William H. Rehnquist: Mr. Chinn.
A. Scott Chinn: Mr. Chief Justice, and may it please the Court: The City of Indianapolis operates roadway checkpoints comprised of conduct that in other relevant contexts this Court has approved. The Court of Appeals declined to apply this Court's Brown versus Texas balancing test to evaluate that conduct because the checkpoints primarily investigate crimes, but the city's checkpoints are constitutional for two independent reasons. First, this Court used the balancing test in upholding other roadway checkpoints where the government's interests was to investigate crimes. Second, the city's checkpoints serve sobriety checking and driving regulation interests that this Court has approved and the city's drug checking conduct adds no additional intrusion to these procedures. The roadway checkpoints this Court has previously upheld--
Sandra Day O'Connor: I have just one question about that. I guess on the checkpoints to check for drunk drivers, that's at least related to the condition of the driver of the car, and the Court applied a balancing test and upheld it. Now, is this search more to find drugs being transported in vehicles or is it looking for drivers who are impaired by drug use?
A. Scott Chinn: --It's to do both, Your Honor, but primarily to look for drug possession and trafficking in cars.
Anthony M. Kennedy: What do the statistics show or do they show about the percentage of people that were arrested that were using drugs and were therefore driving under the influence of drugs? Do the statistics show us that?
A. Scott Chinn: Not in this case. On this record there is no evidence that any driver was arrested because he or she was under the influence of drugs or alcohol. Our statistics show that 4.7 percent of the drivers stopped possessed some sort of narcotics.
Sandra Day O'Connor: But does that make this akin to a checkpoint, for instance, to catch burglars in an area or a murderer or something of that kind? Is this more for typical law enforcement purposes? And does that affect the balance in some way?
A. Scott Chinn: No, Your Honor, I think it's different than the hypotheticals that you described for this important reason. The relationship between smuggling drugs in cars, of course, and the roadway itself is close. We have found that, obviously, with our high hit rate in Indianapolis. Carrying drugs in cars is important to foster the drug trade in our neighborhoods, both in terms of possession amounts and smuggling amounts, traffic amounts. The ease with which the drugs can be concealed and moved about very easily and enter our neighborhoods is a problem.
Sandra Day O'Connor: Well, if there were a high crime area with lots of thefts and burglaries and it was believed that the burglars typically made their getaway in cars, is it appropriate to have roadblocks and check people for that purpose?
A. Scott Chinn: It might be, Your Honor, if that connection was shown. If there was a significant connection shown by the government in that case between that rash of burglaries or whatever the crime may be and the use of the roadway, that would be perhaps available.
Antonin Scalia: Well, there's always such a connection. I know very few burglars that go on foot. I mean, you're saying yes, then. You're answering the question yes.
A. Scott Chinn: Well, certainly if you have a lot of crime in the neighborhood--
Antonin Scalia: You can stop all cars to see if they have burglary tools?
A. Scott Chinn: --Probably not, Your Honor. Certainly a substantial connection can be shown in this case and was shown in Martinez-Fuerte, for example. The Court can easily set the bar at that substantial connection or significant connection that would differentiate between stopping cars for general criminal violations.
Antonin Scalia: Why is the connection between burglars, who usually get where they're going by car, not as close as the connection with drug traffickers, who usually engage in their business by car? I mean, everybody almost usually does everything by car. It seems to me I don't see anything special about this.
A. Scott Chinn: It's special, Your Honor, because here the car is used as an instrumentality to secret away the drugs that are then either... have been just purchased in a neighborhood or may be on their way to a neighborhood for sale.
John Paul Stevens: Does the record... does the record tell us how many of these drug arrests involved persons who were selling drugs as opposed to those who might have just been using them themselves?
A. Scott Chinn: It doesn't tell us specifically, Your Honor. What the record does tell us is that in the very first checkpoint that Indianapolis set up there was a sizable distribution amount that was seized in the checkpoint, but our checkpoints are designed to both attack the supply and demand. We think it's important to attack possession amounts as well.
John Paul Stevens: Would your case be as strong if the record showed that every one of the persons stopped just happened to be a casual user or something and then had some drugs left in the car?
A. Scott Chinn: Our case would be as strong for two reasons.
John Paul Stevens: You don't really... you don't really have to rely on the fact that some of them may be selling drugs?
A. Scott Chinn: That's correct. It tells you something about our program, but it... but it need... we need not have--
Ruth Bader Ginsburg: Mr. Chinn, I think you answered to an earlier question that the dominant reason for this program is to catch people who distribute, unlike the alcohol stops, the sobriety checks, that the dominant purpose is not to catch dangerous drivers, and you have no record of distinguishing between those two, so we have to assume... well, you have been candid about it. Your purpose is to catch people who are distributing drugs. Is that not so?
A. Scott Chinn: --Distributing... to smuggle drugs. People who smuggle drugs, either for distribution or possession.
Ruth Bader Ginsburg: Well, I don't--
William H. Rehnquist: --Is that the only purpose?
A. Scott Chinn: For these checkpoints?
William H. Rehnquist: Yeah.
A. Scott Chinn: Our... our... no. We have three interests that are being served here. The drug distribution interest is primary, and we conceded that, but we also, and the record shows this indisputably, check for signs of impairment. So we are interested in catching drivers who are under the influence of drugs or alcohol. And thirdly, we check drivers' license and registrations at each checkpoint. In fact, that's the first thing that the officers do at the checkpoints, and we had a measurable, a sizable hit rate for driving violations as well. It was essentially equal to our narcotics hit rate, and both were higher than this Court sustained in Sitz.
David H. Souter: I suppose given the fact that you don't have a record with respect to finding actual impairment among the people that you stop, I suppose that if we sustain the search here, we would be required to do the same thing if you made a facial showing that in a given neighborhood drug distribution was done on foot. I suppose you would be able to stop pedestrians again on a sort of a random basis according to some set of criteria like this and question every pedestrian.
A. Scott Chinn: Pedestrian stops present a different case, Your Honor, for several reasons. One, this Court certainly hasn't applied, for example, the Brown balancing test to--
David H. Souter: Why not?
A. Scott Chinn: --Well, I believe because the degree of intrusion and one's expectation of privacy in the pedestrian context is simply higher or different than in the motorist context.
David H. Souter: Well, the reason that it is is that... that we... we have, if not a history, at least some experience with... with motorist checkpoints, but there was a day when we didn't. It had to start somewhere, and I don't know why the same reasoning couldn't be applied to pedestrians and start somewhere there, and after a while we'd have a tradition of stopping pedestrians on the street, too.
A. Scott Chinn: Well, the Court certainly has recognized for some time, for 75 years perhaps since Carroll, that motorists enjoy a diminished expectation of privacy.
David H. Souter: Yeah, but the original rationale for that was that because the person was in a car, the person could get away easily, and yet that rationale has nothing to do with the rationale that... that you're advancing here to justify this stop. Your... your rationale for stopping cars is that people use cars to distribute drugs, and my suggestion is that in a given area if people distribute drugs on foot, the same rationale that would justify what you're doing here would justify pedestrian stops, and the original Carroll justification for an automobile exception so-called doesn't have anything to do with either case.
A. Scott Chinn: Again, I think there are some differences, Your Honor, between the pedestrian context and the motorist context. Certainly there is that expectation of freedom of movement, of liberty interest that is different between cars and pedestrians. Pedestrians are much less regulated certainly than cars, much less used to the government telling them that they have to stop. Pedestrians can stop at their own will and proceed down the street and window shop in a way that cars cannot certainly. Cars have to be traveling at speeds dictated by the government in a direction that's dictated by the government, cannot change lanes unless they do it in a way that the government has told them they can. So--
Ruth Bader Ginsburg: I thought the rationale with the car was a lesser expectation of privacy in a car, say, as opposed to a home, but if you're going to do expectation of privacy, one can't be seen, I suppose the street would be lowest because the car, at least you are sheltered by the car itself. On the street there you are. Everybody can see you, so the rationale that you're offering, I think, would apply at least as much. A high crime area, you have reason to suspect that people are going to get away so that the police are there to check them, and is there a distinction based on the expectation of privacy? I don't see it, but perhaps you can explain it to me.
A. Scott Chinn: --I think in this case the expectation is a freedom of movement because here no searches are undertaken without probable cause, so really what we're talking about in this case and all respondents have ever challenged about this case is the initial stop of the car. So the point is merely that because people in cars, motorists are used to being stopped, even at the behest of the government for any number of different reasons. It's that expectation that makes these checkpoints in this case the same as the checkpoints that the Court has upheld in Martinez Fuerte and Sitz reasonable under the circumstances. That's simply different than the pedestrian context.
Antonin Scalia: I've never heard the concept of expectation of privacy which has been applied to... to searches applied to seizures, which is what you're now saying. You're saying there's no reasonable expectation of not being seized, right?
A. Scott Chinn: I think that's right, Your Honor.
Antonin Scalia: Do you know of any of our cases that ever applied that reasoning to seizures? I mean, after all, you have to stop for a traffic light. You have to stop for, you know, bridges that are up and all sorts of things, so you say, you expect to be stopped or seized by government order frequently while you're in a car, and therefore you have no right not to be.
A. Scott Chinn: I think it's inherently part of the Brown balancing test, as this Court applied it in Sitz, for example, it measures in the third element of the Brown test the degree of intrusion on motorists.
Antonin Scalia: Yeah, but it doesn't say anything about expectation of being stopped. I mean, this is just a novel, a novel approach to me, to use the expectation rationale with respect to seizures as opposed to searches.
A. Scott Chinn: I think the point remains that cars are stopped in any number of different contexts, even at the government's direction, and so it's reasonable for the Court to conclude that that is a... presents a lesser degree of intrusion than the pedestrian context.
Anthony M. Kennedy: Well, even so, it's somewhat circular. I mean, if we say there is no expectation, then there is going to be no expectation.
Stephen G. Breyer: You're using the expectation. It's just... it's much more... it's reasonable to stop cars very often, very often for checks, you know, all the things that people have said in prior cases. But the difficulty with your case is it doesn't seem any more reasonable to stop a car just to look for evidence of a crime in general than it does to stop a pedestrian to look for evidence of a crime in general. And what you haven't done, at least I haven't heard you do, is to say why there's something special about this that would really justify stopping the car any more than it would justify stopping a pedestrian. So what is it?
A. Scott Chinn: It is reasonable to stop a car because of, again, the connection between the activity that's sought to be regulated here and the roadway.
Stephen G. Breyer: So that's when we go back to Justice Ginsburg who made the point very well, look, people sometimes rob banks on foot. Bank robbers perhaps are poor, they can't afford cars. They walk around. And that happens a certain number of times. So do we stop all the pedestrians? I mean, you heard her question. My problem is, I can't find anything special about being in a car in respect to a general search without suspicion that there's any special crime but just a general effort to stop crime, and I haven't heard you present one.
A. Scott Chinn: Again, we think that the Court could look to the substantial connection between drugs and their trafficking and possession on the roadways. If the Court is not convinced that that presents a significantly different context than the pedestrian situation, then of course you could apply Brown in that context.
William H. Rehnquist: What was the reasoning of the Court in Martinez-Fuerte? There you had a... a... a... a... a stop with... without a search, and unless there was probable cause.
A. Scott Chinn: Yes, the Court found on balance the degree of intrusion was not... did not outweigh the government's interests in that case, and that since Martinez Fuerte, like the case here, is a smuggling case. There the fear was that persons or motorists were smuggling illegal aliens in their cars, and the Court thought it sufficient that a program of the neutral seizures at a checkpoint guarded against arbitrariness and did not outweigh the intrusion caused by--
Ruth Bader Ginsburg: Mr. Chinn, wasn't there the factor, the locational factor there that the stop, although distant from the border, was on the main... the road, the highway that you would take if you were going from the Mexican border into the interior because that's where all the traffic flowed. But here you don't have that. It could be any... anyplace.
A. Scott Chinn: --Let me say a few things about that if I can, Your Honor. First, that was not part of the Court's decision in Martinez Fuerte. These were stops of persons that there was no reasonable suspicion to believe had just crossed the border.
Ruth Bader Ginsburg: But it was a fact in the case. There wasn't any question it was a main highway that people used, traveling from Mexico.
A. Scott Chinn: Yes, it was a factor in the case, Your Honor, but it didn't appear critical to the Court's holding, nor did the United States argue that that case is sufficiently different from our case.
Antonin Scalia: So you think you could stop... police can stop cars anywhere in the United States just to look for smuggled immigrants? Just stop the car and say, you know, can I see your papers, please? That's sort of scary.
A. Scott Chinn: If a particular government program was not successful, certainly, that is one check against that sort of checkpoint as well. The second element of the Brown balancing test requires essentially that the programs serve the governmental interests at stake, and so a program that didn't do very well certainly wouldn't survive this Court's Fourth Amendment scrutiny.
John Paul Stevens: What seems to be your argument, the strength of your case depends on the success, your success rate. In other words, you prove it was reasonable by what you find rather than by what you knew before you started.
A. Scott Chinn: I think it's... I think it's both, Your Honor. We clearly have articulated in this case a substantial interest in interdicting drugs. Respondents haven't really challenged that as an important interest, and it's an interest that this Court has upheld on many occasions.
John Paul Stevens: If I read your brief, it's important to your case that 5 percent of the people in Indianapolis apparently don't have their driver's license with them and another 5 percent have some marijuana in the car. If there was only 1 percent, your case would be much weaker.
A. Scott Chinn: It would be weaker, Your Honor.
John Paul Stevens: Yeah.
A. Scott Chinn: Although probably--
John Paul Stevens: But you didn't know that until you conducted the searches.
A. Scott Chinn: --Well, we knew that we had a problem.
John Paul Stevens: Sort of like... sort of like you found something there, ergo, it was reasonable to look for it.
A. Scott Chinn: Well, we certainly knew we had a problem, and our program actually proved that we were correct.
Anthony M. Kennedy: The case that everybody begins with in automobile searches is Carroll, the prohibition case, and the Chief Justice in that case writing it said it would be intolerable and unreasonable if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highway to the inconvenience and indignity of such a search. That's this case, isn't it?
A. Scott Chinn: It's not for a couple reasons. First, that case was for that quote, and that case was talking about searches, and of course we don't search anyone here. We engage in a pattern of brief roadway seizures. And secondly, this Court's decisions in Martinez Fuerte and Sitz and its suggestion in Delaware versus Prouse shows there are any number of things that a court... that a government can... interests that can be served by a checkpoint program. Mr. Chief Justice, I'll reserve my remaining time. Thank you.
William H. Rehnquist: Very well, Mr. Chinn. Ms. Millett, we'll hear from you.
Patricia A. Millett: Mr. Chief Justice, and may it please the Court: Our position is first the petitioner's checkpoints, including their drug detection component, are constitutional under this Court's decisions in Martinez-Fuerte, which upheld a checkpoint designed to intercept alien smuggling, and Sitz, which upheld a sobriety check-in... checkpoint. Second, petitioner's checkpoints are also constitutional because they advance the government's legitimate interests in assuring that only properly licensed and sober drivers--
John Paul Stevens: On your first point about Martinez, how would you respond to Justice Scalia's question? Would that checkpoint have been legal in Indianapolis?
Patricia A. Millett: --As a constitutional matter, yes. As a statutory matter, no. The Border Patrol--
John Paul Stevens: As a constitutional matter.
Patricia A. Millett: --does not have authority to go beyond a hundred miles. As a constitutional matter, if the government, Border Patrol was able to show that, for example, in Indianapolis or Kansas or between... somewhere in Colorado there was a thoroughfare that had a strong nexus to alien smuggling, for example, seasonal workers moving back and forth, then it would be.
John Paul Stevens: With what we now know about Indianapolis, just right as of today, do you think it would be legal to have the Martinez-Fuerte's checkpoint in Indianapolis today?
Patricia A. Millett: I think we would have to show an alien smuggling nexus to the roadways on which we established our checkpoints.
John Paul Stevens: Well, then did they have to show them before they conducted these checkpoints here, did the city have to show that 5 percent of the people were driving without licenses or did they find that out after they did it?
Patricia A. Millett: I think they have to establish... they have to have a reasonable basis for believing that there will be a problem. Obviously, we have that with the alien checkpoints that the Border Patrol operates, and here the City of Indianapolis focused on crime statistics and was able to determine that particular areas--
John Paul Stevens: The high crime statistics they got as a result of the program they instituted.
Patricia A. Millett: --No, no, no, general crime, drug crime statistics, which you obviously will know in advance as a law enforcement agency, just as we know where the primary problems of alien transportation are in the country.
Antonin Scalia: Let me follow up on the Indianapolis hypothetical. Why would it have to be alien smuggling? I mean, why couldn't you simply identify an area that has a large... you know that there are a large number of illegal aliens in this section of Indianapolis that is largely Hispanic, so you simply set up roadblocks, and I'll bet you you'll get a pretty good catch if you stop every car that drives down the street in that section to see if there are illegal aliens in the car.
Patricia A. Millett: I think as a constitutional matter, if the government were able to show the appropriate nexus and the effect that its checkpoints again were actually effective that it would... and the intrusion was no more than it was in Martinez-Fuerte, but, yes, the Fourth Amendment applies the same in Indianapolis as it does in Arizona.
David H. Souter: Then the same result then would be for pedestrian checkpoints?
Patricia A. Millett: No, not at all.
David H. Souter: Why not?
Patricia A. Millett: There's a bright line in this Court's decisions between cars and pedestrians.
David H. Souter: Why should there be? In other words, the rationale that you're advancing and that your brother has been advancing doesn't seem to me to make any particular sense of that distinction.
Patricia A. Millett: First, it's beneficial. I don't think there's anything about this case that puts us closer to pedestrian checkpoints than Martinez-Fuerte and Sitz, but the rationale has been--
David H. Souter: Well, if... if Martinez-Fuerte can be applied as you have said to Justice Scalia that it may be applied in Indianapolis or the middle of Nebraska somewhere because there is... there is a... a... a general basis in the evidence prior to the search operation, that there is a high incidence of illegal aliens, then to begin with Judge Posner's rationale has nothing, I guess, to do... much to do with the case, and it doesn't seem to have anything... it doesn't seem to be key to the use of automobiles, and therefore I don't see why, if we accept your answer to Justice Scalia, we are not well down the road toward pedestrian checkpoints.
Patricia A. Millett: --Because cars are different than pedestrians. Cars are highly regulated. This Court has recognized this they are subject to a web of regulation by government, and I think it was Justice Breyer earlier said one has no reasonable expectation within the meaning of the Fourth Amendment that you will not be briefly stopped and asked to show a driver's license, your authority to operate the car, and under Martinez-Fuerte that you are not using the car to smuggle illegal aliens, we see no difference between that and smuggling drugs. And in this case the drug component isn't necessary to explain the seizure. The entire scope of the seizure is independently justifiable. In fact, most of the time is expended on the driver's license checkpoints. The only role of the drug detection component is that they're in a justifiable stop under this Court's precedence for driver's license checkpoint and sobriety checkpoint. They add a canine sniff for dogs. That does not independently cause the seizure, although we do think a drug checkpoint in its own right is constitutional, but it does--
David H. Souter: Well, then, on... excuse me... on that theory could the police station drug detection dogs at every street crossing where the traffic lights require pedestrians to wait until the yellow light comes along? The pedestrians are being stopped in the normal manner in which pedestrian traffic is regulated. The dog is no more intrusive than the dog is when it goes around the car. Could the police do that and have a good search?
Patricia A. Millett: --Yes. I think the police have a right to be on street corners with their dogs or without their dogs, and smell... the sniff the dog alerts to is odors emanating from--
David H. Souter: So if somebody says to the dog, you know, get away from me, the police can say, no, you've got to let the dog search you?
Patricia A. Millett: --No, that then I think would be a seizure of a pedestrian if they won't... can't get away, but the pedestrian can walk away. It's a big difference.
David H. Souter: Then why isn't it a seizure of the car for something other than the purposes of checking license plates when the dog goes around the car? Are you telling... or maybe your answer would be that the driver of the car can say to the police, get the dog away from the car. And the police would have to do it. Would they?
Patricia A. Millett: No, I don't think so. Because the difference between the pedestrian example and this one is that you have a legitimate basis for the seizure independent of the dog. That's the driver's license checkpoint.
David H. Souter: You have a legitimate basis for stopping the pedestrian until the light turns yellow. The pedestrian is just as validly stopped as the car is for the driver's license check.
Patricia A. Millett: That... that... well, I think it's a separate question whether--
David H. Souter: If the pedestrian can tell the police to get the dog away, why can't the car owner?
Patricia A. Millett: --I'm not sure that a traffic light, in fact, effectuates a seizure within the meaning of the Fourth Amendment.
David H. Souter: Well--
Patricia A. Millett: Because pedestrians can turn around and walk away, they can do a U-turn. I'm sorry.
Antonin Scalia: --Do we know in the facts of this case whether the dog sniffing occurs while the license check is going on or whether the policeman first checks the license and then says, okay, now stay here, I'm done checking your license, but I want to walk around the car with a police dog?
Patricia A. Millett: My understanding is that it's done while the driver's license check is going on. And that's what takes the two to three to five minutes. Dog sniffs take a minute, 90 seconds at the most for a very large vehicle.
Anthony M. Kennedy: Suppose the city council authorized this search and had a preamble and said, in order to interdict drug distributors, we are setting up the following checkpoint, and then the case is just like it is, and you have a license, they say that the sole... the purpose is to interdict drug smuggling. Does that change the case at all?
Patricia A. Millett: It doesn't... we have two rationales. Our position is that drug interdiction, drug smuggling checkpoints in their own right are constitutional, so obviously under that theory it would not. But if the Court disagrees with that and says that that is not a legitimate basis for having a checkpoint, then the case would be different if they did the stop and they did not actually effectuate the interests that are served by a driver's license checkpoint, they didn't ask for the licenses, and they didn't act upon license violations. If they, in fact, act upon license violations and serve that interest within the meaning of this Court's prior recognition of that as a legitimate interest, then the fact that they also serve another legitimate interest that does not in any way change the nature of the intrusion on the individual, does not enhance the length or duration or intensity of the seizure, then it would not make a difference, and then what the government says or doesn't say in the preamble I don't think would change the Fourth Amendment analysis.
Ruth Bader Ginsburg: In other words, in order to do it, the city has candidly told us it wants it to apprehend drug distributors, it has this pretense of stopping people to check their licenses an also purpose, but it's using that as a gateway to get to what it's really interested in, which is the drug distribution.
Patricia A. Millett: You mean pretense by the fact that they ask for licenses but don't do anything about it? And I profess to do something--
Ruth Bader Ginsburg: No, you said that they would have to do that. Mr. Chinn told us... candidly, I thought, to his credit... that the primary purpose of doing this is to apprehend drug distributors. So you're saying, yeah, but they couldn't just do that openly or overtly, they need some kind of cover for it. So we do the license check.
Patricia A. Millett: --That's not what I mean to say. Our position is that a drug checkpoint in its own right would be constitutional. Border patrols, the drug smuggling, aliens--
Ruth Bader Ginsburg: So let's take... then let's take away that. You are saying without the license and registration check this would still be okay, we just stop people because we want to have the dog go around the car.
Patricia A. Millett: --I'm saying two things. We're saying that's our first... that's our first argument. Our second argument is if the drug interdiction purpose is not in itself a basis for the stop, then as long as the driver's license stop or the sobriety stop is actually being accomplished by the government, those interests are being served, and the drug detection component does not add anything to the length or duration of the seizure, then it would still be constitutional under both of them. And that if both of them are legitimate interests, if the Court doesn't... as long as... as long as one legitimate interest is served by the checkpoints and explains the entire... and justifies the entire scope and duration and intensity of the seizure, the fact that the government has other interests, primary or secondary, doesn't matter.
William H. Rehnquist: Thank you, Ms. Millett. Mr. Falk, we'll hear from you.
Kenneth J. Falk: Mr. Chief Justice, and may it please the Court: This case is not Martinez-Fuerte. This case is not Sitz. The Indianapolis roadblocks are criminal investigatory seizures of primarily innocent persons without cause. In Martinez-Fuerte--
William H. Rehnquist: Certainly the seizures in Martinez-Fuerte and Sitz were also seizures of primarily entered in. No one claims they had a 51 percent harvest there.
Kenneth J. Falk: --That's correct, but this Court recognized, Your Honor, for instance, in Montoya de Hernandez that Martinez-Fuerte was one of a number of cases reflecting the long-standing concern for the protection of the integrity of the border, which has been characterized as a noncriminal investigatory concern.
William H. Rehnquist: But in Martinez-Fuerte they arrested these people. That's how the case came to this Court.
Kenneth J. Falk: Well, of course, Your Honor, but in Camara back in 1967, violation of the housing codes in issue there were criminal. In New York v. Burger, violation of the regulatory statute turned out to be criminal. This Court in all those cases looked back to see what the programmatic purpose was, and recognized that the programmatic purpose was not for criminal investigation. If, in fact a--
William H. Rehnquist: What did the Court say, then in Martinez-Fuerte? What did it say the main purpose, the programmatic purpose, as you call it, was?
Kenneth J. Falk: --Protection, integrity of the borders, Your Honor, have been recognized by this Court since I believe the 1880s in the United States v. Boyd, that the United States has an inherent regulatory right to ensure that people and things that enter this country do so lawfully. That is a regulatory purpose. Similarly, lower courts have recognized through inspection and checking licenses, registrations, and inspection status has recognized a safety-related purpose for traffic stops.
Sandra Day O'Connor: And drunk driving.
Kenneth J. Falk: And drunk driving, Your Honor.
Sandra Day O'Connor: How about driving while impaired by drug use? If that were the purpose, okay?
Kenneth J. Falk: If the... if the City of Indianapolis could show here that there was, indeed, a problem of drugged driving, like there was in Sitz of drunk driving, then of course there could be a regulatory purpose.
William H. Rehnquist: How could the city show that without having done some investigation?
Kenneth J. Falk: Well, I think if you looked at Sitz there were reams of statistics introduced there to show what the national and local problem of drunk driving was. Sitz recognized... I'm sorry?
Antonin Scalia: Please, finish your answer.
Kenneth J. Falk: Sitz recognizes that there is a regulatory right of a state to get an immediately unsafe vehicle off the road. In the same way that a car without brakes is imminently unsafe to innocent persons, so is a car driven by a drunk driver.
Antonin Scalia: What about a driver without a driver's license, is that a safety concern? Do you acknowledge that it's okay to make the stops to see that the person behind the wheel has a driver's license?
Kenneth J. Falk: Arguably, Your Honor, but even those stops, even those noncriminal investigatory seizures have to be justified under Brown, there has to be a showing there actually is--
Antonin Scalia: That's fine. Let's assume that that is so justified here.
Kenneth J. Falk: --Yes.
Antonin Scalia: What difference does it make that in the course of that search, in the course of that stop the police also send a dog around the car? I mean, in the case of individualized traffic stops, we have innumerable cases where the person who was caught with drugs in his car after a stop for a broken taillight and in the course of interrogating the driver about the broken taillight, the policeman sees something suspicious, and then conducts a full search. And it is often alleged and may well be true that the reason the policeman stopped the car with the broken taillight was that this car looked suspicious and he thought it might have drugs in it, and we have simply rejected that argument. We've said we're not going to go into the subjective motivation of the individual policeman. So long as he had a valid basis for stopping the car, that's enough.
Kenneth J. Falk: That's correct.
Antonin Scalia: Now, why shouldn't that apply in gross, just as it applies with respect to individual traffic stops?
Kenneth J. Falk: Subjective intent is irrelevant provided there is otherwise probable cause.
Antonin Scalia: Right, so--
Kenneth J. Falk: But there is no cause here, Your Honor, and this Court has insisted--
Antonin Scalia: --But there is cause. You've acknowledged that it is okay to stop to check for driver's licenses.
Kenneth J. Falk: --Well, there's not a criminal investigatory cause. And I would add, Your Honor, that this Court has made it clear in, for instance, in Terry, you cannot go beyond the scope of what is allowed by the narrow exception to the cause requirement of the Fourth Amendment. Michigan v. Clifford, same example.
Antonin Scalia: I'm assuming they're not going beyond what's allowed. They're only stopping to check... now their real purpose is to find drugs, but they're only stopping the cars as long as it takes to check for driver's licenses.
Kenneth J. Falk: Well, Your Honor--
Antonin Scalia: While they do that the dog sniffs around the car.
Kenneth J. Falk: --Obviously adding the dog goes beyond the scope of a license checkpoint. A dog is not necessary to check licenses. Under the roadblocks--
William H. Rehnquist: The dog... the dog is not a search under our place.
Kenneth J. Falk: --Well, arguably that's correct, Your Honor.
William H. Rehnquist: Or it's a stop. Not just arguably. The Court has said it's correct.
Kenneth J. Falk: The Court has said that a search of unattended luggage is not... by a dog, a sniff, excuse me, is not a search, but I'm assuming it's not a search for this purpose, Your Honor, but still it is clearly beyond the scope. It is something unnecessary--
William H. Rehnquist: Beyond the scope of what?
Kenneth J. Falk: --Beyond the scope of what is allowed for the regulatory intrusion to check someone's license, Your Honor.
Stephen G. Breyer: I guess a policeman could walk a dog, a sniffing dog down the street, couldn't he? I mean, suppose he did that. There are people stopped, I mean, so it doesn't bother anybody, but he sniffs the dog. I thought probably that was lawful.
Kenneth J. Falk: Well, but Your Honor, this is a seizure.
Stephen G. Breyer: But I would like you to address that particular point. I'm confused. My characterization, not theirs. But from what Mr. Chinn said, I thought that this was a stop the basic purpose of which was to look for drugs; i.e., if the police had known they weren't going to get... be able to look for drugs, there would have been no stop. From what the Solicitor General said, I thought that my characterization, not hers, that this was a different kind of stop. This was a stop to search for drunk drivers or a stop to search for licenses... unlicensed drivers, and the police would have done it if drugs had had nothing to do with it, and their having done this is like somebody stopping at a red light, and people walk a dog around. Well, there seems to be quite different considerations. So what is this case?
Kenneth J. Falk: This is not like stopping at a red light. This is being pulled over by a sign saying, warning, drug interdiction checkpoint ahead.
Stephen G. Breyer: But that isn't my point. My point is, have the police set this up to look for drugs and in the absence of their ability to do that, they wouldn't have set it up, wouldn't have stopped people? Or is it a search that the police set up to look for no licenses and alcohol? And if you had told them you can't look for drugs, they would have done it anyway?
Kenneth J. Falk: This is a search to look for drugs, Your Honor. No matter how quickly one shows a valid license or registration, one cannot leave the checkpoint until the dog sniffs the car.
Stephen G. Breyer: Now, when you say it's a search to look for drugs, and the Solicitor General says it isn't, it's a search for... how am I going to find out who is right?
Kenneth J. Falk: The City of Indianapolis concedes that the primary purpose of this search, excuse me, of this seizure is to look for drugs.
Stephen G. Breyer: Where did they concede that?
Kenneth J. Falk: They have conceded that, I believe, in their briefs. They conceded that today before this Court.
Stephen G. Breyer: And does primary purpose mean in the absence of their ability to do that, they wouldn't have done it; i.e., it was a necessary condition for the stop?
Kenneth J. Falk: I'm sorry, Your Honor, I cannot answer that. All I can answer is that everything that an individual is told when they are stopped, they are told, you are now at a drug roadblock. They are told, this is a drug interdiction checkpoint coming ahead with canines to check for drugs. You cannot--
Sandra Day O'Connor: Did the courts below find there were these other purposes in addition?
Kenneth J. Falk: --The trial court found that from the fact that the licenses were checked, that there's a secondary purpose to look for licenses. The Seventh Circuit, Judge Posner found that the primary, not sole purpose was to look for evidence of drugs, and in fact as I've indicated, everyone is told when they're pulling up there is no pretense, there is no one saying this is a license roadblock, you are at a drug checkpoint. And even if as I indicated this was a checking of licenses, there is no valid reason to go beyond that and introduce the drug-detecting dog unless you are now converting this seizure which arguably might be a regulatory seizure into one for purposes of criminal investigation.
William H. Rehnquist: Why can't the city or the state have a multipurpose stop?
Kenneth J. Falk: Arguably they could. They don't in this case, but arguably they could. But you still have to look--
William H. Rehnquist: I thought counsel here said that there were three purposes for the thing.
Kenneth J. Falk: --The city has never attempted, never attempted below to justify even under Brown having a license checkpoint. There never was a showing that there was a public need for this. There was never a showing that the means used were not overly intrusive, and in fact advanced that effort.
William H. Rehnquist: What service... at what point do you think the city would have to make that showing?
Kenneth J. Falk: I think at some level they would have to show that they believe this is a problem in Indianapolis and this is--
William H. Rehnquist: You mean the city council would have to pass a resolution?
Kenneth J. Falk: --No, I mean in the course of justifying their search to the Court.
William H. Rehnquist: Justifying it at what point? I mean, when it's brought to court, as it was here?
Kenneth J. Falk: Yes.
William H. Rehnquist: But you're not saying they would have to justify it beforehand?
Kenneth J. Falk: No.
William H. Rehnquist: It seems to me in court, the lower court, the District Court they found that there were additional purposes.
Kenneth J. Falk: The lower court found only that licenses and registrations were taken, and from that she surmised this secondary purpose.
William H. Rehnquist: Surmised?
Kenneth J. Falk: Well, there is no other evidence, Your Honor.
William H. Rehnquist: But if that was satisfactory for the District Court, are you saying it's clearly erroneous to have found that?
Kenneth J. Falk: No, Your Honor. I think it's clear from the way the roadblock is set up that licenses and registration are taken to hold the people there so that the dog can sniff the car.
David H. Souter: Take an easy case in which there is simply a history in Indianapolis or any other jurisdiction of license roadblock checks, and after 25 years of doing this, suddenly one day a drug sniffing dog appears at the license check. Would you find anything constitutionally suspect in the use of the dog there?
Kenneth J. Falk: Yes, Your Honor, that would be unconstitutional because you have now gone beyond the scope of what is arguably a valid, noncriminal investigatory seizure under Brown. Arguably--
David H. Souter: Well, but let's... you're talking about seizure. Let's assume that the dog simply sniffs, if it sniffs at all, during the time in which it takes to look at the license so that there is no... there is no greater imposition upon the driver by the use of the dog. Would that raise a constitutional suspicion?
Kenneth J. Falk: --Yes, Your Honor. This Court has never said you can take a noncriminal investigatory seizure and incrementally add things to it and still be constitutional. The opposite is true. Let's go back to Opperman, inventory case. You can have one officer searching a car and another officer searching the exact same car, I mean another car in the exact same way, two different searches exactly the same. One can be constitutional because the programmatic purpose is not criminal investigation, an inventory search. The other could be unconstitutional if the officer is looking for evidence of a crime.
David H. Souter: But in the example that I gave you, the assumption that I was making or implying by the hypo was that the license check remained, in fact, a bona fide license check. It had been so before dogs arrived, it continued to be so after the dog arrived. If you make that assumption, that in fact there is a bona fide license check being made for the ostensible purpose, that of checking licenses, does the addition of the dog raise a constitutional suspicion?
Kenneth J. Falk: Yes, it does, and for the reason I indicated.
David H. Souter: Does it raise it for any other reason than it raises a question as to whether they are still really looking for licenses?
Kenneth J. Falk: Your Honor--
David H. Souter: I can understand... I guess I can understand your argument. You say, hey, look, when the dog appears, we all know that they are no longer interested in licenses, they are interested in something else. They are doing just what they are doing here. That argument I can understand. But if you assume, if it were proved, if it were found as a fact by a reviewing court that the license check was still a bona fide purpose, that's where I have trouble with your position.
Kenneth J. Falk: --Your Honor, we're not asking this Court or any court to go inside the head of people to see what their real purpose is. When you add the dog, there is only one purpose. A dog cannot check licenses or registrations.
Anthony M. Kennedy: But the reality of police work is that the police enforce all of the laws. Suppose there were a driver's license checkpoint as stipulated by Justice... hypothesized by Justice Souter, and the police said now we want to add the people, the officers manning this license checkpoint who are experts in drug detection. Would there be something constitutionally suspicious about that?
Kenneth J. Falk: No, provided they use that expertise in a way that does not require dogs or equipment or anything that is beyond the scope--
Anthony M. Kennedy: No, but they're trained especially to look at people's eyes and to smell and to look at the kinds of containers they can see in plain view, this is to normal police work.
Kenneth J. Falk: --Sure. Of course. And that's analogous to doing an inventory inspection of a car and seeing evidence of a crime in plain view.
Anthony M. Kennedy: So then if that's permissible, what's not permissible about adding the dog? Because the dog's more efficient?
Kenneth J. Falk: Because... but you've added the dog. You've added something which is beyond the scope. It's not in plain view. You've added something completely different and--
Antonin Scalia: Officers with really sharp noses would be okay? [Laughter]
Stephen G. Breyer: How about bringing a witness, just bringing a witness to look at somebody stopped at a stoplight? I mean, people do things like this all the time. You stop them for one purpose, but what the policeman does doesn't hurt them in any way whatsoever. It's just a way of getting a witness or somebody to... you're pursuing this line of I guess assuming that this was a stop that was done for a legitimate other purpose, and I'm having trouble following that assumption.
Kenneth J. Falk: --Your Honor, we are arguing this because we... the question has been asked, what if there was a legitimate secondary purpose. We have contended all along in both the lower courts and our briefs that--
Stephen G. Breyer: What does secondary mean? To me secondary meant that they never would have done this thing if it weren't for the primary purpose. That's what I thought it was and now I'm a little mixed up about it.
Kenneth J. Falk: --Your Honor, I cannot tell you what the city would and would not have done but for the drug search seizing.
Stephen G. Breyer: Do they have any other places in the city where they stop people for checking for licenses?
Kenneth J. Falk: Not that I'm aware of, Your Honor.
Stephen G. Breyer: Do they have any other places in the city in the same way where they stop people for drunk driving with these same kinds of checks?
Kenneth J. Falk: Not that I'm aware of, Your Honor.
Antonin Scalia: Mr. Falk, I don't understand why it makes any difference whether the city would have done this otherwise. Why does it make any difference in this case? It surely makes no difference when a defendant who has been convicted of a drug offense comes in and says, the policeman who stopped my car, oh, yes, he stopped it because of a defective brake light, but that's not really what he was after. And we don't inquire as to whether that's really what he was after, and I frankly personally believe that very often that isn't what he was really after, that he stopped this suspicious looking car which happened to have a defective brake light. Now, we just don't listen to that argument. We don't care what the primary subjective purpose was. Why should we care here so long as they have authority to stop for the driver's licenses and one of the purposes of the stop is driver's licenses, what difference does it make that they have another motive?
Kenneth J. Falk: Programmatic purpose has always been extremely important in searches or seizures which are designed for things other than criminal investigation.
Sandra Day O'Connor: Mr. Falk, I want to get into this same area with you because as I read Sitz and Martinez-Fuerte, this Court didn't look at purpose at all. We have spent most of the morning here talking about purpose, what was the purpose. That wasn't the analysis. The Court just went to balancing. What does the government need and how closely does the checkpoint serve that need? And we totally obviated the need to look for purpose, so I'm not sure that these discussions have helped the analysis that much.
Kenneth J. Falk: The problem, Your Honor, is if we lose the purpose inquiry procedures which are not inherently regulatory like Martinez-Fuerte, which are not immediately concerning safety, like Sitz, then we are going to end up with pedestrian roadblocks because--
William H. Rehnquist: You have no bright line. I read over Martinez-Fuerte twice in the last, and I simply don't find any statement in there that the seizure was primarily regulatory. Can you refer me to language in the case that says that? They ended up arresting the people.
Kenneth J. Falk: --That's correct, Your Honor. And as I said, they arrested people in Burger and arguably could have arrested in Camara.
William H. Rehnquist: But where does it say in Martinez-Fuerte that the seizure is primarily regulatory?
Kenneth J. Falk: Martinez-Fuerte does talk about the immigration problems, and other cases I cited this Court back--
William H. Rehnquist: I asked you about Martinez-Fuerte.
Kenneth J. Falk: --No, there is nothing in Martinez-Fuerte, Your Honor, that specifically says it's regulatory.
William H. Rehnquist: That says it's regulatory?
Kenneth J. Falk: That's correct.
Ruth Bader Ginsburg: But you're trying to reconcile that decision as a piece of a tapestry with the ones that had to do, for example, with the fire investigation when this Court did make something of a purpose line. They said if you want to find out how this fire got started, that's regulatory and it's okay.
Kenneth J. Falk: That's correct.
Ruth Bader Ginsburg: But if you're trying to find the arsonist, it's not okay.
Kenneth J. Falk: Of course. And in Opperman this Court found it extremely important that the seizures there and the searches were pursuant to a noncriminal inventory purpose.
David H. Souter: But I want to go back to the rationale that I think you started to add up right there for the reason for the purpose inquiry. If I understood what you were saying is, I think you were implying that in cases like Martinez-Fuerte and the regular driver's checks, the question of purpose was not in the case; that where purpose has come into the case, as Justice Ginsburg suggested, we have... we have said that in fact purpose is a crucial inquiry. And I understood you to be starting to say that if you don't make it a crucial inquiry, your categories simply collapse and there is no way, in effect, to stop, as you said in your... there is no way to stop short of pedestrian search. Can you elaborate on that?
Kenneth J. Falk: Well, if the category collapses in multiple dimensions, the first collapse, as this Court noted in questionings of Mr. Chinn is what about things that are serious concerns to the city other than drugs? So we will have an expansion to what other problems, people not paying parking tickets, people not paying child support, other things of stopping motorists. It also collapses, however, as far as who can be seized. If the argument is that somehow getting into your car is a surrender of your privacy interests, that same argument, as you noted, applies to a pedestrian in a high crime neighborhood. Why not stop that person? That person has by going out in public surrendered a significant amount of privacy, arguably more than I surrender when I drive down the street in my car. Ultimately what the city is arguing, I believe, is that if we subject everyone to the same degree of intrusion pursuant to this plan, that that somehow makes everything constitutional, but this Court has never viewed the Fourth Amendment as somehow being something that allows everyone to be treated in an even-handed manner. As long as everyone's constitutional rights are violated in the same way, that's appropriate.
Sandra Day O'Connor: But we have recognized special needs as an exception to the individualized suspicion, and we've recognized those special needs in the automobile context. And it is certainly arguable, I guess, that because the state licen... or the... because the state licenses the driver and because motor vehicles are deadly weapons potentially that the state has a special need of assuring that the people who are driving are licensed and are not impaired by drugs or alcohol. And maybe there's a special need there that can be met by occasional checkpoints. Is that unreasonable?
Anthony M. Kennedy: And if I may add, this is exactly what the Court said, this is what Justice O'Connor's point is. This is exactly what the Court said in Sitz. We don't need Martinez-Fuerte, not because there is a difference between a regulatory stop and a stop for probable cause, but because it's a car involved. That's the way I read Sitz.
Kenneth J. Falk: It's an unsafe car involved, as Justice O'Connor noted. It's an immediately unsafe car that is going to cause imminent harm to innocent persons because it is a deadly weapon when driven by someone who is drunk or drugged.
Sandra Day O'Connor: That doesn't translate to pedestrians at all. We are dealing with licensing somebody to use this potentially lethal vehicle.
Kenneth J. Falk: But it doesn't... that's correct, but it doesn't translate to searching the trunks of cars to search for drug smugglers, it doesn't translate to that at all. It translates to checking to see if someone is drunk or someone is impaired.
Sandra Day O'Connor: Right. Then it boils down to whether there is any increase in intrusion by having the dog sniff.
Kenneth J. Falk: There is an increase in intrusion when the state turns a criminal investigatory eye on presumably innocent persons, yes.
Stephen G. Breyer: I know you say yes, but until I heard the Solicitor General, frankly, I thought that just like the first of the cases you're talking about was an immigration case and the second case was a drunk search. This was a drug search.
Kenneth J. Falk: Yes.
Stephen G. Breyer: The lower courts have treated it this way.
Kenneth J. Falk: Yes.
Stephen G. Breyer: Indianapolis had said any other purpose was secondary.
Kenneth J. Falk: Yes.
Stephen G. Breyer: Now suddenly since the Solicitor General argued, I think there is a new premise reaching in... reaching in. This is not a drug search case. This is a drunk search plus a dog. Now, that's quite a different thing.
Kenneth J. Falk: That's correct.
Stephen G. Breyer: And because of that issue, I think it's important to get clear on what it is, and if we're treating it as a drug case, it's one thing. Drunk case plus a dog, it's another. So in your last answer, you accepted the characterization. The second characterization. And I want to be sure what you think about that and why I take it you think it should be the first characterization, not the second.
Kenneth J. Falk: This is most definitely a drug case. The city has always indicated its primary purpose is to interdict drugs, not to find drugged drivers. The city has always said that's not the purpose. The purpose is, as the city conceded this morning, to stop bad guys carrying drugs, from carrying them through the streets of Indianapolis, and that is why it's no different than a pedestrian search, because there are bad guys carrying drugs who are walking through the streets of Indianapolis.
Antonin Scalia: So what is wrong about the city saying, look, we have a right to stop people, to look at their licenses? Police forces do this all the time in Fairfax County. They stop to make sure you paid your vehicle tax. Why don't we do that, and in the course of doing it have a dog sniff around the car? In fact, their primary purpose may be to have the dog sniff around the car, but they are conducting a stop that is a perfectly legitimate stop, and we don't look into purpose.
Kenneth J. Falk: And, again, assuming that was the case here, which I do not believe it is, because I think we are dealing with a primarily if not sole drug issue, but even assuming that sort of mixed motive which you're hypothesizing--
Antonin Scalia: No, I'm not... I'm not assuming a mixed motive. I'm hypothesizing that they wanted to get people carrying drugs, and the means of doing it, they said we have a perfect right to stop cars in order to look at licenses, and why don't we do that, and while the cars are stopped, send a dog around the car. What's wrong with that?
Kenneth J. Falk: --Then what we have is a criminal investigatory seizure done without any individual--
Antonin Scalia: No, it isn't a criminal investigatory seizure. It's a seizure to look at their licenses.
Kenneth J. Falk: --No, it's not. It's a seizure. When you have a dog there, it's a seizure to look for drug activity.
David H. Souter: No, but this comes back to your purpose argument. You're basically saying that Justice Scalia's premise cannot be accepted in those circumstances.
Kenneth J. Falk: That's correct.
David H. Souter: And you're saying that because purpose is crucial, we characterize it this way as the drug search.
Kenneth J. Falk: There has been--
David H. Souter: But the tough question, and I think this is consistent with his question, what if we assume, it is found as a fact by the reviewing court that the license check or the registration check is, in fact, a genuine, bona fide purchase... purpose, and they simply add the dog? They're saying, look, if we're stopping them for this legitimate purpose anyway, why not check for this, too? Why not let the dog go around?
Kenneth J. Falk: --Because--
David H. Souter: Why does the dog taint the search in that case?
Kenneth J. Falk: --Because then you're going back to having a seizure which is for criminal purposes which is beyond the scope of what might otherwise be allowed in a noncriminal investigation.
David H. Souter: And is the reason of the beyond the scope criterion essentially a slippery slope reason? Are you, in effect, saying that my premise is really an unsupportable premise? Because if you accept that premise, everybody's going to wink and say, we're just checking for licenses, and we happen to have this dog here, and... and that the... that the premise, in fact, will never... or will... the threat that the premise will not be true, that it will not be a bona fide purpose is just too great, and that's why you don't let the dog--
Kenneth J. Falk: Yes, although I think in defense of Indianapolis, they're not winking. They're coming out--
David H. Souter: --Oh, I realize that. I'm pursuing... I'm just pursuing the limits of your argument as Justice Scalia--
Kenneth J. Falk: --If you break the distinction down between criminal investigatory purpose and a noncriminal investigatory purpose--
William H. Rehnquist: --Would you say stopping for driver's license, a man who doesn't have a driver's license is not a criminal investigatory purpose?
Kenneth J. Falk: --I believe, Your Honor, that that's been deemed to be regulatory because--
William H. Rehnquist: Deemed by whom?
Kenneth J. Falk: --Well, I think in lower courts, in approaching the problem, have deemed that to be... the desire is to remove immediately unsafe people off the roads. There's a presumption if you have no license you're unsafe.
William H. Rehnquist: Well, there's also a presumption you've committed a crime.
Kenneth J. Falk: Well, yes, Your Honor, but again this Court has recognized, as I said, in Camara and Burger and other cases that you can have a regulatory purpose and a criminal investigatory purpose.
Anthony M. Kennedy: Do you want us to use the Von Raab analysis and in Sitz we said when you have automobiles you don't, you use the Martinez-Fuerte analysis.
Kenneth J. Falk: And that's why Sitz said that, because Martinez-Fuerte, I believe, was there, indicating that for that seizure which was not a criminal investigatory seizure, which was part of the inherent regulatory right of the United States to regulate people and things coming into the United States, in that you use a balance, but if we abandon the cause requirement when it's a pure criminal investigation, then we will have seizures which are based on a perceived governmental need.
Anthony M. Kennedy: Would you allow a dog in a Martinez-Fuerte stop?
Kenneth J. Falk: A dog searching... if, in fact... if, in fact, this Court's case law allowed regulatory seizures at that point for purposes of contraband, yes.
John Paul Stevens: It seems to me that you're really arguing that there's a difference between pretext when it's an individual officer acting and pretext when it's a regulatory program. That's the heart of your case.
Kenneth J. Falk: It is, and I don't like using the word pretext because, again, I think the City of Indianapolis isn't being--
John Paul Stevens: It's a word motive instead of pretext.
Kenneth J. Falk: --It's a primary, what is the purpose, and this Court itself in Opperman said here the primary purpose is noncriminal investigatory. In Burger the primary purpose is noncriminal investigatory, and the reason for that was because if it was a criminal investigatory purpose, there would have to be specific cause.
David H. Souter: And what's the danger that you perceive in making the distinction between the individual and the programmatic? Why do you make that distinction? Why do you say there can't be a programmatic rem?
Kenneth J. Falk: Because the danger, then, I believe is that a sufficient government interest, the drug crisis, will be sufficient to overcome the privacy interests which this Court has always recognized as something held by individuals under the Fourth Amendment.
Antonin Scalia: Mr. Falk, I asked Miss Millett earlier whether the dogs ever took longer than the license check, and she said no, that the license check takes three to five minutes, and the dog's done by the time the license check... do you agree with that?
Kenneth J. Falk: The record is not clear, Your Honor. The only thing the record indicates is that there's an affidavit from an officer which says it's usually done at the same time, but it's also clear from the record that no one can leave the checkpoint until they're sniffed by a dog. So it's clear that there are times when the last thing being done is being sniffed by a dog, and that makes sense. If you're just checking licenses and registrations, it won't take five minutes, and given the size... there are 30 police officers there. Given the number of cars, the dogs have to do multiple cars, and inevitably I believe there's going to be a wait for the dog. But obviously, Your Honor, the risk here is that if we break down the barrier here and allow this seizure which is clearly for criminal investigatory purposes to occur without cause, then we will be faced with ever-increasing incursions which will be balanced away because if the problem is deemed serious enough, if the intrusion is deemed minimal enough, we will have seizures of persons on streets.
William H. Rehnquist: Thank you, Mr. Falk. Mr. Chinn, you have two minutes remaining.
A. Scott Chinn: Thank you, Mr. Chief Justice. I'd like to first clear up from our perspective one of Justice Breyer's concerns about what is the primary purpose or what are the purposes in this case. It's clearly true that Indianapolis has wanted to primarily emphasize drug detection in these checkpoints, but it's also clear that we had three interests being served. It's clear in the record. We were so interested, in fact, in driver's license and registration checks being performed in this very set of checkpoints that 4.2 percent of the motorists stopped in these checkpoints were arrested for traffic violations.
Stephen G. Breyer: And do you ever do other similar traffic, any registration checks without the drugs?
A. Scott Chinn: It's not clear from the record whether we do, Your Honor. I know certainly that we do in Indianapolis sobriety checkpoints quite all the time. I'm not sure about driver's license and registration checkpoints apart from sobriety or drug checkpoints, but we're clearly interested in all three of these interests being served.
Ruth Bader Ginsburg: How was it advertised to the public? I forgot what those signs were. I know there was a sign that said canine, but what was the other sign? Wasn't it drug checkpoint ahead?
A. Scott Chinn: Yes, the signs... the signs display what our area of emphasis is for those checkpoints, which is narcotics detection checkpoint ahead so many miles, one mile, half a mile, canine in use. Be prepared to stop. That's what the sign said.
Antonin Scalia: What is your... what is your take on whether... whether you have to wait after your driver's license has been checked for the dog to complete sniffing? Do we know about that?
A. Scott Chinn: Well, Mr. Falk is certainly correct, the record isn't absolutely clear on that. My understanding is that the dogs do their work very quickly. We're only talking about five to ten cars in a sequence, and the dog is led around each car really in a matter of seconds. So it's my understanding in almost all situations the dog will be done with its work.
William H. Rehnquist: Thank you all. Thank you, Mr. Chinn. The case is submitted.


Earl Warren: Number 36, Hubert L. Will, Judge of United States District Court for the Northern District of Illinois, petitioner versus the United States.
Harvey M. Silets: Mr. Chief Justice --
Earl Warren: Mr. Silets?
Harvey M. Silets: -- may it please Court. Simmie Horwitz is druggist in Chicago and he was indicted in two separate indictments charging him with an offense of violation of Section 72061 of the Internal Revenue Code of 1954. That offense charged him with willfully making and subscribing false corporate tax returns under the penalty of perjury, which he did not believe to be true as to every material matter. The Petitioner here is the Judge of the United States District for the Northern District of Illinois to whom these cases were assigned. The defendant Mr. Horwitz filed a request for bill of particulars to which the government objected in part, claiming it would constitute a disclosure of a list of its witnesses. Some of the contested particulars were ultimately answered while another was ultimately refused by Judge Will. Remaining particular is the one that is at issue here and that was the court ordering the government to furnish to the defendant the names and addresses of non-government persons to whom or in whose presence the defendant made statements material to the proceedings, the date and place that the statements were made, whether written memoranda or verbatim transcripts were made of the statements and if so whether the government had possession of it. The government refused to furnish the particulars persisting in a claim that would be giving a list of witnesses. Judge Will specifically found that some of the persons to be disclosed might be witnesses, it was clear that not all that remained would be witnesses nor that other persons would not also be called to testify. Furthermore since the requests for the names of third persons on whose oral statements the government relied was refused by Judge Will, then the only disclosure in this case was the names of some potential witnesses. The government filed a petition for writ of mandamus in the United States Court of Appeals for the Seventh Circuit. A rule of show cause was issued and the Seventh Circuit initially held as follows that the order was non-appealable and would offend the policy against piecemeal appeals in criminal cases, that mandamus may not be used as a means of reviewing the non-appealable order, that Federal Courts use mandamus for the traditional purpose of confining a district court to a lawful exercise of its jurisdiction or to compel it to exercise its proper jurisdiction. And that finally that Judge Will’s order, they said, might have been erroneous, a question which they were not willing to undertake at the moment, but the ruling was within the court’s jurisdiction. On a petition for rehearing filed by the government, the court, Seventh Circuit undertook to reconsider its holding, saying that they would consider the merits rather than to remit the government to a radical alternative judgment available to the trial judge upon the government’s persistent refusal to comply. This Court has granted certiorari as to whether the Court of Appeals has jurisdiction to issue a writ of mandamus to prohibit a district court from directing the government to furnish request for bill of particulars where there is no statutory authority for an appeal by the government from such an order and where the district court has lawfully exercised its prescribed jurisdiction. Secondly, whether a Court of Appeals can substitute its discretion for that of a district court by the issuance of a writ of mandamus preventing the district court from requiring the government to furnish a bill of particulars, which may disclose in part the names of some perspective witnesses. While the right of the government to appeal in criminal cases has been sharply limited, there is no clear-cut dichotomy as yet drawn to the government’s right of review by mandamus in a criminal case. The concept of finality of judgment is controlling we say as a characteristic of federal procedure. As a result, piecemeal appeals have been frowned upon and where there are statutory exceptions they are either by the language of the statue or by their operation addressed to civil actions. Though governmental review in a criminal case has said -- been said to be something unusual or exceptional or not favored, still Congress can and to a limited extent has granted review to the government. For example, the Criminal Appeals Act when there is actually a termination prosecution; or the Narcotic Control Act, where there is an appeal from an order suppressing the use of seized narcotics, but this Court has strictly construed all such statutes. Furthermore, this restrictive attitude has not been ameliorated in any way by the fact that the government has no later right to appeal. This reluctance, to grant review to the government in a criminal case is even more compelling when mandamus is the vehicle sought to be used to gain the review, especially so where the only affect of the use of the writ would be to avoid the congressional policy against piecemeal appeals in criminal cases. Thus we submit is there or should there be a sharply defined dichotomy between civil and criminal cases when considering the use by the government of the writ of mandamus? We answer yes. First, the same factors which limits the government’s appeals right in criminal cases apply to its right to use of mandamus. Secondly, the concept inherent in the Sixth Amendment right to a speedy trial is a corollary to the restrictive view to governmental use of mandamus in a criminal case. We submit a non-restricted application of the remedy by the government could prolong the trial at the pleasure of the government. Now in this case it will be perhaps two years from the date that Judge Will entered his order by the time that this Court concludes the correctness of the entry of that order. We submit as food for thought to the Court what if Mr. Horwitz had been in jail for failure to make a bond for two years. The third point in support of our position that there should be a sharp dichotomy is that the government should be restricted for the same reasons, which are applicable to the Fifth Amendment prohibition against double jeopardy. Thus, the unlimited resources of the government to press repeatedly for successive reviews of interlocutory orders could debilitate the defendant both financially and mentally. Finally, in the last analysis we suggest that it becomes a balancing of the inherent protections afforded a defendant in a criminal proceeding against the rights of the sovereign. In balance then, when should the sovereign have available the use of the extraordinary writ as a method of review of an order in a criminal case. We say clearly not in a situation where there is an interlocutory order, that is where there not been a termination of the prosecution. Analysis of the cases that have come to this Court in determining whether mandamus is applicable in a criminal situation can be categorized in two ways. This Court has permitted the use the mandamus on a request by the government in a criminal case in two situations where either the order effectively deprived the prosecution of its trial, right to trial as permitted by law or the order deprived the prosecution of the results of a proper conviction. These are the two situations that we suggest that should be the only instance where the government should have available to it the right of mandamus in a criminal case.
Speaker: What cases are you referring to?
Harvey M. Silets: Mr. Justice Harlan, I refer to the two ex parte U.S. cases at 287, 241 which is a 1932 case. The 242 U.S. 27 I think that was 1916, United States versus Mayer 235 U.S. and United States versus Smith 331 U.S. Those are the four cases, which if any rule were to be drawn from them, in terms of a split between civil and criminal cases, are the ones that are applicable. In all of those cases that is where the case has been terminated, that is the government is kept from its right to trial as permitted by law or where the result of a conviction is prevented from the government, in both of those situations, mandamus would not delay or affect the conduct of the criminal case in the trial court, either at trial or at pretrial. We submit further that even if this Court does not desire at this time to draw this rule out as a sharp dichotomy between civil and criminal cases that we could suggest to the Court that a reading of the All Writs Act would prevent the government from obtaining the use of mandamus in a criminal proceeding. Thus under the All Writs Act, the Title XXVIII, Section 1651, a Court of Appeals may issue all writs necessary or appropriate in aid of its jurisdiction and agreeable to the usages and principles of law. This Court has said that the use of the writ has been applied to confine an inferior court to a lawful exercise of its prescribed jurisdiction or to compel it to exercise its authority when it’s its duty to do so. Now, if you’ll read the All Writs Act as conferring the right of a Court of Appeals to issue the writ of mandamus where it’s appropriate, in aid of its jurisdiction, where it thus confronted with this proposition. How it could that be in aid of its appellate jurisdiction when the person, the participant, the litigant seeking the use of it is the government in a criminal case, and since the government has a limited right to appeal, the Court of Appeals would not have an appellate jurisdiction. This kind of reasoning we submit was the reasoning that was followed by the Second Circuit in the United States versus Bondy where the Second Circuit refused to issue the writ to the government to grant a bill of particulars, to review a grant of bill of particulars holding that it had no actual or potential jurisdiction to review the order and since the writ was in aid of appellate jurisdiction, it should not be granted. Now, a different viewpoint has been followed for example by the First Circuit in In re U.S., 348 F.2d 624. That Circuit said we will interpret the All Writs section that is in aid of appellate jurisdiction and what I have suggested in our brief on a what could happen philosophy or perhaps a chamber of horrors’ idea if the government refused to furnish the bill of particulars, this philosophy would hold the -- Assistant United States Attorney could be held in contempt of court and from that holding of contempt could go up on appeal. Therefore, theoretically the Court of Appeals would have appellate jurisdiction and therefore the writ would issue in aid of it. Or in the alternative, the government in its persistent refusal would find itself with a dismissed indictment and from that dismissal of the indictment perhaps the Court of Appeals would have a right to review and therefore it has appellate jurisdiction and therefore the writ is an aid of the appellate jurisdiction. Apparently it is this, what could happen philosophy, which prompted the Seventh Circuit to reconsider its original holding when it said it would reconsider rather than remit the government to a radical alternative appealable judgment available to the trial judge upon the government’s persistent refusal to comply. That is apparently what they were saying that this is the only -- we don’t want to submit the government to being held in contempt or possible dismissal of the indictment and therefore on the theory that what could happen, we would have appellate jurisdiction let’s review it. But to accept this philosophy, this theory would also ensure the proposition that appellate jurisdiction could issue on, would exist on the issuance of any order and the writ could issue as a result of any order. This we submit is contrary to the ordered judicial process, which the prohibition against piecemeal appeals is meant to protect. This Court said in Bankers Life and Casualty versus Holland, if we applied the reasoning advance then every interlocutory order, which is wrong, might be reviewed under the All Writs Act.
Abe Fortas: Well isn’t there another theory and that is that the appellate court has jurisdiction by way of mandamus, as jurisdiction a way of mandamus to review decisions of the lower court as an interlocutory matter provided that those decisions would be ultimately reviewable, would be ultimately reviewable by the appellate court and that unless review on an interlocutory basis, reviewability, the exercise of the reviewed jurisdiction might be destroyed.
Harvey M. Silets: Mr. Justice Fortas, I don’t --
Abe Fortas: Because I – it’s little surprising for me to hear you say that the theory to advance, the theory or argument purposes that your adversaries’ position would mean that every interlocutory decision could be reviewed because there are some decisions that just aren’t reviewable at any time.
Harvey M. Silets: But if you accept the philosophy that what could happen as a result of a persistent refusal to comply with the court’s order as a basis for ascertaining whether there is appellate jurisdiction then you could, then the Appeals Court could always sit back and say well they could always be held in contempt.
Abe Fortas: No, it’s much simpler theory, I haven’t you heard mention it and that’s why I take the liberty to interrupting you. The theory that I believe is advanced and some of the literature anyway, is that if a decision would be ultimately reviewable by the appellate court, if it’s -- and if the failure to review it on an interlocutory basis would destroy the possibility of effective review, then the appellate court has jurisdiction to review it by means of mandamus.
Harvey M. Silets: Yes.
Abe Fortas: I’m not suggesting that’s the right principle, but it’s in your very careful statement to this point that’s the principle that you’ve not mentioned?
Harvey M. Silets: That is a proposition that has been advanced but there’s also a proposition that has been advanced that the fact that the action may -- for failure to grant the writ may result in a delay by virtue of causing the case to go to trial and causing a great deal of expense itself is not enough to warrant the issuance of the writ. We suggest that there’s enough jurisdiction in the Court of Appeals to determine whether the writ should issue, jurisdiction to determine whether it has jurisdiction but we suggest that this Court should now assimilate all of these cases and say clearly in a criminal situation that there’s this dichotomy. So that the government would be restricted in approaching a Court of Appeals in a -- from an order of -- an interlocutory order in a criminal case.
Abe Fortas: Well I know that district judges never make very extreme errors but just suppose one did, suppose for example, one ordered the Secretary of Defense to produce all of the secret information relating to the conduct of a war or something like that. Now, what you’re saying is then the only possibilities are the government produces the information or the government dismisses the indictment and doesn't prosecute. We would exclude even in case of a plain, extreme abuse by the district court the possibility of mandamus, is that right? That is your position.
Harvey M. Silets: Our first position is that there should be a clear rule between criminal and civil cases and that if the government felt strongly enough in the situation that you have advanced Mr. Justice Fortas, they could do probably what was done in Bowman Dairy and that was refuse to comply with the order and hold itself available for contempt citation and that’s what happened there, and gained the review. But we don’t, in the ultimate we don’t go that far for purposes of decision in this case because in the ultimate even if this Court does not wish to accept a dichotomy between civil and criminal cases and you accept and persist in a view of the rule in civil cases that is whether there’s a clear abuse of discretion, which might be the proposition that you have advanced that there’s certainly a clear abuse of discretion that that test in these circumstances would not warrant the issuance of the writ. Now the --
Potter Stewart: Before you move on, in this case it was apparent that the – it’s improbable at least that the district judge was going to either dismiss the indictment or you say perhaps hold somebody in the government in contempt. I suppose there clearly, there clearly would have been an appeal from any kind of contempt –
Harvey M. Silets: Yes.
Potter Stewart: -- proceeding against anyone in the government. Would the government, if the district judge had taken the alternative route and dismissed the indictment, would the government have had a clear right to appeal there?
Harvey M. Silets: We say no –
Potter Stewart: Why not?
Harvey M. Silets: -- that the United States versus Apex Distributing would prevent –
Potter Stewart: Then there’s no appeal by the government –
Harvey M. Silets: No appeal, no.
Potter Stewart: -- indictment upon that ground, isn't it?
Harvey M. Silets: That’s right but that is not of a significant factor because in DiBella versus United States on a pre-indictment motion to suppress this Court said the fact that the government can’t appeal does not change the circumstances at all. The fact that government may not have a right of appeal to review this order is not a criterion to judge whether the writ should issue because I submit this Mr. Justice Stewart if the philosophy of the government here is accepted then in the DiBella situation they could go up on a writ of mandamus.
Abe Fortas: The decision to dismiss or to hold for contempt is entirely up to a district judge, is it not?
Harvey M. Silets: Yes it is. I see that I have just a few moments remaining. I would like to say this that the government seems to urge that they would accept the philosophy that in a routine ruling the writ should not issue, they have not advised the Court what they consider to be a routine ruling. They have suggested that what should be accepted is this civil case test citing Schlagenhauf versus Holder, and La Buy versus Howes Leather Company, if the Court overlooks the dichotomy between civil and criminal cases and if the Court does not feel that the All Writs Act is restrictive by virtue of appellate jurisdiction philosophy, then we submit that even under the civil test of Schlagenhauf and La Buy which when reduced to their ultimate is not – are nothing more than a question of whether there was a clear abuse of discretion that under that test, this Court, Judge Will did not clearly abuse his discretion. He had the jurisdiction and it’s not contested that he has jurisdiction to enter an order requiring a disclosure of bill of particulars. In this particular case, the Court should remember that the nature of the offense, that is a violation of 72061 is in effect a written perjury, making and subscribing a false tax return under penalties of perjury where he did not believe everything to be true. The nature of the bill of particulars was statements made that the government is going to rely upon made to third persons and who are those third persons? Now it would appear from Judge Will’s finding and his specific ruling here that in the nature of this case, in the nature of these circumstances the defendant was entitled to and was required to receive this information to prevent undue surprise and prepare his defense. Therefore we suggest under any of these tests, the dichotomy, the use of the All Writ, writ section or finally under the civil case test that Judge Will exercised his discretion clearly within this jurisdiction and properly.
Hugo L. Black: May I ask you that [Inaudible] -- what question was it that the government declined down?
Harvey M. Silets: The government declined to furnish the names and addresses of persons to whom or in whose presence the defendant made statements, which would be relied upon by the government in its case.
Hugo L. Black: In other words --
Harvey M. Silets: -- not the substance but just their names.
Hugo L. Black: Ask them to give the names of witnesses that the government intended to use to show he had made a statement?
Harvey M. Silets: Not all witnesses Justice Black just some potential witnesses. There wasn’t nothing which would imply that they had to be witnesses or that there would not be other persons who might be witnesses but --
Hugo L. Black: What ultimate, extreme damage would that have done to the government?
Harvey M. Silets: We submit none, no damage to the government at all.
Hugo L. Black: That’s all it was to it.
Harvey M. Silets: That’s all it was to it.
Earl Warren: Mr. Posner?
Richard A. Posner: Mr. Chief Justice and may it please the Court. In the few moments that remain, I’d like to address myself briefly to the jurisdictional issue here, which has to do with the scope of the power of Court of Appeals to issue writs of mandamus in federal, criminal cases at the behest of the government. We sense some ambiguity, some contradiction in the argument that petitioner has made here. On the one hand, he suggests that because the government ordinarily cannot appeal an adverse judgment in a criminal case, therefore for the government to seek mandamus is not a -- not properly to invoke the appellate jurisdiction of the Court of Appeals. Now just two terms ago on the Dean Foods case, in 384 U.S, the Court made quite clear that even in a situation where the only right of appeal is that of a private individual that was a case of a respondent before the Federal Trade Commission, the government may still in an appropriate case ask for mandamus. So the test of whether a writ is appropriately in aid of appellate jurisdiction is whether some party to the proceeding at some point has a right of appeal. Now while making this argument, petitioner at the same time appears to concede the validity of a series of cases in this Court, the ex parte United States cases and two others, in which the government in criminal cases was allowed to obtain a writ of mandamus. The test petitioner suggests is that, that is perhaps proper where it is necessary to enable the government to place the man on trial or to impose a sentence, but were denied the power in every other case. This seems to us to lead to highly anomalous results and an example may make this clear. Suppose that Judge Will adopted the practice in his courtroom of permitting the defendant to subpoena and depose all government witnesses routinely just as in a civil case, it’s quite clear that the federal criminal rules do not afford the same discovery powers as the federal civil rules, and that indeed this Court in revising these criminal rules from time to time has declined to assimilate the civil and criminal proceeding in this respect. Though -- now the logic of petitioner’s position is that however patent and extreme --
Abe Fortas: Well we haven’t done it.
Richard A. Posner: Pardon?
Abe Fortas: We haven’t done it. That’s different from saying we have declined to do it, isn't it?
Richard A. Posner: I think when the Court is urged as it has been urged to broaden --
Abe Fortas: You mean when the committees have been urged.
Richard A. Posner: It is the Court that promulgates the --
Abe Fortas: I understand that.
Richard A. Posner: -- the rules and I assume approves the work of the committee when it adopts --
Abe Fortas: Well, it's alright. I do think there is an important shade of difference between what the situation is on the standing and what is reflected by your word, “decline.”
Richard A. Posner: I agree, perhaps I should not say it was the Court that declined, but whoever should take responsibility for the federal criminal rules, they do impose, they do define federal district judge’s power in criminal cases. It seems to us that in cases where federal district judges persistently or blatantly ignore these rules there must be a remedy for assuring compliance. The rules are promulgated to have uniform application throughout the federal court systems and it seems to us intolerable that every federal judge could be a law unto himself in these procedural questions. Again, I sense an element of contradiction here in petitioner’s argument because he recognizes that there are cases where the U.S. Attorney might simply refuse to comply with the district court’s order and the district judge would adjudge him in contempt and an appeal would then lie. So he does recognize the contempt proceedings at least as an escape valve by which the Courts of Appeals can review district judge’s procedural rulings. It seems to us furthermore orderly procedure to recognize a mandamus remedy in this class of cases. We don’t suggest that this is all cases or most cases where the government feels there is error in a district court ruling, but only those unusual cases, which either present a novel issue or show a clear case of persistent refusal to comply by the district court with these requirements.
Abe Fortas: Well what's -- does that have any role in this case? Is this case brought by the government, over and part because the District Judge has a bad record?
Richard A. Posner: Well the district judge as he stated in one of the colloquies in this case at page, I believe at page 95 -- page 75 of the record, admits that it is his consistent practice in all criminal cases to require this list of witnesses.
Abe Fortas: I understand, but when you get around your argument I'd like to know why the government in this particular case deemed that, sufficiently consequential to decline to obey the order of the judge and turn over this information that the judge ordered them to turn over to the defendant and that to me is a material fact.
Richard A. Posner: Well I would say --
Abe Fortas: I doubt very much that even the judge’s statement or matters that are not in this case or in this record with respect to this judge’s practice or what wasn’t his practice, play, play or maybe allowed to play a part here?
Richard A. Posner: Well, I don’t, I can't agree with that. I think it is certainly relevant if a judge has not once but persistently adopted a practice which appears to be in conflict with the rules. Mandamus is an extraordinary remedy. It is far more appropriately employed, it seems to us, where there is a consistent pattern applying to many cases and not simply what could be viewed as isolated error.
Abe Fortas: Does that also go for private litigant? You're not suggesting that the Department of Justice has available to it, mandamus as a measure for disciplining judges, are you?
Richard A. Posner: Mandamus has been viewed, I don’t know that I would use the word discipline, but in a private case like the La Buy case, when this Court said that Judge La Buy -- issued a writ of mandamus against Judge La Buy because he was referring cases to masters in circumstances which --
Abe Fortas: Well that was based on that particular case?
Richard A. Posner: No, no, but the Court stated that judge, that in the district in question, this had been a frequent practice and the court viewed this as distinctly relevant to the propriety of the -- of intervening in district court procedures. The fact that there has been a consistent non-compliance with the rules.
Abe Fortas: Oh, I think I understand your position now and I'm not sure at all I that I agree with it?
Richard A. Posner: I don’t suggest that the sole reason why the government declined to comply with the judge’s order was that he had issued similar orders in the past. I think it’s also felt that there is an important principle here as to the scope of discovery a criminal case, which is appropriately decided by the appellate courts rather than by Judge Will’s and when I resume tomorrow I will consider what it is about this practice that in our view requires correction.
Earl Warren: We’ll recess now.