Sobriety Checks and Warrants. . . What does the Constitution say?

By Douglas V. Gibbs

One of the listeners of my Constitution Speaker Radio program on KCAA 1050 AM in Southern California asked if sobriety checkpoints are a violation of constitutional rights. The concern, as clarified by the engineer at the studio, was that the motorists are being searched without probable cause.

First, we must approach this with an understanding of what the Constitution is.

The United States Constitution was written with the specific purpose of creating a federal government that would be beneficial to the preservation and protection of the union. All authorities first belonged to the States, and then some of those powers were granted to the federal government so that it may function in a manner intended by the founders. The sovereignty of the States was to remain intact. In other words, the States were to remain as autonomous entities who were responsible for all local issues. As a confederation, however, the United States government was unable to protect the union as a whole, so among the powers granted to the federal government was the ability to provide for the common defense.

The Founding Fathers were fearful of centralized governments because it is from these kinds of systems that tyrannies arise. However, the Articles of Confederation were too weak, and the union needed a strong centralized system to protect and preserve the union. The compromise was to create a central government, but limiting it as much as possible.

Many of the limitations against the federal government were lessons learned from being ruled over by the British. But the founders were not concerned about the States, because the State governments were closer to the people, and the citizens would have more control over the State governments.

For this reason, checkpoints like a sobriety checkpoint is not granted to the federal government as an authority by the first seven articles, or any amendment. Such actions are not prohibited to the States, either. So, as per the Tenth Amendment, which says that any power not granted to the United States Government, nor prohibited to the States, is a State authority, sobriety checkpoints are something that the federal government cannot do, but State and local authorities can, as long as their is no prohibition by the State Constitution.

"But isn't that a search without probable cause? Don't they need a warrant?" I was asked.

That question takes us into the realm of the 4th Amendment. The amendment was written with the purpose of protecting people from the searching of their homes and private property without properly executed search warrants.

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

What this means is that the federal government, in order to search a person's home, car, business, papers, bank accounts, computer or other personal items, in most cases, must obtain a search warrant signed by the proper authority, which usually means by a judge.

The issuance of a warrant must accompany reasonable belief that a crime has been committed and that by searching the premises of a particular location, evidence will be found that will verify the crime. The government officer does not have to be correct in his assumption, he just has to have a reasonable belief that searching someone's private property will yield evidence of the crime.

The 4th Amendment idea that citizens should be protected from unreasonable searches and seizures goes back into our history with the British Crown, and even back into English history prior to the founding of the colonies. The British Government was known for searches and seizures that were unlawfully conducted. Often these searches were conducted by the king's representatives.

The British government saw the American Colonies as a source of revenue. As a result, taxation against the American colonies was a continuous practice, in the hopes of generating as much money from the colonists as possible. The colonists resented this and engaged in substantial smuggling operations in order to get around the customs taxes imposed by the British government.

The King responded to the Colonist’s smuggling activities by using "writs of assistance," which were search warrants that were very broad and general in their scope. British agents, once obtaining these writs, could search any property they believed might contain contraband goods. They could enter someone's property with no notice and without any reason given. Tax collectors could interrogate anyone about their use of goods and require the cooperation of any citizen. Searches and seizures of private property based on very general warrants became an epidemic in colonial America.

In 1756, the Massachusetts legislature passed search and seizure laws outlawing the use of general warrants. The friction created between the Royal Governor and the people of Massachusetts grew with each passing moment.

In 1760 James Otis, a Boston lawyer, strongly objected to these arbitrary searches and seizures of private property and consequently resigned his position with the government, and then became the lawyer for a group of over 50 merchants who sued the government claiming that the writs of assistance were unjust.

James Otis represented these merchants for free. His speech condemning British policies, including writs of assistance and general search warrants, was so powerful and eloquent, that it was heard of throughout the colonies and catapulted him to a place of leadership in the swelling tide of disillusionment toward Great Britain.

Twenty-five year old John Adams, who would become the second president of the United States some time later, was sitting in the courtroom and heard Otis' famous speech that served as a spark that originated the American Revolution.

All of this became the inspiration for the 4th Amendment, but as I indicated earlier, we must remember that the 4th Amendment applies only to the federal government. However, state constitutions are written similarly in most respects, and the States also have laws that are consistent with the intention of the 4th Amendment. The 4th Amendment provides protection from illegal search and seizure by government officials, but not by private citizens. So, if an employer unreasonably searched your possessions at work, the 4th Amendment would not have been violated.

The question, then, is really whether or not sobriety checkpoints are a reasonable search - and that would be dependent upon how the law is written in the State Constitution.

In my opinion, the cars pulled aside at sobriety checkpoints tend to be those where probable cause is present, so I would venture to say that not only are these checkpoints constitutional, but a necessary part of protecting members of society from intoxicated drivers.

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