William H. Rehnquist: We'll hear argument now in No. 88-1897, the Michigan Department of State Police v. Rick Sitz. Mr. Casey.
Thomas L. Casey: Mr. Chief Justice and may it please the Court: In a series of cases involving Fourth Amendment challenges to various traffic-checking procedures, the Court has applied a balancing test which weighs the public interest against the right of individuals to be free from arbitrary interference. In these cases, the Court recognized that different procedures involve different balances and different constitutional safeguards. For example, probable cause is required for a search of a vehicle either by a roving patrol or at a fixed checkpoint. A seizure of an automobile by a roving patrol is permissible if it is based on reasonable suspicion, and in Martinez-Fuerte the Court held that seizure of an automobile at a fixed checkpoint is permissible without individualized suspicion if there are neutral and objective guidelines which limit the discretion of officers in the field and limit the nature of the intrusion. The case today presents no new legal issues. The only question is whether Michigan's temporary sobriety checkpoints are like the roving patrols in Delaware v. Prouse or, as we argue, are more like the fixed checkpoints in Martinez-Fuerte in which no individualized suspicion is required.
Sandra Day O'Connor: Mr. Casey, this action was brought as a facial challenge of some kind to the program?
Thomas L. Casey: That's correct.
Sandra Day O'Connor: And the plaintiffs in the case are simply citizens who drive in Michigan?
Thomas L. Casey: That's correct.
Sandra Day O'Connor: No one was a plaintiff named in the case who had been stopped at a checkpoint?
Thomas L. Casey: The complaint was filed before any sobriety checkpoints had been operated.
Sandra Day O'Connor: Do you think that the plaintiffs have standing?
Thomas L. Casey: I believe they do. The case--
Speaker: Why?
Thomas L. Casey: --The case was brought under the Michigan declaratory judgment action by the plaintiffs in their capacity as licensed drivers in the State of Michigan who allege that if sobriety checkpoints were operated there was a very great likelihood that they would be subject to the checkpoints. We agree. If the checkpoints were operated, these individual plaintiffs would be subjected to them. We think there is a sufficient case or controversy to confer standing in both the state courts and in this Court, even without waiting for a particular operation of the checkpoint.
Antonin Scalia: Suppose the police department has a policy of applying choke holds to people resisting arrest. Would... would any citizen have standing to challenge that practice?
Thomas L. Casey: In that case, the--
Antonin Scalia: On the theory that he might be arrested and the choke hold applied to him.
Thomas L. Casey: --The likelihood of any individual citizen being subjected to that police tactic is not as high as the likelihood that individual citizens in Michigan will be subjected to sobriety checkpoints. So we think our case... the plaintiffs do have sufficient standing to permit the Court to address this question as a facial constitutional challenge without waiting for an individual to be arrested and then tried as applied to him.
Byron R. White: Well, surely the state courts thought that there was standing for purposes of a state action.
Thomas L. Casey: Yes, that's quite clear. There was no challenge by us to--
Byron R. White: And you're on... you were on the losing side?
Thomas L. Casey: --That's correct.
Byron R. White: So you're stuck with the judgment?
Thomas L. Casey: So far we are, yes, Your Honor. [Laughter] There is no dispute as to the operation of the Michigan checkpoints. They were intended to promote the public health and safety by reducing the appalling number of deaths and injuries and the staggering economic costs caused by alcohol-related traffic crashes. The committee which drafted the Michigan guidelines observed that in 1984 in Michigan alone there were 800 deaths, more than 28,000 injuries and more than $350 million in economic costs caused by alcohol-related traffic crashes. The sobriety checkpoints are intended to increase the public's awareness of the nature and severity of the problem of drunk driving. They are intended to apprehend people who are driving drunk at the time and to deter others from driving drunk in the future. The sobriety checkpoints use neutral, objective criteria which were carefully designed to minimize the discretion of the officers in the field and to minimize the extent of the intrusion. All oncoming traffic in the selected location is alerted by way of an extensive series of signs, flares, lights, traffic cones, officers with reflective vests. Traffic is funneled into one lane of traffic. The drivers are stopped for between 20 and 30 seconds while a police officer approaches the driver, identifies himself or herself, explains the nature of the checkpoint and hands the driver an informational brochure and a public opinion survey card which the driver is requested to return. If there are no visible signs of intoxication, the driver is then free to go on his or her way. If the officer observes articulable signs of intoxication, he may direct the driver over to a safe area for further investigation.
Thurgood Marshall: Well, when you're stopped by a police officer, aren't you normally very nervous if you're perfectly sober?
Thomas L. Casey: Not necessarily. Some people might be nervous. Others might feel reassured by the fact that this is going on. In the Maryland study which our committee relied on and examined very closely, public opinion survey cards were returned by the drivers who went through the Maryland survey, and I believe the figure was 87 percent of the cards which were returned indicated that they were not opposed to the checkpoints, and 90 percent of them felt that there was some deterrent effect.
Speaker: xxx the police have stopped you.
Thomas L. Casey: Not necessarily. Some drivers may feel that. We don't think that that's the determining factor in whether these are constitutional, however. There's a legitimate and very serious societal problem here, and to some extent these are an intrusion on the motoring public, to be sure, but we submit that they were very carefully designed to be a very minimal intrusion. And when you weigh that in the balance of the serious nature of the problem, we submit they are reasonable.
Sandra Day O'Connor: Does Michigan use any kind of checkpoints for vehicle safety check requirements?
Thomas L. Casey: That type of checkpoint is authorized by the same statute which authorizes sobriety checkpoints, and my understanding is that such checkpoints have been operated on occasion in the past but there is no standard procedure. They're not operated very frequently.
Sandra Day O'Connor: What if there were a situation in a particular area, for example, in the City of Detroit, with high crime and a great many shootings. Do you suppose that Michigan could set up a pedestrian checkpoint and frisk people for weapons?
Thomas L. Casey: I doubt if they could frisk them. You'd get into the case of Terry v. Ohio on when a police officer can pat down a person on the street. What we're saying here is that the checkpoints are located at times and in places where there is a demonstrated history of alcohol-related crashes. All accident statistics are fed into a computer, and the checkpoints are placed in locations where there has been a history of accidents or high arrest rate. In that instance, the same type of balancing test would apply. You would have to look to the nature of the severity of the problem, the amount of the intrusion, and does the police procedure reasonably... have reasonable effectiveness in addressing the problem.
Anthony M. Kennedy: Are the same standards applicable to a vehicle safety inspection stop and a sobriety checkpoint, same balance?
Thomas L. Casey: I believe they are.
Anthony M. Kennedy: Same legal standards, same rules?
Thomas L. Casey: Correct. The purpose is a little different, but the Court has recognized in Delaware v. Prouse, for example, that the state... pardon me... the state has a very significant interest in assuring that drivers are properly licensed and have proof of insurance and registration and that vehicles have the required safety equipment. The nature of the problem here is even more serious than that. We're talking about hundreds of deaths and tens of thousands of injuries every year. In Brown v. Texas, the Court applied a balancing test and discussed several of the traffic-checking cases. In all the parties below in state courts, we use the Brown v. Texas articulation as the standard. There, the court identified three factors which go into weighing whether a particular procedure is reasonable or not: the gravity of the public concern, the extent to which the seizure advances the public interest and the severity of the interference with individual liberty. We believe that the record in our case is sufficient to demonstrate that the checkpoints are reasonable under all three of these factors. The gravity of the public concern is undisputed by plaintiffs here. It's widely recognized. The key point where the state courts went wrong, we submit, is in its conclusion that the checkpoints were not effective enough. The court in Michigan said that we did not prove a sufficiently high arrest rate, we did not prove long-term deterrent effects from the operation of the checkpoints and we did not prove that they were the most effective method the police could use. We submit that the state courts severely distorted the appropriate balancing test when they held us to that kind of impossible burden. We think that in this context where you have a very serious public problem and minimal intrusion, all that the... all that needs to be shown is reasonable effectiveness. Is there sufficient basis for the state officials reasonably to conclude that sobriety checkpoints would be reasonably effective in addressing the drunk driving problem.
John Paul Stevens: Is it agreed that that... this is a seizure?
Thomas L. Casey: Yes, it is.
John Paul Stevens: And it's agreed that it may... it... and the argument's whether it can be done without any articulable suspicion, isn't it?
Thomas L. Casey: That's correct. In several cases the court has articulated standards in dealing with the effectiveness of various procedures. In Delaware v. Prouse--
William H. Rehnquist: Mr. Casey, when you say... when you say this is a seizure, you mean it's a... it's... it's like an arrest or it's like a Terry stop?
Thomas L. Casey: --It is less intrusive than a traditional arrest. The cars are required to stop for a period of 20 to 30 seconds at the checkpoint. All cars coming through in a certain direction are required to stop. In Michigan our checkpoint guidelines are set up so that cars can turn off before they enter the check lane, and on the one checkpoint which was operated, I believe the record shows that six cars either made U-turns or turned off before they entered the checkpoint.
Harry A. Blackmun: What is the purpose of that?
Thomas L. Casey: The checkpoint guidelines were developed with every effort to minimize the intrusion, and that I suspect was one element of the effort.
Harry A. Blackmun: So, you want to let the drunks get away?
Thomas L. Casey: It would be easy to design a more effective checkpoint than we have, but to do that would probably require a greater intrusion. The balance that the Michigan officials chose was to give as much weight as possible to minimizing the amount of intrusion.
Anthony M. Kennedy: Would the U-turn provide probable... articulate suspicion for a stop?
Thomas L. Casey: Not by itself. If the U-turn was done in a fashion that violated traffic laws or if there was some erratic driving or some other articulable suspicion, then the guidelines say that that would be enough to pursue the driver. But just the mere fact of a lawful U-turn would not be enough. Under the Martinez-Fuerte case the court said that all cars coming through the checkpoint could be seized and the officers running the checkpoint could direct some cars to another area for further investigation without any reasonable suspicion. Our checkpoint is even more protective of individual rights than that. The officers do not ask any questions. Drivers are not required to show identification. There is really no communication from the driver required at all unless there are some visible signs of intoxication, at which point the car would be directed to a safe area.
John Paul Stevens: Is the driver required to roll the window down?
Thomas L. Casey: He's not required to, no.
John Paul Stevens: If he advised that he doesn't have to?
Thomas L. Casey: No, he's not advised.
John Paul Stevens: Because if he didn't, how would you ever find him? You can't--
Thomas L. Casey: There are many ways a trained police officer could take notice of articulable facts involving intoxication: uncoordinated physical movements, eye motion. Perhaps he's got some beer in the car with him. There are many ways. Our checkpoints require an officer, before they have further suspicion, to have articulable signs of intoxication. I believe the Constitution perhaps does not require even that high a standard. In Martinez-Fuerte the court said that some cars could be directed for further inquiry without reasonable suspicion.
Anthony M. Kennedy: --Does refusal to roll down the window itself constitute part of the suspicion?
Thomas L. Casey: Not by itself, no.
Anthony M. Kennedy: Well, is it one of the factors?
Thomas L. Casey: It could be one of the factors. In several cases... in the Ortiz case, for example, this court discussed the idea that a trained police officer can observe behavior which might appear innocent to an untrained person and from that behavior the trained officer can make inferences and deductions which would form a basis for reasonable suspicion. That's why it's so hard to say that any one factor would or would not be the deciding factor. There are command officers on the scene who are involved in the decision whether to send a driver off for further investigation. It's not up to the individual officer in the field, and it is structured by the guidelines themselves.
John Paul Stevens: Under the standard procedure is an officer stationed in a place where he can follow someone who makes a U-turn?
Thomas L. Casey: There are several police cars to be stationed before and after the checkpoint, so a car could turn and follow a car that made a lawful U-turn, yes. The case we principally rely on, of course, is the Martinez-Fuerte case. We think our checkpoints are constitutionally indistinguishable from the checkpoints there. The goal is different here. It's to prevent drunk driving and prevent the harms that drunk driving cause--
Sandra Day O'Connor: Mr. Casey, in Martinez-Fuerte were the motorists aware or generally advised of the location of the checkpoint?
Thomas L. Casey: --In that it was a fixed checkpoint which was permanently based.
Sandra Day O'Connor: So, people would have reason to know where it was.
Thomas L. Casey: Yes.
Sandra Day O'Connor: Now, I guess in Michigan that's not the case. You wouldn't know as a motorist--
Thomas L. Casey: There is general--
Sandra Day O'Connor: --where it would be set up?
Thomas L. Casey: --There is general publicity given to the general area. Let's say in Saginaw County there will be one, and the press would be advised of that. But as to the specific location on a specific street, no, that would not be.
Sandra Day O'Connor: Does that make a difference in the constitutional balance?
Thomas L. Casey: I don't believe it does. Martinez did not have that aspect. That is really the only factual difference. We submit that while our checkpoints are in operation, however, they operate the same as Martinez-Fuerte. Drivers are given sufficient notice. They are not surprised. There are the signs for up to half a mile in advance. There is the opportunity to turn off. There is no basis for the trial court's finding that there would be fear or surprise in the motorists.
William H. Rehnquist: Mr. Casey, you said general notice is given. A... a notice is given that a checkpoint will be established somewhere in Saginaw County?
Thomas L. Casey: Yes. And--
William H. Rehnquist: What you're talking about says several of what Bay Cities and several cities--
Thomas L. Casey: --In the general area.
William H. Rehnquist: --And... but... all... all that's known in advance is that it will be in Saginaw COunty?
Thomas L. Casey: Correct. If we did not have that, it would greatly diminish the deterrent aspect. If every driver knew where it was going to be, it would be easy to avoid. So, again, we've tried to balance the effectiveness against the intrusion. I want to save a few minutes for rebuttal, but I just want to emphasize that we're asserting that the proper balance test here shows that this is a serious problem. It is reasonably effective, and it is minimally intrusive. Thank you.
William H. Rehnquist: Thank you, Mr. Casey. Mr. Nightingale, we'll hear now from you.
Stephen L. Nightingale: Thank you Mr. Chief Justice, and may it please the Court: We join in Mr. Casey's analysis of the legal principles that govern this case, but if the Court please, I will focus first on those features of the problem of drunk driving in this country that have made it so resistant to traditional law enforcement techniques and on some of the reasons why sobriety checkpoints have been widely recognized as the important elements of effective drunk driving programs. Mr. Casey indicated there has been no dispute in this case that the problem of drinking and driving is a very serious one. It is important, nevertheless, to pause for purposes of the Court's balancing test and to appreciate just how grave that interest is. If one were to prepare a list of the most important and serious threats to public health and safety in this country, drunk driving would have to be at or near the top of the list. In 1988, 47,000 people were killed in traffic crashes in this country. Of the roughly 62,000 drivers involved, 25 percent were intoxicated legally at the time of the accident.
John Paul Stevens: Mr. Nightingale, going back to Justice O'Connor's question, is the problem any less serious with regard to firearms?
Stephen L. Nightingale: I believe that there were more people killed in traffic crashes, Your Honor, than there were in... by murder.
John Paul Stevens: But only 25 percent of those are alcohol related, I thought you said.
Stephen L. Nightingale: Well, in... 25 percent of the drivers involved are legally intoxicated. In the case of 50 percent of the fatalities, alcohol is involved, and that refers to--
John Paul Stevens: How do guns compare? How do firearm... danger compare with that?
Stephen L. Nightingale: --I believe that the number of murders in the country... and this is a rough recollection of something I read along the way... is on the order of 20,000. It's a--
John Paul Stevens: Pretty serious problem, too, isn't it?
Stephen L. Nightingale: --Host of very serious problems.
Sandra Day O'Connor: How about drug traffic? I suppose you would take the position that that's an equally serious national problem.
Stephen L. Nightingale: It's certainly a very serious national problem, yes.
Sandra Day O'Connor: So, can the government set up stop-and-frisk points for pedestrians in drug use areas of cities?
Stephen L. Nightingale: You Honor, a frisk is a much more intrusive form of interference with 4th Amendment interests than a traffic stop. A traffic stop is a well-accepted form of intrusion. In the Martinez-Fuerte case the Court noted that it was a well-established practice. Its utility had been accepted as an incident of travel on the roads, and it is a very, very minimal interference with Fourth Amendment interests.
Antonin Scalia: The government cannot insist that you have a license to walk along the sidewalk, can it?
Stephen L. Nightingale: No, Your Honor, I wouldn't think so.
Antonin Scalia: And it does have the right to insist that you have a license to drive.
Stephen L. Nightingale: That's true, driving is a very highly regulated activity in this country, in keeping with the risk that it presents to others on the road.
Antonin Scalia: So it's not inconceivable that you might have a traffic stop not just for intoxication, but for drug use. Does this to seek to find out the drug use as well, this program, or is it just alcohol?
Stephen L. Nightingale: I believe that at least under the Department of Transportation's guidelines, as a result of recent regulation, that drug use and alcohol use are treated the same.
Harry A. Blackmun: Well, speaking of statistics, I think there are more deaths by automobile accidents than in all the wars of this country put together. This was spelled out in an opinion of this Court which you haven't cited.
Stephen L. Nightingale: Right... yes, Your Honor, and also in the concurring opinion that you wrote, I believe.
Antonin Scalia: How do we decide how effective this is? I suppose that goes into a reasonableness calculation. How does the Court make that judgment? Are we limited to the record in the trial court here, or what?
Stephen L. Nightingale: I would think not, Justice Scalia, in this sense: in a number of the Court's cases you have had to assess, necessarily, the deterrent effect of various programs. In the Mackey v. Montran case, which involved whether drivers could have their licenses suspended for refusals to take breathalyzer or blood alcohol test, the Court indicated that they had a significant deterrent effect. In the Burger case, there was discussion about the deterrent value that would be lost if warrants were required for the sorts of searches that were involved there. And it is a common element of the Court's decisions in this area, both to consider the deterrent effect of programs and all other--
John Paul Stevens: Yes, but have we done it in cases when the trial court has reviewed evidence on the issue and their record has been developed? Have we said, well, that's just a starting point, we'll go off on our own and figure out what evidence we can find on our own? I know we've done it in cases of a facial attack and no evidence at all on the trial record, but--
Stephen L. Nightingale: --Well, I think it's important to focus on the sort of trial record that was developed here. This is not a record that gauges the effect of this particular program in action. This is a record that focuses on the potential of the program.
John Paul Stevens: --Whatever the record was is what the state put in in order to justify the program. They had an ample opportunity to put everything in they wanted, didn't they? Maybe you could have tried the case better, but you didn't try this case.
Stephen L. Nightingale: That's true, Your Honor... not necessarily true that I could have tried it better, but it's certainly true the state had an opportunity to put in the evidence. The issue really is... I think the approach the Court must take in this area results from the generality of the Court's holdings. I mean, were the Court to take this situation... were the Court to say that this presents only an issue of fact, the effect of the Court's decision would be limited to these two parties as of this time, and the Court has never viewed its role in the Fourth Amendment area as limited. So--
John Paul Stevens: We never viewed our role as just deciding the case or controversy that's brought to us for decision, I suppose.
Stephen L. Nightingale: --Well, that's certainly true, but I think in this case the question is whether there is a reasonable basis for a conclusion on the part of the state authorities that this is a potentially effective means of reducing drinking and driving.
Antonin Scalia: Is that all it takes, a reasonable basis in order to make the weighing of whether this is a reasonable intrusion of privacy or not? Suppose I disagree with the state. Suppose I think... it seems to me, if you took these 17 law enforcement officers, however many were used in this stop, and just set them out on the roads to look for people weaving, you would do a lot more good than having sit at this traffic stop for a number of hours and... what did they pick up, 2 percent of the people that went through?
Stephen L. Nightingale: In this case, Your Honor, two people were--
Antonin Scalia: Suppose I think that?
Stephen L. Nightingale: --I think that--
Antonin Scalia: Do I have to say well, the legislature might have thought otherwise? Why can't I just say, in my view it is unreasonable to do it this way, you should do it another way?
Stephen L. Nightingale: --Because the test is not that searching at this stage, where the issue is the base of the program against a background of a very minimal intrusion on privacy and very, very constrained limits on discretion. There are good reasons--
Anthony M. Kennedy: But it's still not clear to me what we looked at... how do we decide reasonableness?
Stephen L. Nightingale: --I believe that you look--
Anthony M. Kennedy: Are these statistics irrelevant?
Stephen L. Nightingale: --I believe that the statistics demonstrate... confirm what common sense suggests in this area. In other words, one knows--
Anthony M. Kennedy: So we do look at the statistics? They are relevant?
Stephen L. Nightingale: --I think you may look at them, yes. These are legislative facts involved here, facts... ordinarily, the Court reviews... takes a measure of the deterrence, and in this case we believe that you can look at the statistics to educate common sense.
Anthony M. Kennedy: How long was the program in operation before the suit was brought?
Stephen L. Nightingale: There was one checkpoint operated.
Anthony M. Kennedy: For how long?
Stephen L. Nightingale: For about an hour. 126 cars were stopped. One driver ran the checkpoint; one was referred to the safe area... two were referred to the same area, one of whom was found to be intoxicated and was arrested.
William H. Rehnquist: Then it was stopped because the Court enjoined it?
Stephen L. Nightingale: That's correct. The complaint was filed before the first checkpoint was operated and then the program was enjoined after only a single checkpoint had been run.
Harry A. Blackmun: Mr. Nightingale, I'll have to take back what I said. You did cite Perez in a footnote.
Stephen L. Nightingale: Now, why... getting back to Justice Scalia's question about why it would be reasonable for the Court to put a program like this in place, experience demonstrates that only between one in 200 and one in 2,000 drunk drivers can be apprehended on an average weekend night, and therefore it's been the focus of efforts to improve on the situation in this area, to achieve more visibility, to achieve a more impressive reminder of the state's commitment to curbing drunk driving. Thank you very much.
William H. Rehnquist: Thank you, Mr. Nightingale. Mr. Granzotto, we'll hear from you.
Mark Granzotto: Mr. Chief Justice, and may it please the Court: There are two reasons why the decision of the Michigan Court of Appeals in this case should be affirmed. The first is based on this Court's decision last term in Von Raab, and also in the Court's decision in Skinner. In that case... in those two cases, this Court indicated the situations under which the Court would refer to the balancing test in determining whether a particular Fourth Amendment intrusion was in fact unconstitutional. In Von Raab and Skinner, this Court indicated that where the particular type of intrusion serves law enforcement needs... or, excuse me... serves governmental needs beyond the normal need for law enforcement, then the Court would refer to a balancing test. This case presents, for the first time, I believe, in this Court, a situation in which a suspicionless, warrantless seizure is being conducted solely for one purpose. And that is to enforce the criminal laws. Under the decisions of this Court's last term, in Skinner and Von Raab, this Court need not even refer to the balancing test, in light of the fact that there is no dispute that the reason this particular seizure takes place is to in fact enforce the criminal law.
William H. Rehnquist: How about Martinez-Fuerte?
Mark Granzotto: Martinez-Fuerte... Justice Powell, in his decision in that case, in a footnote, indicated that many of the seizures which take place in a... at the border search or at the border stops, resulted in something which did not go to a formal charge. But, in fact--
William H. Rehnquist: But it was... it was enforcing the criminal law, nonetheless?
Mark Granzotto: --That's correct. That's correct. Martinez-Fuerte was of course a criminal case. But to go back to Almeida-Sanchez, three years before Martinez-Fuerte, Justice Powell, in his concurring opinion in that case, indicated that only 3 percent of all cars that were stopped... or, excuse me... of all persons who were stopped for violations of... of the border... illegal aliens, only 3 percent of those people were in fact prosecuted. Therefore, we have a situation which is just like New York v. Burger in that, indeed, it's... there's an overwhelming noncriminal purpose to the stops which took place in Martinez-Fuerte.
William H. Rehnquist: Well, to... to say that they're... end up not being prosecuted doesn't mean they weren't being used to enforce the criminal law. That was the only law on the books there was that was being enforced, wasn't it?
Mark Granzotto: But... but it wasn't being enforced through means of a prosecution was the point.
William H. Rehnquist: Well, why does that make any difference?
Mark Granzotto: Well, it makes a... it would make a difference--
William H. Rehnquist: I mean, did the cases you rely on, last year, make that point?
Mark Granzotto: --Excuse me?
William H. Rehnquist: Did the cases you rely on that we decided last year, Von Raab and the other--
Mark Granzotto: Skinner.
William H. Rehnquist: --Skinner case, make the point that you're making?
Mark Granzotto: Yes. They did, in fact. Because in the Von Raab case, for example, there was no... there was... there was no chance of there ever being a criminal prosecution in light of the fact that these... the testing which took place in Von Raab couldn't be used unless by the agreement of the person whose test was being taken in a criminal proceeding.
William H. Rehnquist: Well, but, I thought the point you were making was that Martinez-Fuerte was really not a criminal case, because so few people were prosecuted under it?
Mark Granzotto: No, that's not what I'm saying. This Court has decided in New York v. Burger that a... a particular type of scheme can have both... both an administrative nature and a criminal nature. Martinez-Fuerte fit squarely within the dichotomy which was drawn in this Court in New York v. Burger, because, as Justice Powell indicated, only 3 percent of these cases actually result in prosecution.
William H. Rehnquist: Well, but that doesn't mean it's an admitted... an administrative scheme. It's not as if there was some administrative procedure that was being enforced in Martinez-Fuerte. It was just different levels of the criminal process.
Mark Granzotto: Well, I would... in... in response to your original question, Mr. Chief Justice, I would also indicate to the Court that this Court has indicated since Martinez-Fuerte that there is... there is a... a nexus to the border... the border which allowed the Court to make the decision in Martinez-Fuerte as it did. And that's the case of Montoya de Hernandez. Because, in that case, the Court indicated that the decision in Martinez-Fuerte was, in fact, connected to this... this country's vested right to protect its borders. And in that sense, the whole concept of a probable cause or reasonable suspicion requirement was automatically out of the Martinez-Fuerte case to begin with.
Antonin Scalia: Mr. Granzotto, what... what do you do about truck checkpoints on... which exist on many state highways, requiring trucks to pull over to determine whether they're overloaded and whether their safety equipment is operational?
Mark Granzotto: To some extent, those cases may fell... fall within the balancing test, even under this Court's decision in Von Raab and Skinner, because they may involve, in particular states certainly, noncriminal prosecutions, or at least a situation in which there is both an administrative aspect--
Antonin Scalia: Well... well, okay, I'll make up one. It's criminal. If... if... if they catch your truck with too much weight on it, you're going to be cited criminally, or with unsafe brakes.
Mark Granzotto: --Well, there's another construct to the Fourth Amendment which may come into play in the situation of a truck and a weigh station, and that is the heavily regulated industry concept which has been developed by the Court and applied in a number of cases. That may well take it outside--
Antonin Scalia: Heavily regulated industry... I don't know. You need a driver's license and a truck driver's license, just as you need a car driver's license for a car.
Mark Granzotto: --But it is... excuse me... it is regulated because of the weight of the vehicle. That's why the weigh stations exist, to... to impose certain restrictions on... on the weights--
Antonin Scalia: It seems to me circular. Since... since the weigh stations exist, it's a heavily regulated industry, which justifies the weigh stations.
Mark Granzotto: --No. The heavily regulated industry construct, which this Court has adopted, is based on one... one thing. And that is, a piece of legislation or a number of pieces of legislation. The weigh stations have nothing to do with whether it is in fact a heavily regulated industry.
William H. Rehnquist: How long had this checkpoint-- --Certainly, there are a great number of regulations of automobiles, safety requirements and so forth that are contained in statutes?
Mark Granzotto: Yes. Indeed. And as I pointed out in my brief, there are certain vehicle checks which could exist in Michigan in response to Justice O'Connor's question to... to the petitioner's attorney. These particular stops in Michigan have, in fact, been decriminalized recently, as Colonel Hough testified in his testimony at the trial in this case. In that situation, as I've indicated in my brief, those types of suspicionless, warrantless stops would be subject to the balancing test, which this Court has developed.
Anthony M. Kennedy: How long had this checkpoint been in operation before it was stopped by the court order?
Mark Granzotto: This court case? Let me just say I want to correct one thing. This... this check lane was stopped by stipulation of the parties after the first time that it had been instituted in Michigan. We actually brought this case prior to the imposition of the first checkpoint to try to prevent it from taking place at that time. It had been in operation for an hour--
Anthony M. Kennedy: If... if you sought to enjoin it before it even was established, then how did you expect the state to have any statistical evidence as to its operation?
Mark Granzotto: --Justice Kennedy, this program--
Anthony M. Kennedy: The... the sooner you bring it, the... the better off your suit is, because the state has no statistics to back up what they're doing?
Mark Granzotto: --No. No, not at all. This program was copied from a program which was developed by the State of Maryland and the State Police of Maryland. And copied very liberally, I would say, from that program. And the Maryland program had been in existence for approximately four years. In addition, there was a considerable amount of experience outside the United States prior to the Maryland program, which analyzed these... the effectiveness of these sobriety roadblocks. And that's the... that is the type of evidence which was presented in this case through Dr. Ross. Now Dr. Ross, who has analyzed extensively the studies that have been conducted worldwide on the... on the subject of sobriety roadblocks, testified in this case. And what he testified to went directly to the balancing test which the court applied in both the Michigan Court of Appeals and--
Anthony M. Kennedy: So... so it was improper, in your view, for Michigan to even enact this statute and... and... and to try to administer the roadblock on its own and gather its own statistics?
Mark Granzotto: --That's correct.
Antonin Scalia: Mr. Granzotto, would it have made a difference if these weren't stops along the way, but if these were... suppose they set up at the... at the entrance to... to Michigan highways? Checkpoints at which they would check your car headlights before you were allowed on it, the brakes and... and the sobriety of the driver? Or suppose they do it at a toll booth on a state... on a state toll road? When you come up to the toll booth they check your... the safety of the car and the safety of the driver, is that okay?
Mark Granzotto: Well, my position is that, with respect to a... an investigation and attempting to find criminal wrongdoing, that there is something fundamentally different about that, and a stop for... a for vehicle code violation or... or a toll booth.
Antonin Scalia: Well, it's hard to separate the one from the other. I mean, it's the same at the truck stops. They're doing two things. If you are there in violation of the law, you'll be penalized. But they want to get you off the road, also. Isn't that the purpose of these stops? I mean you say it has a purely criminal purpose. Well, it isn't just to... to put you in jail for a violation; it's to get you off the road because you're drunk. Isn't that a separate--
Mark Granzotto: But the purpose is achieved through the enforcement of the criminal law.
Antonin Scalia: --Well, likewise, in the case I just spoke about, when they're checking you to get on the road. You... you mean it would be okay if they check your brakes and found the brakes were no good and said, you can't get on the road, go in peace, and you go home?
Mark Granzotto: No.
Antonin Scalia: But if they arrest you for bad brakes, then it becomes bad?
Mark Granzotto: No. The first that you are describing is something that would... certainly, in Michigan, in light of the decriminalization... be subject to the balancing test. The point... the only point I would raise in light of Von Raab and Skinner is that, if... if the purpose of the intrusion is to purely serve the criminal law, then that... that intrusion is unconstitutional without even a resort to the balancing test. Let me go to the balancing test, which has been talked about at length. There... there are three factors which were analyzed in this case. The gravity of the public harm is the first. And on that we have no dispute. We did not bring this case to minimize the dangers associated with drunk driving in this country. What we attempted to prove and did, in fact, prove to the satisfaction of the trial court in this case was that sobriety roadblocks are just not an effective means of addressing that serious societal problem. We presented in this case the testimony of Dr. Ross. Dr. Ross is a preeminent expert in the area of deterring the drunk driver. What Dr. Ross testified to on one point was totally uncontradicted at trial. And that was that as a means of actually arresting drunk drivers, sobriety roadblocks are worthless. Sobriety roadblocks do not achieve significant numbers of arrests.
William H. Rehnquist: How did he define significant and how did he define worthless?
Mark Granzotto: It's not exactly defined, but what Dr. Ross I believe was talking about when we was talking about worthless is that you are taking, you are removing a number of officers from a practice which does have positive effect, and that is roving patrols. You are taking officers away from that, that goal, and applying them in a particular area to conduct these sobriety roadblocks.
William H. Rehnquist: Well, so the... the... if the state feels differently, if the state after evaluating its enforcement proceedings feels that the roving patrols don't do the job and that this checkpoint should at least be given a try, they're not entitled to do that if some expert takes the stand and says it... it... I think differently.
Mark Granzotto: No. I... I--
William H. Rehnquist: Well, isn't that about what it amounts to?
Mark Granzotto: --No, no, because, Mr. Chief Justice, in this case the... the witnesses called by the state, their own witnesses--
William H. Rehnquist: Well, no, but I was talking about--
Mark Granzotto: --acknowledged--
William H. Rehnquist: --I was talking about Dr. Ross's testimony. You summarized it, I thought, and he said these were worthless because they didn't catch drunken drivers.
Mark Granzotto: --That's correct.
William H. Rehnquist: Well... and I take it you're relying on that testimony because you feel it supports the finding of the trial court. And my question to you is, is the trial court on the basis of the testimony of someone like Dr. Ross entitled to substitute its judgment for that of the state as to which of these procedures work best?
Mark Granzotto: What is important about this case is that the witnesses who testified for the state in this case, the... Colonel Hough, who was the head of the Michigan State Police, testified--
William H. Rehnquist: Well, are you ready to write off Dr. Ross' testimony in that?
Mark Granzotto: --Absolutely not because Dr. Ross's testimony was absolutely consistent with every piece of evidence presented in this case.
William H. Rehnquist: Well, okay. But you began by mentioning his testimony, so I presumed it was important to you. But now you seem to suggest well, it doesn't make any difference what he said because other witnesses said the same thing.
Mark Granzotto: It's... it's cumulative because Colonel Hough testified that the program was not being developed to arrest drunk drivers, to actually remove them from the road. Lieutenant Fledseth testified to the same point. These programs... this program in Michigan is not developed to remove drunk drivers from the road. It is like the Maryland program which Lieutenant Cotton testified to, because--
Byron R. White: That's just to say that the purpose is not to enforce the criminal law.
Mark Granzotto: --No. What... it's clearly--
Speaker: No, no?
Mark Granzotto: --No. It is... it is still to enforce the criminal law because they... they do result--
Byron R. White: Even though they don't remove them from the road?
Mark Granzotto: --They do result in arrests. Approximately 1 percent or somewhat less than the cars which drive through a sobriety roadblock will result in arrest. Those people will be arrested. There will be criminal prosecution resulting from that. What everybody testified in this case totally--
Byron R. White: What if you were... know from listening to the radio or something that there's a checkpoint at a very dangerous intersection that you usually go through. You're going to have a few drinks, so you just decide that you better not go... you should take another route. That would be sensible, wouldn't it?
Mark Granzotto: --Yes, it would be.
Byron R. White: Don't you... is there any evidence in this case or could there be how many people were deterred by... by their knowledge of a checkpoint, deterred from going... from going through that particular dangerous intersection?
Mark Granzotto: No, there's no statistical evidence of that. What Dr. Ross--
Byron R. White: Well, is it... is it... is it sort of a... just an irrational thought that a lot of people who might go through that... that... that intersection without the checkpoint don't go through? Is that just irrational?
Mark Granzotto: --The hypothetical you've given me... the hypothetical you've given me is not the type of deterrence that the State of Michigan is after in this case. They are not looking for people who are circumventing road blocks by going to... by taking another route. They are attempting to justify this program on the basis that it actually deters people from driving after they have been drinking.
Byron R. White: Well, it deters them from driving through that particular dangerous intersection.
Mark Granzotto: Well, that may be true, but that--
Byron R. White: They make them drive someplace else.
Mark Granzotto: --That is not the... that is not the type of deterrents which I think the... the State of Michigan is looking for in this case either. But, let me--
Byron R. White: Well, it is something we can't look at or not in sustaining--
Mark Granzotto: --Well, that's an interesting question in light of the factual record that's been made in this case. I would begin talking about the factual record by telling you that I am not at all afraid and all about... all of the statistics in all of the studies that have been cited in the briefs of the amicus curiae in this case, the... the statistics, the studies do not establish that these sobriety roadblocks are effective. Nonetheless--
William H. Rehnquist: --Well, what do we mean by the word "effective"?
Mark Granzotto: --They don't work.
William H. Rehnquist: Well, but that's a value judgment, isn't it?
Mark Granzotto: No.
William H. Rehnquist: What do you... what do you mean when you say they don't work?
Mark Granzotto: They don't work because there are two possibilities that these sobriety roadblocks can serve. One is to actually physically remove drunk drivers from the road. Everybody who testified at the trial in this case agreed. They don't work on that basis. We're not even instituting them on that basis. That's what the state police testified in this case.
William H. Rehnquist: They don't work in the sense that they only arrest, what, 2 percent or something?
Mark Granzotto: 1 percent or less of the people going through these things.
William H. Rehnquist: Okay. Well, but compared to what?
Mark Granzotto: Compared to what could occur if the 15, 12, 17 officers who are dedicated to one spot were allowed to do what they normally do, which is operate on the basis of reasonable suspicion in a roving patrol.
William H. Rehnquist: But the state's argument here is that that is even less effective.
Mark Granzotto: The state can make all the arguments it wants on that point, but it's first of all contrary to the record, and second of all, not even supported by any of the studies, I believe, that they've cited in their--
William H. Rehnquist: So, the state, in order to determine how to deploy its resources in solving this problem has to come in with statistical surveys that satisfy a trial court?
Mark Granzotto: --No. Because what... what was introduced in this case was an attack on the causal relationship between number of arrests and the deterrent value of the sobriety roadblocks. What was established at the trial in this case, what the trial court found was that there is a... there is a close relationship between the number of arrests and the deterrent value. We... we have a situation where the state comes into court acknowledging, although not before this Court, I might add, since they've altered their position dramatically before this Court, but they came into court saying that these... this program is not designed to perfect arrests because it really won't be that effective in perfecting arrests. But we want this... we want this program because it's going to deter. We presented evidence in this case to demonstrate that there is a close relationship, an undeniable relationship between the power to arrest under this program and the power to deter.
Thurgood Marshall: How many people did not drive who were drunk because of that roadblock?
Mark Granzotto: It's a question which I can't answer.
Thurgood Marshall: I know you can't. [Laughter] But how many do you say they need to arrest, what percentage?
Mark Granzotto: Would they need to arrest?
Thurgood Marshall: To be good, for you.
Mark Granzotto: Again, it is a question which never came up in this case.
Thurgood Marshall: Well, you're sure that this is wrong. Now give me one that's right.
Mark Granzotto: Give you one that's right?
Thurgood Marshall: You're sure that 1 percent is wrong. Well, can you give me what percentage is right?
Mark Granzotto: A percentage, first of all, would be... that would be right would be one in which the number of arrests, for example, per manhour out on... out on a sobriety roadblock would be better than the number of arrests that you get per manhour in a roving patrol.
Thurgood Marshall: Well, how arrests do you get per man-hour do you get for dope in Detroit?
Mark Granzotto: I'm afraid I can't answer that question.
Thurgood Marshall: You certainly can't. You just pick out one. I wonder if it's so wasteful, if these checkpoints are so wasteful why... why there are some 30 or so states in here defending these checkpoints.
Mark Granzotto: I don't know.
Byron R. White: They just... they're all just misled.
Mark Granzotto: No. What... what is... what is involved in these checkpoints, and reading the amici briefs that have been filed in this case, one point that appears frequently and dramatically is visibility. These are a very visible means of showing that something is being done on the drunk driving problem. In Michigan I would suggest to you, Justice White, that this program was done despite the hesitancy of the Michigan legislature. It was done at the request of the Governor of the state of Michigan. And in my estimation, it was done precisely because this... this type of law enforcement mechanism is visible. It doesn't necessarily work, but it's visible. It shows that somebody's attempting to do something about the drug testing... about the drunk driving problem.
Byron R. White: Well, the states... the states would rather have... these 30 states apparently would rather have checkpoints than deploy their officers otherwise.
Mark Granzotto: I would suggest to you that the--
Byron R. White: Well, wouldn't they?
Mark Granzotto: --principal--
Byron R. White: Wouldn't they?
Mark Granzotto: --I would assume by their amicus brief--
Byron R. White: Yes.
Mark Granzotto: --that's been filed in this case, but I would suggest to you that perhaps they are more interested in the constitutional law that's going to be developed if this court approves this type of sobriety roadblock because we get into the question of whether there can, in fact, be mass investigations of people. And in that sense, Mr. Justice White, we may have a situation where there is the... the end result of the court's decision in this case may be far more important to the law enforcement people in this country than any decision... any indication, let me say, that these sobriety roadblocks actually work in this country.
Anthony M. Kennedy: You want us to say this is unconstitutional if there's a more effective way of apprehending drug... drunk drivers?
Mark Granzotto: No.
Anthony M. Kennedy: That was precisely your answer to Justice Marshall, it seemed to me.
Mark Granzotto: No. It is not only... let me say it is not only that it is the less effective way, let me say, than... than roving patrols. That's not the only point. The fact is that these types of seizures will result in a limited number of arrests, first of all. They're not going to accomplish what they want to accomplish. It's not... it just not going to serve the purpose in comparison, I will grant you, in comparison to what the police could be doing in other settings. But as this court found in Delaware v. Prouse there is a sort of marginal utility, if you will, to the... a police technique which has to be analyzed by this Court. In Delaware versus Prouse, for example, the court found that these types of stops which were at issue in that case weren't going to result in a marginal increase in the... in the problem, the crime problem which the police were attempting to combat in that situation. The same is true in this case. The third prong which I would like to address of the Court's balancing test concerns the scope of the intrusion, and on this point I think there's a couple of misconceptions regarding the position which the State has taken in this case. The State attempts to justify this program on the basis that this is a minimal intrusion for approximately 30 to 60 seconds. In... in fact, there are a number of other factors related to the intrusion which impact on... on the analysis which this Court must apply in the balancing test. First of all, there is the... the point which has been made before with respect to the number of innocent drivers passing through these checkpoints. At... at its best, these checkpoints allow 99 percent of the cars to go through because these people are innocent of any wrongdoing. In addition, there is another disquieting, I believe, aspect to these sobriety roadblocks which has come out in the evidence in this case, and that is there is a significant number of what I would call false positives which have been developed. In other words, the program works that people will go through a... go through these sobriety roadblocks, be stopped temporarily... that is, the stop which the... which the State represents as being very short in duration. In actuality, a number of people will be diverted to another area where they will be further investigated, including a number of tests. What the evidence from other sobriety roadblocks has indicated is that you have twice as great a possibility of being diverted to these... for this further investigation and not being drunk than you have of being drunk when you're diverted to these--
William H. Rehnquist: So... so of those diverted, one-third are found to be drunk and two-thirds are released?
Mark Granzotto: --That's correct, after further investigation, obviously, and more... obviously more extensive investigation that's been... that takes place. There are... as well, there is a point made by the... the State in this case with respect to the discretion which is allotted the people who conduct these patrols. The State argues that that discretion limits the scope of the intrusion which is involved in the case. We had testimony in this case from Inspector Fladseth of the State Police who indicated that when a person approaches this sobriety roadblock, that person can be diverted for further investigation for any reason or for no reason at all; therefore, the answer that was supplied before with respect to failing to open the window, if somebody could be diverted for further investigation for failing to open the window, the answer to that question is yes, they can be, because Inspector Fladseth candidly acknowledged during the course of his testimony that the officer who is... who is confronting the person driving up in the car can divert that person for further investigation, more extensive investigation, for any reason, or for no reason.
William H. Rehnquist: If... if only 1 percent of drunk driving is... are arrested in this manner and one-third of those diverted are found to be drunk, only 3 percent then are diverted; is that about right?
Mark Granzotto: That's correct. I... I am also concerned and... about the scope of the intrusion which can take place in these sobriety roadblocks, because if this Court does in fact approve sobriety roadblocks, the stop itself, there are a number of necessary results which would obtain on the basis of prior decisions of this Court, on the basis of Pennsylvania v. Mimms and on the basis of Brown v. Texas. There are a number of actions, conduct which the police can take in this situation, undeniably, if this Court does in fact approve sobriety roadblocks; that is, the stop itself. We brought this case not in attempt... not in an attempt to demonstrate that drunk driving is not a serious societal problem in this country. What we attempted to show in this case, what in fact the trial court did adopt in this case, was that sobriety roadblocks are not an effective means of combatting that serious societal problem. Under the balancing test, therefore, what we have, I believe, is a serious problem. We have a... an intrusion which may be minimal in some respects, but it is an intrusion which does not accomplish anything. And on that basis we would ask that under... under the Court's balancing test as it's been adopted that these sobriety roadblocks be found unconstitutional. Thank you.
William H. Rehnquist: Thank you, Mr. Granzotto. Mr. Casey, you have three minutes remaining.
Thomas L. Casey: I have nothing further to add, Your Honor.
Antonin Scalia: Mr. Casey, excuse me. I do have a question. Do you agree with the statement that was just made that these parties at the roadblock could be pulled over for further investigation for any reason or for no reason? Was that the way this was done?
Thomas L. Casey: No, I don't agree with that. The testimony that he's referring to--
Antonin Scalia: Because that... that bears upon the scope of intrusion. I had thought up to now that all we're talking about the degree of intrusion is being stopped. If what... if that statement is true, the degree of intrusion without articulable suspicion could be as much as getting out of your car and having to walk a line and do all the other tests that they perform.
Thomas L. Casey: --That statement is not accurate. One... in one sentence in a deposition, one of the deputies on a cross-examination said that there could be reliance on any number of factors or perhaps no factor. That's not what the law says. That's not what this Court's cases say. That's not what our guidelines say. That's not the law in Michigan. If a driver is pulled over for further investigation for no reason whatsoever, they would be able to challenge that on an individual as-applied basis. Under the guidelines and the way the Michigan program is set up, drivers cannot be diverted for further questioning unless there are visible, articulable signs of intoxication.
Antonin Scalia: That appears in the text of the guidelines?
Thomas L. Casey: Yes.
William H. Rehnquist: Now the case is submitted.