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BRENNAN, J., dissenting

496 U. S.

whatever may pique the curiousity of a particular officer is the antithesis of the objective standards requisite to reasonable conduct and to avoiding abuse and harassment”). By holding that no level of suspicion is necessary before the police may stop a car for the purpose of preventing drunken driving, the Court potentially subjects the general public to arbitrary or harassing conduct by the police. I would have hoped that before taking such a step, the Court would carefully explain how such a plan fits within our constitutional framework.

Presumably, the Court purports to draw support from Martinez-Fuerte, supra, which is the only case in which the Court has upheld a program that subjects the general public to suspicionless seizures. But as JUSTICE STEVENS demonstrates, post, at 463–466, 471-472, the Michigan State Police policy is sufficiently different from the progam at issue in Martinez-Fuerte that such reliance is unavailing. Moreover, even if the policy at issue here were comparable to the program at issue in Martinez-Fuerte, it does not follow that the balance of factors in this case also justifies abandoning a requirement of individualized suspicion. In Martinez-Fuerte, the Court explained that suspicionless stops were justified since “[a] requirement that stops . . . be based on reasonable suspicion would be impractical because the flow of traffic tends to be too heavy to allow the particularized study of a given car that would enable it to be identified as a possible carrier of illegal aliens.” 428 U. S., at 557. There has been no showing in this case that there is a similar difficulty in detecting individuals who are driving under the influence of alcohol, nor is it intuitively obvious that such a difficulty exists. See Prouse, supra, at 661. That stopping every car might make it easier to prevent drunken driving, but see post, at 469-471, is an insufficient justification for abandoning the requirement of individualized suspicion. “The needs of law enforcement stand in constant tension with the Constitution's protections


BRENNAN, J., dissenting

of the individual against certain exercises of official power. It is precisely the predictability of these pressures that counsels a resolute loyalty to constitutional safeguards.” Almeida-Sanchez v. United States, 413 U. S. 266, 273 (1973). Without proof that the police cannot develop individualized suspicion that a person is driving while impaired by alcohol, I believe the constitutional balance must be struck in favor of protecting the public against even the “minimally intrusive” seizures involved in this case.

I do not dispute the immense social cost caused by drunken drivers, nor do I slight the government's efforts to prevent such tragic losses. Indeed, I would hazard a guess that today's opinion will be received favorably by a majority of our society, who would willingly suffer the minimal intrusion of a sobriety checkpoint stop in order to prevent drunken driving. But consensus that a particular law enforcement technique serves a laudable purpose has never been the touchstone of constitutional analysis.

“The Fourth Amendment was designed not merely to protect against official intrusions whose social utility was less as measured by some balancing test than its intrusion on individual privacy; it was designed in addition to grant the individual a zone of privacy whose protections could be breached only where the ‘reasonable’ requirements of the probable-cause standard were met. Moved by whatever momentary evil has aroused their fears, officials — perhaps even supported by a majority of citizens—may be tempted to conduct searches that sacrifice the liberty of each citizen to assuage the perceived evil. But the Fourth Amendment rests on the principle that a true balance between the individual and society depends on the recognition of the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.' Olmstead v. United States, 277 U. S. 438, 478 (1928) (Brandeis, J., dissenting).” New Jersey

STEVENS, J., dissenting

496 U. S.

v. T. L. O., 469 U. S. 325, 361-362 (1985) (BRENNAN, J., concurring in part and dissenting in part) (footnote

omitted). In the face of the “momentary evil” of drunken driving, the Court today abdicates its role as the protector of that fundamental right. I respectfully dissent.

JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join as to Parts I and II, dissenting.

A sobriety checkpoint is usually operated at night at an unannounced location. Surprise is crucial to its method. The test operation conducted by the Michigan State Police and the Saginaw County Sheriff's Department began shortly after midnight and lasted until about 1 a.m. During that period, the 19 officers participating in the operation made two arrests and stopped and questioned 124 other unsuspecting and innocent drivers. It is, of course, not known how many arrests would have been made during that period if those officers had been engaged in normal patrol activities. However, the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic safety is infinitesimal and possibly negative.

Indeed, the record in this case makes clear that a decision holding these suspicionless seizures unconstitutional would not impede the law enforcement community's remarkable progress in reducing the death toll on our highways. Be

* The 19 officers present at the sole Michigan checkpoint were not the standard detail; a few were observers. Nevertheless, the standard plan calls for having at least 8 and as many as 12 officers on hand. 1 Record 82-83.

2 The fatality rate per 100 million miles traveled has steadily declined from 5.2 in 1968 to 2.3 in 1988. During the same span, the absolute number of fatalities also decreased, albeit less steadily, from more than 52,000 in 1968 to appoximately 47,000 in 1988. U. S. Dept. of Transportation, National Highway Traffic Safety Administration, Fatal Accident Report


STEVENS, J., dissenting

cause the Michigan program was patterned after an older program in Maryland, the trial judge gave special attention to that State's experience. Over a period of several years, Maryland operated 125 checkpoints; of the 41,000 motorists passing through those checkpoints, only 143 persons (0.3%) were arrested. The number of man-hours devoted to these

ing System 1988, Ch. 1, p. 6 (Dec. 1989) (hereinafter Fatal Accident Reporting System 1988).

Alcohol remains a substantial cause of these accidents, but progress has been made on this front as well:

"Since 1982, alcohol use by drivers in fatal crashes has steadily decreased. The proportion of all drivers who were estimated to have been legally intoxicated ([blood alcohol concentration) of .10 or greater) dropped from 30% in 1982 to 24.6% in 1988. The reduction from 1982-1988 is 18%.

“The proportion of fatally injured drivers who were legally intoxicated dropped from 43.8% in 1982 to 37.5% in 1988-a 14% decrease.

“During the past seven years, the proportion of drivers involved in fatal crashes who were intoxicated decreased in all age groups. The most significant drop continues to be in the 15 to 19 year old age group. In 1982, NHTSA estimated that 28.4% of these teenaged drivers in fatal crashes were drunk, compared with 18.3% in 1988.” Id., Overview, p. 2.

All of these improvements have been achieved despite resistance-now ebbing at last — to the use of airbags and other passive restraints, improvements that would almost certainly result in even more dramatic reductions in the fatality rate. Indeed, the National Highway Traffic Safety Administration estimates that an additional 5,000 lives per year would be saved if the 21 States without mandatory safety belt usage laws were to enact such legislation--even though only 50% of motorists obey such laws. Id., Overview, p. 4, Ch. 2, p. 13.

3 App. to Pet. for Cert. 80a-81a. The figures for other States are roughly comparable. See, e. g., State ex rel. Ekstrom v. Justice Ct., 136 Ariz. 1, 2, 663 P. 2d 992, 993 (1983) (5,763 cars stopped, 14 persons arrested for drunken driving); Ingersoll v. Palmer, 43 Cal. 3d 1321, 1327, 743 P. 2d 1299, 1303 (1987) (233 vehicles screened, no arrests for drunken driving); State v. Garcia, 481 N. E. 2d 148, 150 (Ind. App. 1985) (100 cars stopped, seven arrests for drunken driving made in two hours of operation); State v. McLaughlin, 471 N. E. 2d 1125, 1137 (Ind. App. 1984) (115 cars stopped, three arrests for drunken driving); State v. Deskins, 234 Kan. 529, 545, 673 P. 2d 1174, 1187 (1983) (Prager, J., dissenting) (2,000 to 3,000 vehicles stopped, 15 arrests made, 140 police man-hours consumed); Commonwealth v. Trumble, 396 Mass. 81, 85, 483 N. E. 2d 1102, 1105

STEVENS, J., dissenting

496 U. S.

operations is not in the record, but it seems inconceivable that a higher arrest rate could not have been achieved by more conventional means. Yet, even if the 143 checkpoint arrests were assumed to involve a net increase in the number of drunken driving arrests per year, the figure would still be insignificant by comparison to the 71,000 such arrests made by Michigan State Police without checkpoints in 1984 alone. See App. to Pet. for Cert. 97a.

Any relationship between sobriety checkpoints and an actual reduction in highway fatalities is even less substantial than the minimal impact on arrest rates. As the Michigan Court of Appeals pointed out: "Maryland had conducted a study comparing traffic statistics between a county using checkpoints and a control county. The results of the study showed that alcohol-related accidents in the checkpoint county decreased by ten percent, whereas the control county saw an eleven percent decrease; and while fatal accidents in the control county fell from sixteen to three, fatal accidents in the checkpoint county actually doubled from the prior year.” 170 Mich. App. 433, 443, 429 N. W. 2d 180, 184 (1988).

In light of these considerations, it seems evident that the Court today misapplies the balancing test announced in Brown v. Texas, 443 U. S. 47, 50-51 (1979). The Court overvalues the law enforcement interest in using sobriety checkpoints, undervalues the citizen's interest in freedom from random, unannounced investigatory seizures, and mistakenly assumes that there is “virtually no difference” between a routine stop at a permanent, fixed checkpoint and a

(1985) (503 cars stopped, eight arrests, 13 participating officers); State v. Koppel, 127 N. H. 286, 288, 499 A. 2d 977, 979 (1985) (1,680 vehicles stopped, 18 arrests for driving while intoxicated).

4 “The then sheriffs of Macomb County, Kalamazoo County, and Wayne County all testified as to other means used in their counties to combat drunk driving and as to their respective opinions that other methods currently in use, e. g., patrol cars, were more effective means of combating drunk driving and utilizing law enforcement resources than sobriety checkpoints.” 170 Mich. App. 433, 443, 429 N. W. 2d 180, 184 (1988).

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