AR: DUI checkpoint on an interstate highway without a plan or supervision was unconstitutional

A DUI checkpoint on I-540 through Fort Smith, Arkansas was set up and executed without a plan, and it was unconstitutional. There was no supervisor there and nothing to limit discretion. Every car was stopped, except until a traffic jam ensued. Whalen v. State, 2015 Ark. App. 706 (Dec. 9, 2015):

Trooper Brandon Margis testified that sometimes the officers received emails from the supervisor instructing them to set up a checkpoint, but sometimes the officers in the field—sometimes including sergeants, but not always—just got together and decided to have a checkpoint. He testified that they intended to stop every vehicle, but would use their discretion to allow vehicles to “go through” when traffic was backed up until it was no longer backed up.

While the plan is not required to be written, there must be a plan. Officer testimony appears to belie the notion that there was a plan. Their testimony purports that there was a plan; however, there was no supervision over the checkpoint and there was no limitation on the discretion of the officers in the field. Furthermore, while only a factor and not a requirement, the officer’s failure to record how many vehicles they came in contact with beyond those ticketed or arrested prevents any possible determination on the effectiveness of the checkpoints.

The State says in its brief that Corporal Lee did not brief the officers because the same procedures were always followed. The State then gives a procedure that was followed. The State quotes the Sobriety Checkpoint Plan form submitted for the September 20, 2012 checkpoint to support the procedure it outlined. However, this document was a form to be completed by an officer for a checkpoint. The State failed to direct this court to any evidence in the record—documentary or testimonial—regarding official department procedure for police checkpoints and this court found none in the record. Accordingly, we cannot say that the September 20, 2012 checkpoint was conducted according to a plan or that it was conducted in a manner exhibiting explicit, neutral limitations on the officer’s conduct. The circuit court erred in finding that the checkpoint was constitutional.

An interstate highway? Come on.