photo credit: OfficerGreg

If one pattern can be deduced from the manner by which governments have historically operated, it is that supposedly noble intentions often lead to a violation of liberty; desired and intended consequences ultimately give way to undesirable and unintended consequences. It is how America first crept, and now is running, towards becoming a police state.

In a 1783 speech in the House of Commons, the English Prime Minister William Pitt correctly observed that “necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.” Thus, to pinpoint possible infringements of liberty, one need only take account of arguments advanced by those who claim a certain law to be necessary. While clearly not universally applicable, the general rule is enough to prove Pitt prophetic.

The Transportation Security Administration is one example where this argument is used. It is claimed by this federal agency and its supporters that terrorists need to be stopped before they can attack Americans on our soil, and that therefore the TSA needs to inspect passengers and their belongings before boarding a plane. This, of course, is done in direct violation of the Fourth Amendment to the U.S. Constitution, which allegedly guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” which may only be legitimately curtailed with a warrant, given “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

This institutional violation of this essential right can, of course, be avoided by not flying. (For now, at least—the TSA’s tentacles are stretching outwards to other modes of transportation.) A person driving a vehicle who encounters a random police checkpoint is afforded no such option to opt-out, for if you were to turn around or try to avoid the checkpoint, police would not only go after you, but likely would feel that they had “probable cause” to search you and your vehicle for your act of defiance.

Tens of thousands of innocent Americans are detained each month at police checkpoints which consider individuals to be guilty before proven or assumed to be innocent. Instituted primarily and supposedly to target drunk drivers, these checkpoints have expended significantly over the years to justify the arrogation of intrusive police powers over citizens.

It happens in Utah. And while the Fourth Amendment applies to the federal government (setting aside the troublesome incorporation doctrine), Utah’s own Constitution contains the same exact text (with minor punctuation modernization)!

Yet the police continue to detain drivers, with no probable cause or suspicion. Over Labor Day weekend a few months ago, Utah Highway Patrol officers put in an estimated 1,000 hours of overtime to help conduct a number of checkpoints. In two of those checkpoints, officers stopped 1,000 drivers and found not a single case of somebody driving under the influence. Police are quick to claim that this is a “success” which shows that their methods are working, but this completely disregards the fact that 1,000 drivers have had their rights violated (even if such people find it to be an acceptable inconvenience).

Supporters of sobriety checkpoints point to Michigan Department of State Police v. Sitz, a case in which the United States Supreme Court decided in a 6-3 vote that somewhere in the Constitution there exists something called a “DUI Exception.” This ruling overturned that of the lower Michigan Court which concluded that checkpoints were unconstitutional. Plaintiffs in the case argued that general searches with no suspicion violate the Fourth Amendment because they have no individual, reasonable suspicion. The U.S. Supreme Court, however, rejected such privacy concerns and rubber-stamped the status quo. In the majority opinion, Chief Justice Rehnquist declared:

For the purposes of Fourth Amendment analysis, the choice among reasonable alternatives remains with the government officials who have a unique understanding of, and a responsibility for, limited public resources.

Thus, due to limited resources and a “unique” understanding of them, police were given a “choice among reasonable alternatives” to hunt down drunk drivers, despite any privacy rights of those who were not drunk, nor were ever suspected of being drunk. In the dissent, Justice John Paul Stevens stated:

On the degree to which the sobriety checkpoint seizures advance the public interest … the Court’s position is wholly indefensible…. The evidence in this case indicates that sobriety check points result in the arrest of a fraction of one percent of the drivers who are stopped, but there is absolutely no evidence that this figure represents an increase over the number of arrests that would have been made by using the same law enforcement resources in conventional patrols.
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A Michigan officer who questions a motorist [seized] at a sobriety checkpoint has virtually unlimited discretion to [prolong the detention of] the driver on the basis of the slightest suspicion…. [The] Court’s decision … appears to give no weight to the citizen’s interest in freedom from suspicionless unannounced investigatory seizures.

The Court further declared that since the checkpoints were equally intrusive on all detained drivers, no one individual could legitimately complain about their intrusiveness. This, of course, is a complete reversal and violation of the Fourth Amendment which guarantees the right to be left alone to all people with only specific exemptions, rather than justifying the restriction of that right in general cases where the imposition may be small, and the “public safety” interest deemed sufficiently important.

Despite there now existing an “exemption” for DUI checkpoints, justified by a few black-robed lawyers, the policy must still also comply with state law. Eleven states currently prohibit sobriety checkpoints. In that list is included Michigan, since after the U.S. Supreme Court’s ruling, the Michigan Supreme Court felt strongly enough about the issue to declare that regardless of the superior court’s ruling, their state’s Constitution still made such checkpoints illegal within Michigan’s boundaries.

It’s time to add Utah to that list.

HB140, sponsored by Rep. David Butterfield, would do just that. This bill would amend the existing law relating to vehicle checkpoints by codifying the following repeal of the existing practice:

All law enforcement agencies in this state, including state, local, and college or university law enforcement agencies, are prohibited from implementing or conducting administrative traffic checkpoints, except as provided in Section 77-23-103.

The referenced section would allow for checkpoints when officers are acting in accordance with a warrant, when there is probable cause to arrest or search, or when they are acting under emergency circumstances, etc. In other words, it would rightly restrict the practice only to cases in which a specific case of justice was legitimately being pursued.

Those who will oppose this effort include the law enforcement community and Mothers Against Drunk Driving, who want to use all methods at their potential disposal to protect the so-called “public safety.” But these groups in many cases neither recognize nor respect the rights of individuals being repealed in the process. Focusing on an end goal with little regard for the means of achieving it is highly problematic, to say the least.

If “necessity is the plea for every infringement of human freedom,” as Pitt noted, then “public safety” is the pretext for each incremental step towards a police state. Benjamin Franklin’s famous quote that “they who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety” is wise and well known. By clamoring for “public safety” while disregarding the rights of individuals to be free from unreasonable and general searches and seizures, we creep ever more closely to an authoritarian state which codifies government-granted freedoms, rather than recognizing and protecting individual rights.

There is a wide chasm between prosecuting and punishing drunk drivers, and creating and enforcing laws which presume that all drivers may be treated by police as a possible drunk driver. Sobriety checkpoints operate under the implicit (if unspoken) belief that it is more preferable to annoy people than to actually protect them.

Utah has an opportunity to join the increasing number of states which recognize that checkpoints are a violation of one’s right to be free from search and seizure without probable cause and reasonable suspicion. Please contact your legislators today and encourage them to support HB140.