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MARSHALL, J., dissenting

equitable estoppel may not be applied against the Government where the claimant seeks unappropriated funds from the Treasury. This Court has never so much as mentioned the Appropriations Clause in the context of a discussion of equitable estoppel, cf., e. g., Heckler v. Community Health Services of Crawford County, Inc., 467 U. S. 51, 60 (1984) (considering constitutional objections to applying estoppel against the Government in context of claim for payment from the Treasury contrary to an appropriation, but nowhere mentioning the Appropriations Clause), nor has the majority's theory ever before been discussed, much less adopted, by any court. This lack of precedent for the majority's position is not surprising because the Appropriations Clause does not speak either to the proper interpretation of any statute or to the question whether the Government should be estopped from invoking the Clause in a particular case. I dissent.

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MICHIGAN DEPARTMENT OF STATE

POLICE ET AL. V. SITZ ET AL.

CERTIORARI TO THE COURT OF APPEALS OF MICHIGAN

No. 88-1897. Argued February 27, 1990– Decided June 14, 1990 Petitioners, the Michigan State Police Department and its director, estab

lished a highway sobriety checkpoint program with guidelines governing checkpoint operations, site selection, and publicity. During the only operation to date, 126 vehicles passed through the checkpoint, the average delay per vehicle was 25 seconds, and two drivers were arrested for driving under the influence of alcohol. The day before that operation, respondents, licensed Michigan drivers, filed suit in a county court seeking declaratory and injunctive relief from potential subjection to the checkpoints. After a trial, at which the court heard extensive testimony concerning, among other things, the “effectiveness” of such programs, the court applied the balancing test of Brown v. Texas, 443 U. S. 47, and ruled that the State's program violated the Fourth Amendment. The State Court of Appeals affirmed, agreeing with the lower court's findings that the State has a “grave and legitimate” interest in curbing drunken driving; that sobriety checkpoint programs are generally ineffective and, therefore, do not significantly further that interest; and that, while the checkpoints' objective intrusion on individual liberties is

slight, their “subjective intrusion” is substantial. Held: Petitioners' highway sobriety checkpoint program is consistent with the Fourth Amendment. Pp. 448–455.

(a) United States v. Martinez-Fuerte, 428 U. S. 543– which utilized a balancing test in upholding checkpoints for detecting illegal aliens – and Brown v. Texas, supra, are the relevant authorities to be used in evaluating the constitutionality of the State's program. Treasury Employees v. Von Raab, 489 U. S. 656, was not designed to repudiate this Court's prior cases dealing with police stops of motorists on public highways and, thus, does not forbid the use of a balancing test here. Pp. 448–450.

(b) A Fourth Amendment "seizure” occurs when a vehicle is stopped at a checkpoint. See Martinez-Fuerte, supra, at 556. Thus, the question here is whether such seizures are "reasonable." P. 450.

(c) There is no dispute about the magnitude of, and the States' interest in eradicating, the drunken driving problem. The courts below accurately gauged the "objective” intrusion, measured by the seizure's duration and the investigation's intensity, as minimal. However, they

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misread this Court's cases concerning the degree of “subjective intrusion" and the potential for generating fear and surprise. The “fear and surprise" to be considered are not the natural fear of one who has been drinking over the prospect of being stopped at a checkpoint but, rather, the fear and surprise engendered in law-abiding motorists by the nature of the particular stop, such as one made by a roving patrol operating on a seldom-traveled road. Here, checkpoints are selected pursuant to guidelines, and uniformed officers stop every vehicle. The resulting intrusion is constitutionally indistinguishable from the stops upheld in Martinez-Fuerte. Pp. 451-453.

(d) The Court of Appeals also erred in finding that the program failed the “effectiveness” part of the Brown test. This balancing factorwhich Brown actually describes as “the degree to which the seizure advances the public interest” — was not meant to transfer from politically accountable officials to the courts the choice as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Moreover, the court mistakenly relied on Martinez-Fuerte, supra, and Delaware v. Prouse, 440 U. S. 648, to provide a basis for its “effectiveness” review. Unlike Delaware v. Prouse, this case involves neither random stops nor a complete absence of empirical data indicating that the stops would be an effective means of promoting roadway safety. And there is no justification for a different conclusion here than in Martinez-Fuerte, where the ratio of illegal aliens detected to vehicles stopped was approximately 0.5 percent, as compared with the approximately 1.6 percent detection ratio in the one checkpoint conducted by Michigan and with the 1 percent ratio demon

strated by other States' experience. Pp. 453–455. 170 Mich. App. 433, 429 N. W. 2d 180, reversed and remanded.

REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 455. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 456. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined as to Parts I and II, post, p. 460.

Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for petitioners. With him on the briefs were Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Patrick J. O'Brien, Assistant Attorney General.

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Stephen L. Nightingale argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Dennis, and Deputy Solicitor General Bryson. Mark Granzotto argued the cause for respondents. With him on the brief were Deborah L. Gordon, William C. Gage, and John A. Powell.*

*Briefs of amici curiae urging reversal were filed for the State of California et al. by John K. Van de Kamp, Attorney General of California, Richard B. Iglehart, Chief Assistant Attorney General, John H. Sugiyama, Senior Assistant Attorney General, Morris Beatus, Supervising Deputy Attorney General, and Ronald E. Niver, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Robert A. Butterworth of Florida, Lacy H. Thornburg of North Carolina, and James M. Shannon of Massachusetts; for the State of Illinois et al. by Neil F. Hartigan, Attorney General of Illinois, Robert J. Ruiz, Solicitor General, and Terence M. Madsen, Marcia L. Friedl, and Michael J. Singer, Assistant Attorneys General, Don Siegelman, Attorney General of Alabama, Steve Clark, Attorney General of Arkansas, Duane Woodard, Attorney General of Colorado, Clarine Nardi Riddle, Acting Attorney General of Connecticut, Charles M. Oberly III, Attorney General of Delaware, Michael J. Bowers, Attorney General of Georgia, Jim Jones, Attorney General of Idaho, Tom Miller, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Frederic J. Cowan, Attorney General of Kentucky, James E. Tierney, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, Hubert H. Humphrey III, Attorney General of Minnesota, William L. Webster, Attorney General of Missouri, Marc Racicot, Attorney General of Montana, John P. Arnold, Attorney General of New Hampshire, Peter N. Perretti, Jr., Attorney General of New Jersey, Hal Stratton, Attorney General of New Mexico, Robert Abrams, Attorney General of New York, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas Spaeth, Attorney General of North Dakota, Anthony J. Celebrezze, Jr., Attorney General of Ohio, T. Travis Medlock, Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney General of South Dakota, Mary Sue Terry, Attorney General of Virginia, and Joseph B. Meyer, Attorney General of Wyoming; for American Alliance for Rights and Responsibilities, Inc., et al. by Richard A. Rossman and Abraham Singer; for the Insurance Institute for Highway Safety et al. by Michele McDowell Fields, Andrew R. Hricko, Stephen L. Oesch, and Ronald G. Precup; for the National Governors' Association et al. by Benna Ruth Solomon, Andrew L. Frey, and Erika

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CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

This case poses the question whether a State's use of highway sobriety checkpoints violates the Fourth and Fourteenth Amendments to the United States Constitution. We hold that it does not and therefore reverse the contrary holding of the Court of Appeals of Michigan.

Petitioners, the Michigan Department of State Police and its director, established a sobriety checkpoint pilot program in early 1986. The director appointed a Sobriety Checkpoint Advisory Committee comprising representatives of the State Police force, local police forces, state prosecutors, and the University of Michigan Transportation Research Institute. Pursuant to its charge, the advisory committee created guidelines setting forth procedures governing checkpoint operations, site selection, and publicity.

Under the guidelines, checkpoints would be set up at selected sites along state roads. All vehicles passing through a checkpoint would be stopped and their drivers briefly examined for signs of intoxication. In cases where a checkpoint officer detected signs of intoxication, the motorist would be directed to a location out of the traffic flow where an officer would check the motorist's driver's license and car registration and, if warranted, conduct further sobriety tests. Should the field tests and the officer's observations suggest that the driver was intoxicated, an arrest would be made. All other drivers would be permitted to resume their journey immediately.

Z. Jones, for the Washington Legal Foundation et al. by Richard K. Willard, Daniel J. Popeo, and Paul D. Kamenar; and for the Michigan State Chapters of Mothers Against Drunk Driving by Michael B. Rizik, Jr.

Briefs of amici curiae were filed for the American Federation of Labor and Congress of Industrial Organizations by Walter Kamiat and Laurence Gold; for the Appellate Committee of the California District Attorneys Association by Ira Reiner, Harry B. Sondheim, and Dirk L. Hudson; and for the National Organization of Mothers Against Drunk Driving by David Bryant and Eric R. Cromartie.

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