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GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE ATTORNEY GENERAL
Legal Counsel Division
MEMORANDUM
TO: Peter J. Nickles
Interim Attorney General
FROM: Wayne C. Witkowski
Deputy Attorney
General
DATE: June 4, 2008
RE: Legal Sufficiency of Metropolitan
Police Department Plan to Restrict Vehicle Traffic in High Crime
Neighborhoods (AL-08-322)
This memorandum is in response to a proposed initiative
by the Metropolitan Police Department ("MPD") to address the
recent increase in violent crime in certain neighborhoods of the city by
restricting vehicular traffic from entering such neighborhoods. For the
reasons that .follow, the proposed initiative, as summarized herein, is
legally sufficient.
INTRODUCTION
I understand that in the last several weeks, there has
been a marked increase in reports of violent crime in certain localized
areas and neighborhoods of the District and that increased patrols and
other efforts have failed to make a significant impact on this problem.
I also understand that MPD believes the criminal activity primarily
involves non-residents of the various neighborhoods and that the chief
form of ingress and egress into these neighborhoods is by vehicle.
THE PLAN
MPD proposes a plan, set forth in Special Order SO-08-06
(effective June 4, 2008) by which the Chief of Police, based upon
intelligence reports, statistical information and other relevant data,
would designate a specific area of the District as a "violent crime
area" in need of emergency measures. The emergency measures would
consist of creating MPD-staffed check-points around the area designed to
turn away non-neighborhood resident vehicular traffic and vehicles that
do not have a legitimate purpose in the neighborhood.
Under the Special Order there would be no random vehicle
stops. Rather, all vehicles attempting to enter the secured area would
be briefly stopped by an MPD officer at the check-point. The MPD officer
would ask the driver what his or her purpose was in the neighborhood. Absent "exigent circumstances,"
if the driver's answer consists of any of the following, the vehicle
will be allowed to pass: 1) the driver resides in the secured area; 2)
the driver is employed in the secured area or is on a commercial
delivery; 3) the driver attends school or is taking a child to school or
a day-care facility in the secured area; or 4) the driver is a relative
of a person who resides in the NSZ; 5) the driver is seeking medical
attention, is elderly, or is disabled; and 6) the driver is attempting
to attend a verified organized civic, community or religious event in
the secured area. The officer would be permitted to ask for
identification or other information to verify any of these purported
purposes. Also, an MPD official of the rank of Sergeant or above
assigned to the NSZ may approve the entry.
If the answer is not consistent with any of these, or if
no answer at all is given, the driver will be forbidden from entering
the secured area. No search of the vehicle will be conducted nor will
the driver be further detained unless there is reasonable suspicion or
probable cause to believe that a crime is being committed.
ANALYSIS
The plan described above has its roots in a similar
program conducted by law enforcement in New York City in 1992 during a
period of increased, localized violent crime. That program was
challenged when a retired police officer was involved in an altercation
with check-point officers. See Maxwell v. City of New York, 102 F.3d 664
(2nd Cir. 1996), cert denied sub nom. Maxwell v. Bratton,
522 U.S. 813 (1997). The plaintiff challenged the stop on the basis that it
consisted of a violation of his Fourth Amendment right to be free from
unreasonable searches and seizures. The trial court agreed, but on
appeal, the court of appeals reversed. The court of appeals based its
decision on an earlier Supreme Court case that dealt approvingly with
sobriety check point stops. See Michigan Department of State Police v.
Sitz, 496 U.S. 444 (1990). In the Sitz case, the Supreme Court posited a balancing test
acknowledging that all checkpoints constitute a "seizure," but
stating that in determining the reasonableness of taking such measures,
the seriousness of the problem being addressed by the check-point had to
be measured against both the impact of the check-point in solving the
problem as well as the level of intrusiveness on the seized individuals.
Id.
Applying this test in Maxwell, the court of appeals ruled
that: 1) the check-points served an important public concern in
attempting to address drive-by shootings and drive-up drug sales; 2) at
the time of implementation the check-points were reasonably perceived as
an effective mechanism to deter the aforementioned criminal behavior;
and 3) the intended level of intrusion was minimal because no vehicle
was to be stopped or its operation questioned unless entry into the
secured area was attempted. Those who were stopped were simply questioned concerning their
connection to the neighborhood, and were always free to go, even if they
chose not to answer. Maxwell, 102 F.3d 664, 667.
The court analogized the program to a similar check-point
system intended to interdict the flow of illegal aliens, which was
upheld by the Supreme Court. United States v. Martinez-Fuerte, 428 U.S.
543 (1976). There, the court determined that the level of intrusiveness
was so minimal - answering one or two questions and possibly producing
documents evidencing a right to be in the country - that no violation of
the Fourth Amendment occurred.
The Maxwell court rejected an argument that the stop was
excessively intrusive because of the discretion the check-point officers
had to turn away vehicles, stating that the instructions to the officers
concerning who would and would not be allowed entry (as set forth above)
were clear and, in fact, afforded the officers on the scene very little
discretion. 102 F.3d 664, 668. Finally, the court noted that simply
turning away a vehicle when no legitimate reason for the entry is given,
constitutes neither a search nor a seizure because to be a seizure
requires a restriction of the person's liberty, and instructing an
individual that he or she can go anywhere in the world except the one
place that is restricted does not deprive the individual of his or her
liberty to leave. Id. at 668, n.2 (citing Sheppard v. Beerman, 18 F.3d
147 (2w' Cir.), cent denied, 513 U.S. 816 (1994) (holding that a fired
court employee who was escorted from the courthouse was not seized
because the individual was free to go anywhere in the world but the
courthouse)).
It should be noted that, although certiorari was denied
in the Maxwell case, the Supreme Court decided another case some years
later holding that drug interdiction check-points violated Fourth
Amendment protections. City of Indianapolis v. Edmund, 531 U.S. 32
(2000). I believe that case to be distinguishable from both Maxwell as
well as the proposed plan here.
In Edmund law enforcement officers set up a vehicle
check-point on a highway outside of Indianapolis with the sole intent of
interdicting drug trafficking. Id. Officers demanded licenses and
registrations, peered into windows, and led drug-sniffing dogs around
the vehicles. Officers were only allowed to search the vehicle if some
particularized suspicion developed or upon consent. In holding that this
program violated the Fourth Amendment, the Supreme Court determined that
the primary purpose of the check-point was to "uncover evidence of
ordinary criminal wrongdoing" and therefore did not fit into one of
the exceptions for suspicion-less seizures.1
Id. at 42.
Based upon the Court's reasoning in Edmund, and in light
of its other decisions in which suspicion-less check-points were upheld,
I conclude that the proposed check-point program described here would
not violate the Fourth Amendment. The intent of the program is not to
uncover evidence of ordinary criminal wrong-doing. It is more akin.
to sobriety check-points, in which physical safety of the roadways
is the primary goal. So too, is it the goal of MPD here to quell the violence in
certain neighborhoods, not by arresting wrong-doers (such as drug
couriers) but by preventing violence before it occurs by barring
unauthorized vehicular traffic from certain defined areas.
In implementing any such program, however, the following
measures should be taken:
1. Purpose of the Check-Point Must be Stated - The MPD
Special Order correctly states its purpose, which is to pursue the
public's interest in resolving the criminal violence in the community
and to protect the "health, safety, and welfare" of residents
of and visitors to the District of Columbia.
2. Instructions to the Officers - These instructions
should serve to limit the objective intrusion of the stop by strictly
limiting the duration of these seizures so that the stated purpose of
the checkpoint is achieved, i.e., checking identification and
determining ties to the restricted area. Specific instructions would
include the following:
a. Officers should be told to stop all vehicular traffic.
b. Officers should be instructed that no searches should
take place unless they make a plain-view observation that give them
probable cause to believe that there is evidence of contraband in the
vehicle or a crime being committed. Certainly, officers could ask for
consent to search the vehicle absent probable cause, but I recommend
against doing so because such conduct could be used as evidence that the
true purpose of the check-point is to uncover evidence of ordinary
criminal wrongdoing, and therefore not a reasonable seizure.
c. Officers should be instructed to permit entry only
when: i) the driver resides in the secured area; ii) the driver is
employed in the secured area or is on a commercial delivery; iii) the
driver attends school or is taking a child to school in the secured
area; iv) the driver is seeking medical attention, is elderly, or is
disabled; or v) the driver is attempting to attend a verified organized
civic, community or religious event in the secured area. Discretion
should be limited, and the Special Order would permit entry for
"exigent circumstances" - a decision which, when time permits,
presumably would be made by the MPD official of the rank of Sergeant or above, assigned to the
NSZ.
d. For vehicles barred from entry, officers should be
instructed to inform the drivers that they can park the vehicle and walk
into the secured area, or that they are free to otherwise drive away.
e. Officers should be instructed to provide an egress
point for vehicles that are either turned away or do not wish to
approach the check-point.
f. Officers should be instructed that refusal to answer
any or all questions should not be viewed as a basis for suspicion, and
such drivers should be allowed to depart without being further detained.
3. Sign Posting - The goal here is to give drivers
warning of the check-point so that they are not surprised or fearful.
Though not a necessary element under the Maxwell analysis, it could be an important factor in
defending a Sitz challenge to the program.
4. Avoid Traffic Congestion - Delay is one of the factors
in the Sitz balancing test. As a result, unreasonable delay in
approaching the check-point may result in a finding that the check-point plan is not reasonable.
Should you have questions regarding this memorandum,
please contact either Darrin P. Sobin, Assistant Attorney General, Legal
Counsel Division, at 724-5560, or me at 724-5524.
GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE ATTORNEY GENERAL
Legal Counsel Division
MEMORANDUM
TO: Peter J. Nickles
Interim Attorney General
FROM: Wayne C. Witkowski
Deputy Attorney
General
DATE: June 10, 2008
RE: Supplemental Legal Sufficiency of
Metropolitan Police Department Plan to Restrict Vehicle Traffic in High
Crime Neighborhoods
Neighborhood Safety Zones
(AL-08-322-B)
This memorandum is in response to questions that have
been raised concerning the constitutionality of the above-referenced
plan. You requested this memorandum following inquiry by the Public
Defender Service (PBS) and its concern that several local cases
concerning suspicion-less vehicle stops by the Metropolitan Police
Department ("MPD") might call into question the legality of
MPD's Neighborhood Safety Zone initiative. These cases - all reviewed by
this Office prior to my June 4, 2008 memorandum to you granting legal
sufficiency of the subject program - do not change my earlier
conclusions that the Neighborhood Safety Zone program is legally viable.
Nonetheless, they are addressed individually below.
The District's Federal Courts
United States Y. Davis, 270 F.3d 977 (D.C. Cir. 2002)
This case involved a criminal conviction for possession
with intent to distribute crack cocaine and the denial of a motion to
suppress evidence. The evidence was obtained during a check-point stop
in 1999 as apart of MPD's "Summer Mobile Force" program (the
vehicle had a forged inspection sticker and altered temporary tags both
of which were noticed during the stop). The question was whether the
check-point (referred to by the Court as a roadblock) itself constituted
a 4h Amendment violation. The trial court made certain findings
including that the purpose of the particular check-point in question was
for vehicular regulation, to increase police presence and visibility,
and to curb narcotics. While noting that a check-point for purposes
of vehicle regulation was valid, the Court nonetheless remanded the case
to the trial court for additional findings on the overall purpose of the
"Summer Mobile Force" program - not just the purpose of the
particular check-point in question, which was the only evidence offered.
The Court appeared to be concerned about City of Indianapolis v. Edmund,
531 U.S. 32 (2000), and its requirement that the overall purpose of the
program must be a valid one.
The Court noted that on remand, if the primary purpose of
the check-point were determined to be a valid one, the program itself
must also be able to achieve its purpose. Interestingly, the Court
mentions that it is not necessary to rely only upon statistical data to
measure the program's success.
United States v. Bowman, 496 F.3d 685 (D.C. Cir. 2007)
This was another case in which there was a drug and
weapon arrest incident to a checkpoint stop (open container of beer in
plain sight led to a pat-down search). The Court once again remanded the
matter to the trial court because the trial court made no findings of
the check-point's overall programmatic purpose or whether the
check-point furthered the purpose it set out to accomplish (i.e.,
traffic regulation). The Court was concerned because the only evidence
of purpose came from a low ranking MPD officer who testified concerning
why he chose that particular site for a check-point. Though the purpose
of the check-point ostensibly was for traffic regulation, the officer
acknowledged that his team's regular duties consisted of "generally
combating crime" in the 7th District, including the retrieval of
guns and drugs from the streets. The Court seemed to doubt that the
purpose of the road-block was simply traffic regulation, but remanded
the case so that the trial court could make the necessary findings.
D.C. Court of Appeals
Galberth v. United States, 590 A.2d 990 (D.C. 1991)
Predating both Davis and Bowman (and Edmund as well),
this case involved the consolidated appeals of two defendants arrested
at two separate check-points. The two check-points at issue were
established in connection with Operation Clean Sweep, an MPD program
instituted in August 1986 to address illegal drug trafficking,
particularly sales in open air markets, and accompanying violence in the
District of Columbia. Because separate findings were made by two
different Judges below, the Court of Appeals analyzed each check-point
separately. In the first case - "Galberth" - the court found
that the purpose of the check-point was to combat narcotics trafficking
and, indeed, that it was the primary purpose of the program.1 As a
result, it concluded that the checkpoint was unconstitutional because it
did no more than promote the general law enforcement purposes of MPD.
This case, as well as the others addressed above, are all
distinguishable from the Neighborhood Safety Zone ("NSZ")
initiative. As an .initial matter, it should be noted that the Galberth
case predates not only the Edmund case, but the Maxwell case as well (the Second Circuit case upon which we patterned the
NSZ).2
This is important for two reasons. First, although the Galberth case
almost seems to anticipate the holding in Edmund that a police
check-point to directly interdict drug trafficking is unacceptable, the Edmund decision actually used some very specific
language that could be viewed as supportive of an initiative like the
NSZ. Noting in Galberth that the Supreme Court had "never upheld
... a police roadblock designed to promote general law enforcement
purposes," it went on to conclude that the government did not have
a legitimate purpose. Galberth at 998. But, the phrasing actually used
by the Supreme Court in Edmund was that the improper primary purpose of
the check-point was to "uncover evidence of ordinary criminal
wrongdoing." Edmund at 42. That distinction is important because
the NSZ does not seek to uncover any evidence of criminal wrongdoing.
Indeed it does not even seek to promote lawful vehicular operation as in
other cases reviewed by the District's court system. The NSZ does no
more than turn-away vehicular traffic that does not have a legitimate
purpose in the area.
It should also be noted that neither Edmund nor any of
the above-'referenced cases that post-date Maxwell, even mention the
Maxwell decision. One would expect a reviewing court to address all
authority it considered relevant, whether in a positive or negative
light, especially a case that comes from a nearby circuit and in which
certiorari was denied. It is telling that latter decisions did not do
so.
The Supreme Court
Illinois v. Lidster, 540 U.S. 419 (2004)
Finally, PDS points to Illinois v. Lidster, 540 U.S. 419
(2004). It is curious that this case would be identified at all because
the Supreme Court, in upholding the constitutionality of check-point
stops, distinguished it from Edmund. There, a check-point was set up at
which all motorists were systematically stopped so that police could ask
them for information about a recent fatal hit-and-run accident on that
highway and hand each driver a flyer requesting assistance in
identifying the vehicle and driver involved in the accident. The
respondent was arrested when he attempted to pass through the checkpoint
and officers smelled alcohol on his breath (he failed the ensuing
sobriety test).
In reviewing the reasonableness of the check-point, the
Court refused to apply the Edmund presumptions, instead noting that the
police were merely seeking information and/or witnesses about a recent
crime. The police were not necessarily attempting to apprehend the
actual perpetrator at the check-point. In concluding that this type of
check-point stop was reasonable, the Court stated: "For another
thing, information-seeking highway stops are less likely to provoke
anxiety or to prove intrusive. The stops are likely brief. The police are not likely to ask
questions designed to elicit self-incriminating information." Id. at
425.
Indeed, by permitting this type of voluntary questioning
of drivers at check-points when the purpose is for no other reason than
to assist with the investigation of a crime, the Court seems to
back-away, ever so slightly, from Edmund and its prohibition on check points for general law enforcement purposes. The NSZ, of
course, is not even concerned with investigating crimes - the voluntary
questioning is merely to determine the driver's purpose in the
neighborhood. This is important because if this is sufficient
justification for the initial stop - and Lidster suggests that it is -
then, subsequent denial of access to an area becomes irrelevant to the
seizure analysis.3
Moreover, unlike the previous District check-point cases
discussed above, the NSZ is all about voluntary questioning. There is no
requirement, as in the previous MPD checkpoint programs, to produce
identification (identification is only produced as a means to verify the
purported purpose of entry into the NSZ) or to even answer any
questions. The driver of the vehicle is permitted to leave at any time.
The only way an arrest can occur is if the driver attempts to drive
through the check-point after being told to leave, or if evidence of a
separate crime is discovered during the stop.
In my view, the cases relied upon by PDS and discussed
above are not only distinguishable from the NSZ and the Maxwell
analysis, but in the case of Lidster, actually helpful. In addition, a
common thread that appears to run through each of the local check-point
stop cases in which we were unsuccessful (Davis, Bowman, Galberth), is
that the reviewing court appeared suspicious of the true purpose of the
various programs. For instance, in Davis and Bowman, the purported
purpose of the stop was for enforcement of traffic laws - a purpose allowed under
U.S
v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989). But in both of those cases,
and Galberth as well, the courts appeared to be uncomfortable with the
stated purposes of the respective programs and sought evidence of the
true nature of the check-points, which the courts probably suspected was
to uncover evidence of non-traffic criminal behavior. That should not be
an issue with the NSZ because the stated nature of the program and the
true nature of the program are irrefutably one and the same - to prevent
vehicular traffic with a non-legitimate purpose from entering the zones,
and thereby preventing gun violence.
Should you have questions regarding this memorandum,
please contact either Darrin P. Sobin, Assistant Attorney General, Legal
Counsel Division, at 724-5560, or me at 724-5524.
Footnotes to June 4 memorandum
1. The Court noted that drug interdiction was unlike the
other exceptions such as Border Patrol check-points designed to
intercept illegal aliens, Martinez-Fuerte, supra, and sobriety
check-points aimed at removing drunk drivers from the road, Sitz, supra.
Footnotes to June 10 memorandum
1. As for the second check-point defendant, the Court
remanded to the trial court because there was insufficient evidence of
the primary purpose of the check-point.
2. See Maxwell v. City of New York 102 F.3d 664 (2nd Cir.
1996), cert denied sub nom. Maxwell v. Bratton, 522 U.S. 813 (1997).
3. As previously discussed, simply turning away a vehicle
when no legitimate reason for the entry is given, constitutes neither a
search nor a seizure because to be a seizure requires a restriction of
the person's liberty, and instructing an individual that he or she can
go anywhere in the world except the one place that is restricted does
not deprive the individual of his or her liberty to leave. Maxwell at
668, n.2 (citing Sheppard v. Beerman, 18 F.3d 147 (2nd Cir.), cert
denied, 513 U.S. 816 (1994) (holding that a fired court employee who was
escorted from the courthouse was not seized because the individual was
free to go anywhere in the world but the courthouse)).
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