Thank you for the opportunity to comment on the impact on civil liberties of the Executive's Neighborhood Safety Zones initiative. I am Sandra Levick, Chief of the Special Litigation Division of the Public Defender Service. It is the firm view of the Public Defender Service that the initiative is unconstitutional. Under settled law, police roadblocks may not be used for the general purpose of stopping crime. We support the goal of reducing crime and making our neighborhoods safe. But the consequences of choosing unconstitutional means to achieve this goal takes the District further from, not close to, reaching it: any evidence uncovered in the course of the roadblocks will be suppressed, even if that evidence is proof of the very crimes the police seek to solve.

Before I address the Fourth Amendment's right to be free from unreasonable seizures, I'd like to share some of PDS's own experience with the roadblocks. Not only does PDS have clients who live in Trinidad, not only does PDS investigate cases in Trinidad, but PDS also has staff members who make Trinidad their home. I spoke recently to one of my colleagues who lives in Trinidad whose daughter works two jobs. when she gets off of her second shift, near midnight, an elderly gentleman gives her a ride home. Last week, they were not permitted to take their normal route. Instead, they were funneled to the roadblock where they were subjected to its indignities — questioning, producing documents, recording information — before they were allowed to pass. All night she worried that her seventy year old friend would have trouble finding his way back home since the route he ordinarily took out of Trinidad was no longer passable. This same staff member's adult son was stopped and questioned by police on his way out of the neighborhood when he was headed to a doctor's appointment. I spoke to another PDS employee who was returning home to Trinidad from work very late one night. Although she had previously gained entry by showing her driver's license and proof of residence, this time it was not enough. The officers demanded her car registration, shined a light into her car, and huddled together for so long that, to her embarrassment, a line of cars formed behind her. These colleagues would welcome, as would PDS itself, effective police efforts to make their neighborhood safer, but not at the cost of their or their clients' civil liberties.

Remarkably, the District of Columbia Court of Appeals had occasion more than fifteen years ago to consider the constitutionality of roadblocks to combat crime in the very neighborhood that has been subjected to roadblocks last week. The initiative was called Operation Clean Sweep. MPD set up a roadblock at Montello Avenue and Queen Street, N.E., as part of a special operation to, as the then-mayor announced, "cut down on violence and homicides and narcotics trafficking in the Trinidad area."¹ On December 5, 1989, Russell Galberth was arrested at the checkpoint for driving without a license. In his jacket was a .38 caliber revolver. The Court of Appeals ruled that the revolver had to be suppressed because the roadblock violated the Constitution. The Court stated, "We conclude . . . that appellant Galberth's conviction must be reserved given [the trial judge's] finding that the roadblock at which Galberth was stopped was designed to combat violence and drug activity."²

Nearly ten years later, the United States Supreme Court made clear that the District of Columbia Court of Appeals had been right in Galberth. In City of Indianpolis v. Edmond,³ the court held that a checkpoint for the purpose of promoting "a general interest in crime control" violates the Fourth Amendment. In Edmond, motorists brought a class action suit against the city, the mayor, and members of the police department alleging that subjecting them to vehicle checkpoints in an effort to interdict unlawful drugs subjected them to unreasonable seizures. The Supreme Court agreed. the Court explained that, absent some special governmental need, vehicle checkpoints violate the Fourth Amendment right to be free from seizure unless there is individualized suspicion of wrongdoing. The Court held that the "ordinary enterprise of investigating crimes" did not constitute a special need.⁴ Distinguishing cases where there was a special governmental need such as border control checkpoints and sobriety checkpoints, the Court stated:

We have never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing. . . . Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth Amendment.⁵

The Court of Appeals for the District of Columbia Circuit has, as it must, also followed Edmond. In United States v. Davis,⁶ the court recognized that "the Court in Edmond laid down a line: "When law enforcement authorities pursue primarily general crime control purposes at checkpoint . . . stops can only be justified by some quantum of individualized suspicion."⁷

Thus, the law in the District is clear that these roadblocks, whose purpose it is to detect and deter violent crime, are unlawful. Although the District appears to rely on support from other jurisdictions, its reliance is misplaced. The District is reportedly relying on a Second Circuit opinion, and on experiences with roadblocks in Lawrence, Massachusetts and in New York City. But the Second Circuit decision, Maxweel v. City of New York,⁸ was decided before the Supreme Court's decision in Edmond and cannot be reconciled with it. Indeed, we have found no cases which rely on Maxwell, after Edmond, to uphold a vehicle checkpoint whose purpose is "to deter criminal behavior."⁹

In New York City, a state trial court considered the constitutionality of a checkpoint program limiting access into a high crime area for the purpose of crime control after Edmond. Relying on Edmond, the court held that the program was unconstitutional.¹⁰ The court ordered the evidence seized at the checkpoint — a forged license and the statements made by the motorist — suppressed.¹¹ Thus, New York City offers no support for the contention that the Neighborhood Safety Zone initiative is constitutional.

Neither does the experience in Lawrence, Massachusetts offer support for the District. A local public defender with knowledge of that experience informs us that the prosecutions that resulted from roadblocks set up to discover or deter general crime suffered the same fate as the prosecution in the District in Galberth and in New York City. Relying on the state constitution, the Massachusetts courts suppressed the evidence seized as a result of the roadblocks, and the prosecutions failed.¹²

The law is thus clear that the roadblocks of a kind employed by the District as part of its Neighborhood Safety Zones violate the Fourth Amendment. Some might argue that the initiative is worth continuing, despite its unconstitutionality, if it makes residents feel safer. But examining the costs of continuing the initiative shows the costs are too great. Leave aside the number of people in the community and across the District who do not think that exchanging their civil liberties for temporary safety is a fair bargain. Leave aside the risk of an expensive civil lawsuit. Focus instead, for a moment, on the consequence to public safety of violating the Fourth Amendment. The remedy for a Fourth Amendment violation is the suppression of all the unlawfully seized evidence and the fruit of that evidence. Imagine, for example, that the police stop a car at a checkpoint and find a gun and a substantial amount of drugs in the car. They arrest the driver. They test the gun and learn that it was used in a murder they have been unable to solve. The driver confesses to the murder and a series of armed robberies that have been plaguing the community. All of the evidence — the drugs found in the car, the gun that turns out to be a murder weapon, the driver's confession to the murder and to the armed robberies — all of it would be suppressed because they were gained in violation of the Fourth Amendment. The government would be unable to use that evidence in a gun prosecution, in a drug distribution prosecution, in a murder prosecution, or in an armed robbery prosecution. That is the gamble the District is taking if it continues this unconstitutional initiative. Instead, lawful means must be employed to achieve the shared goal of safer neighborhoods.

Thank you on behalf of the Public Defender Service for the opportunity to present these remarks.

1. Galberth v. United States, 590 A.2d 990, 992 (D.C. 1991).

2. Id. The Virginia Court of Appeals also suppressed evidence seized at a checkpoint set up in response to complaints about trespassers and drug dealers at a public housing complex. Wilson v. Commonwealth, 509 S.E.2d 540 (Va. Ct. App. 1999).

3. 531 U.S. 32, 41-42 (2000).

4. Id. at 44.

5. Id. at 41-42. The Court reiterated this prohibition on general law enforcement checkpoints in Illinois v. Lidster, 540 U.S. 419 (2004). The Lidster checkpoint passed constitutional muster because the purpose of the checkpoint was to learn if any motorist had information about a hit and run in which a bicyclist had been killed at the same time of night and same location a week before. The Court distinguished this information-gathering checkpoint about a recent highway crime, and checkpoints used for "general 'crime control' purposes, i.e., to 'detect evidence of ordinary criminal wrongdoing.'" and reaffirmed that crime control checkpoints are "presumtive[ly] unconstitutional. Id. at 423.

6. 270 F.3d 977, 979 (D.C. Cir. 2001).

7. Id. (quoting Edmond). See also United States v. Bowman, 496 F.3d 685, 687 (D.C. Cir. 2007).

8. 102 F.3d 664 (2d Cir. 1996) (upholding the constitutionality of a vehicle checkpoint used to stop motorists who did not have a valid reason to enter an eight block narcotics ridden area that had been locale experience recent drive-by shootings).

9. Maxwell, 102 F.3d at 667. A Tennessee intermediate appellate court opinion upholding a checkpoint and relying on Maxwell, State v. Hayes, 2004 WL 2533800 (Tenn. Crim. App. 2004), was later reversed by the Tennessee Supreme Court. State v. Hayes, 188 S.W.3d 505 (Tenn. 2006).

10. People v. Pope, 738 N.Y.S.2d 543 (N.Y. Sup. Ct. 2002) ("Although laudable in purpose, the checkpoint program at issue is ultimately for the purpose of crime control on Davidson Avenue, and does not meet the limited exceptions set forth in Indianapolis.").

11. A unanimous appeals court affirmed the suppression order. People v. Pope, 755 N.Y.S.2d 843 (N.Y. App. Div. 2003).

12. In Commonwealth v. Rodriguez, 722 N.E. 429, 430 (Mass. 2000), the Supreme Judicial Court of Massachusetts explicitly held that a roadblock established to "detect and deter trafficking illegal narcotics" violated the state constitution's search and seizure provision.

City Council Committe on Public Safety and the Judiciary Hearing on the administration's public safety initiatives Testimony of Sandra K. Levick, Public Defender Service for the District of Columbia June 16, 2008

City Council Committe on Public Safety and the Judiciary
Hearing on the administration's public safety initiatives
Testimony of Sandra K. Levick, Public Defender Service for the District of Columbia
June 16, 2008