Supreme Court's curious math: How a lawful seizure plus a non-search add up to a Fourth Amendment violation in City of Indianapolis v. Edmond, The

University of Memphis Law Review, The, Summer 2002 by Meehan, Kevin E, Dery, George M III

I. INTRODUCTION

also held, for nearly twenty years, that exposure of an object to a canine sniff in a public place is simply not a "search," and therefore does not even trigger Fourth Amendment protection.4 Moreover, the Court is on record as repeatedly holding that subjective motivation cannot invalidate objectively reasonable behavior.5

When these rulings are taken together, it would seem safe to assume that if a police department carefully sets up checkpoints to meet all the requirements of Supreme Court precedent, and then, without increasing the duration of the brief seizure, had a dog sniff a vehicle's exterior, such a checkpoint would be found lawful under the Fourth Amendment, regardless of the subjective intent behind the objectively reasonable official behavior. The Court's holding in City of Indianapolis v. Edmond, however, has proved such logic to be wrong.6

The problem with simply combining the prior rulings together is that such an approach fails to consider the new judicial math. With the Court's new formulas, a checkpoint, which is even more restrictive on police power7 than those found lawful in the past, can now be seen as violating the Fourth Amendment.8 A canine sniff, previously a constitutional cipher, can now bring an entirely new dimension to any Fourth Amendment seizure problem.9 Moreover, the Court's latest arithmetic enables it to ponder the innermost minds of many police collectively, even though it cannot delve into the mind of an individual officer.10

(whether by citizens or officials) only when they are "written clearly and simply."12 The ruling in Edmond defies this basic logic, and therefore runs the risk of causing confusion on the streets.

This Article begins in Part II with a review of the precedent regarding checkpoints, canine sniffs, and the impact of subjective motivations on objectively reasonable official conduct. Part III presents Edmond; its factual background, lower court rulings, and Supreme Court decision. Finally, Part IV explores Edmond's dramatic changes in course and discusses its potential effects on future cases involving Fourth Amendment balancing of interests.

II. BACKGROUND

A. The Checkpoint Precedent

In describing the choice of checkpoint location, Justice Powell emphasized the administrative nature of these decisions. In Martinez-Fuerte, he asserted, "the location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources."19 The Court specified the factors weighed by such officials:

The Border Patrol believes that to assure effectiveness, a checkpoint must be (i) distant enough from the border to avoid interference with traffic in populated areas near the border, (ii) close to the confluence of two or more significant roads leading away from the border, (iii) situated in terrain that restricts vehicle passage around the checkpoint, (iv) on a stretch of highway compatible with safe operation, and (v) beyond the [twenty-- five]-mile zone in which "border passes" are valid.20

When describing the layout of the checkpoints, Martinez-- Fuerte noted that the government had placed, at various intervals before the stops, large black on yellow signs with flashing yellow lights warning motorists, "ALL VEHICLES, STOP AHEAD, 1 MILE" and "WATCH FOR BRAKE LIGHTS."21 At the actual checkpoint, the Court specified that two more signs, declaring "STOP HERE-U.S. OFFICERS" were posted, accompanied by flashing red lights over the highway.22 Additionally, Justice Powell found it important to note the orange traffic cones routing traffic into two lanes, the full dress uniform of the U.S. Border Patrol agents, the floodlights used for nighttime operation, and the flashing red lights on the official U.S. Border Patrol vehicles, which were blocking the unused lanes.23

operation of the checkpoint. A "point" agent visually screened all northbound vehicles, which the checkpoint brought to a virtual halt.24 Although most cars were allowed to proceed, the point agent had the discretion to determine if "further inquiry [was] in order" for certain motorists.25 Such drivers were then directed to a secondary inspection area, where, for approximately three to five minutes, occupants were asked about their immigration and citizenship status.26 The decision to direct a vehicle to the secondary inspection area was to be "based on something suspicious about a particular car"; however, this suspicion need not consist of any "articulable" suspicion.27 Justice Powell, in his formulation of the issue before the Court, again reiterated that the government stopped motorists "even though there [was] no reason to believe the particular vehicle contain[ed] illegal aliens."28

After its detailed recitation of the facts of the case, Marinez-Fuerte turned to assessing the reasonableness of the checkpoint seizures. Justice Powell determined that in the particular context of government action in the absence of probable cause,29 the Court "delineat[ed] the constitutional safeguards" by a balancing analysis wherein it "weighed the public interest against the Fourth Amendment interest of the individual."30 Since the stops in Martinez-Fuerte were conducted without any indivudualized suspicion, the Court began its balancing in order to decide whether reasonable suspicion was a prerequisite to a valid stop.31