Use of roadblocks means a loss of civil liberties

The Call | January 4 2005

"It would shock and offend the framers of the Rhode Island Constitution if we were to hold that the guarantees against unreasonable and warrantless searches and seizures should be subordinated to the interest of efficient law enforcement. Once this barrier is breached in the interest of apprehending drivers who violate sobriety laws, the tide of law enforcement interest could overwhelm the right to privacy."

The above quote comes from Rhode Island Supreme Court Chief Justice Thomas Fay, writing the 1989 opinion in Pimental vs. Department of Transportation that recognized drunken driving roadblocks as unconstitutional in Rhode Island.

From the same decision: "It is illogical to permit law enforcement officers to stop 50 or 100 vehicles on the speculative chance that one or two may be driven by a person who has violated the law in regard to intoxication."

I was never prouder of Rhode Island, its constitution or its Supreme Court than the day Fay’s ruling came down affirming that our state Constitution contains safeguards for individual liberties even stronger than those in the U.S. Constitution. Even in those days, when drunken driving was just starting to be looked at more harshly than had been the case in the past, Fay’s was a bold and brave decision, and it was a proud day for freedom and liberty.

Now, Attorney General Patrick Lynch wants to throw all of that out the window. He has written to Gov. Donald Carcieri, asking him to seek an advisory opinion from the Supreme Court, effectively petitioning the court to weaken theConstitution by reversing its roadblock ruling.

With re-election looming, and with drunken driving enforcement a ready-made issue for law enforcement types, Lynch is eager to wipe his backside with the treasured legal concept of probable cause and embrace the totalitarian tactics of a police state.

After all, if you’re not doing anything wrong, why do you need constitutional rights in the first place, right?

Wrong! Anyone who thinks throwing up roadblocks is a good idea is a bad American -- he or she insufficiently appreciates and values the liberties that this country was founded upon, and that soldiers have fought and died to defend for more than two centuries.

The notion that the police can stop and detain everyone coming down the street to see if some of them might be doing something wrong is abhorrent to everything America is supposed to stand for.

When I talked to him on Friday, Lynch downplayed his advocacy of the idea, saying this is something police chiefs throughout the state think would be a worthwhile tool, and that his role is to see that it is done constitutionally. He says there is a "simmering debate about what steps law enforcement can take" to battle drunken driving and that Rhode Island is "the poster child" for driving-under-the-influence violations.

But in his letter to the governor, Lynch presented the idea as "a singular opportunity to help combat the epidemic of deaths and injuries caused by driving while intoxicated on our roads and highways."

Lynch says that, since the Pimental decision, standards have been set for what are being euphemized as "checkpoints" that make them constitutionally acceptable and less intrusive on personal privacy. That’s why the attorney general thinks the current Supreme Court might come down with a different ruling.

He points out that there is no way to address the roadblock issue legislatively -- it must be done by the Supreme Court.

Last year, Lynch criticized Carcieri for seeking an advisory opinion on the casino issue. For that, he said, there was a legislative remedy at the time and that is not the case here.

But there are legislative remedies short of roadblocks: Tougher penalties for refusing breath or blood tests is one. Sterner sentences for drivers who are really stinko -- say 1.5 blood alcohol content and above, not the harmless .08 social drinkers -- is another.

Burning down the constitutional barn to get rid of the mice is not a viable option. There is simply no reason to suspend the Fourth Amendment of the U.S. Constitution, and Article I, Sec. 6 of the Rhode Island Constitution for setting up drunken driving roadblocks.

The problem is made plain by a part of Lynch’s letter. The attorney general describes how Tennessee conducted 900 roadblocks in a single year, up from 15 the proceeding year.

"Nearly 145,000 vehicles passed through ... and 9,000 were detained for further questioning," Lynch wrote. "There were 773 resultant DUI arrests."

And that was that, right? No, not by a long shot. Lynch wrote that there were"347 seat belt citations and 465 child restraint citations. Additionally, 705 written seat belt warnings were issued as well as 7,351 other traffic citations."

But here’s where it gets ugly: "In addition to traffic safety violations (which were supposed to be the point of the exercise) numerous other violations of law were detected (without even a scintilla of probable cause, Lynch fails to mention) and appropriate action taken," Lynch’s letter says."Four stolen vehicles were recovered and 35 felony arrests were made for violations such as drugs and parole violations. Also noteworthy (from a civil liberties perspective at least) were the 201 arrests that were made for misdemeanor drug violations." (The comments in parentheses above are mine, and were not in Lynch’s letter.)

Lynch pooh-poohs such civil liberties concerns, saying that people like me who worry about such things "have too little faith in our system and in our courts."

Call me a worrywart, but if you think Driving While Brown is a problem, just wait until police can set up checkpoints on Dexter Street in Central Falls and sweep up illegal aliens by the truckload.

Lynch said that would "be offensive to me, to you and to every other citizen" and would not be permitted. Does that mean illegal aliens would be the only people for whom probable cause will be respected, and the rest of us are on our own?

I would like to report to you that Carcieri, insulted by the very notion that he would participate in the erosion of Rhode Islanders’ individual rights and the sanctity of our constitution, rejected Lynch’s pernicious proposal out-of-hand. But I cannot.

Instead, spokesman Jeff Neal said Friday that Carcieri and his staff"will be reviewing the proposals."

Let’s hope that Supreme Court Chief Justice Frank Williams -- who was appointed to an appellate panel to assure the rights of defendants in military tribunals at Guantanamo Bay -- and the other justices of the high court will be quicker to see this short-circuiting of probable cause for what it is, and keep Rhode Island’s claim for a higher standard of protection of individual rights more intact than those states that allow the police to stop and detain motorists at whim without cause.