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Show Which Was Tt? A Routine Checkpoint Or Unconstitutional Searches? By Toni Thayer ESCALANTE - Folks in . Escalante were in a tizzy last Friday evening when a cavalcade caval-cade of Garfield County Sheriff Deputies and Utah Highway Patrol swooped into town with as many as five vehicles and drove the back roads and Main Street pulling offenders to the sides of the roads. Residents were somewhat fearful as the commotion unfolded because a flurry of law enforcement personnel per-sonnel in this remote and small community often means an emergency in progress. Things had calmed down Monday morning, but local townspeople still discussed the event and wondered what happened. hap-pened. Some questioned the constitutionality of the stops since they had not been informed as in previous years with official traffic checkpoints, nor had they witnessed the sweeping and roaming maneuvers maneu-vers recently employed by the law enforcement personnel. Wallace Lee, Garfield County Attorney, confirmed in a telephone tele-phone interview on May 5 that the roadblocks were administrative administra-tive traffic checkpoints. He said, "It's standard. We do two to three a year. We usually do one every year at Ticaboo, and one or two other ones in different differ-ent locations." According to Lee, the purpose pur-pose of the checkpoints was public safety. He said, "They look at registration, driver's license, insurance, and visually inspect the vehicle for violations. viola-tions. They check for seat belt and child restraint violations and driving under the influence of alcohol or drugs." Presumably, the reason residents resi-dents were unaware of the routine rou-tine checkpoint is because the public notice was published in a newspaper far removed from the area, The Spectrum, a St. George-based newspaper with scant circulation in the area scheduled for the checkpoint. The legal notice, obtained from The Spectrum, stated that the purpose was an administrative traffic checkpoint "on S.R. 12 at milepost 62.1". A visual inspection of mile-post mile-post 62.1 verified that this location loca-tion is well outside Escalante City's limits, just one-half mile before the Escalante Airport turnoff. Nationwide, various defen (See CHECKPOINT on page 7) Escalante Checkpoint from Front Page dants have challenged the constitutionality con-stitutionality of police roadblocks road-blocks as a violation of their Fourth Amendment right, "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" to ensure that "no Warrants shall issue, but upon probable cause". In various cases through more than 25 years, the U.S. Supreme Court has upheld the use of police roadblocks for several sev-eral purposes, including highway high-way safety, protection of national nation-al borders, and sobriety check- points. In some instances, state laws have been more stringent than the supreme law of the land. The Utah Supreme Court, in State of Utah v. DeBooy, 2000, identifies four criteria of a clearly clear-ly defined constitutional roadblock: road-block: 1. Brief stops allowing most motorists to proceed in a matter of seconds 2. Searches for only one purpose pur-pose 3. Checkpoints that advance a valid state interest, such as safety safe-ty on the highways Pretextual roadblocks have one stated purpose but actually perform other multiple searches under the guise of the stated purpose. Pretextual roadblocks are unconstitutional as defined by the Utah Supreme Court's 2000 Opinion, "When many legal violations are searched for, the purpose of the checkpoint becomes less a highway safety measure, and more a pretext to stop all vehicles to search for any and all violations of the law that might be apparent. This generalized stop and search, of course, occurs without any individualized indi-vidualized suspicion of a crime having been committed, much less probable cause." The Utah court's legal analysis analy-sis of Fourth Amendment rights addressed the issue of warrants without probable cause, by determining "whether the checkpoint served as an all-purpose criminal investigation conducted con-ducted without any individualized individual-ized suspicion. This concern relates to numerous concepts embodied in the Utah Declaration of Rights. "Broad-based, suspicionless inquiries are reminiscent of the much hated and feared general warrants issued by the British Crown in colonial days, where British officers were given blanket blan-ket authority to search wherever they pleased and for whatever might pique their interest. It was precisely this type of activity activi-ty that the Fourth Amendment was designed to prohibit." '. The Utah Supreme Court noted, "This state's early settlers Were themselves no strangers to the abuses of general warrants. The abuses were a result of changing from investigating ' known crimes to investigating individuals for the purpose of finding criminal behavior. A -; - free society cannot tolerate such a practice." In the Utah court's Opinion, . - "The search and seizure provisions provi-sions of both the United States and Utah Constitutions prohibit sweeping, dragnet-type deten- -' -tions of ordinary people engaged in peaceful, ordinary 'activities." Utah State law, Title 77, Section 23-104, also requires ; ; preparation of a written plan by ; ; a command level officer and ; ' ; ' approval of the plan by a magis-trate. magis-trate. The plan serves the legal '. ; function of a search . warrant. -; ; Any motorist stopped may - - request to see a copy of the plan and the signed authorization. The State of Utah requires ; -; fhat a plan have a primary pur- pose of "inspecting, verifying or . detecting" one of the following: Drivers under the influence r '. '. -of alcohol or drugs -' -; - License plates, registration, - -; insurance or driver licenses Violations of the Wildlife "Resources Code of Utah Other circumstances "spec-jfically "spec-jfically distinguishable" from a ; -' - .general interest in crime control The plan must include eight ' '. identifying features including ;'-' the purpose, location, time, advance notice given to the pub-lie, pub-lie, layout and signs used, num-' -; -' er of enforcement personnel along with their instructions, ind the sequence of traffic to be stopped. ; ; ; Before approving the plan, the magistrate must also deter- ; -; - mine that it minimizes motorist delay time, intrusion from the . inspection, fear and anxiety, as -; -; well as minimizing the degree of discretion allowed by enforcement enforce-ment personnel. By press time, ' -' -' f the Garfield County News had not obtained a copy of the recent plan, although Lee indicated Judge Yardley had signed the document. According to Garfield County Justice Court clerks, they had not seen a plan nor did the court have a copy of it. The National Motorists Association, a private group representing and enhancing North American motorists' rights, has in-depth information on their Roadblock Registry website at http:www.road-block.org, http:www.road-block.org, including a database of past roadblocks by state, upcoming roadblocks, and registration reg-istration by the public of newly held roadblocks. The watchdog group also identifies motorists' rights at a roadblock in their article "Most Frequently Asked Questions". They say, "You do not have to answer any questions, particularly particu-larly questions that would be self-incriminating. . . you cannot be compelled to explain your travel plans, divulge the contents con-tents of your vehicle, or in any way converse with law enforcement enforce-ment officers operating a roadblock." road-block." Regarding searches of your car at a roadblock, the group informs the public, "Your car can only be searched under the following circumstances: You voluntarily give the police permission per-mission to search your vehicle. The police have a warrant to search your vehicle. The police have 'probable cause' or 'reasonable 'reason-able suspicion'." In the latter instance, "They must be able to explain what they think they will find and why they think said items are in your vehicle." A search conducted against your will, even one that results in possession of illegal items, is an invalid one, and "they can be (and should be) held criminally and civilly liable for conducting an illegal search." Other motorists' rights listed on the above webpage are swift processing at the roadblock with a maximum detainment time of 15-20 minutes or formal action taken by police against the motorist, and legal maneuvers to avoid a roadblock, even U-turns. |