2AA Thursday, March 6, 1997 Pahrump Valley Gazette
Guest opinion by Victor Shulze I!, Esq.
I read with interest the letter in the February 27, 1997
edition of the Pahrump Valley Gazette from Mr. Mallows
expressing his concern with sobriety checkpoints. Mr. Mat-
lows asked several times, rhetorically I presume, what phras-
ing in the Fourth Amendment grants the authority to Sher-
iff to conduct these checkpoints.
As a Deputy Attorney General, former District Attorney,
and current certified EO.S.T. Instructor in the area of Fourth
Amendment law, I take great interest in the subject, and in
Mr. Mallows' concerns. I would like to respond to Mr.
Mallows' questions and let the readers know the state of
the law in this area, and some of the history that law is
based upon.
The Fourth Amendment was drafted and adopted in re-
sponse to the feeling of the Founding Fathers that English
law in effect during Colonial days allowed agents of the
King to arbitrarily search the homes, farms, and shops of
colonists without having to show any cause; although there
were laws requiring that the King's agents had to obtain
warrants before they could search, magistrates could issue
those warrants simply upon being asked to. The police did
not have to explain why they wanted to conduct a search,
and they did not have to show any level of justification for
their desire to search.
The Fourth Amendment was drafted to ensure that the
police could not conduct a search or seizure unless they
could actually demonstrate to a detached and neutral mag-
istrate that they had just cause, a real reason, to conduct a
search. The Founding Fathers put that level of justification
at "'probable cause." That means that a magistrate, a judge,
must be satisfied that the police have demonstrable evi-
dence in their possession that would lead a reasonable per-
son to believe that a crime had been committed. The entire
purpose of the Fourth Amendment was, and continues to
be, to protect people, ordinary citizens, from arbitrary po-
lice power.
Generally, the police need to obtain a warrant before they
can conduct a search or seizure of a citizen. Over many
years the federal courts have carved out a few strictly-con-
structed exceptions to the warrant requirement in their ef-
forts to balance the legitimate needs of society to maintain
public safety oll the one hand, and the right of the citizenry
to be free and unreasonable searches and seizures.
In his letter, Mr. Mallows asked what was the phrase
Fourth Amendment00
which permits some searches to be conducted without war-
rants. That word is "reasonable." The Fourth Amendment
forbids unreasonable searches and seizures; by definition
then, it permits reasonable ones. The age-old question for
the federal courts has been to distinguish between unrea-
sonable and reasonable searches. Obviously, searches con-
ducted pursuant to a warrant are presumed to be reason-
able, while searches conducted without a warrant are pre-
sumed to be unreasonable.
The federal courts have carved out several narrowly-tai-
lored exceptions to the warrant requirement whereby a
search conducted without a warrant will be found to be le-
gal. These exceptions are few, and are well-established.
For example, a warrantless search will be legal if the per-
son consents to the search. Likewise, officers can search a
person they have just arrested for weapons and evidence he
nmy have concealed on his person; this is referred to as a
search incident to arrest. Also, cars can be searched with-
out a warrant if the officer has probable cause to believe
that there are unlawful goods in the car. This is called the
automobile exception, and it is based on two grounds - the
courts are concerned that the evidence will disappear if the
police have to obtain a warrant because cars are mobile;
second, the courts have ruled that people have a reduced
expectation of privacy in their cars, as compared with their
homes, where the protection is the highest.
When Mr. Mallows says that Sheriff Lieseke argues that
the federal courts allow sobriety checkpoints, he is correct.
One of the narrowly-tailored exceptions to the warrant re-
quirement established by the federal courts is for sobriety
checkpoints. In the 1990 U.S. Supreme Court case of Michi-
gan v. Sitz the Court held that sobriety checkpoints were
legal. In that case, the police in Saginaw County, Michi-
gan. in conjunction with lhe Michigan State Police, estab-
lished a highway sobriety checkpoint program with guide-
lines governing its operation. The program was challenged
in court by several Michigan residents on Fourth Amend-
ment grounds, primarily because it did not require individu-
alized suspicion of probable cause that a driver was driving
drunk - ever)' driver was stopped.
Under the Michigan program, the State Police established
a committee which wrote guidelines setting forth proce-
dures which would govern checkpoint operations, site se-
lection, and publicity. All vehicles passing through the
checkpoint were stopped briefly. If signs of intoxication
were detected, that driver would be directed to a location
out of the traffic flow where an officer would make further
inquiry. All other drivers were permitted to resume their
journey immediately.
The question as defined by the Supreme Court is the same
one which concerns Mr. Mallow - "The question thus be-
comes whether such seizures are 'reasonable' under the
Fourth Amendment." To determine the answer, the Supreme
Court balanced the interests of the State in eradicating the
drunken driving problem and its inherent costs to society
with the legitimate expectations of privacy of the citizens.
The Court found that the State had a strong interest in eradi-
cating the problem of drunken driving; it found that the
societal costs associated with drunk driving in deaths, inju-
ries, and financial losses were staggering. On the other
side, the court found that the weight bearing on the other
side of the scale, the intrusion on motorists stopped briefly
at the checkpoint, was slight. The average detention of a
vehicle was less than thirty seconds. In balancing the in-
terests of both sides, and the level of the intrusion on the
motorists, the Supreme Court found the checkpoints were
reasonable and Constitutional.
So, to finally answer Mr. Mallows' question, checkpoints
conducted like Michigan's according to reestablished guide-
lines which limit the officers' discretion, and require ev-
eryone to stop, and only briefly, are lawful.
I am not aware that anyone has accused Sheriff Lieseke
of operating checkpoints which violate the terms of the Sitz
case. In following those guidelines the Sheriffis completely
within his Constitutionally-permissible authority to week
out drunk drivers. No one would disagree with the need to
control the problem of D.U.I.s in the Pahrump Valley. As
the valley has grown, so have the problems of crime and
public safety, including D.U.I.
In nay personal opinion, Sheriff Lieseke is doing a fine
job in watching out for victims of drunk drivers. The slaugh-
ter on the highways bears too high a burden on our citizens.
I applaud Sheriff Lieseke and his professional staff for look-
ing out for my right to drive on Nye County roads free of
the danger that the next oncoming driver will kill us both.
Thanks, Wade.
Editor's Note: the author, Victor Shnlze II is cur-
rently a Nevada Deputy Attorney General. He was
formerly District Attorney of Esmeralda County and
a Deputy Nye County District Attorney.
€
Iq
. . MEXIq2AN MUSIC *
Admission S3 per per person S5 per couple
Music Begins at 8pm, Sat. Mar 7
Visit O Lr Convenience Store
Were in the neighborhood
We're fully stoc:kq d and we're here to serve you.
Open 6a.m. - Midnight
727-4474
