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CHECKPOINTS ARE TERRIBLE.

IF YOU’RE A CRIMINAL DEFENSE LAWYER AND YOU’RE NOT CHALLENGING CHECKPOINTS, YOU’RE NOT A CRIMINAL DEFENSE LAWYER.

1. INTRODUCTION

Challenging checkpoints requires, initially, a two-prong analysis: first, the checkpoint’s constitutionality on its face; and, second, its constitutionality as applied. The mistake that many defense lawyers make is looking at the checkpoint’s plan, seeing nothing wrong with it and abandoning the facial argument. You cannot know if the checkpoint plan is constitutional on its face until you have questioned the checkpoint supervisor – or someone – on the stand; invariably the supervisor will testify to something that seems to contradict the plan, or that indicates that the Primary Programmatic Purpose of the checkpoint is not what the State would like it to be, or that allows for impermissible discretion of the officer in the field, or some other fact that calls into question the constitutionality of the checkpoint. A checkpoint’s facial challenge, therefore, is actually a hybrid of a pure facial challenge and a general “as applied” challenge. Even when the facial challenge to the checkpoint’s constitutionality fails, the actual “as applied to the particular individual in question” analysis kicks in. The manner in which the individual defendant in a particular case was actually dealt with by the policeman who the defendant encountered could still lead to the conclusion that the defendant’s constitutional rights were violated and that the evidence against him should be suppressed.

2. CONSTITUTIONALITY ON ITS FACE (THE PLAN)

A. CITY OF INDIANAPOLIS V. EDMOND. The starting point for challenging the constitutionality of any checkpoint is with City of Indianapolis v. Edmond, 531 U.S. 23 (2000). This case arose from Indianapolis’s “narcotics checkpoints” – a series of checkpoints set up throughout the city for the putative purpose of narcotics interdiction. The Supreme Court found that these checkpoints were indistinguishable from general crime control checkpoints and, therefore, too broad in their reach. The Constitution, this case tells us, recognizes only four types of checkpoint: sobriety checkpoints, driver’s license and registration checkpoints, interception of illegal aliens checkpoints, and Lidster-type checkpoints.  Read the case.  If the State cannot establish that the checkpoint in question falls into one of these narrow exceptions to the prohibition against suspicionless seizures and is, therefore, indistinguishable from a general crime control checkpoint, then the checkpoint fails this initial constitutional question.

B. PRIMARY PROGRAMMATIC PURPOSE AND STATE V. ROSE. State v. Rose, 170 N.C. App. 284 (2005) is the next step in challenging the constitutionality of a checkpoint.  Read it.  Rose’s discussion of the Court’s having to identify and make findings as to the primary programmatic purpose of the checkpoint is simply re-articulating City of Indianapolis’s requirement that a checkpoint fall within one of the four permissible types of checkpoint discussed above. However, Rose does impose the additional requirement that the Court make actual findings of fact to support its conclusion as to a checkpoint’s primary programmatic objective. The role of the defense lawyer, at this stage of the attack, is to point out why the checkpoint in question either does not fall within one of the four listed types of checkpoint, or, probably more successfully, why the checkpoint is indistinguishable from a general crime control checkpoint. If the State is able to establish that the checkpoint in question does indeed fall within one of these four types of checkpoint, the analysis switches to one of reasonableness.

C. REASONABLENESS AND BROWN V TEXAS. If the Court determines that the checkpoint does in fact fall within one of the four exceptions, and is satisfied that the primary programmatic purpose is what the State claims it to be, the Court must then determine the checkpoint’s reasonableness under the three-part test of Brown v Texas, 443 U.S. 47 (1979). This three-part test requires the consideration of three factors: (1) the gravity of the public concerns served by the seizure; (2) the degree to which the seizure advances that public interest; and (3) the severity of the interference with individual liberty. Read the case.

1.(a) Factor 1. This factor is generally not a problem for the State if the Court has already determined that the primary programmatic purpose of the checkpoint is one of the four listed exceptions – drunk driving is bad. It is unfortunate that the Courts have focused on the type of checkpoint as satisfying this factor rather than the actual seizure involved in the checkpoint (see Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) and State v. Veazey 191 N.C. App. 181 (2008).

2.(b) Factor 2. Under this factor, the question is whether the checkpoint is sufficiently tailored to meet the important criminal investigatory needs. Why this area? Why this road? Why this direction of travel? Why this time? Why this type of checkpoint? The defense lawyer can and should always go back to the argument that the checkpoint is actually a general crime control checkpoint if the witness’s testimony suggests it – which will always be the case).

3.(c) Factor 3. This factor actually requires the Court to consider two things: first, the intrusiveness of the checkpoint; and second, whether the checkpoint allows individual policemen to act in an arbitrary, unconstrained and discretionary manner – the “unfettered discretion of the officer in the field” argument. This factor is a hay-making opportunity for defense lawyers. If the plan on its face, or the checkpoint’s operation as described by the witness, allows for different officers to behave in different ways with the motorists they’re dealing with, then the cops are being given permission to act in an arbitrary, unconstrained and discretionary manner. The defense lawyer should find the portion of the plan that instructs the officers on what their interaction with the motorist should be and listen to the witness’s testimony on this subject with particular vim; and she should pursue with vigor those areas that seem to allow for officers to deviate from the plan or give officers discretion in the manner that they interact with the driver.

D. NCGS 20-16.3A CHECKING STATIONS AND ROADBLOCKS. In addition to scrutinizing what the checkpoint plan allows the individual policeman to do while engaging with the member of the motoring public, the defense lawyer must investigate whether the plan complies with NCGS 20-16.3A.  Read the statute.  I have still to figure out what the first sentence of 20-16.3A(2a) means – how something can be both written and not in writing baffles me; however. The remainder of that subsection as well as subsection (3) is clear on what the bare minimum requirements are for the police to conduct a checkpoint: a policy; contingency provisions (deviations) but that disallow individual officers’ discretion; the fact that one police force may operate under another police force’s policy as long as its doing so is stated in writing.

Subsection (3)(b) instructs on the permitted behavior of the individual policeman working a checkpoint. This provision is rife with opportunity for the defense lawyer, and is, conveniently, the segue into the Constitutionality As Applied discussion. Obviously, if the plan on its face fails to comport with the statute, that is a facial challenge – albeit a statutory violation, but one which would still result in the remedy of suppression either under the theory that the violation is a substantial statutory violation or that the statutory violation is also a constitutional violation on reasonableness grounds. What is most interesting to me about this subsection is if the determination of reasonable suspicion mentioned in the first sentence is the same level of determination mentioned in the second sentence but which omits any reference to reasonable suspicion; and whether the determination of reasonable suspicion mentioned in the third sentence is the same level of determination mentioned in either of the two previous sentences. What exactly is subsection (3)(b) telling us? The notion that a criminal statute must be interpreted narrowly in favor of the defendant is well-settled; I encourage you to find an old pre-Declaration of Independence case from, perhaps, the Commonwealth of Virginia, that stands for this proposition, and back that up with one of any number of North Carolina appellate cases.  Do your research; geek out; have fun.

2. CONSTITUTIONALITY AS APPIED (THE COP).

When the issue is whether the policeman, dealing not with the theoretical member of the motoring public but my client, deviated either from the plan or the statute, the question becomes: Is this checkpoint unconstitutional as applied to my client? As in the above analysis of attacking the plan on its face, the area of attack on a checkpoint as being unconstitutional “as applied” requires a close reading of what the plan allows the policeman to do and an equally close reading of NCGS 20-16.3(A)(3)(b).

The “as applied” challenge speaks specifically to the third prong of the Brown v Texas reasonableness balancing test that instructs that a checkpoint provide “explicit, neutral limitations on the conduct of the individual officer.” Brown at _____. And the checkpoint must provide for “orderly procedures to limit the unfettered discretion of officers in the field in order to avoid the arbitrary invasion of motorists’ privacy interests.”

If the manner in which the officer actually dealt with my client exposes a deviation from what is prescribed in the plan or 20-26.3A(3)(b), then the officer’s behavior was unlawful and unreasonable under the Fourth Amendment.

      1. CONCLUSION

        City of Indianapolis v. Edmond informs us that checkpoints are presumptively unconstitutional. Some States -Texas being one of them, interestingly (to me) – have found checkpoints to be in violation of their State Constitutions; and, in my view they should be deemed to be in violation of North Carolina’s constitutional ban on general warrants.  Read the Constitution.  Checkpoints permit the cops, the government, our servants, without a trace of probable cause or reasonable suspicion of criminal activity, to seize the motorist going about his business. Checkpoints are terrible.  And this article hasn’t even dealt with the question of the cops chasing someone down who decides he’d rather forego the involuntary encounter with the government’s enforcement arm by lawfully turning away from a checkpoint (yeah, they can do that).  It is more than imperative; it is our duty as criminal defense lawyers – the champions 0f freedom and the last line of defense against the creeping police state – to fight every single checkpoint.

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