A New Year And New Meaning Of Flashing Lights

As New Year’s Eve approaches, preparations are made by police across the nation to block the paths of cars.  No longer is it limited to drivers who sipped more than the Mothers Against Stuff They Don’t Like think they should, but to those who may have toked too hard or taken a Prozac over the line. Or at least what appears to be drugs to a stick.

The law of roadblocks is a curious one, allowing police to seize and detain a person provided it’s done in a non-random fashion. Delaware v. Prouse provided the road map, where the Supreme Court decided it had the authority to “balanc[e] the public interest against the individual’s Fourth Amendment interests.”  Essentially, the Court decided that it just wasn’t such a big deal to suffer the loss of the right to be left alone if it made law enforcement more effective in preventing whatever the cops wanted to prevent that day.

While roadblocks that pull people aside based on their skin color, car type or personal ugliness remain unconstitutional, it’s perfectly lawful to pull over every third car, if that’s what is determined in advance of the roadblock, to check seatbelts, intoxication or registration. And yes, they get to “command” you to lower your window, get out of the car, stay in the car, or do the hokey pokey, because that’s what the law provides.  They’re professionals.

At the same time, the National Highway Traffic Safety Administration and the White House Office of National Drug Control Policy are engaged in a voluntary survey, being undertaken by private contractors.  It involves police pulling drivers off the road in what appears to be a roadblock but isn’t.  They did this in Texas, and it didn’t go well. So they are now doing it elsewhere.

The deal is that local police, with turret lights flashing, herd motorists into a lot where survey takers offer, with some persistence, to take cheek swabs, for which they’ll pay a small bounty. Of course, motorists can’t distinguish the flashing lights for this survey, voluntary in the sense that if you refuse at least three times, they’ll let you go, from sobriety checkpoints.  What happens if a motorist just keeps driving remains a mystery.

A recent Georgia appellate decision reversed a trial court that held the lights atop a police car  were merely an invitation to chat rather than a command to stop, the refusal of which tended to produce death by a hail of gunfire.

The law of roadblocks is bad enough, elevating some amorphous sense of public safety over the right to be left alone.  After all, it’s rather hard to justify a seatbelt or registration check as being critical to the lives of other motorists. Then again, given that driving has been held to be a “privilege,” notwithstanding its having become rather pervasive and necessary in society, the right to be left alone while behind the wheel has long been considered more a courtesy than right.  But by adding into the mix these survey stops, law enforcement has undermined the efficacy of its own situation.

Lights flashing. Cars being pulled off the road. All a constitutional seizure, and yet not. This is a doctrinal disaster in the making, which is why I’ve labored through the above cursory review to get to the point of this post.

The use of police to conduct this NHTSA survey has fundamentally altered the equation of a car stop, and the cops have done this to themselves. Aside from the absurd Georgia decision, there was never a suggestion that a driver had authority to ignore the “command” to pull over from a cop with lights blazing. That can no longer be said as a matter of law now that the police have squandered their authority to assist in a “voluntary survey.”

Flashing lights look no different when it’s a lawful sobriety checkpoint than when it’s a voluntary survey conducted by private contractors for a government agency. While the former requires compliance, the latter is of no consequence whatsoever.  To borrow from Prouse’s rationale, just as there is no law preventing police from chatting you up like anyone else on the street, there is no law requiring you to chat ‘em back.  Not in the mood to chat? Keep walking.

Not in the mood to take a survey? Keep driving. Forget those flashing lights.  This is the message that comes of the extension of authority without any lawful basis or judicial approval.

Now, I’m no fan of drunk driving. I want my family to make it home safely just like the Mothers Against Stuff They Don’t Like. So don’t do it and harm my family, or I’ll hunt you down like a dog. But now that law enforcement has given away the lawful significance of its flashing lights to a private contractor conducting a voluntary government survey, the validity of its command to stop in response to those lights is now suspect.  In other words, you blew it, guys.

On the other hand, if you ignore the flashing lights and drive past the voluntary survey, there remains a pretty good chance the cops will chase you and you will die in a hail of bullets.  I wouldn’t take the chance, but it’s still totally wrong.

17 comments on “A New Year And New Meaning Of Flashing Lights

    1. UltravioletAdmin

      But I don’t want to go shopping with my wife. If it counts as work than I can’t get out of it by claiming I have to work.

  1. Nigel Declan

    In Dryer, wasn’t it the trial court that held that the flashing lights didn’t amount to a stop, which the Appellate court overturned, distinguishing it from Collier?

  2. Tim Cushing

    Ricardo Nieves (from the Reading, PA NHTSA traffic stops) has now filed a lawsuit against the city of Reading, Police Chief Heim, the private contractor (PIRE) who collected the blood/saliva and Mayor Vaughn Spencer for violating his Fourth Amendment rights and false imprisonment.

    I notice Chief Heim hasn’t been nearly as contrite in the face of criticism as Ft. Worth Police Chief Halstead was once the backlash kicked in after its “collaboration” with the NHTSA.

    [I'd post links but I know the rules. Courthouse News Service has the details on the lawsuit. I've got the docs posted at Document Cloud. A search for Nieves should bring them to the surface.]

      1. Tim Cushing

        Maybe because complaining to the police department tends to result in being ignored (best case scenario) or additional scrutiny and attention from irritated officers and supervisors.

        1. SHG Post author

          So negative. Don’t you realize how hard and dangerous police work can be? And they do it all for us, to protect and serve, etc. What about the children?

  3. Lurker

    I really wonder the problem here: why is this kind of issue left for case law? Is there really no statute law on the authority and methods of the police to stop drivers? I know that Anglo-Saxons are heavy on judge-made law, but still, I would believe that some bureaucrat or a legislator would write a piece of written legislation on the issue just to make himself important.

    In Finland, for example, the Road Traffic Act lists the persons who have the authority to stop a motor vehicle by visual command. This includes police officers and certain civilian and military persons who either have that power by virtue of their job or have been designated by the police or the military to direct traffic. (On road construction sites, the traffic wardens are typically teenagers. Reaching majority is not a requirement.) And by “stopping” I really mean stopping as in “red light”. The power to stop a vehicle is a lawful traffic instruction to stop but does not give any further rights. It simply allows one to prevent traffic from advancing if there is a legitimate reason. (The police have, by statutory law, other powers to use after the stop but they are not the issue here.)

    Then, in the Road Traffic Decree, that is given by the Government as authorised in the Act, the allowable methods for stopping vehicles are listed:
    * a raised hand by a uniformed police officer, border guard, customs official or a military serviceman
    * a raised “do not pass” sign by any person lawfully having the authority
    * a “do not pass” sign or red light extended from a car operated by police, border guard or the customs , either meeting you or behind you
    * flashing red and blue lights from a police patrol car behind you
    So, in Finland, disregarding any of these signals is a traffic infraction in itself, just like disregarding any other traffic sign.

    Can it really be that these issues are left in the US to be regulated in police handbooks and road construction manuals? It really seems odd.

  4. Pingback: Those New Year's police checkpoints - Overlawyered

  5. LibertyTreeBud

    Individuals who don’t like ‘gauntlets’ of force should have a way to avoid them. A device that could read alerts from people who ‘announce’ the locations of the gauntlets so one can plan to avoid it. A camera drone could fly up ahead and reveal what is coming would be useful, tethered electronically to one’s car. One must think of the future when there are no rights. They’ll be checking cars for cash, valuables, food, water and pets. You might be prevented from crossing county or state lines if you have a fever or a child is sick. Forced vaccines could be waiting for you at these ‘check-points’. The risk of having your property confiscated or your DNA, saliva or blood swap taken from you for what ever excuse they give you could all be used to somehow incriminate you in some twisted way. We must plan for how we’ll be able to get to where we want to go without molestation from the ‘gauntlet police’

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