What do you know about highway checkpoints, other than preferring that you not end up in one?  Not much, and the police are counting on you not learning enough to beat them at their own game.  Checkpoint basics are fairly straightforward, sobriety checkpoints being lawful as long as they are conducted in a pre-determined random fashion, whether it’s every car or every sixth car.

Drug checkpoints, on the other hand, are unconstitutional. That means they can’t lawfully do them, though it doesn’t mean they can’t walk a dog around your car at a sobriety check point for kicks. But there is another trick with drug checkpoints that’s more interesting. Put a big sign on the highway that there’s a drug checkpoint ahead and see who avoids it. Cool trick, right?

From the Washington Post :

Police in the Cleveland suburb of Mayfield Heights know they’re not allowed to use checkpoints to search drivers and their cars for drugs.

So they’re trying the next best thing: fake drug checkpoints.

Police in the city of 19,000 recently posted large yellow signs along Interstate 271 that warned drivers that there was a drug checkpoint ahead, to be prepared to stop and that there was a drug-sniffing police dog in use.

There was no checkpoint ahead. That would be wrong. But is there anything wrong with fooling the unwary into taking evasive action and thereby creating a reasonable suspicion?  Some people pull to the side of the road, which would allow them to dispose of contraband. Sometimes there’s an exit before the checkpoint and they head off the highway. Some make a U-turn. To a hammer, these all look like nails.

Dominic Vitantonio, a Mayfield Heights assistant prosecutor, said the fake checkpoints are legal and a legitimate effort in the war on drugs.

“We should be applauded for doing this,” Dominic Vitantonio said. “It’s a good thing.”

And yet, he won’t be winning the ACLU’s Man of the Year award. Again. But it’s hardly a foregone conclusion that such conduct is “legal and legitimate.”  If cop was to threaten to beat a person senseless with his baton for fun, a sufficiently clear unlawful act (yes, Vitantonio?), in order to induce the person to either consent to a search, assault the cop in defense or flee, either way using his reaction as the basis to take further action against the person, would that fly?

Bill Peters, one of the four drivers pulled over as a result of the fake checkpoint, said he wonders if he was targeted because he has long, unkempt hair.

Four drivers? With results like that, who can blame the Mayfield police for being so aggressive. Society will be forever in their debt, as will hair stylists.

Peters, of Medina, said he was driving on the interstate when he missed his exit. He pulled over to check his phone for directions, then pulled back onto the freeway when his phone disconnected from the charger, causing him to pull over again to reconnect it, he said.

Soon after returning to the freeway, police pulled him over.

No drugs were found (of course), but this goes not so much to the legality of the tactic, but the fact that the actions of drivers may have nothing whatsoever to do with the phony checkpoint. Hammer, nail, directions. Or maybe they had always planned to get off at the next exit. Or maybe they forgot something and had to turn around. Or maybe they have to go to the bathroom and remember that fast food joint they just past. There are a ton of reasons why people do what they do having absolutely nothing to do with whatever the Hammers have in their heads.

The point being that the characterization of drivers’ conduct in relation to a phony checkpoint sign lacks any substantive basis in fact to give rise to a suspicion of anything.  But this, of course, doesn’t mean that it won’t suffice to persuade a court that it gave rise to reasonable suspicion. There’s the rub.

All it takes is for the cop to have a reasonable and articulable basis. It’s an extremely low threshold, and need not exclude the thousand others bases for people doing whatever the feel like doing, including deciding they just don’t feel like being party to a police checkpoint.

Can the cops create the scenario that gives rise to the actions or reactions that create the appearance of reasonable suspicion where none otherwise exists?  Given the Supreme Court’s approval of pretextual stops in Whren, it would appear they can. The standard is purely objective, whether the conduct can be justified without regard to any subjective belief or purposes on the part of the cops. 

The bottom line is that the police use lies in order to get people to give them what they’re looking for all the time, and the courts are more than willing to embrace this as a necessary weapon in the war on whatever war they are fighting today. 

Lawprof  Jonathan Turley appears to suggest that this is abusive and unlawful:

I would challenge any such stop. There are ample reasons for citizens to want to avoid police abuse, which is what the signs are promising since police cannot engage in such action.

The fact that the prosecutor, Mr. Vitantonio, supports such abusive practices shows a serious gap of judgment in this jurisdiction. He appears to believe that citizens should be stopped if they take any effort to avoid an act of police abuse. I hope that one of these four citizens will challenge their arrests and put Mr. Vitantonio’s theory to the test.

It strikes me that Turley is half right. While I agree that pulling such stunts on people driving down the highway is abusive and deliberately intended to undermine their constitutional rights, I fear that there is nothing unconstitutional about it. That doesn’t make it right, any more than the horrific Whren decision, which reflects constitutional doctrine that rewards police for being liars. But blaming Vitantonio for being a tool doesn’t change the fact that the courts similarly allow such abuse to happen under the guise of small inconveniences for the greater good of the War on whatever.

The best thing to remember is that drug checkpoints, at least, are unconstitutional, so should you see a sign alerting that a checkpoint is up ahead, drive on, dude. Drive on.