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In Indianapolis v. Edmond, the Supreme Court will decide whether the police can randomly stop drivers to investigate whether their cars contain drugs. The case, argued today, should result in one of the most important rulings about personal privacy in more than a decade. In 1998, the Indianapolis police department began surprising drivers with roadblocks on selected streets. The idea was to catch drug dealers by requiring every car on the street to submit to a quickie investigation. Drivers had to exit their vehicles and produce licenses and car registrations. The cops looked through the car’s windows to see what they could see. Dogs trained to detect drugs were led around the car to smell what they could smell. No stop was supposed to exceed five minutes — unless evidence of a crime was uncovered. When that happened, the driver was arrested. On the six occasions that these roadblocks were used, 1,161 cars were stopped and 55 drug arrests made — a 5 percent “hit” rate. There were 49 arrests for other crimes, which increased the total hit rate to 9 percent. Law enforcement in Indianapolis considered the program a major success. James Edmond and Joell Palmer did not. These gentlemen are unusual appellants in a criminal procedure case because they are totally innocent of any crime. The infamous exclusionary rule, which requires the suppression of evidence of a crime if the police didn’t follow the rules, creates an incentive for the bad guys to litigate everybody’s constitutional rights. When innocent people experience a police intrusion that seems unfair, usually they just suck it up. Maybe they don’t know their rights, or maybe they lack the resources or guts to challenge the police. But Edmond and Palmer thought the police were using their power to “bully people,” in Palmer’s words. They had the guts for the challenge, and the American Civil Liberties Union had the resources. They lost in U.S. District Court. But at the 7th U.S. Circuit Court of Appeals, Edmond and Palmer prevailed. Now their names are attached to a case in which the Supreme Court will determine whether American citizens have a right to be left alone when the government has no reason to suspect they have done anything wrong. ARE THEY SUSPICIOUS? The Fourth Amendment prohibits unreasonable searches and seizures. The Supreme Court has held that stopping a car at a roadblock is a “seizure” that is sometimes permissible without a warrant. The Court has also said that police do not “search” when they peep inside car windows or use dogs to sniff around in public places. In Edmond then, the constitutional analysis rests upon the legality of those roadblocks. Judge Richard Posner of the 7th Circuit, in determining that the roadblocks were unconstitutional, focused on the fact that citizens were stopped when there was no evidence that they had broken the law. The Fourth Amendment presumption is that the government can stop citizens only when it has some level of suspicion that they’ve violated the law. Posner conceded that the program’s hit rate was high, but just because it was good law enforcement did not mean that it was constitutional. There is one problem with Posner’s analysis: The Supreme Court has never met a roadblock it didn’t like. In both cases when the Court has considered the issue, it has upheld suspicionless roadblock searches. In United States v. Martinez-Fuerte (1976), the Court permitted the Border Patrol to set up roadblocks to catch illegal aliens. In Michigan Department of State Police v. Sitz (1990), the Court allowed police to establish checkpoints to look for drunk drivers. Those cases do not create a roadblock exception to the Fourth Amendment, according to Posner. Rather, those programs were justified by another exception[searches conducted for "special needs" other than enforcing criminal law. In Martinez-Fuerte, the police momentarily seized cars in order to regulate the flow of immigrants. The police in Sitz stopped cars primarily to ensure the safety of the roads. Posner cited Supreme Court precedent that there is a lower standard when the primary purpose of searches is not to enforce criminal law. Since, however, the purpose of the Indianapolis roadblocks was to make arrests, the higher standard -- individualized suspicion -- should apply, said Posner. In a Clash of the 7th Circuit Titans, Judge Frank Easterbrook dissented. In his view, the Indianapolis checkpoint was constitutional because it was a "reasonable seizure." The cost to citizens was a mere "five-minute wait with man's best friend." The benefit was a "spectacularly successful" weapon in the war on drugs. Easterbrook was not persuaded by Posner's attempt to distinguish Martinez-Fuerte and Sitz. It would be silly, Easterbrook argued, to have a trial the point of which was to determine the "real" purpose of a roadblock. As far as he was concerned, "this is a roadblock case. To figure out how to handle a roadblock case, we must look at how the Supreme Court has handled other roadblock cases." And as far as the good judge could see, the Court just loves them. If one focuses only on Supreme Court precedent, both Posner and Easterbrook are correct. Posner's reluctance to create yet another exception to the Fourth Amendment is logical. Already, when the Court engages in a "special needs" analysis, it asks why the police are searching and seizing; motive is key. In this case, it seems clear that the purpose was to arrest bad guys, and the Court has held that such stops require individualized suspicion. On the other hand, Easterbrook's discomfort with touchy-feely analysis of police motives is also firmly based in precedent. The Court favors objective analysis of what police do rather than subjective analysis of why. And there isn't a police force in the U.S. of A. that wouldn't brag about a 9 percent hit rate for a practice that inconveniences citizens for five minutes. So how is the Supreme Court to decide? The same way it decides most of its Fourth Amendment cases -- on the politics. In a moment of unusual candor, Easterbrook virtually conceded that any result in this case could be supported by precedent: It's true that "for every statement [by the Court] suggesting that criminal law enforcement may not be justified … it is easy to find another to the contrary — often in the same opinion.” Later, in what can only be described as an understatement, Easterbrook noted, “Interpretation of the Fourth Amendment is not a model of intellectual consistency. Cases create oodles of cubbyholes.” The bottom line: The Court can do whatever it wants here, and it will have ample precedent to cite. Any decision will look like a reasoned interpretation of law. So what will the Court want to do? It’s harder to read the tea leaves than it used to be. A few years ago, law enforcement would almost certainly score a slam-dunk. It still does in most cases, but in the last few terms, the ACLU has actually won a couple of criminal procedure cases. Plus, among the really cool people of all political stripes, the war on drugs is “out” and privacy is “in.” How cool is this Supreme Court? We shall see. My guess is that Nancy Reagan-era propaganda about the war on drugs will carry the day. The Indianapolis program seems too effective at getting drugs off the street for the Court to allow the Constitution to stand in the way. Posner and Easterbrook embraced the political nature of their decisions by offering contrasting parades of horribles. If the police prevailed, Posner warned, “In high-crime areas of America’s cities it might justify methods of policing that are associated with totalitarian nations. One can imagine an argument that it would be reasonable in a drug-infested neighborhood to administer drug tests randomly to drivers and pedestrians.” Maybe, Easterbrook responded, but things ain’t so grand now: “Some cities enforce their drug laws by heavy reliance on spies, infiltrators, informers, turncoats, wiretaps, and nighttime searches where battering rams smash through doors…. Police and prosecutors today ply people with favors so that friends and family become informers; lying about their identity, agents wheedle their way into strangers’ confidences; they search trash in the hope of finding an incriminating scrap.” Once again, Posner and Easterbrook are both right, although neither dares take his argument to its logical conclusion: The war on drugs encourages totalitarian law enforcement. Whatever the weapons — roadblocks, nighttime searches, battering rams — the result is extraordinary police power. We know that millions of people use illegal drugs and that these drugs are easily hidden. When we order police to find them, it should not surprise us that the rules about reasonable searches and seizures get watered down until they are virtually meaningless. Some day we’ll end the madness of using police to treat the social problem of drug abuse. When that day arrives, will there still be a Fourth Amendment? The Supreme Court’s decision in Edmond should provide an important clue. Paul Butler is a professor at George Washington University Law School.

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