A Rare Victory for the Right to be Left Alone

by Steve Chapman

The framers of the Constitution thought Americans should not be afflicted by government intrusions unless they had broken the law. So in the Bill of Rights, they included the Fourth Amendment, which guaranteed "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."

But that provision, as interpreted by the justices in recent years, has come to resemble a block of Swiss cheese -- defined mostly by the holes in it. As a consequence, your right to go about your business free of official snooping and interference has shrunken considerably.

In your car, even if you are scrupulously obeying all traffic laws, you can be pulled over so a police officer can be satisfied that you're not drunk or unlicensed. If you are a public school student, even one with a perfect record of behavior, you may be compelled to pass through metal detectors, submit to locker searches, and take drug tests.

Police may rifle through garbage you put out for collection, fly helicopters over your backyard to see what you're up to, or board a bus to "ask" for "permission" to open your bags. If you're a passenger in a taxi or a guest in someone's home, you may be searched by police even if they have no reason to think you've committed a crime.

So the city of Indianapolis had good reason to think it could take the intrusions a small step further. Expanding a weapon used in the battle against drunk driving, it set up police roadblocks to stop every car entering certain areas, with the hope of catching drug offenders.

Drivers were asked for licenses and registration papers by cops, who used the opportunity to evaluate the driver for signs of impairment and to let a drug-detecting dog give the vehicle a good sniff. Anyone stopped at one of these checkpoints could expect to be detained for up to five minutes.

By law enforcement standards, the roadblocks were wildly successful. Indianapolis police stopped 1,161 vehicles and made 104 arrests -- meaning that only 10 innocent people had to be hassled to catch one who might be guilty of some offense. The drunk-driving roadblock previously upheld by the Supreme Court, by contrast, netted only 1.6 percent of the motorists who were stopped, for an innocent-to-guilty ratio of 63 to 1.

But the court, after making so many exceptions to the ban on unreasonable searches and seizures, finally realized the exceptions were about to swallow the rule. The stops they've approved in the past, the justices said, were "administrative" ones whose chief purpose was to foster safety, health or border control. By a 6-3 vote, the court said drug interdiction roadblocks can't be allowed, because they're about catching and punishing people who break drug laws.

"We have never approved a checkpoint whose primary purpose was to detect evidence of ordinary criminal wrongdoing," declared Justice Sandra Day O'Connor. If the court were to allow this type of stop, she continued, "there would be little check on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose" -- in which case, "the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life."

She's right. If police can pull over a motorist who's done nothing wrong to check his car for drugs, why not stop drivers to check for evidence of other criminal offenses? There are all sorts of bad guys who might be apprehended for all sorts of crimes thanks to this useful tool. Dragnets could be a daily feature of our lives.

Come to think of it, why stop only drivers? Why should pedestrians be exempt? As 7th Circuit Court of Appeals Judge Richard Posner said when his court invalidated the Indianapolis checkpoints, "Imagine if the government set up a metal detector outside each person's home and required the person to step through it whenever he entered or left, in order to determine whether he was carrying a gun for which he lacked a permit."

Fortunately, police won't be doing that, thanks to this decision reaffirming the basic purpose of the Fourth Amendment. The average person's constitutional sphere of privacy is smaller than it once was. But at least "constitutional sphere of privacy" has not become a self-contradiction.