The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” — 4th Amendment to the federal constitution
The state must “safeguard the privacy and security of individuals against arbitrary invasions of government officials” (Camara v. Municipal Court, 387 U.S. 523, 528 (1967))
By David Tulis / Noogaradio 1240 AM 101.1 FM
Chattanoogans innocent of any crime come under surveillance starting Sunday on their free use of the roadways, absent any suspicion of crime or evil doing. The Tennessee Highway Patrol, whose beefy officers serve the Department of Safety and Homeland Security, will be blockading local economy and free flow of travelers through Feb. 9 in Hamilton County.
News of the friendly little choke-off of the travel pleasures of members of the public is announced in the Chattanooga Times Free Press’s Tuesday editions in a little 1-column story just at the fold of Page B5. The public notice is part of a Tennessee Supreme Court ruling that says roadblocks for alleged safety purposes must be as unobtrusive as possible against the rights of the people.
The stated purpose is “to help enforce Tennessee driver’s license laws and ensure motorists’ safety,” the story says, citing a news release. “Troopers will concentrate on vehicles driven by motorists who violate driver’s license laws because these unqualified drivers present a significant danger to the public, according to the highway patrol.” The story does not reveal the schedule or location of the checkpoints.
I could not find any details of the Chattanooga-area chokepoints at DOSHS’ website.
A dark night on Suck Creek Road
The ruling that prompts state bureaucrats and state trooper supervisors to publish news releases in the press is that of Larry Hicks, who had the unhappy chance on Oct. 11, 1997, about 1:15 a.m., to be stopped on Suck Creek Road near the Hamilton and Marion county lines. Like those blockades coming next week, the one that snagged Mr. Hicks was conducted ostensibly to check for “free drivers” — people without licenses. Six officers were involved, including two each from the THP, Chattanooga corporation police and Red Bank corporation police.
Mr. Hicks showed his driver’s license. But an officer “detected the smell of marijuana” coming from the car and sent in a relaxed police canine wagging its tail nearby. The dog went wild and Mr. Hicks was placed under arrested.
Mr. Hicks sought to suppress evidence of a five pounds of marijuana seized from his front seat.
The conflict in court and on appeal was how badly the Hamilton County roadblock was executed, and how much it offended the rights of the people. “We are unsure how law enforcement officers have come to believe that drivers’ license roadblocks may be operated with less concern for constitutional requirements than sobriety roadblocks,” Chief Justice Micky Barker of Chattanooga wonders in a footnote. “Article 1, section 7, certainly makes no distinction ***. To be sure, no authority from this Court exists for the proposition that drivers’ license checkpoints may be operated under different or lessened constitutional standard merely because of the label that attaches to them.”
The local roadblock was defective for several reasons, and evidence of contraband was ordered suppressed as evidence. I convert the court’s finding of the roadblock’s defects into a brief prescription to tuck away in the back of your mind. Here are clues in determining if the roadblock that has shanghaied you is worth an on-the-spot citizen investigation.
➤ Advance publicity. The story in the Times Free Press is part of this obligation to let the public know about roadblocks. The story gives no details, locations or schedules, however, giving the discerning motorist a way to avoid their offense. ‡
➤ Roadblock must give warning well before you arrive at it, and there must be lights, signs establishing its authenticity and other features that are part of it enhancing public safety, not reducing it. The Hicks ruling does not speak to the right of the motorist to turn off the road and go another way before the trap is sprung. If you see a sign for a roadblock and don’t to go through it, take the first opportunity to divert your route, I suggest, even go back and go another way. You are under no obligation to enter a police roadblock, though a turnaround might evoke suspicion.
➤ All cars must be stopped in both directions “unless congested traffic requires permitting motorists to pass through.” This feature mitigates the intrusiveness of the driver’s license check. The stop must be “in a safe and visible area.”
➤ “Marked patrols cars with flashing emergency lights” help establish the warning to the public and add to safety factor of blocking traffic on the roadway. The lack of flashing lights, highly visible at night from a distance, means the roadblock violates the Hicks rule. “The presence of advanced warning signs also ‘reassure[s] motorists that the stop is duly authorized,’ thereby diminishing the possibility of surprise, concern or fright.”
Again, the state’s goal is to impose roadblocks, but cause the least disturbance or “fright” to the free people of the state.
➤ The roadblock must be “established and operated in accordance with predetermined operational guidelines and supervisory authority.”
Administrative authority would be hard to determine on the scene. But the matter would emerge in the court case. On the side of the road, you could ask if the blockade is approved by police and/or highway patrol administration, and ask the name and rank of the supervisor. How does this rule benefit you? It forbids lone ranger cops setting up “pretext or subterfuge” roadblocks “to further illegitimate law enforcement practices” for a fishing expedition into your business, including a questioning about your identity, your possessions or travel plans. The people who operate the roadblock CANNOT be the ones who planned it; authority for the roadblock has to come from administration.
Though the absence of any one of these factors doesn’t not necessarily invalidate a roadblock, “they each weigh heavily in determining the overall reasonableness of the checkpoint,” Judge Barker says in the 22-page ruling.
Most important bar to offending you, the motorist
The value of Hicks is the safeguards on officer discretion and fishing expeditions. “The most important attribute of a reasonable roadblock is the presence of genuine limitations on the discretion of the officers in the field.”
Roadblocks often are fruitless exercises of police power. Judge Barker notes that at the suppression hearing the state indicated the late-night scheme “did not uncover a single driver who was operating a vehicle without a valid license.”
He seems to invite police to beef up their stated rationale for the roadblocks, or their marketing materials about roadblocks, by making a show of having a genuine public safety purpose behind them. This part of the opinion seems like friendly advice to law enforcers. It left me with an uneasy feeling, as if he were telling officers just to propagandize loudly enough to make public safety the stated issue. I’ll need to think about this point before saying anything else.
‡ I left a message with DOSHS media person Jennifer Donnals on Wednesday after she had left for home. I request the locations and schedule of these stops. I would like to help the department fulfill its duty to help in the notorious publication regarding roadblocks, to serve the public good by helping its members maintain their rights.