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Criminal behavior

Most anybody who’s driven Interstate 70 in the dark likely has seen the blinking signs: “Drug Check Ahead” or “Drug Dogs in Use.” They pop up on occasion on the stretch between Salina and Topeka.

The curious aspect about them is you never see the checkpoint.

That is by design. Rather than waste time stopping everybody on the highway, the Kansas Highway Patrol stops everybody who turns off the next exit ramp. Logically, the Patrol reasons, anybody turning off I-70 after seeing the warning sign is attempting to avoid the checkpoint.

KHP will need to revisit its strategy after a court ruling last week. The 10th Circuit Court of Appeals said the drug checkpoint ruse does not give law enforcement agencies enough evidence to pull over every car going by.

“A Fourth Amendment seizure that relies solely on a driver’s decision to use a rural or ‘dead exit’ following checkpoint signs falls short of the requirement of individualized, articulable suspicion of criminal activity,” the appeals panel wrote.

In other words, the court recognized the existence of other circumstances that might prompt somebody to take the exit, whether it be part of the driver’s intended route or that the person simply didn’t want to be inconvenienced by a checkpoint.

It will be interesting to see if this logic eventually extends to the even-more familiar sobriety checkpoints. Despite a constitutional guarantee in the Fourth Amendment not to be subjected to unreasonable searches and seizures, particularly without probable cause, the U.S. Supreme Court has upheld the legality of sobriety checkpoints. The highest court in the land justifies tossing out the right to be left alone by citing a more pressing societal need — reducing the number of drunk drivers on the road.

Whether checkpoints actually accomplish that goal is debatable. The vast resources committed are not able to be used in other manners of law enforcement for those time periods, so a true accounting is not made. It is conceivable that alternative techniques exist that could generate more arrests than the extremely low percentages produced at sobriety checkpoints. Powerful lobbying forces such as Mothers Against Drunk Drivers are assuaged, however, so the arguments of mere constitutionalists have been ignored.

Perhaps not for long. The 10th Circuit Court of Appeals is but one step below the Supreme Court. If judges on the 10th can envision an America in which privacy rights matter, we could be headed in the right direction.

The Fourth Amendment is clear: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Arbitrary infringements on anybody’s individual liberty sound more akin to the tactics of a foreign totalitarian regime, not these United States. Time will tell if the U.S. Supreme Court ever sees it that way again.

Editorial by Patrick Lowry
plowry@dailynews.net