04 July 2009

Checkpoints, again.

Three sobriety checkpoints, 15 hours total, at least 30 cops pulling down overtime pay to arrest and search, without probable cause, all the occupants of 163 vehicles.
Three drivers were arrested for DUI, representing 1.8% success, or 1 arrest every 5 hours — during the kickoff of a holiday weekend characterized as much by alcohol consumption as fireworks. Honestly, do those figures even remotely indicate something like a crime epidemic justifying a suspension of all these people's Constitutional protections?
Yeah, I know that SCOTUS has settled this issue. Chief Justice Rehnquist wrote the 6-3 opinion in Michigan State Police v. Sitz, 496 U.S. 444 (1990). Here's the majority's argument:
1. The Fourth Amendment only protects citizens against unreasonable searches & seizures.
2. A sobriety checkpoint is indeed a seizure (i.e. arrest, in the sense of a "stop") and a search.
3. This search & seizure is not unreasonable because discovering drunk drivers constitutes a special need beyond the ordinary need for law enforcement.
4. The government's (law enforcement's) special need must be balanced against the citizen's expectation of privacy to determine whether it is practical to require a warrant or individualized suspicion.
5. The magnitude of the drunk driving problem is indisputable because the media reports that the slaughter is akin to battlefield-type levels.
6. Sobriety checkpoints are only slightly intrusive and citizens are unlikely to be frightened or annoyed by this kind of government intrusion.
7. We, as judges, are not the appropriate parties to determine what degree of success is adequate success justifying continuation of checkpoints — other authorities should decide that.
8. Sobriety checkpoints generally discover that 1- 1.5% of all drivers seized & searched at checkpoints are under the influence. In a different case, we decided it was okay that illegal alien checkpoints were successful .12% of the time.
9. Therefore, sobriety checkpoints are reasonable and do not offend the Fourth Amendment protection against random, warrantless, suspicionless search & seizure.
It was out of utter exasperation regarding their oppressive and intrusive government that the Founding Fathers committed treason against England to establish a new nation predicated on a restrained government in service of free citizens who were not mere subjects of a crown. So although Rehnquist is regarded as the godfather of the modern "judicial conservative," there really isn't a goddam thing about this argument that could remotely be considered "conservative."
A genuinely conservative judge would demand the government produce a overwhelming justification for encroaching on a citizen's life, liberty, and pursuit of happiness. A genuine conservative would presume that the government's violation of a citizen's Constitutional rights requires little short of a national emergency.
The Founding Fathers would have lined up to kick Rehnquist squarely in the balls for making that kind of "if the state wants to, it must be okay" argument.
As an American I don't even know how to call this kind of groveling toward authority — but it sure as shit ain't "conservative" in the sense of "traditional." I do know this: the violence that Chief Justice Rehnquist, his protege Chief Justice John Roberts, and the rest of their self-styled "conservative" ilk have done, and will continue to do to our Constitution will not be undone in my lifetime, if ever.

1 chimed in:

Rick i PV said...

Amen, brother! I thought I was the only one who noticed or cared about this emasculation of the Fourth Amendment.