MADD Attends Missouri Checkpoints

A new national trend is for MADD representatives to attend sobriety checkpoints or roadblocks and “help” the police, despite thier lack of law enforcement training. Around the nation, the police have been attempting to hide the fact that many parties at checkpoints are not, in fact, actual officers, but MADD mothers. When pressed about the issue in recent articles, the police have often taken the position that MADD’s presence at sobriety checkpoints is “out of their control.” It has been reported in some cases that MADD is at the checkpoints serving the police coffee and doughnuts. In other cases, the MADD mothers are actually accosting drivers passing through with their own commentary and pictures of people killed in DWI incidents.

This national trend has recently hit Missouri, and the police in Missouri are less bashful about the possible impropriety of the MADD mothers at checkpoints. St. Louis new media recently reported that MADD is now joining police in sobriety checkpoints in the St. Louis area and are confronting all drivers that have been drinking whether at the checkpoint whether they are arrested for being above the legal limit or not.

The St. Louis news media indicated that MADD was “not sure what they would say,” but the police seemed pleased with the MADD presence at checkpoints, and that MADD’s “presence is enough.” Missouri is not even trying to hide MADD’s mothers at checkpoints as in other states. The MADD mothers are reported to be at the side of officers at stopped vehicles, showing drivers pictures of victims killed in drunk driving incidents whether the driver is above the legal limit or not.

It certainly appears legally improper to me that MADD mothers are present at DWI sobriety checkpoints in Missouri. There are very strict rules for sobriety checkpoints that the police must comply with, or else they are unconstitutional.

A vehicle checkpoint or stop is a seizure under the Fourth Amendment to the Constitution of the United States. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L. Ed. 2d 412 (1990). The “essential purpose” of the Fourth Amendment “is to impose a standard of ‘reasonableness’ upon the exercise of discretion” by law enforcement officials in order to protect the “privacy and security of individuals” from “arbitrary invasions”. Delaware v. Prouse, 440 U.S. 648, 653-54, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979).

Generally, seizures that are not based upon a particularized suspicion of criminal activity are unreasonable. Terry v. Ohio, 392 U.S. 1, 21 n. 18, 88 S.Ct. 1868, 1879- 80 n. 18, 20 L.Ed.2d 889 (1968). However, stopping motorists on public highways may be reasonable even in the absence of particularized suspicion of crime as long as those stops are conducted under certain procedures. State v. Damask, 936 S.W.2d 565, n. 13 (Mo. En Banc. 1996) citing Sitz, 496 U.S. at 449-450, 110 S.Ct. at 2484-85. “This is NOT to say that a detention of the motorist and a subsequent search can be made without at least a reasonable suspicion. A differentiation between the initial stop and a subsequent detention and search is necessary to apply the Fourth Amendment’s ‘reasonable’ standard properly. Sitz, 496 U.S. at 450-51, 110 S.Ct. at 2485-86; Welch, 755 S.W.2d at 627).

The reasonableness of a seizure that is less intrusive than a traditional arrest depends on the balance between the public interest in preventing criminal activity and the individual’s right to be free from arbitrary interference by law officers. Brown v. Texas, 443 U.S. 47, 50, 99 S.Ct. 2637, 2640, 61 L.Ed.2d 357 (1979). The analysis involves a weighing of three factors: (1) the gravity of the State’s interest served by the checkpoint; (2) the checkpoint’s effectiveness in advancing the public interest; and (3) the degree to which the checkpoint interferes with or intrudes upon the traveling public. Id. at 50-51, 99 S.Ct. at 2640-41.

The central concern in balancing these elements is to ensure that a person’s “reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of” law enforcement officers. Id. at 51, 99 S.Ct. at 2640.

To satisfy the demands of the Fourth Amendment, seizures must be based either on specific, objective facts indicating the necessity of seizing a particular individual, or the seizure must be carried out in accordance with a plan that provides “explicit, neutral limitations” on the conduct of the law enforcement officers participating in the seizure. Brown at 51, 99 S.Ct. at 2640.

Vehicle checkpoints are not unconstitutional per se. However, they must be conducted in a manner the Court deems appropriate. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L. Ed. 2d 412 (1990), the United States Supreme Court held that a state’s use of a highway sobriety checkpoint does not per se violate the Fourth Amendment to the United States Constitution. Article I, Section 15 of the Missouri Constitution provides the same protection against unreasonable searches and seizures as the Fourth Amendment to the Constitution of the United States. State v. Sweeney, 701 S.W.2d 420, 425 (Mo. En banc. 1985). Thus, any analysis of search and seizure questions under the Fourth Amendment is identical to search and seizure questions arising under Missouri law. State v. Damask, 936 S.W.2d 565, 570 (Mo. En Banc 1996).

Properly operated checkpoints are constitutional under the Fourth Amendment. Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990); United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976); State v. Welch, 755 S.W.2d 624 (Mo.App.1988); State v. Vanacker, 759 S.W.2d 391 (Mo.App. S.D.1988); State v. Payne, 759 S.W.2d 252. (Mo.App. E.D.1988).

CHECKLIST FOR A CONSTITUTIONALLY VALID ROADBLOCK

In Missouri, Welch v. State, 755 S.W.2d 624, 626-27 (Mo. Ct. App. 1988) provides a checklist or criteria for determining whether or not a particular vehicular roadblock passes Constitutional muster. Since Welch, Appellate Courts have expressed extreme reluctance to sanction a checkpoint unless it is created and conducted with all the constitutional safeguards employed in the Welch checkpoint. See State v. Canton, 775 S.W.2d 352 (Mo.App.1989). See also State v. Payne, 759 S.W.2d 252 (Mo. App. 1988); and State v. Vanacker, 759 S.W.2d 391 (Mo. App. 1988).

While the Welch court held the sobriety checkpoint at issue therein constitutional, it emphasized there that the checkpoint had proceeded pursuant to the following criteria thus making it constitutional:

(1) the checkpoint was conducted pursuant to a designed plan based upon specific data concerning alcohol related accidents occurring in the area in the past;

(2) the procedures for the roadblock were in writing; the checkpoint was established by written order of a command officer; the operation of the checkpoint was supervised by high ranking officers, and that full instructions including a copy of the order, were given to field personnel; and,

(3) the checkpoint was established in a way to give maximum notice to the drivers of what was ahead and to provide for their safety; and finally, the delay to the drivers was minimal. Welch, 755 S.W.2d at 632-3.

In short, once upon a time there was a presumption of innocence in the United States, and citizens were presumed to be free from harassment and unreasonable searches without cause. Ordinary drivers, even those drinking a couple of drinks and driving home (which is of course not illegal), should not be subjected to this harassment. If the police want to take everyone at a checkpoint that is arrested for DWI and make them listen to the MADD mothers at that time, that is one thing.

However, I would note that Missouri drivers are already required in many instances to attend a MADD “VIP” “victim impact panel” (which makes MADD money, of course) when a driver pleads guilty to DWI. At the victim impact panel the driver is educated (properly in those instances) of loved ones killed by drunk drivers and the problems associated with DWI.

Further, I think it is legally obvious that the Welch Court did not envision MADD or similar non-law enforcement personnel or political groups at checkpoints, solely for the purpose of intimidating drivers passing through who are not arrested for DWI. These practices could arguably invalidate checkpoints according to the checklists discussed (although Court rulings never cease to amaze in the lengths they will go to say “harmless error”).

As discussed in other posts, the Kansas City Police routinely arrest drivers at checkpoints below the legal limit despite the law providing that these cases shall all be dismissed unless there is valid evidence of other observations of substantial observation. Imagine if citizens concerned with the Constitution being trampled also attended checkpoints handing out coffee and/or legal advice to these innocent drivers below the legal limit? Of course, these citizens would be treated slightly different than the MADD mothers.