There are four general types of checkpoints you might encounter: DUI checkpoints, US border checkpoints, drug checkpoints, and TSA checkpoints. In a legal sense, they are not all created equal. So depending on which one you encounter, you’ll want to be prepared to flex your rights appropriately.
DUI Checkpoints
Sobriety checkpoints – also known as DUI checkpoints – are the most common roadblocks you might encounter. They function as a general purpose investigatory tactic where police can get a close look at passing motorists by detaining them briefly. A roadblock stop is quick, but it gives police a chance to check tags and licenses, while also giving officers a quick whiff of the driver’s breath and a chance to peer into the vehicle for a moment.
Remember that your constitutional rights still apply in a roadblock situation. Though police are permitted to stop you briefly, they may not search you or your car unless they have probable cause that you’re under the influence or you agree to the search. As such, you are not required to answer their questions or admit to breaking the law.
Since the Supreme Court’s ruling in Illinois v. Caballes police have more leeway to use drug-sniffing dogs in roadblock situations. There’s no need to waive your rights simply because dogs are present. But be advised that your legal options are limited if you’re arrested as a result of a dog sniff during a roadblock.
Also, keep in mind that police closely monitor cars approaching the roadblock. So you’re not likely to have any success trying to evade it.
Sobriety checkpoints are generally permitted by the courts, but only if conducted properly. If you’re arrested at a police roadblock always consult an attorney before confessing or agreeing to a plea bargain. There might be some legal options that your lawyer can pursue.
US Border Checkpoints
Be aware that Customs and Border Protection (CBP) agents – which are part of the Dept. of Homeland Security (DHS) – are permitted to search you and your belongings at the U.S. border without probable cause or a search warrant. So anytime you cross the border, you consent to a search.
CBP may generally stop and search the property of anyone entering or exiting the U.S. If agents have reasonable suspicion to believe you’re concealing contraband, they may search your body using pat-down, strip, body-cavity, or involuntary x-ray searches.
Searches of Electronic Devices
The Ninth Circuit Court of Appeals recently ruled that Homeland Security border agents must have reasonable suspicion before they can legally conduct a forensics search of laptops, mobile phones, camera memory cards, and other electronic devices.
Unfortunately, this limited ruling still permits agents to conduct a “quick look” laptop search, such as asking you to turn on your laptop to peek at open windows. So always password protect your files before crossing the border. And, of course, never voluntarily give agents your password.
Checkpoints Near the Border
Be aware that DHS agents have recently set up constitutionally-questionable “security checkpoints” up to 100 miles inside U.S. territory. If you should drive into one of these roadblocks, you are not required to answer the agent’s questions (usually starting with “Are you a United States citizen?”). Nor are you required to consent to any searches.
Section 287(g) of the U.S. Immigration and Nationality Act authorizes the Department of Homeland Security (DHS) to deputize selected state and local law enforcement officers to enforce federal immigration law. Section 287(g) allows the DHS and law enforcement agencies to make agreements, which require the state and local officers to receive training and work under the supervision of U.S. Immigration and Customs Enforcement. ICE provides the officers with authorization to identify, process, and—when appropriate—detain immigration offenders they encounter during their regular, daily law-enforcement activity.
Section 287(g), codified at 8 U.S.C. § 1357(g), was added by section 133 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Division C, Title I of the Omnibus Consolidated Appropriations Act of 1997, Pub.L. 104–208, 110 Stat. 3001, enacted September 30, 1996).
The US Justice Department has found that some localities participating in the 287(g) program have used their authority to commit large scale pattern or practice constitutional violations. For example, Maricopa, Arizona Sheriff Joe Arpaio used his authority under § 287(g) to justify sweeps during which Latinos were illegally racially profiled. Mzauffar Chishti of the Migration Policy Institute described the situation there by saying, "there were people in yellow suits running around catching Hispanics." In Alamance County, NC, sheriff’s deputies established checkpoints at entrances to Latino neighborhoods where Latino drivers were ten times more likely to be stopped than non-Latino drivers. It was also found that for the same traffic violations, Latino drivers were frequently arrested, whereas non-Latino drivers merely received citations.
In February 2017, the ACLU cited numerous instances of civil rights violations, patterns of racial discrimination, and patterns of improper behavior among § 287(g) participating localities, and urged ICE to discontinue the program on the grounds that these localities could not be trusted to attend to constitutional and civil rights. See related ACLU articles: "Your Rights in the Border Zone" and "The Constitution in the 100 Mile Border Zone".
On June 22, 2018, the US Supreme Court issued a 5-4 decision in Carpenter v. United States, holding that the federal government needs a warrant to access cellphone location records.
Be aware that DHS agents have recently set up constitutionally-questionable “security checkpoints” up to 100 miles inside U.S. territory. If you should drive into one of these roadblocks, you are not required to answer the agent’s questions (usually starting with “Are you a United States citizen?”). Nor are you required to consent to any searches.
Visit www.checkpointusa.org/blog to learn more about this program and check out the video below. By actively “flexing” their rights, these brave citizens expose the techniques DHS agents (and police in general) use to trick and intimidate citizens into compliance. Also take note of the practical necessity of flexing your rights repeatedly.
Drug Checkpoints (it’s a trap!)
The Supreme Court has ruled that random checkpoints for the purpose of finding illegal drugs are unconstitutional. However, some police departments have devised a deceptive method to work around and exploit this restriction. Here’s how their trick works.
Police departments sometimes put up signs warning drivers of upcoming drug checkpoints. (This alone is not illegal.) But they will not pull over people who go through a checkpoint – because there technically is no checkpoint. Instead, officers will watch for vehicles approaching the nonexistent checkpoint and pull over for vehicles who make illegal u-turns or discard contraband in order to avoid the fictitious “Drug Checkpoint Ahead.”
So if you see such signs, keep driving and don’t panic. If there’s a rest area following the sign, DO NOT pull into it. If you do, you might find yourself surrounded by drug-sniffing dogs.
Police departments, especially in the Midwest, have been pushing their luck with this tactic, so if you encounter anything resembling an actual drug checkpoint, please contact that state’s ACLU Chapter. Similarly, if you’re arrested as a result of a real or fake “drug checkpoint,” you must contact an attorney to explore your legal options.
TSA Checkpoints
Be aware that Transportation Security Agency (TSA) agents –which are part of the Dept. of Homeland Security (DHS) – are permitted to search you and your belongings without probable cause or a search warrant anytime you pass through a TSA airport security zone.
The ACLU also keeps a Know Your Rights When Traveling page. It’s got handy tips for dealing with “spot interviews” and opting out of nude body scanners.
TSA’s Mysterious ID Requirement
Many folks are concerned about the TSA’s requirement that passengers show a photo identification before passing through security. Of particular concern, is TSA’s persistent refusal to release the text of the law that it uses to justify that requirement. For more on the sheer absurdity of the policy, read security expert Bruce Schneier’s interesting analysis.
This edited copyrighted article was reprinted under license with permission from – Flex Your Rights.
