CADC: General crime control neighborhood roadblocks unconstitutional under Edmond

The D.C. District Court erred in not granting a preliminary injunction against neighborhood general crime control roadblocks. This is not the first time the D.C. Cir. has held this. Mills v. District of Columbia, 571 F.3d 1304 (D.C. Cir. 2009):

Refining the argument slightly, the District contends that the Supreme Court’s category of stops serving “the general interest in crime control” extends only to seizures actually looking for evidence of crime as opposed to seizures designed to deter crime. That argument is unconvincing. Nothing in Edmond limited “the general interest in crime control” to only those instances where a law enforcement officer was seeking evidence of a crime. In Edmond, the Court recognized that a general rule exists that “a seizure must be accompanied by some measure of individualized suspicion,” [Edmond,] 531 U.S. at 41, and that “only limited circumstances [exist] in which the usual rule does not apply,” id. at 37. The Court stressed that the only suspicionless checkpoints previously upheld were those checkpoint programs that were “designed primarily to serve purposes closely related to the problems of policing the border or the necessity of ensuring roadway safety.” Id. at 41. By automatically proscribing suspicionless checkpoints with a primary purpose of serving “the general interest in crime control,” the Court was concerned with placing a “check [*18] on the ability of the authorities to construct roadblocks for almost any conceivable law enforcement purpose.” Id. at 42. The District’s argument, however, turns this paradigm on its head. Under the District’s interpretation, individualized suspicion is only required when a law enforcement officer is searching for evidence of criminal wrongdoing. Any suspicionless checkpoint program therefore would be allowed so long as its primary purpose did not involve actively seeking evidence of criminal wrongdoing. The individualized suspicion requirement is the rule under the Fourth Amendment, not the exception. Accordingly, we cannot read “the general interest in crime control” so restrictively as to encompass only those checkpoints in which law enforcement officers were seeking evidence of criminal wrongdoing.

Without doubt, the Edmond Court did not intend the proscription of checkpoints whose primary purpose was “general interest in crime control” to be limited to those seeking narcotics, or other evidence. Instead, the Court used the phrase in what would appear to be its natural and usual sense to include investigation and deterrence.

Indeed, when this court has been confronted with constitutional challenges to police checkpoints, it has consistently treated the purpose of deterring ordinary criminal activity like drug crime as indistinguishable from the purpose of detecting such activity in the context of suspicionless roadblocks. See United States v. Bowman, 496 F.3d 685 (D.C. Cir. 2007); United States v. Davis, 270 F.3d 977 (D.C. Cir. 2001); United States v. McFayden, 865 F.2d 1306 (D.C. Cir. 1989). In each case the defendant sought to suppress evidence obtained at MPD roadblocks. Bowman, 496 F.3d at 686-87; Davis, 270 F.3d at 981; McFayden, 865 F.2d at 1308-09. In each, the MPD instituted roadblocks for the stated purpose of regulating vehicle traffic and safety. See Bowman, 496 F.3d at 691; Davis, 270 F.3d at 981; McFayden, 865 F.2d at 1308. And, in each, this court explained that although traffic regulation was a permissible primary purpose for suspicionless checkpoints, deterrence of drug activity and general drug enforcement were not. See Bowman, 496 F.3d at 692-93; Davis, 270 F.3d at 980; McFayden, 865 F.2d at 1312-13. As a result, where the district court had made appropriate findings that traffic regulation, and not general deterrence, was the primary goal of the [*20] stops, this court affirmed the convictions. See McFayden, 865 F.2d at 1312-13. However, where the record was insufficient to support a determination of the primary purpose, the court remanded for further fact-finding. See Bowman, 496 F.3d at 694-95; Davis, 270 F.3d at 981-82.

In short, appellants’ likelihood of success on the merits is strong.

The only surprise here is that the District Court denied the injunction.