USA: January 28, 2005 -- No matter what some courts, some prosecutors, and the police say within the jurisdiction of the United States Court of Appeals for the Tenth Circuit, ruse checkpoints offend the United States Constitution and every state constitution. “[Fourth Amendment rights]... are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivation of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. ...[H]uman personality deteriorates and dignity and self-reliance disappear where... persons and possessions are subject... to unheralded search and seizure by the police” (Brinegar v. United States, 338 U.S. 160, 180-181 (1949)).

No matter if it is called a ruse checkpoint, any roadblock for drugs, weapons, littering, any other traffic violations, or any other ordinary criminal wrongdoings is unconstitutional. However, just recently, the Supreme Court of the United States denied a Petition for a Writ of Certiorari addressing this very issue. The effect of which was to grant the police more power in the jurisdiction of the Tenth Circuit Court of Appeals, while infringing on the constitutional guarantees of motorists.

The only checkpoints that are recognized by the Supreme Court of the United States are actual roadblocks - immigration, sobriety, drivers’ licenses and registrations, and emergency checkpoints, not pseudo roadblocks. In the case of the City of Indianapolis v. Edmond, 531 U. S. 32 (2000), the Supreme Court of the United States held that drug checkpoints were unconstitutional. In order to circumvent motorists’ and their passengers’ guarantees under the Fourth Amendment of the United States Constitution to not be subjected to unreasonable searches and seizures, guarantees under their respective state constitutions and the holding of the City of Indianapolis case which used the Brown test as designated in Brown v. Texas, 443 U. S. 47 (1979); Michigan v. Sitz, 496 U. S. 444 (1990); and U. S. v. Martinez-Fuerte, 428 U. S. 543 (1976), police officers are being trained across the country on how to develop and execute these so called pseudo roadblocks. At least eleven (11) states routinely use or intend to use fake roadblocks - Arizona, Arkansas, Colorado, Illinois, Indiana, Louisiana, Missouri, Oklahoma, South Carolina, Tennessee, and Utah in violation of motorists’ right to unreasonable searches and seizures, right to due process, right to privacy, right to travel, right to commerce, and/or civil rights. Most of the law enforcement agencies, if not all, in these states have in fact established actual checkpoints. They merely called their operations ruses. Certain police agencies in the State of Colorado are such agencies.

On June 14, 2000 and June 15, 2000, law enforcement officers in the State of Colorado established a so called ruse checkpoint. However, the Rico Operation was not a ruse, but an actual drug checkpoint. When one compares the physical characteristics of this operation to other checkpoints, such as in the case of U. S. v. Morales-Zamora, 974 F. 2d 149 (10th Cir. 1992) and U. S. v. Huguenin, 154 F. 3d 547 (6th Cir. 1998), there is no difference between these cases. The Morales-Zamora and Huguenin courts also found that drug checkpoints were unconstitutional.

The underlying premise for these so called fake checkpoints is deception. The police set up signs leading motorists to believe that a roadblock is ahead on the highway. Law enforcement officers are stationed near the roadside, hiding in the bushes, waiting for motorists to violate the law. Just because the police hide certain aspects of a roadblock does not mean it is not a checkpoint. In effect, the police entrap motorists to violate the law in order to create their own reasonable suspicion and probable cause to stop, search, and arrest motorists or their passengers.

The Rico Operation had the following physical characteristics:

  •   at least, 15-20 police officers and/or narcotics agents were present.
  •   some of the drug agents wore narcotics task force shirts.
  •   a 4 x 8 orange sign stated DRUG CHECKPOINT ONE MILE AHEAD.
  •   a 4 x 8 orange sign stated NARCOTICS CANINE AHEAD.
  •   prior to the signs, armed police officers, in an unmarked police car, were observing motorists and preventing them from leaving the checkpoint area.
  •   police officers hid in bushes or other places observing motorists and their passengers.
  •   armed, uniformed police officers, in marked police vehicles, stopped cars.
  •   these uniformed police officers directed motorists into a designated search area.
  •   the police searched and arrested motorists and passengers in this designated area.
  •   a command post with drug symbols on it was established in the designated area.
  •   a narcotics dog was present that performed searches.

At checkpoints, the police can stop motorists for no reason at all, but not randomly, or for reasonable suspicion or probable cause. Since the Rico Operation was an actual checkpoint, the Colorado courts should have used the Brown test, not probable cause. This procedure was dictated in the Supreme Court case of Michigan v. Sitz, 496 U. S. 444 (1990). The Brown test requires a court to balance the interest of the state against the interest of the individual, along with the degree that the seizure advanced the interest of the public.

However, unfortunately at this time, the courts across the country are split as to the proper reasoning for cases involving these so call ruse checkpoints, that are in actuality true checkpoints. The Operational Plan used in the Rico Operation came from the State of Utah. In an identical case to the present one, State v. Debooy, 996 P. 2d 546 (Utah 2000), the Supreme Court of the State of Utah used the Brown test for this checkpoint case, even though there was also probable cause involved in this case. The Legislature for the State of Utah ultimately found these alleged ruse checkpoints to be unconstitutional and banned them. In a so called ruse drug checkpoint case, U.S. v. Yousif, 308 F. 3d 820, (8th Cir. 2002), the United States Court of Appeals used the Brown test and found the checkpoint to be unconstitutional. Other courts have analyzed their cases using the Brown test.

Whereas, in another so called fake drug roadblock case, that was in actuality a checkpoint, U. S. v. Flynn, 309 F. 3d 736 (10th Cir. 2002), the United States Court of Appeals did not use the Brown test in its analysis. The court improperly analyzed this case using probable cause. Other courts have also erroneously not used the Brown test.

Robert J. Mulhern was the trial and appellate attorney for the Colorado and federal civil rights cases. Mr. Mulhern has a national and an international law practice concerning complex litigation in civil and criminal writs and appeals. This firm has a reputation for accepting cases that no other attorney will accept for whatever reason. In the year 2000, his office founded the Death Penalty Legal Representation Project to provide counsel to death row inmates, who are innocent. Mr. Mulhern has taught both abroad and in this country as an adjunct professor.

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