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.