The Common Law #6

The Common Law #6
(The following column originally ran in the February 5, 2008 edition of the Moody County Enterprise.)

The Common Law:
Anatomy of a Checkpoint

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

In the early days of our republic, there was great concern about the protection of individual rights, particularly as those rights applied to encounters with law enforcement officers. In order to prevent abuses of power by the state (or the crown) our forefathers set down a number of different constitutional rights to protect the public from unreasonable intrusion or abuse of authority by the state and it's officers. These rights included protections against searches, seizures, the quartering of troops in private homes, and the taking of property. As each state joined the Union it enacted similar protections in its own constitution. Of course at that time, a man primarily came into contact with the law when a soldier in a fine red coat kicked down the door. Times have changed. 

Today, the most common point at which members of the public encounter law enforcement officers is during a traffic stop. Usually these stops take a few minutes out of the driver's day, and result in little more than a warning or a small fine. An alarmingly small number of motorists today know about the constitutional and legal principles that keep this encounter civilized, rational, and short. 

In order to stop a vehicle, a police officer must have a reasonable suspicion that a criminal act has taken place. Thanks to the 4th amendment to our federal constitution, and similar state constitutional rights, police are not permitted to stop vehicles (or people) on a whim, gut feeling, or out of boredom. Police officers must have reasonable, articulable facts from which they have concluded that an illegal act has taken place. 
There are exceptions to this rule, however. The most common exception is probably the sobriety checkpoint. In a sobriety checkpoint, police stop motorists, without having any suspicion of wrongdoing, and check to see if they are impaired. The constitutionality of this practice was reviewed by the Supreme Court of the United States in 2000. In a 6 to 3 decision, the Court determined that these checkpoints, when properly conducted, do not violate the 4th Amendment. The Court upheld the practice because it felt the invasion of the motorist's rights was minimal, while drunk driving poses a substantial and immediate danger to the public. 

This decision did not make sobriety checkpoints are legal throughout the nation, however. Remember, each state also has its own set of constitutional rights in addition to those protected by the federal 4th Amendment. At present eleven states, including our neighbors Minnesota and Wyoming, have enacted stronger rights against police searches and seizures than those protected by the federal constitution. In those states, sobriety checkpoints are prohibited. South Dakota is not one of those states. 

Here in South Dakota, our Supreme Court has not directly addressed the question of whether our own state constitution grants the kind of extra protection enjoyed by these other states. However, in cases where our High Court has discussed sobriety checkpoints in general, it has permitted them. To quote Justice Henderson, in South Dakota we “permit maximum intrusions upon motorists and grant maximum discretion to officers.” 

Nationwide, and even in South Dakota, there are limits on how far police can go with the use of checkpoints. For example, While police may set up a sobriety checkpoint to look for impaired drivers, they cannot set up a checkpoint to look for shipments of illegal drugs. Remember, sobriety checkpoints may be permitted because the level of intrusion on innocent motorists is relatively low, and drunk drivers pose an immediate danger to the public. By contrast, a sober driver with 20 pounds of marijuana in the trunk does not create this kind of immediate danger. Thus, while police might set up a checkpoint (in South Dakota) to see if you have been drinking, they cannot set up a checkpoint to see if you're dealing drugs. 

To complicate matters further, while police are not permitted to set up checkpoints to search cars for drugs, police may be free to run a drug dog around the outside of a vehicle which has been stopped for another reason, such as an ordinary traffic stop. But the fun does not end there. 

While drug checkpoints may be unconstitutional, FAKE drug checkpoints are generally permitted. This ingenious law enforcement technique involves putting a sign up on a stretch of highway where police know drugs are often transported. The sign says something like “Drug Checkpoint Ahead.” Of course, there is no such checkpoint. That would be illegal. The sign is a trick. Police position themselves near the sign and watch for motorists who react to the sign by slamming on the breaks, turning around, or speeding away on seldom-used exit ramps. This kind conduct often gives police enough reasonable suspicion justify stopping those individual cars, and checking for drugs. 

This intricate set of rules exists to balance our individual rights with our desire for safe highways, but we the citizens of South Dakota are left to decide exactly how those rules will apply our state. Do we want to follow states like Minnesota and Wyoming and employ strong protections against the intrusion of law enforcement into our daily lives, or are we willing sacrifice portions of our privacy and our time, in exchange for potentially safer highways? 

The foregoing column is written for informational purposes only, and does not constitute legal advice. For those desiring more information on police stops, see Indianapolis v. Edmond, 531 U.S. 32 (2000) and Michigain Dept. of State Police v. Sitz, 496 U.S. 444. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at