Academic journal article Harvard Law Review

Criminal Law - Search and Seizure - D.C. Circuit Holds That Police Checkpoint Program Likely Violates the Fourth Amendment

Academic journal article Harvard Law Review

Criminal Law - Search and Seizure - D.C. Circuit Holds That Police Checkpoint Program Likely Violates the Fourth Amendment

Article excerpt

CRIMINAL LAW--SEARCH AND SEIZURE--D.C. CIRCUIT HOLDS THAT POLICE CHECKPOINT PROGRAM LIKELY VIOLATES THE FOURTH AMENDMENT.--Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009).

Courts have long acknowledged that, although even brief stops at road-side checkpoints constitute seizures within the meaning of the Fourth Amendment, (1) police checkpoints are permissible under certain circumstances. (2) However, courts have struggled to define the precise contours of the line between acceptable and unacceptable checkpoint programs. (3) In an effort to clarify this ambiguity, the Supreme Court has established a two-step test for analyzing a checkpoint's constitutionality. (4) First, a checkpoint is per se unconstitutional if its "primary purpose" is simply "to serve the general interest in crime control" within the meaning of the Court's decision in City of Indianapolis v. Edmond. (5) Second, checkpoints with a primary purpose distinguishable from general crime control may still be invalidated under the three-part balancing test first established in Brown v. Texas. (6) Recently, in Mills v. District of Columbia, (7) the D.C. Circuit applied the Edmond test in holding that a police checkpoint program designed to deter violent gun crimes likely violated the Fourth Amendment. (8) Although the D.C. Circuit reached the right result, it should have invalidated the program by applying the Brown balancing test, not the Edmond per se approach. Applying the Brown test to evaluate deterrence-based checkpoint programs would be more faithful to Supreme Court precedent and would allow courts to develop a more nuanced, community-oriented Fourth Amendment jurisprudence.

The Trinidad neighborhood of Washington, D.C., has a long history of violent gun crime. (9) In early 2008, the area saw a surge in homicides and violent assaults, including a number of drive-by shootings. (10) In the aftermath of a triple homicide, the Metropolitan Police Department (MPD) issued Special Order 08-06, which established the Neighborhood Safety Zone (NSZ) program. (11) The first implementation of the NSZ program lasted from June 7, 2008, to June 12. (12) The MPD erected eleven vehicle checkpoints, creating a perimeter around a portion of Trinidad. (13) Under the terms of Special Order 08-06, MPD officers were required to stop all vehicles attempting to enter the NSZ and to determine whether the driver could provide one of six predetermined "legitimate reasons" to be in the area. (14) Individuals who were unable or unwilling to provide a verifiable reason were denied entrance to the neighborhood but were not charged with a criminal offense. (15) The Special Order prohibited officers from searching vehicles unless individualized suspicion developed during the course of the stop; during the first use of the NSZ, only one arrest was made--for "driving while in possession of an open container of alcohol." (16)

From the beginning, the NSZ generated widespread criticism from commentators. (17) Response within the community, however, appears to have been more mixed. Some Trinidad residents were strongly critical of the city's "police state" tactics, (18) and a survey of sixty residents conducted by Councilmember Harry Thomas, Jr. found that a majority of those surveyed opposed the plan. (19) At the same time, a petition circulated by Trinidad's Advisory Neighborhood Commissioners supporting the NSZ program garnered signatures from seventy-five residents. (20) Regardless of whether they agreed with the program, many residents complained that the MPD made its plans without adequately consulting or notifying them. (21)

On June 20, 2008, Caneisha Mills and three other individuals who had been denied entry into the NSZ filed a class action suit against the District of Columbia and the MPD in the United States District Court for the District of Columbia. (22) The district court denied the plaintiffs' request for a preliminary injunction, holding that the plaintiffs failed to demonstrate "a substantial likelihood of success on the merits" of their Fourth Amendment claim under either Edmond or Brown. …

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