Every year around the holidays, a Michigan news story will inevitably announce that police intend to employ sobriety checkpoints to put the kibosh on holiday revelers. Sobriety checkpoints, which have been repeatedly proven to be ineffective, are illegal in Michigan.
In 1990, the United States Supreme Court ruled that sobriety checkpoints were constitutional in the case of Michigan Department of State Police v Sitz, 496 U.S. 444 (1990). Twenty-three years ago, the nation's high court held that checkpoints were authorized by the US Constitution and did not offend the Fourth Amendment, despite a long line of cases that had previously found checkpoints to be offensive. The Supreme Court reasoned that the constitution would have to yield to “the magnitude of the drunken driving problem [and] the States' interest in eradicating it. Media reports of alcohol-related death and mutilation on the Nation's roads are legion. The anecdotal is confirmed by the statistical. 'Drunk drivers cause an annual death toll of over 25,000 . . . ." Id at 451. Despite the US Supreme Court's declaration, which was based entirely upon MADD literature and NHTSA statistics, the data relied upon to trounce the Fourth Amendment was seriously flawed. In fact, the accident statistics were wholly fictional bogus numbers. The US Supreme Court relied upon the fabricated death toll to justify its ruling as "empirical" evidence to support the grave loss of liberty.
On remand to the Michigan courts, the Michigan Court of Appeals held that, "the indiscriminate suspicionless stopping of motor vehicles in the form of roving roadblocks violat[es] art 1, § 11 of the Michigan Constitution." 193 Mich App 690, 699; 485 NW2d 135 (1992). Our state constitution provides in art. 1, § 11 that:
"Sec. 11. The person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures. No warrant to search any place or to seize any person or things shall issue without describing them, nor without probable cause, supported by oath or affirmation. The provisions of this section shall not be construed to bar from evidence in any criminal proceeding any narcotic drug, firearm, bomb, explosive or any other dangerous weapon, seized by a peace officer outside the curtilage of any dwelling house in this state."
On review, the Michigan Supreme Court was compelled to either cave to popular pressure or to meticulously justify its decision and buck the US Supreme Court. The Michigan Supreme Court chose the later, bravely upholding the Michigan Court of Appeals and ruling that checkpoints were illegal. Here are some excerpts from that decision, with edits and several footnotes omitted:
What is legally required to seize and search an automobile is not a new question in Michigan. During Prohibition, n15 this Court had many opportunities to review the level of cause necessary to make such a stop or search.
n15 On a full review of this turbulent period, one cannot help but be struck by the similarities of the arguments made for and against the rights of citizens versus the needs of law enforcement to the modern day necessity of dealing with drug running and drunken driving.
. . . .
In People v Roache, 237 Mich 215; 211 NW 742 (1927), this Court was presented with, but did not directly decide, "Whether an officer may stop, indiscriminately, travelers on the highway and demand of them that they produce license cards is a question we do not and need not determine." Id. at 219 (Clark, J., dissenting). While the majority rested its decision on the lack of reasonable grounds for the search of the automobile, the Court discussed the grounds needed to justify a search and seizure: No one will contend that an officer may promiscuously stop automobiles upon the public highway and demand the driver's license merely as a subterfuge to invade the constitutional right of the traveler to be secure against unreasonable search and seizure. Yet that is exactly what was done here. The officer cared nothing about seeing a driver's license, but he says he was suspicious that there was liquor in the car, and almost immediately after stopping the defendant he ordered him out of his car and proceeded to search it for liquor. [Id. at 222.]
. . . . [T]he Court concluded with a warning as appropriate today as it was in 1927: While we may take judicial notice of the fact that rum runners and bandits ride in automobiles, and use them to commit crimes and effect their escape, may we not also take judicial notice of the fact that where there is one bandit or rum runner passing over a public highway, there are thousands of respectable, law-abiding citizens who are doing likewise? The protection afforded by the Constitution to such persons must be regarded as paramount to any right to be given a police officer to enable him to verify his ungrounded suspicion that a law is being violated.
The granting, if such a thing were possible, to over-zealous officers, of powers, the performance of which would invade constitutional rights of the citizen, would do more to retard the enforcement of law than to promote it. [Id. at 224-225.]
. . . .
In People ex rel Attorney General v Lansing Municipal Judge, 327 Mich 410; 42 NW2d 120 (1950), the Michigan case most analogous to the present one, the Court struck down the provisions of PA 1948 (1st Ex Sess), No 43 (CL 1948, § 300.21 et seq. [Stat Ann 1949 Cum Supp § 13.1231(1) et seq.]) subjecting to search without a warrant the boat, conveyance, vehicle, automobile, hunting or fishing camp, fish box, fish house, net house, fish basket, game bag, game coat, or any other receptacle, car or conveyance in which wild life may be kept, carried or transported, of any person exercising the privilege of hunting, fishing or trapping, et cetera, and empowering conservation officers to require a person to permit such officers to inspect and examine, without warrant, all wild life and any hunting, fishing or trapping apparatus, guns or ammunition in such person's possession or under his control merely upon the officer's reasonable belief that the person in question has been, is, or is about to be engaged in hunting, fishing or trapping of wild life or is in possession of such wild life or apparatus, but without probable cause to believe that such person has been or is violating the law . . . . [Id. at 425. Emphasis added.] n20 Referencing Carroll v United States, the majority observed that persons entitled to use the highways have a right to free passage without intervention or search except upon probable cause for believing the law to be violated. After observing that Kamhout, Roache, and Stein all forbade the search of an automobile without a warrant absent probable cause, the Court concluded that the provisions of the disputed act "are in undoubted contravention of the Michigan Constitution, art 2, § 10," id. at 426, and thus unreasonable.
n20 It is interesting to note that this same public act struck down by this Court as violative of Const 1908, art 2, § 10, itself forbade checkpoints for enforcing the law:"Provided further, That nothing contained in this act shall be deemed to permit or allow the setting up or operation on designated State of Michigan trunk line highways of any road blockade, which, for the purpose of this act, shall be deemed to be the promiscuous or arbitrary halting of vehicular traffic for inspection or examination." [Id. at 413-414. (North, J., dissenting.) Emphasis in the original.]
. . . .
As long ago as 1889, the justices of this Court stated: Personal liberty, which is guaranteed to every citizen under our Constitution and laws, consists of the right of locomotion, -- to go where one pleases, and when, and to do that which may lead to one's business or pleasure, only so far restrained as the rights of others may make it necessary for the welfare of all other citizens. One may travel along the public highways or in public places; and while conducting themselves in a decent and orderly manner, disturbing no other, and interfering with the rights of no other citizens, there, they will be protected under the law, not only in their persons, but in their safe conduct. The Constitution and the laws are framed for the public good, and the protection of all citizens, from the highest to the lowest; and no one may be restrained of his liberty, unless he has transgressed some law. [Pinkerton v Verberg, 78 Mich 573, 584; 44 NW 579 (1889).]
In Roache, supra at 222, this Court showed a marked hostility toward the use of a license check as a pretext to investigate criminal activity. In Lansing Municipal Judge, supra at 432, we stressed: It will be said that no legislature would go so far as to dry up the entire stream of constitutional immunity. But it is not the genius of our system that the constitutional rights of persons shall depend for their efficacy upon legislative benevolence. Rather, the courts are charged with the solemn obligation of erecting around those rights, in adjudicated cases, a barrier against legislative or executive invasion. The Michigan Constitution has historically treated searches and seizures for criminal investigatory purposes differently than those for regulatory or administrative purposes. Lansing Municipal Judge, supra at 427-429. These administrative or regulatory searches and seizures have traditionally been regarded as "reasonable" in a constitutional sense. Id. at 430. However, seizures with the primary goal of enforcing the criminal law have generally required some level of suspicion, even if that level has fluctuated over the years.
We do not suggest that in a different context we might not reach a similar result under the balancing test of reasonableness employed in Sitz. Indeed, our precedent regarding automobiles implicitly incorporates a balancing test that is inherent in assessing the reasonableness of warrantless searches and seizures. We hold only that the protection afforded to the seizures of vehicles for criminal investigatory purposes has both an historical foundation and a contemporary justification that is not outweighed by the necessity advanced. Suspicionless criminal investigatory seizures, and extreme deference to the judgments of politically accountable officials is, in this context, contrary to Michigan constitutional precedent.
Sitz v. Department of State Police, 443 Mich. 744, 764-779 (Mich. 1993)
In October 2011, Genesee County Sheriff Robert J. Pickell instituted vehicle checkpoints in Saginaw to randomly search vehicles for illegal controlled substances. The first Michigan sobriety checkpoint operation was conducted at Dixie Highway and Gretchen Road in Saginaw County on May 17 and 18, 1986, while Sheriff Pickell was a City of Flint police officer on special assignment to the Genesee County Prosecutor’s Office. There is little doubt that he is very familiar with the Sitz decision given this background. Nonetheless, he implemented a clearly unlawful drug interdiction program, ignoring that “[t]he granting, if such a thing were possible, to over-zealous officers, of powers, the performance of which would invade constitutional rights of the citizen, would do more to retard the enforcement of law than to promote it.” Within days of media exposure, Sheriff Pickell’s drug interdiction checkpoints were countermanded.