Transcript

ILLINOIS, Petitioner v. ROBERT S. LIDSTER

No. 02-1060

November 5, 2003, Wednesday, Washington, D.C.

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:03 a.m.

PROCEEDINGS

(10:03 a.m.)

CHIEF JUSTICE REHNQUIST: We'll hear argument now in No. 20... 02-1060, Illinois v. Robert S. Lidster.

Mr. Feinerman.

ORAL ARGUMENT OF GARY FEINERMAN ON BEHALF OF THE PETITIONER

GARY FEINERMAN: Thank you, Mr. Chief Justice, and may it please the Court.

A Lombard informational checkpoint was designed to find witnesses to a specific known crime.

The principal question here is whether the checkpoint is per se invalid under the Fourth Amendment or whether it's governed by the Brown balancing test.

Now, the touchstone of the Fourth Amendment is reasonableness, which generally is measured by balancing the Government interest advanced by a seizure against the intrusion on the individual and this Court has held that road... roadway checkpoints, including those that serve a law enforcement purpose, are governed by the balancing factors set forth in Brown v. Texas.

Now, in Edmond, an exception was carved for a certain category of law enforcement checkpoints, those that are designed to advance the general interest in crime control.

The Court held in Edmond that crime control checkpoints are not subject to a balancing analysis, but rather are per se invalid.

The Illinois Supreme Court in this case held that informational checkpoints, including the Lombard checkpoint here, fall within that general crime control exception.

That was an error.

Per se invalidity under the Fourth Amendment is very strong medicine and ought to be reserved for exceptional circumstances, and those circumstances--

Unidentified Justice: Well, I suppose we'd have to decide here not only whether it was per se invalid, but whether it was reasonable under any other standard.

GARY FEINERMAN: --That's correct, Justice O'Connor.

Unidentified Justice: And let me ask you, is it often that roadblocks are set up just to get information like this?

GARY FEINERMAN: I... I would rely on the amicus briefs submitted by the Illinois Association of Chiefs of Police and the Major Cities Chiefs Association, and they... they have informed the Court that roadblocks are not used frequently, rather they are used judiciously in order to solve certain--

Unidentified Justice: This was a little odd.

It was a week later?

GARY FEINERMAN: --It was a week later, but there was a very good reason why the checkpoint was set up at that particular place and at that particular time.

There was a fatal hit-and-run accident at about midnight on a Friday night.

There were no witnesses, at least pedestrian witnesses, and the Lombard police reasonably concluded that, because people's driving habits, or at least some people's driving habits might be regular, that some of the drivers that were there on the night in question would also be driving the same route at the same time at the same place one week later, and we--

Unidentified Justice: The... the... you... you said that they had to be used judiciously and that's a good word, but our... do our precedents in this area generally say, well, we defer to the good judgement of the police, they won't use them too often.

The Illinois Supreme Court said, oh, if we allow this, we're going to have roadblocks every other... every day, every other street and in part that's hyperbole, but on the other hand, it does caution us that there should be some limiting principle and I just don't know if our precedents would support us in adopting your word, oh, if it's used judiciously.

GARY FEINERMAN: --Well, it's used judiciously for a number of reasons.

One are the resource limitations.

These kinds of roadblocks are very resource-intensive.

There's also the prudential limits that the police departments place upon themselves.

They don't want to appear too intrusive to the public and this is a... a minor inconvenience and the--

Unidentified Justice: What if that isn't enough?

What if they... they're squandering their resources?

You have a dumb police chief who's... who's using most of his resources in fruitless roadblocks.

What do we do then?

GARY FEINERMAN: --Then the courts step in and apply the Brown reasonableness factors.

Unidentified Justice: Well, what... that's what I'm asking.

What makes this reasonable that wouldn't make other ones reasonable?

What would be unreasonable?

A... a general roadblock asking about general crime... you know, sir, have you seen any crime committed in the last 6 months, something like that?

Would that be--

GARY FEINERMAN: That would be closer... that would be closer to the situation that was presented in Edmond, although it wouldn't... it wouldn't present one of the hallmarks of what we believe is a general crime control roadblock, which is that it's the goal of the police to incriminate the motorists as opposed to simply seek information.

Unidentified Justice: --No, it wouldn't... it wouldn't come within that, but you think that that would... would be invalid even though you would support these informational roadblocks in some circumstances?

GARY FEINERMAN: That... that question, of course, isn't presented here, but I... I--

Unidentified Justice: No kidding.

GARY FEINERMAN: --I understand, but our... I... I suppose we would say that such roadblocks should not be declared per se invalid under the Fourth Amendment, but rather they ought to be subject to the Brown balancing test.

Unidentified Justice: You going to answer my question?

Would that one be invalid or not?

GARY FEINERMAN: It would depend upon the circumstances.

We could--

Unidentified Justice: I gave you the circumstances.

It's a general roadblock.

They stop everybody who comes along simply for the purpose of asking, sir or madam, have you seen a crime committed within the last 6 months?

GARY FEINERMAN: --I think there... there would be--

Unidentified Justice: What other circumstances do you need?

Whether it's raining or not?

GARY FEINERMAN: --No.

Unidentified Justice: Okay.

Now, can you give me--

GARY FEINERMAN: I can't--

Unidentified Justice: --a yes or no?

Is that good or bad?

GARY FEINERMAN: --It's, in my most instances it would be bad, but--

Unidentified Justice: Okay.

GARY FEINERMAN: --I... I don't know if we could foreclose the possibility that there might be some circumstances were such a roadblock would be reasonable.

For example, let's assume that in... in some area of some city that there's just rapid lawlessness because of a blackout or whatever and there are hundreds of crimes committed and the police might want to canvass the neighborhood but nobody wants to be seen talking to a police officer.

So in that instance perhaps a roadblock would be set up where the police would hand each motorist a piece of paper saying, you don't have to talk to me now but here's a number, and if you know of anything that had happened that was unlawful, please feel free to give us a call, we'll maintain our confidentiality.

Unidentified Justice: Well, what... what about--

--Mr.--

--a road... roadblock that you find in perhaps some smaller towns where the police just very briefly stop you and ask you to contribute to the police boys fund.

GARY FEINERMAN: I'm... I'm not sure that would be a... a crime control roadblock.

Unidentified Justice: I don't think it is.

[Laughter]

GARY FEINERMAN: That... that perhaps would be valid and now it would be a better practice, of course, if the police were to simply approach cars that were stopped at a stoplight or a stop sign or a tollbooth.

Unidentified Justice: If you had that kind of a roadblock and one of the drivers just about ran into the policeman, do you think that the court... the courts would entertain the argument that, well, the initial stop was invalid, therefore running into the policeman... it cannot be grounds for the arrest?

I... it's just a clumsy way of asking, I guess, whether... whether or not there is any kind of a causation break here, causation link problem.

GARY FEINERMAN: Yeah, we... that... that argument perhaps could been made below but it wasn't, and as this case comes to this Court, the assumption is that if... if the roadblock were invalid under the Fourth Amendment, then the subsequent arrest would be as well.

Even though the... the... Mr. Lidster almost running into the police officer did provide cause, that question's not presented here.

Unidentified Justice: Mr. Feinerman, may I go back to your own hypothetical of a moment ago in which this crime has been committed, people don't want to be seen talking to the police, so the police might set up a roadblock under those circumstances.

What about the same situation in which the police say... and I suppose it would be reasonable in your hypo that they need to talk to a lot more people than simply the ones who were driving in cars... on your reasoning, could the police, in effect, cordon off sidewalks so that any pedestrian coming down the sidewalk would have to pass through sort of a chute at the end and could not get through with stopping to talk to the police officer and answer questions in order to get through?

GARY FEINERMAN: No, Justice Souter, because pedestrians have greater Fourth Amendment rights than motorists.

Unidentified Justice: Well, they... they... they do in the sense that we... we recognize certain rights to stop the motorist because of the regulated nature and the highly dangerous nature of the... of the driving enterprise.

But here we're talking about stops which bear absolutely no relation to the regulation of motor vehicles.

The only reason for the stop in the case that you're defending, and the only reason for the stop in my hypo is that there may be an opportunity to gather evidence from a citizen who won't come forward but would answer a question.

So it seems to me that the difference between cars and pedestrians has nothing to do with the... the... the answer to my question.

Am I wrong there?

GARY FEINERMAN: I believe so, Your Honor, with respect.

It would be permissible with motorists.

It wouldn't be permissible with pedestrians because motorists do not have the same expectation of freedom of movement that pedestrians do.

Unidentified Justice: No, but the... no, but the justification for interfering with their freedom of movement is not the justification that's involved in this stop.

You're not looking for impaired motorists.

You're not checking licenses and registration.

You're simply stopping motorists because they might have seen a crime, and in the extension of your hypo I'm talking the pedestrian who might have seen a crime or have some evidence of it.

They're in exactly the same situation.

If you can stop the cars, why can't you stop the pedestrians?

GARY FEINERMAN: Again, I... I just have to rely on my prior answer.

It's because this Court has held that in certain... in certain situations, suspicionless roadway stops are permissible, or at least subject... potentially permissible and subject to the Brown balancing test.

Unidentified Justice: Does one have a... in... is it... a greater sense of privacy walking down a main thoroughfare than being in a car?

I understand the distinction between a home or an office, but you're out there on the street and the police could make... could... the police could go to any particular pedestrian and say, could you tell me if you know anything about X crime that was committed in this neighborhood and the police could do that?

GARY FEINERMAN: That's correct.

The police can walk up to any pedestrian and ask questions and that's not a seizure under the Fourth Amendment.

Unidentified Justice: Can they make the pedestrian stop?

I mean, I'm walking along, the police says, excuse me, sir, can I ask... I say, no, I'm too busy, and I keep walking.

GARY FEINERMAN: No.

Unidentified Justice: Can they arrest me for keeping on walking?

GARY FEINERMAN: No.

That's Brown v. Texas.

The police cannot do that, but--

Unidentified Justice: So why can they do it with a car?

Is that what happened here?

Suppose this car were in first gear as it cruised, you know, rolled up to the roadblock and the same thing happened, the policeman said, I want to ask you, you know, sir, I'd like to ask you a question.

I'm sorry, I'm too busy, just keeps rolling on through.

Would... would he have been arrested in this roadblock?

GARY FEINERMAN: --If... if he's... if he rolled on through and... or... or if he stopped and said, I don't like... I don't want to--

Unidentified Justice: He didn't stop at all.

He kept rolling at a very slow speed and he just told the policeman, I'm sorry, I'm too busy.

GARY FEINERMAN: --The... the record doesn't reflect whether any such instances happened and that would be a close--

Unidentified Justice: He'd be arrested, let's... he'd be arrested pretty--

GARY FEINERMAN: --Perhaps he would be arrested for not following--

[Laughter]

Perhaps he would be arrested for not following the police officer's--

Unidentified Justice: --Well, now--

GARY FEINERMAN: --instruction, but really the--

Unidentified Justice: --Do... do you think he could do the same thing with a... with a pedestrian?

GARY FEINERMAN: --No, no.

And that's Brown v. Texas.

Pedestrians cannot be seized for this purpose and that this--

Unidentified Justice: Well, now, in the Edmonds case, the Court opinion said that under exigent circumstances there could be some kind of a... an appropriately tailored roadblock.

Do you take the position that trying to find a witness was some kind of an exigent circumstance here?

GARY FEINERMAN: --No.

Our position is not that there are exigent circumstances.

Our position is that this is not a general crime control roadblock.

A crime--

Unidentified Justice: When you make your balance under Brown, do you... does the time that it takes to answer the officer's inquiry the relevant factor or the time you have to wait in line if there's a big... it's a crowded street, you know, they... you cause a traffic jam, you have to wait 20 minutes?

GARY FEINERMAN: --It's our position that it's only the time that... of the police-motorist encounter.

Unidentified Justice: So that even if in fact the delay caused the... a bunch of people a half hour's delay, that would be irrelevant?

GARY FEINERMAN: In... in our... we... we... if... were that question presented, we would say that that's irrelevant because that's simply endemic.

That's just a byproduct of driving.

Unidentified Justice: It's a byproduct of the seizure of one person that you got to wait... wait in turn to be seized yourself.

GARY FEINERMAN: That's true, and... but what's... the reason why... the police don't want there to be a line.

The police just want to talk to each motorist as they're driving by.

Unidentified Justice: No, but if... if you're on a busy street, as they were in... in... I forget which suburb of Chicago this was--

--Lombard.

--in Lombard, you're gonna... you're gonna tie up traffic for a while.

GARY FEINERMAN: Yeah, I should mention... I should mention that Mr. Lidster at his trial, at page 47 of the transcript, testified that there were only three cars in front of him.

So he was stopped really for... at most only a minute, which is permissible.

But were there a case as in your hypothetical where a motorist were stopped for a half an hour, we would still say that that waiting time doesn't count because that's really more a function of the number of vehicles on the street and it's not really... it was not intended by the officer that there be this backup.

Unidentified Justice: I... I suppose part of the reasonableness inquiry has to be what alternatives were available to achieve the same objective.

And why couldn't the police just have had a big sign on the side of the road, one of those, you know, illuminated signs that they have now, which said, you know, please help us, looking for hit-and-run--

GARY FEINERMAN: It--

Unidentified Justice: --last week, something like that.

And then those people who are willing to cooperate could pull over and cooperate and those... those who want to have nothing to do with it can keep on moving.

GARY FEINERMAN: --That would be possible, but this Court has said very clearly that a less restrictive means test is not to be applied under the second Brown factor.

Unidentified Justice: I'm not applying the least... least restrictive means test, but surely one of the... one of the factors in determining whether this was reasonable is whether you could have done... achieved the same objective in... in some other manner.

GARY FEINERMAN: That's correct.

That is a factor and... but these kinds of signs or billboards, it isn't like it just says, drink Budweiser or fly United Airlines, there's a lot of information on there, and if these cars are--

Unidentified Justice: It might distract drivers if... if a big sign on the road... on the highway when you're supposed to be looking at the road.

That might be a reason, but there's a... there's an aspect of this, you've repeated the police many times, and one of the worrisome things of this set-up is all you need is a crime, and in major metropolitan areas there are crimes, multiple crimes every day.

Who makes the decision?

The local police chief.

And then after some, you can get into court.

It's... it's not like the law dictates this or even the State's Attorney General, but it's in every town, the local police chief that may have just a range of views about using roadblocks.

GARY FEINERMAN: --That... that's what the Brown balancing test is there for.

It's there to determine what kinds of stops are reasonable and which one aren't.

Now, if there are some circumstances where we can imagine that we'd want to have this kind of informational checkpoint, then a... and that's really the principal question here.

There ought not to be a per se rule, because there are some situations, and we submit that this is one of them, where it makes perfect sense for the police to set up a roadblock because the physical evidence recovered from the scene was not sufficient to identify the perpetrator, and the only witnesses to the crime were fellow motorists, and there was really only one way our... there wasn't only one way, but this was a very good way of getting at them.

And if there are circumstances where we can imagine that we'd want to enable the police to solve crimes in this manner, then a per se rule is invalid.

It ought to go through Brown balancing.

Unidentified Justice: You... you mentioned that this is a good way to get at the people you want to get to.

Is there any indication that there... anything of value was obtained in the investigation of this crime in this particular roadblock, or do you have any information across the... from... from broader statistics across the nation about the effectiveness of doing this?

GARY FEINERMAN: I have no statistics from across the nation and I'd have to go outside the record to answer your question.

The Lombard police asked the local news to actually cover the roadblock, which they did, and somebody who was watching the local news realized that a gentleman in her apartment complex had recently had damage to the right headlight of his F-150 and called--

Unidentified Justice: If... if the police had... if the police had asked the local news to... to broadcast a 2-minute clip of a police officer saying, we're having trouble finding the perpetrator of this crime, please come forward, wouldn't that have gotten the same result?

GARY FEINERMAN: --Well, we have to--

Unidentified Justice: They wouldn't have done it, but I mean--

GARY FEINERMAN: --They may not have done that.

If... if there are no further--

Unidentified Justice: --a roadblock is much more fun to cover.

[Laughter]

GARY FEINERMAN: --Justice Scalia makes a good point, and I'd like to reserve the remainder of my time.

Unidentified Justice: Very well, Mr. Feinerman.

Ms. Millett, we'll hear from you.

ORAL ARGUMENT OF PATRICIA A. MILLETT ON BEHALF OF THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE PETITIONER

PATRICIA A MILLETT: Mr. Chief Justice, and may it please the Court.

The reason a news story covering a... a hit-and-run fatality, as in this case, is not as effective for a number of reasons.

First of all, statistically, the majority of Americans don't watch local news.

More importantly, there is significant value as... as has long been recognized when police deal with pedestrians and approach them, seeking their assistance in solving crimes, there is significant value to having a police officer approach someone in a one-on-one manner in an effort to solve a crime.

First of all, the... the approach impresses on people, who are otherwise very busy, the importance of the matter before them and that this may be worth devoting their time.

The police officer's one-on-one approach can advise the person, in addition, that what you saw might be significant even though you didn't see an accident.

Unidentified Justice: But can you stop the person?

I mean, put it in a pedestrian context, do you think a police officer can insist that the person stop, stand there, and listen to his pitch?

PATRICIA A MILLETT: No, absolutely not, Justice Scalia.

There is a long... just there is a long historic distinction between cars and homes, there's a long historic distinction between cars and pedestrians, and the reason... as a practical matter, you have to have a very, very brief seizure here to protect the life and limb of the police officer while he tries to make this approach.

That's not needed when you're approaching pedestrians.

Unidentified Justice: Why... why does the distinction... you've mentioned it and... and Mr. Feinerman mentioned it... why does the distinction between cars and pedestrians apply in a case in which the... the justification for making that distinction, regulation, a risk of impaired driving, does not apply?

PATRICIA A MILLETT: What... what is relevant is what this Court has long recognized is... is the difference in your reasonable expectations of freedom of movement between people in cars and pedestrians on the sidewalk.

Unidentified Justice: No, but my expectation of freedom of movement in the car is that, yeah, the police can stop to... for a sobriety checkpoint and I'll assume they can... they can stop to... to check my... my license and the registration of the car, but I also assume that they can't, you know, barring today, the result of today's case, I... I'm assuming that they... they can't stop me for... for other reasons, barring some really exigent circumstance.

And if that expectation is reasonable, and I think it has been at least up until today, then I think my expectation is... is the same as the pedestrian's expectation, barring the... the regulatory authority of... of exercising the regulatory authority, which is not in... in issue here.

PATRICIA A MILLETT: Justice Souter, the essential command of the Fourth Amendment is reasonableness, and there's nothing in the Fourth Amendment that says stops for sobriety or stops to see if you have any aliens in your trunk are inherently reasonable and nothing else is.

It's a balancing test, as this Court has long recognized, and an important part of that balance is the expectations that the individual brings to it, and the expectation of the individual behind the wheel is that there are a number of times that I will come into contact with police officers and I will need to stop, I'm highly regulated, I'm highly restricted, and I am engaged in a privilege of driving on the public roadways.

Walking is not a privilege.

Driving on the public roadways is and so the question--

Unidentified Justice: You're... you're saying that because they might have observed or... or observed evidence in the exercise of their privilege that that would be a regulatory basis for stopping them in the cars, whereas there wouldn't be any such basis for the pedestrian?

PATRICIA A MILLETT: --The regulatory need for it is that there's... you have a very common police practice here, and one that we expect the police to do if a... a fatality has been committed is try to find witnesses who were there at the time.

The only way that principle can work--

Unidentified Justice: And... and we understand that when... when there's something pretty contemporaneous between the stopping and the... and the accident.

That's what I had in mind with exigency.

But do we... is... is it such a common practice that a week later or two weeks later--

PATRICIA A MILLETT: --It is extremely common for these types of informational checkpoints.

There's two different types of checkpoints.

There is the one that's trying to catch the person right after the crime's been committed.

Unidentified Justice: --Yeah.

PATRICIA A MILLETT: But the witness checkpoints are quite routinely done, either 24 hours, or very routinely, a week after, because people are creatures of habit and they tend to drive the same roads at the same time of... the same days, and so it's very common... a number... a number of Federal checkpoints have been done exactly like this.

They've been done a week after a child's been abducted.

In the Elizabeth Smart case, it was a week later.

Federal checkpoints that I'm familiar with were done exactly... exactly a week later, and you try to go at the exact same time, because that is eminently sensible for police officers.

If you want to look for the witnesses, you want to find people who are most likely to have been there at the same time.

Unidentified Justice: Have they been successful?

Is your knowledge of these things profound enough that you can say how successful they've been?

PATRICIA A MILLETT: I... I can't give you--

Unidentified Justice: Do you know of any that have been successful?

PATRICIA A MILLETT: --Yes, absolutely.

The... the Park Police did one... the Federal Park Police did one here in the Washington, D.C. area a couple years ago that found four eyewitnesses to a hit-and-run fatality.

But also, the ability to measure success here... we're not talking about immediately removing a drunk driver from the road or actually finding the alien... solving... you're successful if you defined you solved the crime, and solving a crime is not a linear project.

It involves a lot of information coming in from a different--

Unidentified Justice: But you couldn't... you couldn't do this to try to get the perpetrator.

That would clearly be Edmond, and there seems to be something odd about saying, police, you can't have a roadblock in a neighborhood where you think that it's likely the suspect is living, but you can if you say what you're looking for, it's not the suspect, but witnesses.

PATRICIA A MILLETT: --Justice Ginsburg, I... two responses.

First of all there are... Edmond leaves open that there are at least some circumstances when you can do this... maybe to approach is exigency... but where you can do these types of checkpoints to catch someone.

The language there was a fleeing dangerous criminal who was going by particular routes, so it's not... that doesn't seem to be foreclosed in all circumstances.

But the reason it makes a big differences for purposes of Fourth Amendment principles, there's actually three reasons why looking for witnesses is better and should be more consistent with the Fourth Amendment than what... the issue in Edmond.

And that is, there... there's a difference between, just a practical difference, between police taking action, seizing people first and looking for a crime to go with them, which is what was going on in Edmond, or having a specific crime and looking to solve it in the most sensible and reasonable manner that police officers do, and that is looking for witnesses.

Unidentified Justice: Well, following Justice Ginsburg's question, which is the easier of the two cases?

The one we have here or a hypothetical case in which they have a description of the hit-and-run driver and they stop everybody to look in the car to see if the driver meets the description?

Which is the easier of the two cases to sustain?

PATRICIA A MILLETT: Assuming that this is not... it's not right after the crime that I have the description--

Unidentified Justice: A week later, everything else the same.

PATRICIA A MILLETT: --I think this Court's... I think both of them are different from Edmond, but I do think this Court's doctrines establish why the witness approach is... is more... is less intrusive on Fourth Amendment interests for... for three reasons.

One is that there is a self-incrimination component, self-protection component to the Fourth Amendment and that has been very important in the drug testing cases.

It was central to the resolution of the Ferguson decision and mentioned in camera--

Unidentified Justice: I... I wonder if you'd answer Justice Kennedy's question.

Which is the easier case?

PATRICIA A MILLETT: --I... I'm--

Unidentified Justice: You don't know?

PATRICIA A MILLETT: --oh, I'm sorry--

Unidentified Justice: Pardon me?

PATRICIA A MILLETT: --We would like to have them both sustained, quite frankly, and we don't think they're... they're exactly covered by Edmond--

Unidentified Justice: Yes, yes, but which is more consistent... which is easier to say is consistent with the Fourth Amendment?

PATRICIA A MILLETT: --There--

Unidentified Justice: I would just... I'm mixed up with easier because I don't... which is... the two cases that he gave, in which do you think it's easier for you to win your argument?

PATRICIA A MILLETT: --I... I think the witness one is easier for three reasons, and one is because the Fourth Amendment has this self-protection principle, which is not implicated when you're... you're looking for witnesses.

The checkpoint does not--

Unidentified Justice: In other words, this case is easier?

PATRICIA A MILLETT: --Yes, yes, the witness checkpoint, the looking for information checkpoint.

Unidentified Justice: All right.

I got mixed up--

PATRICIA A MILLETT: I'm sorry if I'm not--

Unidentified Justice: --This case is easier?

PATRICIA A MILLETT: --Yes.

This case is easier, but... but there's... there's two other reasons besides the self-protection principle.

One is, as a practical matter, one of the balancing tests... factors... in Brown v. Texas is the level of anxiety.

When a police officer approaches you and says... even if it's permissible... I want to know if you're doing something wrong.

Do you not have a driver's license?

Are you drunk?

That's... there's a little more anxiety there when a police... than when a police officer comes and says, I would like your help, someone was killed here.

Unidentified Justice: And what's the third reason?

PATRICIA A MILLETT: And... and the third--

Unidentified Justice: The Fourth Amendment is an anxiety thing?

My goodness.

[Laughter]

That is a factor but--

PATRICIA A MILLETT: --It's all... it's all very... sorry.

Unidentified Justice: --that... that cuts against you in this case, though, doesn't it?

This was at midnight.

PATRICIA A MILLETT: No, no.

Part of the Brown v. Texas balancing factors is... is of... one of the things that's been mentioned is the level of anxiety, and the reason that you don't have roving stops but you're allowed to have checkpoints is when you see other people being stopped around you, even if they want to know if you're drunk--

Unidentified Justice: I have a pending question about the... the third reason.

I... what's the third reason?

PATRICIA A MILLETT: --The third... thank you... the third reason is... is a... is a... there's a sort of a practical limitation on the use of these checkpoints when police are not allowed to use it to do their run-of-the-mill business.

Their job is to find crimes and criminals.

Edmond was a checkpoint to find crimes and criminals that we didn't know about, when instead all that's being done here is this is an adjunct to a... adapting to the roadway context the normal investigative processes of police officers.

You... you don't have that abuse, and the same way--

Unidentified Justice: So this is a built-in limitation on the frequency of its use?

PATRICIA A MILLETT: --It is, and Justice Kennedy, you also asked about doctrinal limitations in this Court's cases, and in Atwater v. City of Lago Vista the exact same argument was made dealing with misdemeanor arrests.

And this Court's decision there specifically relied upon the good sense and political accountability of police, for the same reason that we know police don't arrest for every crime and infraction that... vehicle code infraction that they find.

A lot of police chiefs are arrested and checkpoints are a great equalizer, especially these kind because the location is dictated by where the crime occurred--

Unidentified Justice: Arrested or elected?

What... did you say arrested or elected?

That a lot of police chiefs are--

PATRICIA A MILLETT: --Oh, I hope I said elected.

[Laughter]

Unidentified Justice: --Okay.

I thought you said arrested.

PATRICIA A MILLETT: Thank you, Mr. Chief Justice.

Unidentified Justice: Thank you, Ms. Millett.

Mr. Ramsell, we'll hear from you.

ORAL ARGUMENT OF DONALD J. RAMSELL ON BEHALF OF THE RESPONDENT

DONALD J RAMSELL: Mr. Chief Justice, and may it please the Court.

The mass, suspicionless seizure of innocent citizens for the purpose of investigating ordinary criminal wrongdoing without exigent circumstances is a violation of the Fourth Amendment, and Indianapolis v. Edmond is the controlling precedent.

Unidentified Justice: Well, that sounds a little colorful, but... but in my own mind I'm thinking that this is asking people to help with crime investigation and to spend 10 seconds listening to the request.

Now, it's... I was delayed 2 hours... not 2 hours, but like 2 minutes anyway, or 3 minutes, this morning coming in, for the last couple of days because they had some tree pruning equipment, all right?

So maybe they could put that on the sidewalk and not delay me, but I don't mind.

I did actually mind, but I mean--

[Laughter]

--but... you see, it's not... what their argument is, and that's, at least for me, what I'd like you to address, is this is not much of a... of a demand on people to stop for 10 seconds when they're trying to find out somebody who killed someone and... and we just want you to listen for 10 seconds.

Now, why... why is that such an unreasonable thing for the police to ask the public to do?

Nobody has to take the flyer, they don't even have to help.

DONALD J RAMSELL: Well, Justice Breyer, by definition this is a seizure.

Unidentified Justice: I... I don't care about the... I'm asking you... I understand... I'm asking you why it's unreasonable.

That's the word in the Fourth Amendment and I tried to make it as... as reasonable-sounding as I could.

Maybe somebody else could do better, but I want your response to my effort to make this sound very reasonable.

That's what I'm interested in, your response.

DONALD J RAMSELL: It remains unreasonable for a number of matters.

It's the aggregate of the circumstances then by which other innocent persons could be seized.

It's the fact that the gravity of the public concern in this particular event is far less than the reasonableness... reasonableness factors that have been used in Sitz.

It's far less than the immigration factor that was found in Martinez v. Fuerte.

Unidentified Justice: I don't really want to hear cases so much.

I want to hear in common sense why this isn't a reasonable thing to do.

I'm not saying you even have to convince me to win your case, I'm just saying that for... I'd like to know why, in ordinary, common-sense English, this isn't the most reasonable thing in the world?

Now, I'm... I'm now overstating it so you'll be sure to give me an answer.

DONALD J RAMSELL: It's midnight.

You're on a road where you do not expect to be confronted by a police officer.

You're waiting in line for several minutes as various other cars are evidently being interrogated, some are being transferred to secondary staging areas.

The anxiety builds and you arrive at the front of the roadblock to be questioned about where you were last week, personal indications, what have you seen?

You feel compelled to answer.

Unidentified Justice: I didn't think that was the evidence.

I thought they were given a flyer saying if you... read this and see if you observed anything that could help us find the hit-and-run driver.

DONALD J RAMSELL: Detective Vasil testified that they were stopped, given a flyer, but also asked if they had been in the area last week and if they had seen anything unusual.

That second phase was relatively interrogational, although field interrogational.

Nevertheless, it is somewhat intrusive on what are considered some of our privacy--

Unidentified Justice: Well, suppose that there is a roadblock but the only purpose of the roadblock is the police are stopping people to see if they'll contribute to the police boys fund.

The same thing... exactly the same thing happens with that roadblock has happened with your client.

He comes up, almost hits the policeman, smells alcohol on his breath and so forth, he's charged with drunken driving and is convicted.

Does he have a Fourth Amendment claim?

DONALD J RAMSELL: --Well, Mr. Chief Justice, it would be a seizure, so the Fourth Amendment is implicated.

However, applying the Edmond analysis, the programmatic purpose of that seizure not being in the investigation or detection of crime, I would submit it would not be a violation of the Fourth Amendment.

Unidentified Justice: So they can hold him up for 2 hours if they're collecting for the police boys fund but they can't hold him up for 10 or 15 seconds if they're trying to solve a crime?

That doesn't make any sense.

Or hold him up for no reason at all, just for a lark.

Hey, let's hold up a bunch of people.

[Laughter]

You... you say that passes the Fourth Amendment test but if... but... but this very reasonable investigation does not.

That can't be right.

DONALD J RAMSELL: I... I would submit, Justice Scalia, that if you were to stop a person and seize them for no reason whatsoever that that would not survive a Fourth Amendment analysis.

Ten to 15 seconds to deliver some funds and put them in a can would certainly be reasonable for that beneficent, non-crime control purpose.

Two hours would certainly exceed--

Unidentified Justice: Are you saying it would be okay to have a roadblock to collect for the policemen's benevolent fund?

DONALD J RAMSELL: --Compulsive collection would be questionable.

That would seem to be a tax.

[Laughter]

Unidentified Justice: I think if we endorsed--

DONALD J RAMSELL: But we do--

Unidentified Justice: --your view that they can stop for the chief just as a purpose, there's going to be massive change in the way these organizations raise money.

[Laughter]

DONALD J RAMSELL: --It... it is often difficult to say no when... when a fireman is seeking some funds.

However, it is certainly not the detection or investigation of the crime, and the analysis that would take place there would be different, and certainly 2 hours to put money in a can would suggest that the scope and duration of that stop was far beyond what was reasonable.

Unidentified Justice: Maybe... maybe your response to Justice Breyer's question... I'm not sure that reasonableness for Fourth Amendment purposes is the same as reasonableness in general.

Do you think it would be... in general, if you're not talking about the Fourth Amendment... an unreasonable thing for a policeman to knock on your door and say, excuse me, sir, we're investigating a crime, we really need your help, do you mind if I... I come in and ask you a couple of questions just to help us solve this crime?

Do you think that's reasonable in... in... in a sense?

I guess it is.

DONALD J RAMSELL: It is considered a voluntary encounter to the extent that if you choose to open the door and engage in that conversation the Fourth Amendment isn't even implicated there.

Unidentified Justice: No, the person says, unreasonably says no, and the policeman comes in anyway.

DONALD J RAMSELL: That would be a violation of the Fourth Amendment.

Unidentified Justice: Even though it isn't really the policeman that's being unreasonable in the general sense.

It seems to me it's quite unreasonable for the homeowner to refuse to cooperate at all with the police in the... in the solving of a... let's assume it's a major crime.

That seems to me unreasonable, but even so, the policeman is not allowed to come into the home.

DONALD J RAMSELL: That's correct, Your Honor, and there's the difference between the voluntary consensual encounter and what we have in this case was clearly involuntary.

They even had an officer--

Unidentified Justice: And so also here.

It might be very unreasonable for the person not to want to cooperate, and it might be quite reasonable for the policeman to seek the cooperation, but that doesn't necessarily answer the Fourth Amendment question.

DONALD J RAMSELL: --I would suggest that the fact that an innocent motorist would feel that he or she was unreasonable by not cooperating suggests the compulsive aspects of this scenario, make it more of a violation of the Fourth Amendment, and more unreasonable to that extent.

One--

Unidentified Justice: Mr. Ramsell, did I understand your argument to be that if the crime had been a child abduction, that this kind of roadblock to try to get evidence would be permissible?

DONALD J RAMSELL: --In... in a general sense, yes.

Of course, there would be other factors involved, but child abductions generally fall within the exigent circumstance analysis.

Clearly there would likely have to be further evaluation of the facts behind why they felt that--

Unidentified Justice: Well, why if... if it's the danger involved and wanting to save a life that we hope is still in being, why isn't the same thing if you're trying to get evidence about a hit-and-run person who kills people on the highway?

DONALD J RAMSELL: --Well, first off, the child abduction is a continuing crime, to the extent that the need for action in order to prevent the passable future or immediate harm to that child, makes that an exigent circumstance by itself.

Unidentified Justice: So you think this would be different if this was a serial hit-and-run killer, right?

He does one a week.

Then... then you think it'd be a different situation and maybe they could conduct the... the roadblock.

DONALD J RAMSELL: Well, as we had in Sitz with the imminent hazard of drunk drivers, if there were such a thing as a serial hit-and-run driver, the imminency, the exigency would be suggested within that hypothetical, and so I believe that it would be more reasonable under that circumstance, but what we--

Unidentified Justice: And what about a rape murder that... you know that that's not just a hypothetical case?

DONALD J RAMSELL: --That had recently occurred?

Unidentified Justice: A rape murder recently occurred and the police set up a roadblock to get evidence.

DONALD J RAMSELL: Again, if there was... if it was very fresh, and the more fresh it is the more reasonable it tends to become under a simply an exigency analysis, the fresher the crime the more believability--

Unidentified Justice: So would this... would this case have been different if it had been the next day rather than a week later?

DONALD J RAMSELL: --If they had some independent evidence to suggest that the person was still in the area, that may have been a different set of facts.

Commonwealth v. Burns was an example of a informational roadblock where they had independent evidence to believe that the murderer was still in the area.

I believe that was 2 days later.

Unidentified Justice: So if you need a little... if you have a little evidence, then you can seek more.

But if you had none, you can't try to get a lead by this technique?

DONALD J RAMSELL: Justice Ginsburg, I believe the exigency of the circumstances would certainly authorize more... a possible information roadblock under those circumstances.

Unidentified Justice: Did this... is it the case that in this very situation we're talking about it led to information about the person responsible?

DONALD J RAMSELL: Justice O'Connor, my understanding is that the roadblock itself was entirely ineffective.

It had zero effectiveness in seeking to obtain information regarding this event.

In fact, I believe that we've just heard that it was the television which led to some information, which is a standard police practice, does not implicate the Fourth Amendment, does not require any seizure of innocent persons--

Unidentified Justice: Yeah, but it requires a roadblock.

DONALD J RAMSELL: --I believe that in the television context there's no roadblock at issue and no one's even compelled to watch the television--

Unidentified Justice: Well, but maybe television won't cover just a blurb put out by the police where they will cover a roadblock.

DONALD J RAMSELL: --That may or may not be true, Your Honor, but there are--

Unidentified Justice: Nothing duller than watching a wall of... of wanted posters, you know, and now, for our listeners, we're going to pan the wanted posters at the post office.

I mean--

DONALD J RAMSELL: --That would--

Unidentified Justice: --that is not going to sell.

Who's going to sponsor that?

DONALD J RAMSELL: --That would certainly be very boring to... to watch wanted posters, certainly if they were repetitious--

Unidentified Justice: But if... if they hired someone like Justice Scalia to go on the screen and describe it--

[Laughter]

--big audience.

Can I ask you a question about the facts of this case, please?

The blue brief describes it as a... a roadblock... roadblock set up in the evening, and as I understand it the crime was at 12:15 a.m., which I interpret to be midnight.

It was a midnight crime and I thought the roadblock was at midnight, and I wonder, how long did it last?

Was it started in the evening and lasted several hours or was it just--

DONALD J RAMSELL: --To be frank, searching the record it's... it's relatively unclear.

My understanding is 90 minutes to 2 hours at most.

Unidentified Justice: --And it... it was though in the dark at... at night, not during the day?

DONALD J RAMSELL: Yes, it was at night.

Unidentified Justice: And I also don't understand if they handed something to read, how could you read in the... at the... in the dark?

DONALD J RAMSELL: That would also be equally as difficult, Your Honor.

I--

Unidentified Justice: Does the record explain that they did hand something legible to the person or use a flashlight or what... what was the--

DONALD J RAMSELL: --Logic would seem to dictate that by the time the person received the flyer and drove away they would again be away from the scene of the event before they even read the flyer, which also makes it somewhat ineffective in that regard.

Unidentified Justice: --But did they... were there something they were asked to read before they left or just left with them to drive away with?

I just don't understand what happened, to tell you the truth.

DONALD J RAMSELL: Well, to... to take... to take the 10 to 15 seconds Detective Vasil describes as the duration of handing the flyer, asking two questions, and obtaining two answers, it would seem that reading the flyer would have had to have occurred sometime after the seizure.

Unidentified Justice: I see.

There wasn't very much on the flyer, was there?

DONALD J RAMSELL: Well, it did have some... it... it indicated the--

Unidentified Justice: We... we have it someplace, don't we?

DONALD J RAMSELL: --Yes.

It is in the joint appendix and it's located on page 9 of the joint appendix, and there is... there is a great amount of detail that's in that flyer, certainly would suggest it would be difficult for one to read the entirety of it, understand the purpose for which they were even being stopped that evening, which is another point.

There was no advance signs, unlike sobriety checkpoints, where as you're arriving, and even before you have contact with... with the police officers, there's a sign that says, warning, sobriety checkpoint ahead.

At least you're putting... you're put on notice what it is that's taking place in front of you.

Here, people are waiting in line having no idea what it is--

Unidentified Justice: Well, but that... that happens in a lot of other contexts too.

You can be driving on a highway, all of a sudden everything comes to a stop.

What's the matter?

Is it an accident?

Are they having one-lane repair?

And you just don't know, I mean, that's part of the condition of driving.

DONALD J RAMSELL: --Well, certainly we have to expect that we'll be stopped more often than anyone would wish in that context, but it... it's quite different when you are... when there's six to twelve emergency vehicles there and as you get closer and closer you see this encounter taking place before you with every single motorist in front of you.

That raises the anxiety of even the... the most innocent citizen, I would suggest.

Unidentified Justice: Might I ask another question about the... the facts of the case?

Reading the flyer, it's something you could have handed to a pedestrian too who might have been at the scene.

Does the record show whether they did hand this flyer to pedestrians who might have been walking by at the same time the week after the accident?

DONALD J RAMSELL: Well, my understanding of this location, being familiar with the area, is that it's a major thoroughfare with--

Unidentified Justice: Right.

I know--

DONALD J RAMSELL: --multiple lanes.

It would be highly unlikely at midnight that any pedestrian would or should be walking on the shoulder of this high speed limit--

Unidentified Justice: --Oh, there are no sidewalks there?

DONALD J RAMSELL: --No.

There are rarely sidewalks in our town, unfortunately.

Unidentified Justice: Oh, okay.

Mr. Ramsell, there's something I'd like you to comment on.

The... the Illinois Supreme Court was... was concerned about the... the effect of... of this practice, in effect, in opening the door to stops all the time.

They said, you know, there are loads of crimes and if it's justified here it will be justified in other cases and so on, and there have been some questions from the bench to that effect.

One answer to that might be that under the law as it stands now the police can conduct sobriety checkpoints and we will assume that they can make license and registration checks and things like that.

So the... the police already have an opportunity, to put it bluntly, to abuse their right to stop if they want to do it.

Is there any indication that there is this kind of abuse going on, and hence, is there any reason to believe that the abuse would be greater if this practice passed muster than it is under the existing law?

DONALD J RAMSELL: Well, I believe that law enforcement is always appreciative of any techniques or tools that they're allowed to use for investigatory purposes.

Unidentified Justice: But what... what do we know?

Empirically, what we do know?

What is... has there... has there been an indication of abuse?

Is there a reason to believe that this invitation, this tool, would be abused more than the tools that they now have?

DONALD J RAMSELL: I would believe that it would be more... more likely for abuse if this Court were to suggest that these type of roadblocks were a valid investigative tool.

Unidentified Justice: But why... why?

DONALD J RAMSELL: Because it would simply, number one, it is... it makes for great publicity for law enforcement to use these roadblocks.

They feel that it's a--

Unidentified Justice: Well, it makes for great publicity to... to have sobriety checkpoints.

That's one reason why they have them.

DONALD J RAMSELL: --And... I agree, even though statistically roadblock sobriety checkpoints tend to be far less effective than saturation patrols.

Most police chiefs comment that they don't get the type of publicity they receive from a roadblock that they get from saturation patrols.

Unidentified Justice: Is it true that--

--Suppose they had done the same thing they did here, the same thing, except that, in addition to giving them a flyer and asking them about what happened... were... you know, were you here a week before, they... it was also a check of driver registration?

DONALD J RAMSELL: I would suggest the programmatic purpose, the primary programmatic purpose employed in Edmond would still remain that this was for the purpose of crime detection and investigation, not for simply checking licenses.

The same--

Unidentified Justice: Well, they were actually checking licenses.

I mean, they're... they're really doing it.

DONALD J RAMSELL: --And I--

Unidentified Justice: And they... they pick up some people who don't... don't have licenses, but while they're at it they kill two birds with one stone.

And you say it would make it bad because its primary purpose was the other?

DONALD J RAMSELL: --Justice Scalia, I would suggest the programmatic purpose, which would be a question of intent, would still remain that it was truly for the investigation of this particular crime and certainly the duration and the scope of the seizure would exceed the license check when questions were being asked about whether you had been here last week, whether you had seen anything regarding a hit-and-run or any other crime.

That would seem to exceed even the suggested appropriateness of a roadblock for license checks in Prouse.

Unidentified Justice: That... that incremental point of time... you're really playing with a... an inconsequential... inconsequential impingement upon the person's time.

Mr. Ramsell, do you know... going back to Justice Souter's question... whether in the aftermath of Sitz there have been an increase in sobriety checkpoints in this country?

DONALD J RAMSELL: I know that a... a far greater number have been reported since Sitz, but I cannot confess to knowing what the statistics or the record-keeping was prior to Sitz, but it has... it has now crept into the American psyche that roadblocks are a... a regular way of life.

Unidentified Justice: But do... do they exist in Michigan anymore, these sobriety checkpoints?

DONALD J RAMSELL: No.

When the... when the case was remanded to Michigan, Michigan found under their own State constitution that this... that a sobriety checkpoint still remained to be an unreasonable violation of the search and seizure clause of their own constitution, so they do not have them.

Now, in this case, what we have is we have a... a very stale event.

In fact, the facts do not even suggest that the driver was perhaps even negligent in how the accident occurred.

We have a... a bicyclist on a major thoroughfare at midnight in a place where it's highly unusual to... to find pedestrians in a dark area, and there's been no indication that the driver was at fault other than failing to remain at the scene of the accident.

Unidentified Justice: That's pretty serious, isn't it, called hit-and-run?

DONALD J RAMSELL: It's hit-and-run as--

Unidentified Justice: All right, so all that's at stake is that it was a hit-and-run and the guy's dead, all right.

So... so now what has that to do with the reasonableness of this?

I'm not... not asking you facetiously because I think maybe you think you want to tie it in and I just want you to do it.

DONALD J RAMSELL: --Well, the consequences are very serious.

However, hit-and-run would also fall within dinging the car in the grocery parking lot next to you and failing to remain at the scene.

These are single events--

Unidentified Justice: So you mean that it might be reasonable to do it for some serious crimes but not for less serious?

DONALD J RAMSELL: --I would suggest that it cannot be done for any crime except in exigent circumstances, which we do not have here.

This is a stale event--

Unidentified Justice: So even... even if it were, say, a carjacking, where there was a fatality, if it's stale it can't be done?

DONALD J RAMSELL: --Yes, Your Honor.

I would... I would respectfully say that, under the analysis in Edmonds, there is a lack of exigency.

Edmonds suggests that, but for the emergency circumstances of an... an imminent terrorist attack, otherwise that would be considered a violation of the Fourth Amendment.

This is single accident.

It... it does not fall within the magnitude of any of the previous issues that have been brought before the Court--

Unidentified Justice: Now you seem... seem to be arguing the same thing that, other things being equal, if you lose on your other points you could only do it in a serious but not non-serious.

Is that what you're... is that the point you're making?

And if so, I want to know what the line is.

DONALD J RAMSELL: --Well, the line is exigency, and exigency meaning there was no... there's an immediate hazard on the roadway, which was what seemed to justify sobriety checkpoints in Sitz, that there would have been an effectiveness to removing then-hazardous drivers and preventing the potential for future injury to life and limb.

This is a post-event, non-exigent roadblock.

The facts, nevertheless, don't have the gravity of the public concern.

In the Brown v. Texas--

Unidentified Justice: Well, what if... what if you've got a... a license number and for... for a serious crime that was committed, say, an hour ago?

Can... can you then conduct a... this sort of program?

DONALD J RAMSELL: --I would submit yes, that you could under that circumstance.

Number one, you could tailor the roadblock substantially less.

You have the exigency because it is a fresh pursuit analysis.

You certainly wouldn't need to pull over every car and question them if you had a license plate number to work from.

And so it... it would certainly even be capable of being more sufficiently tailored so that those who are admittedly innocent are less likely to have their liberties interfered with.

Unidentified Justice: Of course--

--Well, what if you... what if you just had the information that it's... it's a black Ford SUV?

DONALD J RAMSELL: And it happened one hour ago?

Unidentified Justice: Yeah.

DONALD J RAMSELL: I believe under that set of circumstances the exigency would suggest there would be a potential for a reasonable checkpoint tailored in scope and duration with sufficient guidelines in place.

In fact, in this particular checkpoint, we have virtually no guidelines in place.

We have a field officer who testifies that what he did was to ask some questions.

There's no indication as to why other persons were sent to secondary staging areas.

We do not have any guidelines so that if a motorist had said, yes, I was here last week, and yes, I think I have some information, we have no guidelines for those field officers as to what to do and how to treat that motorist and how to detain that person.

Unidentified Justice: You know anybody's that's challenged these things who... for any reason other than the exclusionary rule?

This case wouldn't be here except for the fact that your client during the stop was found to be driving under the influence.

Had that not happened, don't you think there's zero chance that anyone would have cared enough, would have felt beset upon enough by the police to bring some action to stop this Gestapo-like activity?

DONALD J RAMSELL: I do believe there are--

Unidentified Justice: I mean, it's... it's really just the exclusionary rule driving... driving this case.

DONALD J RAMSELL: --Respectfully, Your Honor, I do... there... I do believe there are people who care and there are people who care about our right to be let alone, our right of free passage.

Unidentified Justice: Well, if people in Lombard care about it, they can tell the police to stop doing it.

DONALD J RAMSELL: I certainly would hope that they would also exercise their right to let them know that they dislike these roadblocks as much as perhaps others in more intellectual pursuits, but--

Unidentified Justice: Are there indications nationwide that the public makes objection to roadblocks, other than the person that's caught for drunk driving?

DONALD J RAMSELL: --I would suggest that most... most persons are not pleased by roadblocks.

I believe that most people feel that they do reflect on an invasion of their privacy and liberty.

Unidentified Justice: I mean, is there evidence of that?

DONALD J RAMSELL: I... I cannot cite any polling that's been taken one way or the other that would really flesh that out.

Here we have far less than the drug interdiction that was rejected in Edmond.

We have a single accident.

We have far less than the concern about protecting our national borders, as we had in Martinez v. Fuerte, and certainly not the imminency of the hazard that was found in Sitz.

There's frankly no empirical or actual data to even support that this roadblock will advance the interest, and by the fact that nothing was advanced in this particular event suggests that even in a balancing test we don't have the sufficiency, the gravity of the public concern, nor do we have any indication of any degree to which this seizure would advance the public interest.

This is more akin to Prouse, where the Court found that the... the likelihood of finding an unlicenced motorist versus the likely numbers of persons that will be stopped was so substantial that data was insufficient.

Unidentified Justice: Well, Prouse was random stops, though, wasn't it?

DONALD J RAMSELL: It was random stops.

However, the effectiveness was mentioned as... as one of the factors, and there were certainly reasonable alternatives that were suggested that could have avoided the random stop scenario.

And here we have admittedly innocent drivers as well with no escape route, so a person couldn't even avoid the... the compulsory stop and questioning.

I would also submit that this analysis, if... if found appropriate here, would equally allow for the stop of pedestrians at... on the sidewalk.

It would allow the police to circle an office building and have the persons run through the... with the gamut of brief questioning before they were allowed to leave an office building.

And it would be very unmanageable and unworkable to find an appropriate balancing test, even though I would submit that one thing the Court needs to do is to, of course, let law enforcement know in advance what will be acceptable conduct on their part and that it would be inappropriate to allow for a case-by-case, fact-sensitive analysis based on the plethora of crimes that could potentially lead to it, the geographic area in a small rural town.

The rural police chief may find roadblocks or... may find their most serious crime to be the stealing of a purse and therefore a roadblock of some form justifiable there, where that same roadblock in an urban setting would be found to be unreasonable and unjustifiable, and certainly those politically accountable officials that feel that their citizenry are more favorable to roadblocks may be encouraged to allow them to occur more often.

Thank you.

Unidentified Justice: Thank you, Mr. Ramsell.

Mr. Feinerman, you have 2 minutes remaining.

REBUTTAL [*52] ARGUMENT OF GARY FEINERMAN ON BEHALF OF THE PETITIONER

GARY FEINERMAN: This Court in Edmond found that narcotics check... narcotics checkpoints are so obnoxious to core Fourth Amendment values that a per se rule of invalidity was justified and the principal question here is whether informational checkpoints present the same Fourth Amendment dangers that general crime control checkpoints present, and the answer to that is no.

And in order to answer that, we... we have to figure out what the hallmarks are of a crime control checkpoint, and we suggest that there are at least two.

The first is that it's the purpose of the checkpoint to incriminate the motorist as opposed to the situation in Lombard, which was simply the police asking for help, and that distinction makes a difference under the Fourth Amendment for several reasons.

The first has to do with privacy.

At a general crime control checkpoint, the police are trying to learn something about you, whether you've committed a wrongdoing, whereas at an informational checkpoint there's just asking for help, somebody died here last week, could you help us find the perpetrator.

There's also a difference in terms of jeopardy.

At a general crime control checkpoint you may be interrogated, detained, arrested, prosecuted, and possibly jailed, whereas at an informational checkpoint, again, you're just being asked for help, and that's a critical distinction that this Court drew in Ferguson between the drug test that was invalidated in Ferguson and the drug testing programs that were upheld in Skinner, Acton, and Von Raab.

There's also an indignity element to a general crime control checkpoint.

You're being... it's... it's a bit of an indignity to be suspected as being a potential law-breaker, whereas in... in an informational checkpoint there's really no impingement on dignity, you're just, again, being treated as an ally of the police and being asked for help, and in fact, it's an act of responsible citizenship to provide help in that kind of situation.

The second distinction is that a general crime control checkpoint... the police are simply trolling for hitherto undiscovered crimes, whereas in an informational checkpoint, they're investigating a known, specific crime, and that's who makes a difference.

There's a difference between... as Ms. Millett pointed out... there's a difference between knowing a crime and finding the criminal and then simply rounding up a bunch of potential criminals and trying to peg a crime on them.

And that's important not only for the fact that we're uncomfortable with general... general surveillance, but also it's a traditional police function.

When a crime happens, police ought to return to the scene of the crime and find witnesses.

Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Feinerman.

The case is submitted.

Unidentified Justice: The honorable court is now adjourned until Monday next at 10 o'clock.

(Whereupon, at 11:03 a.m., the case in the above-entitled matter was submitted.)