Watchdog: Can police stage checkpoints?

Dec. 21, 2010 at 6:21 a.m.
Updated Dec. 23, 2010 at 6:23 a.m.

Did Victoria law enforcement infringe on the Constitutional rights of motorists?

Some readers suggested so.

The Victoria Police Department and the Victoria County Sheriff's Department staged a Moody Street inspections checkpoint on Nov. 15.

They stopped 200 motorists from 7:30 to 11 p.m., and produced 40 citations and two arrests.

Police say checkpoints, used to check for driver's licenses and vehicle registrations, help to keep the city's streets and highways safe.

But can they legally stage such checkpoints?

If local law enforcement followed stringent guidelines, the quick answer is yes.

Unreasonable searches or seizures, of course, are forbidden under the Fourth Amendment. A number of exceptions, however, exist.

The U.S. Supreme Court ruled police checkpoints to intercept illegal immigrants and drunken drivers, or to verify licenses and vehicle registrations, are permissible.

The 1990 ruling stems from a contentious case: Michigan Department of State Police v. Sitz.

Police there 20 years ago conducted random sobriety checkpoints to catch drunken drivers. Residents sued on the grounds police violated their Fourth Amendment rights.

The U.S. Supreme Court ruled the checkpoints did not violate those rights because the brief stops hardly delayed and only negligibly affected drivers. Additionally, the stops helped to curb drunken driving, the court ruled.

The court also ruled - years earlier in 1979 - there is a legal and illegal way to conduct these sorts of operations.

In Delaware vs. Prouse, the court ruled to prohibit officers from acting on their own without guidelines. Condoning that sort of behavior could promote an abuse of power.

William Prouse, for example, randomly stopped motorists even though a checkpoint had not been staged.

"He just decided to stop everybody who came down the road. This was unfettered and unsupervised discretion by the officer," said Michele Fields, general counsel for the Insurance Institute for Highway Safety. "The law was set up to prevent officers from using too much individual discretion in the field. It balanced the value of a checkpoint against individual rights."

The criteria in the federal law - blended from these two high-profile cases - requires checkpoints, in part, to be visible, clearly marked and supervised by a commanding officer. Officers cannot selectively stop vehicles; they must stop all who pass through a checkpoint.

"Michigan vs. Sitz said it's OK to hold sobriety checkpoints," Fields said. "Delaware vs. Prouse tells you what you can't do and why you can't do it."

Today, 38 states conduct sobriety checkpoints, but Texas is not one of them, according to the Governor's Highway Safety Association.

Texas law forbids sobriety checkpoints - it calls them unconstitutional - but it allows inspection checkpoints.

Texas Transportation Code Section 521.025, Subsection B, notes: "A peace officer may stop and detain a person operating a motor vehicle to determine if the person has a driver's license as required by this section."

Because this provision does not require officers to give reasons for a stop, it is cited as the underlying authority for inspection checkpoints.

"However, any license checkpoint setup under the authority of this provision must satisfy guidelines established in (the federal rulings)," Fields said.

Victoria Police Chief Bruce Ure produced a copy of the guidelines he said his officers follow.

"I can tell you our officers were instructed to check every vehicle coming through the checkpoint ..." Ure said. "They were also instructed that the intent was to check for insurance and a valid driver's license. If they observed anything illegal through the Plain View Doctrine, then we clearly expected them to further act upon it."

The police department has of Monday night - more than a month after staging the checkpoint - not received any motorist complaints, Ure said.

Highlights of the department's lengthy checkpoint requirements:

Each checkpoint will have sufficient signs indicating the reason for the checkpoint, cones or barricades for controlling traffic.

Supervisors must select checkpoint locations, which must also have a posted speed of 45 miles per hour or less. Major thoroughfares or heavily congested areas will not be selected as sites.

Those checkpoints established at night must be well lit. Checkpoints will not be authorized during rain, snow or other inclement weather.

The minimum number of personnel at any checkpoint will be one supervisor and four uniformed officers. All officers will be in full uniform.

Drivers who show a valid license, insurance and registration, and don't appear to break any other Texas law, proceed through the checkpoint.

Violators, however, are directed to a specified area where they are ticketed.

"Prior to the operation, officers attended a briefing where legal issues were covered," Ure said. "We are sworn to uphold the U.S. Constitution, and if this type of regulatory operation would have compromised this important responsibility, then clearly we would have refrained from detaining even one single vehicle."

Gabe Semenza is the Public Service Editor for the Advocate. Comment on this story at

Corrected: Dec. 23, 2010



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