventing of narcotics offenses, are all law enforcement activities. The Supreme Court rejected that rationale, saying that if its decision were to rest on that slender generality, there would be literally no check on the kind of roadblocks or checkpoints police might organize, and such intrusions would become a routine part of American life.

So how are sobriety checkpoints different from narcotics interception roadblocks? The Supreme Court found in sobriety checkpoints a purpose that went beyond "mere" law enforcement for criminal activity. For that reason they constituted a "narrow" exception permitting police to dispense with the need for individualized suspicion. In the Sitz case, the Supreme Court, in upholding sobriety roadblocks, found that the danger to the safety of the general public posed by drunken drivers was a societal interest that went beyond the general interest in crime control. By contrast, in Edmond, the Supreme Court saw the drug interdiction checkpoint as only being involved in the general interest in crime control, and said: "We decline to suspend the usual requirements of individualized suspicion where the police seek to employ a checkpoint primarily for the ordinary enterprise of investigating crimes. We 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."

In its appeal to the state supreme court, the State of Illinois had argued that the Lombard police department checkpoint was different from that condemned in Edmond because the Lombard police had not sought to interrogate and inspect motorists to seek to establish that these motorists had themselves committed crimes as yet unknown to the police, but that they instead had only sought to subject Lidster to further investigation because he narrowly missed running down an officer. First of all, of course, the Lombard police focusing on Lidster did not fall under either the sobriety or immigration rationales. But more importantly, the Illinois Supreme Court believed that a line had to be drawn at the function of general crime control.

When the State sought to distinguish gathering information leading to the arrest and prosecution of a motorist as the perpetrator of a crime, from the situation present in Lombard where police sought to gather information from a motorist leading to the identification of another motorist as the perpetrator of a crime, the Illinois Supreme Court rejected the argument as well. It found that the State's rationale might well lead to an abandonment of all Fourth Amendment protections for motorists–protections that had been recognized in Delaware v. Prouse and Indianapolis v. Edmond. If such an argument were adopted, "a police investigation tool such as canvassing a neighborhood to find identification witnesses," if not viewed as a crime control measure, might subject all citizens to suspicionless stops at any time for the purpose of investigating crime: "an exception for informational roadblocks has the potential to make roadblocks a routine part of American life," said the court. It then went on to construct an argument that surveyed general crime statistics:

"In 2000, 870 murders, 49,652 assaults, 25,168 robberies, 77,947 burglaries, 306,805 thefts, 55,222 motor vehicle thefts, and 2,899 arsons were known by police to have been committed in Illinois. Of those, 706 murders, 31,655 assaults, 21,691 robberies, 41,464 burglaries, 168,890 thefts, 45,083 motor vehicle thefts, and 1,525 arsons were known by police to have been committed in Cook County. In the City of Chicago, there were 627 murders, 26,660 assaults, 19,449 robberies, 28,401 burglaries, 105,728 thefts, 35,570 motor vehicle thefts, and 1,106 arsons. Should the police have been allowed to set up roadblocks to obtain information from potential witnesses for each murder? What of a robbery, an aggravated criminal sexual assault, an arson or any other serious crime? According to the State's [argument], for a period of at least a week after each crime, police could set up roadblocks with the specific purpose of making inquiries of persons who were possibly witnesses to a crime. The troubling specter then arises that the streets of Cook County, or at least the streets of Chicago, would be adorned with roadblocks, an outcome clearly unacceptable under Edmond."

It had been argued in Lidster by the Illinois Association of Chiefs of Police, which had sought to intervene on the State's behalf, that in Edmond the Supreme Court had left open the possibility that a crime control roadblock might be justified in an emergency setting, where police needed to act quickly to contact possible witnesses before they disappeared, resulting in the loss of vital information. But the Court in Edmund had described such an exceptional emergency as one that would present itself when police sought to thwart an imminent terrorist attack or needed to catch a dangerous criminal who was suspected to be likely fleeing by a particular route.

The Lidster case's hit-and-run, which had occurred one whole week earlier, did not even come near to presenting such an emergency, our state supreme court said: "There was no indication that the motorist involved posed any further danger to local residents or, indeed that the morotist remained in the vicinity. There was also no indication that the motorist was driving recklessly or was driving under the influence of alcohol. While this court understands the efforts of the Lombard police department to obtain information leading to the identification of the motorist, the limited, exigent circumstances of the nature identified by the Supreme Court in Edmond are not present in the matter at bar. Absent such exigent circumstances, the Fourth Amendment's prohibition against suspicionless seizures should not give way to the normal needs of law enforcement, be they identified as crime control, criminal investigation or canvassing efforts to obtain information leading to the identification and apprehension of the perpetrator of a crime."

In expressing its sympathy for the efforts of the police in seeking to identify a motorist who had violated the law by fleeing the scene of an accident, the state court did not feel that mere sympathy alone could justify the roadblock in this case. It quoted from another United States Supreme Court case that stressed there was always tension between the constitutional protections afforded citizens and the desire of law enforcement to ferret out crime:

"The needs of law enforcement stand in constant tension with the Constitution's protections of the individual against certain exercises of official power. It is well to recall the words of Mr. Justice Jackson, soon after his return from the Nuremberg trials: 'These [Fourth Amendment rights], I protest, are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.' The right of an individual to be free from unreasonable searches and seizures is an indispensable freedom, not a luxury. It cannot give way in the face of a temporary need for the police to obtain information regarding the identity of the motorist at issue. . . ."

Perhaps the court's strong language was an attempt to justify its holding in the face of three dissenters. Indeed, the Illinois Supreme Court's opinion was rendered by a four-to-three vote. This may also have been why publication of the opinion was delayed: the case was decided in January, but the opinion was not filed until October, 2002.

The dissenters would have upheld the Lombard police's informational roadblock and found many reasons why Edmond is distinguishable and does not control the facts in Lidster. Perhaps this sharp split of opinion may cause the State to seek further review in the United States Supreme Court, and may prompt that tribunal to accept the case for decision.