What Makes a Sobriety Checkpoint Constitutionally Reasonable?

Like the federal government, the state of Indiana has its own Constitution, Article I, Section 11 of which recognizes the “right of the people to be secure . . . against unreasonable search or seizure.” This is an important point to remember when considering the question of sobriety checkpoints in Indiana. Was the checkpoint’s operation random and entirely discretionary? If so, it’s likely to be deemed unconstitutional based on current case law. If the checkpoint conformed to certain standards, however, it’ll be seen as a perfectly legitimate use of law enforcement time and resources. This post will examine the standards that Indiana courts use to determine whether a particular checkpoint was constitutionally reasonable.

In 2002, the Indiana Supreme Court of Indiana laid out six significant considerations that judges now refer to when ruling on a checkpoint’s (constitutional) reasonability. Don’t think of these as essential elements of a reasonable sobriety checkpoint, though—this is a test where critical factors are examined and weighed. In order of appearance, these factors are:

    • whether the checkpoint was carried out according to a neutral plan approved by appropriate officials
    • the objective, location and timing of the checkpoint
    • the amount of discretion allowed to the field officers conducting the checkpoint
    • the degree of intrusion on the civilians being stopped
    • the safety of the physical conditions surrounding the checkpoint
    • the checkpoint’s effectiveness in apprehending OVWI suspects

Neutral Plan Approved by Appropriate Officials

The first factor that a judge will take into account is whether the checkpoint was carried out according to a neutral plan approved by appropriate officials. If the State is able to produce documentation of such a plan at trial, the judge is encouraged to consider details such as:

    • whether the plan was approved in advance by ranking officers
    • whether the checkpoint’s location, date and time were carefully chosen, especially in light of any potential safety concerns or inconvenience to the public
    • whether there was advance publicity for the checkpoint
    • whether the checkpoint’s guidelines instructed officers to assure all drivers that their stop was routine

It’s worth noting that it’s not enough for an officer to simply assert—even if he or she is under oath—that the operation was carried out according to police guidelines. For a judge to properly weigh this factor, the State must produce its neutral plan and offer it into evidence.

Objective, Location and Timing

Next up is the objective, location and timing of the checkpoint, which asks the judge to evaluate the checkpoint’s purpose. Here are a couple of examples to help illustrate what a judge might be looking for in the State’s official objective:

Constitutionally Reasonable: This checkpoint was designed as a minimally intrusive, neutral effort to remove impaired drivers from the roadways before they hurt someone.

Unconstitutional: This checkpoint is a good way to kind of slow traffic down and make sure everybody is doing what they’re supposed to.

The more haphazard the State’s objective appears to have been, the less likely a judge is to find it constitutionally permissible. Random, generalized roadblocks are not allowed.

Beyond that, this factor is interested in whether the checkpoint’s location and timing were specifically related to its official purpose. As an esteemed Hoosier jurist once wrote, “A seizure is not reasonable unless it is well calculated to effectuate its purpose.” To be constitutionally reasonable, the location and timing of sobriety checkpoints should:

    • take into account:
      • police officer safety
      • public safety
      • public convenience
    • effectively target the public danger of impaired driving

Ideally, whichever police department was responsible for the checkpoint in question would be compelled to offer a sincere and rational explanation for its checkpoint strategy. Judges tend to be highly deferential to police, but this only works if the State has offered some minimal justification for its conduct. As with the first factor, judges favor a show-don’t-tell approach to evidence. It’s not enough for the police to simply declare something to be so—they must produce some sort of documentation and submit it to the court.

Police Discretion

A judge will also consider the amount of discretion allowed to the field officers conducting the checkpoint. The burden is on the State to show that it provided standardized instructions to ensure against arbitrary or inconsistent actions by the screening officers. A judge may look at details like:

    • the process for selecting vehicles to be screened, and whether it’s standardized and neutral
    • specific directives for interacting with motorists, including:
      • what to say
      • when to request license and registration
      • which Standardized Field Sobriety Tests to administer if the screening officer detects alcohol

Keep in mind that compiling and producing a list of instructions for police officers to follow at sobriety checkpoints is only half the battle. The State also needs to show that its officers acted in accordance with those instructions. Just because a rule exists doesn’t mean everyone’s going to follow it. After all, if we could establish conformity simply by making a rule, we wouldn’t need police in the first place.

Degree of Intrusion

When considering the degree of intrusion on the civilians being stopped, a judge is asked to weigh the citizens’ liberty interests against the necessity of the State’s operation. This involves looking at two distinct issues. The first is the average length of detention for vehicles that weren’t in violation of the law. The longer the average, law-abiding citizen was detained, the more unreasonably intrusive it was. This question is bound to be context-dependent, but the Supreme Court of Indiana seems to have indicated that four minutes is too long to make a sober driver wait.

The other issue involves avoidability, and the standard is pretty straightforward: the more avoidable a checkpoint is, the less it interferes with the liberty of individual drivers (and by obvious implication: the less avoidable a checkpoint is, the more it interferes with the liberty of individual drivers). On the question of avoidability, a judge might ask:

    • where were the checkpoint signs placed, and how visible were they?
    • once a driver could see the checkpoint, was there any opportunity to turn and avoid it?
    • was there any advance publicity that might have alerted citizens to this potential inconvenience?

As with anything else, of course, it’s not enough to look at the neutral plan alone. The most important question is what did the officers actually do? That is to say, if the neutral plan called for sign placement at least 200 feet from the checkpoint intersection, but the police actually placed three of their four signs well within 200 feet, that’s a problem. The State can’t use a reasonable plan to paper over unreasonable conduct.

Safe Conditions

Sometimes the most obvious things are still worth mentioning, and this is the case with the safety of the physical conditions surrounding the checkpoint. Safety is clearly important, but this factor presents a very low bar for the State to clear:

    • was the checkpoint well-lit?
    • were cars able to pull off the road without running into each other?

If the answer to both of those questions is yes, the State probably won’t be accused of running an unsafe checkpoint.

Effectiveness

The final factor for a judge to consider is the checkpoint’s effectiveness in apprehending OVWI suspects. To be honest, this factor usually involves the State embarrassing itself, as it first admits to an OVWI arrest rate under 2% and then asks a straight-faced officer to testify under penalty of perjury that yes, this constitutes an effective and successful operation.

As I’ve previously mentioned, courts tend to be highly deferential to police, so a judge might be willing to entertain an alternative theory. Maybe (for example) the arrest rate would’ve been higher, but the checkpoint’s advance publicity was so pervasive and intimidating that it simply scared most of the drunks off the road for an evening. Without any evidence of a media blitz, however, this approach looks like little more than a desperate fantasy.

In conclusion, I’d like to be clear: I, Attorney Marc Lopez, do not like sobriety checkpoints. I think they’re wasteful and un-American. I don’t get to make the rules, though, and the Supreme Court of Indiana sees things differently. The law of the land is that sobriety checkpoints are A-OK as long as they’re conducted in a constitutionally reasonable manner. Until this standard changes, I encourage all of you to treat a checkpoint like any other traffic stop: be cooperative, pay attention and—when in doubt—Plead the 5th!