# Michigan Department of State Police v. Sitz

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## Concurring Opinion

    Blackmun

## Dissenting Opinions

    Brennan
    Stevens
United States Supreme Court
496 U.S. 444
Michigan Department of State Police v. Sitz
No. 88-1897 Argued: Feb. 27, 1990. --- Decided: June 14, 1990
Syllabus
Petitioners, the Michigan State Police Department and its Director, established a highway sobriety checkpoint program with guidelines governing checkpoint operations, site selection, and publicity. During the only operation to date, 126 vehicles passed through the checkpoint, the average delay per vehicle was 25 seconds, and two drivers were arrested for driving under the influence of alcohol. The day before that operation, respondents, licensed Michigan drivers, filed suit in a county court seeking declaratory and injunctive relief from potential subjection to the checkpoints. After a trial, at which the court heard extensive testimony concerning, among other things, the "effectiveness" of such programs, the court applied the balancing test of Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357, and ruled that the State's program violated the Fourth Amendment. The State Court of Appeals affirmed, agreeing with the lower court's findings that the State has a "grave and legitimate" interest in curbing drunken driving; that sobriety checkpoint programs are generally ineffective and, therefore, do not significantly further that interest; and that, while the checkpoints' objective intrusion on individual liberties is slight, their "subjective intrusion" is substantial.
Held: Petitioners' highway sobriety checkpoint program is consistent with the Fourth Amendment. Pp. 448-455.
(a) United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116-which utilized a balancing test in upholding checkpoints for detecting illegal aliens-and Brown v. Texas, supra, are the relevant authorities to be used in evaluating the constitutionality of the State's program. Treasury Employees v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L.Ed.2d 685, was not designed to repudiate this Court's prior cases dealing with police stops of motorists on public highways and, thus, does not forbid the use of a balancing test here. Pp. 448-450.
(b) A Fourth Amendment "seizure" occurs when a vehicle is stopped at a checkpoint. See Martinez-Fuerte, supra, at 556, 96 S.Ct. at 3082. Thus, the question here is whether such seizures are "reasonable." P. 450.
(c) There is no dispute about the magnitude of, and the States' interest in eradicating, the drunken driving problem. The courts below accurately gauged the "objective" intrusion, measured by the seizure's duration and the investigation's intensity, as minimal. However, they misread this Court's cases concerning the degree of "subjective intrusion" and the potential for generating fear and surprise. The "fear and surprise" to be considered are not the natural fear of one who has been drinking over the prospect of being stopped at a checkpoint but, rather, the fear and surprise engendered in law-abiding motorists by the nature of the particular stop, such as one made by a roving patrol operating on a seldom-traveled road. Here, checkpoints are selected pursuant to guidelines, and uniformed officers stop every vehicle. The resulting intrusion is constitutionally indistinguishable from the stops upheld in Martinez-Fuerte. Pp. 451-453.
(d) The Court of Appeals also erred in finding that the program failed the "effectiveness" part of the Brown test. This balancing factor-which Brown actually describes as "the degree to which the seizure advances the public interest"-was not meant to transfer from politically accountable officials to the courts the choice as to which among reasonable alternative law enforcement techniques should be employed to deal with a serious public danger. Moreover, the court mistakenly relied on Martinez-Fuerte, supra, and Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660, to provide a basis for its "effectiveness" review. Unlike Delaware v. Prouse, this case involves neither random stops nor a complete absence of empirical data indicating that the stops would be an effective means of promoting roadway safety. And there is no justification for a different conclusion here than in Martinez-Fuerte, where the ratio of illegal aliens detected to vehicles stopped was approximately 0.5 percent, as compared with the approximately 1.6 percent detection ratio in the one checkpoint conducted by Michigan and with the 1 percent ratio demonstrated by other States' experience. Pp. 453-455.
170 Mich.App. 433, 429 N.W.2d 180 (1988), reversed and remanded.
REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 455. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 456. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined as to Parts I and II, post, p. 460.
Thomas L. Casey, Lansing, Mich., for petitioners.
Stephen L. Nightingale, Washington, D.C., for the U.S., as amicus curiae supporting petitioners, by special leave of Court.
Mark Granzotto, Detroit, Mich., for respondents.
[Amicus Curiae Information from pages 446-447 intentionally omitted]
Chief Justice REHNQUIST delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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