Road blocks are constitutional, or not

Published 9:55 pm Friday, May 19, 2017

Madison county Sheriff Randy Tucker isn’t the only person who has been caught up in the constitutionality of road blocks. It’s a question that even the U.S. Supreme Court is having trouble deciding.

Most Mississippians are used to road blocks, especially on New Year’s, Memorial Day, July Fourth and Labor Day. But it’s not the same in 12 other states, which have ruled such road blocks to be a violation of their state constitutions.

The U.S. Supreme Court is also very ambivalent about the constitutionality of road blocks. In a 6-3 decision in 1990, the U.S. Supreme Court ruled that DUI road blocks were constitutional. Yet in 2000, the court ruled 5-4 that drug roadblocks were unconstitutional. Go figure.

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It all goes back to the Fourth Amendment of the Constitution, which states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Our highest court agrees on a couple of things: First, that cars are covered by the Fourth Amendment just like our houses. Second, the justices agree that a road block is a “search and seizure.” The debate hinges on the word “unreasonable.”

In the 1990 case, Michigan Department of State Police v. Sitz, the Supreme Court reversed the Michigan Court of Appeals, which ruled DUI road blocks to be unconstitutional.

The Sitz decision went against the Supreme Court’s prior ruling in 1979, Delaware v. Prouse, which held police may not stop motorists to check their driver’s license and car registration without reasonable suspicion.

What changed? As public outrage about DUI deaths increased, the Court changed their opinion about what was reasonable and unreasonable. The issue became whether the public good achieved was enough to outweigh the importance of protecting the Fourth Amendment.

In the majority opinion, Justice Rehnquist, wrote, “In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment.”

Three Supreme Court judges disagreed with Rhenquist and the majority. Their dissent cited a 1928 Supreme Court opinion written by Louis Brandies in which stated, “The Fourth Amendment was designed not merely to protect against official intrusions whose social utility was less as measured by some ‘balancing test’ than its intrusion on individual privacy; it was designed in addition to grant the individual a zone of privacy whose protections could be breached only where the ‘reasonable’ requirements of the probable cause standard were met. Moved by whatever momentary evil has aroused their fears, officials — perhaps even supported by a majority of citizens — may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.”

For many people, including many astute jurists, road blocks are as illegal as the crimes they are intending to stop.

That brings us to Indianopolis v. Edmond in the year 2000. The Indianopolis police had been operating road blocks to catch people with illegal drugs using drug sniffing dogs. The court ruled this illegal.

So how can a DUI road block be constitutional while a drug road block is unconstitutional? For that, you would have to read the two opinions yourself. They are easily accessible online. In summary, the courts just can’t seem to decide whether road blocks are legal or not so the opinions keep going back and forth depending on the make up of the court.

Indianopolis v. Edmond was a squeaker, 5 to 4, with Justice Sandra O’Connor writing the majority opinion. She wrote, “The constitutionality of such checkpoint programs still depends on a balancing of the competing interests at stake and the effectiveness of the program.

When law enforcement authorities pursue primarily general crime control purposes at checkpoints such as here, however, stops can only be justified by some quantum of individualized suspicion . . . Because the primary purpose of the Indianapolis checkpoint program is ultimately indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment.”

This is where the Madison Sheriff’s Department is going to find some problems in defending its road blocks. The courts just barely think road blocks are legal at all, so they impose very high legal standards for using them. This will be a tough lawsuit to defend.

In addition, Madison County is outgunned, having to battle the ACLU and the international law firm of Simpson Thatcher based in New York City. It is one of the biggest, richest and most prestigious law firms in the world. No doubt, they are doing this work pro bono to meet some sort of public service requirement or at least to get good PR.

Madison County can get its dander up and spend a lot of public money defending this lawsuit, but I wouldn’t bet on a legal victory. Maybe it will go all the way to the U.S. Supreme Court. That will cost some change.

Given the shaky legal ground of road blocks, a better strategy for the county would be to settle the lawsuit and quit using road blocks as a general law enforcement tool.

Wyatt Emmerich is a columnist, writer and publisher in Jackson. He can be reached at