By Sean C. Thomson
An interesting issue crossed my desk again, and I thought it would be interesting for people to learn about the types of “checkpoints” used by law enforcement officers in Colorado in their efforts to detect intoxicated drivers, persons in possession of drugs, or other crimes. Checkpoints are a simple concept, but a complicated legal issue. Accordingly, many people think that they know what to do when confronted with a checkpoint, but in actuality, they are misinformed.
The first interesting thing is that there are two types of checkpoints, but one of them is a “checkpoint” in name only. Sounds confusing, but it will be clear in a minute. It is important to know about the two types, because the rules are different for a “checkpoint” and a checkpoint.
The first type of checkpoint is the kind you think of when you think of a checkpoint. Police set up a lane that cars drive through. In that lane an officer will contact the driver and ask for the driver’s license. If, during that interaction, the officer detects indicia of alcohol impairment or can immediately discern evidence of another crime, the officer can then detain the driver to investigate further. If there is probable cause to suspect the driver is Driving Under the Influence (DUI), the officer may request that the driver perform roadside sobriety testing, or may invoke the Expressed Consent law, which states that a person impliedly consents to chemical testing for alcohol or drugs, by blood or breath, by virtue of driving on the public roads.
Defense attorneys in Colorado and throughout the nation have challenged the use of these checkpoints. In America, and Colorado, we have the right to be free from unreasonable warrantless seizure by law enforcement officers. Defense attorneys have argued that that is exactly what being stopped in a checkpoint is: unreasonable warrantless seizure, which is unconstitutional.
After these challenges, courts in Colorado have determined that checkpoints of this type are not unconstitutional, so long as limits are in place to ensure the seizures which occur at checkpoints are not unreasonablein scope. (The constitution only prohibits unreasonable warrantless seizures.)
Typically, such limitations include that police are not permitted to pick and choose whom they stop. They either stop each car, or they let all cars through (to relieve backups.) This is intended to prevent officers from selectively stopping or searching based on a hunch – or profiling. Another common limitation is that police are not to take action against people who elect not to travel through a checkpoint, unless there is some other reason to stop the vehicle. This is intended to prevent officers from, in effect, generating their own basis to stop a person: “Oh, you don’t want to be stopped? That’s all the authorization I need to stop you, buddy!” Courts typically find that a person who turns around or otherwise avoids a checkpoint, based on being in a hurry, or simply not wanting to be subject to suspicionless police seizure, should not be penalized for exercising that right.
That brings us to our second type of checkpoint, a “checkpoint.” I put the term in quotes, because it is not actually a real checkpoint. It is a sting operation. The police set up a series of signs that say a checkpoint is up the road. Sometimes they say that all cars will be searched, or that drug detecting dogs are in use. None of that is true. There is no checkpoint. Cars aren’t being searched, dogs aren’t being used. Cars can keep travelling and never encounter police.
That is because the police are hidden, with binoculars and radios, watching for drivers who pass the signs and then take the exit off the highway before they reach the “checkpoint.” The police are watching to see if someone does something suspicious before proceeding through the “checkpoint.” It is those drivers who will encounter the police.
Courts have held that this type of operation is legal, because no car is actually being stopped to have their car searched at a checkpoint. The only people who are stopped and searched are those who take some other action that the police observe, which justifies the intrusion.
For example, in one case, a person passed the signs, got off the road, and then was observed unloading a package from the car before proceeding back on the highway towards the “checkpoint.” The police recovered the package and found it contained suspected illegal drugs. A team of officers a ways down the road were instructed to follow and stop the car not at a checkpoint, but based on the observed possession of illegal drugs.
As a defense attorney, I believe that citizens deserve to know their rights, so that they can use them. I also believe that to effectively use your rights, you need to know how they work in the circumstances you may find yourself in. The police have many powers, and how they use them may affect how you want to use your rights. For example, police can set up a real checkpoint and stop everyone who comes through. They might, however, be prohibited from stopping those who don’t come through. Police might also set up a fake checkpoint, where those who come through are free to pass, but those who stop might be searched.
How you decide to interact (or not interact) with police is your choice, but ultimately, the decision is only a meaningful choice if you know what the choices are. As you can see, it’s a complicated world on the road. Good luck out there!
Contact a Colorado attorney at Feldmann Nagel Cantafio Margulis, PLLC's Criminal Law Group to assist you in your defense. We can be reached at (888) 458-0991.