City of Overland Park v. Rhodes

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No. 103,762

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

CITY OF OVERLAND PARK,
Appellee,

v.

KELLY K. RHODES,
Appellant.

SYLLABUS BY THE COURT

1.
Numerous conditions and factors must be considered in determining whether a
driving under the influence roadblock meets the balancing test in favor of the State.
Among the factors which should be considered are: (1) The degree of discretion, if any,
left to the officer in the field; (2) the location designated for the roadblock; (3) the time
and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to
the public at large; (6) advance warning to the individual approaching motorist; (7)
maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of
operation; (9) average length of time each motorist is detained; (10) physical factors
surrounding the location, type, and method of operation; (11) the availability of less
intrusive methods for combating the problem; (12) the degree of effectiveness of the
procedure; and (13) any other relevant circumstances which might bear upon the test. Not
all of the factors need to be favorable to the State, but all which are applicable to a given
roadblock should be considered.

2.
If affirmative evidence that a breath-alcohol test sample was not contaminated is
presented, this is a factor the court may consider in deciding whether substantial
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compliance with the Kansas Department of Health and Environment (KDHE) breath-
testing protocol has been satisfied.

3.
There is no requirement that the testing device be certified under KDHE
regulations in effect on the date of testing; rather, the device must simply be certified.

Appeal from Johnson District Court; JOHN P. BENNETT, judge. Opinion filed July 8, 2011.
Affirmed.

Jeremiah Johnson, of the Law Offices of Jeremiah Johnson, LLC, of Olathe, for appellant.

John J. Knoll, senior assistant city attorney, for appellant.

Before PIERRON, P.J., ATCHESON, J., and LARSON, S.J.

PIERRON, J.: Kelly K. Rhodes appeals her conviction of driving while intoxicated
(DUI). She argues the police DUI checkpoint was unconstitutional and, as a result, her
conviction should be reversed. She also argues the Intoxilyzer 8000 test results should
have been suppressed because the officers failed to comply with the Kansas Department
of Health and Environment (KDHE) regulations and the Intoxilyzer 8000 was not
properly certified. We affirm.

On August 22, 2008, Overland Park Police set up a DUI checkpoint along Metcalf
Avenue. Motorists were directed off Metcalf Avenue and into a parking lot where they
were directed into enforcement lanes. The enforcement lane officers had been instructed
to look for signs of alcohol consumption or impaired drivers. If they noticed impairment
or consumption, the officers asked the driver to step out of the vehicle and undergo
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further testing. If an individual was asked to undergo additional testing, another officer
would park the vehicle and any passengers would wait in the waiting area.

Rhodes was directed into the enforcement lane in front of Officer Christopher
Knoll. He smelled the odor of alcohol coming from the Rhodes vehicle and noticed that
her eyes were red, watery, and bloodshot. Officer Knoll told Rhodes that the operation
was a DUI check point and asked her if she had been drinking that night. With slurred
speech, Rhodes admitted she had been drinking. Officer Knoll asked Rhodes to perform
field sobriety tests. He had her perform the HGN, the walk and turn, and one-leg stand,
and recite the alphabet and some numbers. Rhodes exhibited several clues of impairment.
As a result, Officer Knoll arrested Rhodes for DUI and escorted her to the booking area.

At 1:04 a.m., Officer Knoll checked Rhodes' mouth for any foreign objects. He
read her the Miranda rights, gave her a written copy of the DC-70, and read the implied
consent advisories to her. Rhodes agreed to take a breath test. Between 1:04 a.m. and
execution of the breath test, Officer Knoll kept Rhodes in constant observation to make
sure she did not put any foreign objects into her mouth. Twenty minutes later, Officer
Knoll walked Rhodes over to a van where Deputy Hamilton performed the breath test.
Rhodes blew a .115 alcohol concentration on the breath test. Rhodes was arrested and
charged with DUI.

On June 18, 2008, Rhodes was found guilty of DUI in municipal court and
sentenced to 180 days in jail. Her conviction was affirmed by the district court.

For her first argument on appeal, Rhodes argues the majority of the factors under
State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), weigh in favor of the suppression
of the evidence and, thus, because the State failed to prove the reasonableness of the
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checkpoint stop under the Fourth Amendment to the United States Constitution, the
district court erred in failing to suppress the results of the stop.

"An appellate court reviews the district court's decision on a motion to suppress
using a bifurcated standard. Without reweighing the evidence, the district court's findings
are reviewed to determine whether they are supported by substantial competent evidence.
The appellate court then reviews the ultimate legal conclusion regarding the suppression
of evidence reviewed using a de novo standard." State v. Woolverton, 284 Kan. 59, 70,
159 P.3d 985 (2007).

The Fourth Amendment protects individuals against "'"arbitrary invasions by
government officials" by imposing a standard of reasonableness upon the exercise of
those officials' discretion.'" State v. Barker, 252 Kan. 949, 953, 850 P.2d 885 (1993).
Stopping and detaining a motorist without some "'articulable and reasonable suspicion'"
of unlawful conduct is an unreasonable seizure under the Fourth Amendment. 252 Kan.
at 953. However, checkpoint cases have carved out an exception to this general rule. 252
Kan. at 953.

In order to meet this exception, these cases have set out a series of factors that
must be weighed together in determining the constitutionality of a DUI checkpoint. They
are as follows:

"Numerous conditions and factors must be considered in determining whether a DUI
roadblock meets the balancing test in favor of the [State]. Among the factors which
should be considered are: (1) The degree of discretion, if any, left to the officer in the
field; (2) the location designated for the roadblock; (3) the time and duration of the
roadblock; (4) standards set by superior officers; (5) advance notice to the public at large;
(6) advance warning to the individual approaching motorist; (7) maintenance of safety
conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average
length of time each motorist is detained; (10) physical factors surrounding the location,
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type and method of operation; (11) the availability of less intrusive methods for
combating the problem; (12) the degree of effectiveness of the procedure; and (13) any
other relevant circumstances which might bear upon the test. Not all of the factors need to
be favorable to the State but all which are applicable to a given roadblock should be
considered." Deskins, 234 Kan. at 541.

Thus, the court must weigh each of these factors, recognizing that "[n]ot all of the factors
must be favorable to the State." Barker, 252 Kan. at 953. Following is an analysis of each
of the Deskins factors in the context of the present case:

The Degree of Discretion, If Any, Left to the Officer in the Field

The kind of standardless and unconstrained discretion that results from an officer's
ability to stop any vehicle out of whim "'is the evil the Court has discerned when . . . it
has insisted that the discretion of the official in the field be circumscribed, at least to
some extent.'" Deskins, 234 Kan. at 535. "'To that end, the Fourth Amendment requires
. . . that [a] seizure must be carried out pursuant to a plan embodying explicit, neutral
limitations on the conduct of individual officers.'" 234 Kan. at 536. As part of this plan,
"'"questioning all oncoming traffic at roadblock type stops is one possible alternative."'"
234 Kan. at 539.

In this case, the officers had no discretion regarding which cars to stop, they were
to stop all vehicles. The officers in charge set up strict standards for the officers to follow
and provided a briefing on these standards to each officer before they went on duty at the
checkpoint. The officers were even given standard greetings to give to each driver and
told to hand drivers a brochure and inquire whether the driver had anything to drink that
evening. From the facts, there was little, if any, degree of discretion left to the officers
performing the DUI checkpoint.
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The Location Designated for the Checkpoint

Rhodes introduces persuasive authority that "statistics concerning the extent of the
problem of drunk driving" should be presented. This does not necessarily make the
checkpoint unreasonable however. The location chosen by the officers was because of the
high DUI and alcohol incidents in the area and because a severe fatality had recently
occurred nearby. In support of this reasoning, the State produced evidence of the area
being a "high accident" area. Although no specific "statistics" were presented, in an area
that is already a high accident area, it would be reasonable for the officers to set up a DUI
checkpoint to lessen the further possibility of more accidents being caused by the
accident-prone drunk driver.

The Time and Duration of the Checkpoint

Several cases have considered DUI checkpoints that started late at night, typically
between 10 p.m. and 2 a.m. In each of these cases, the checkpoint was held to be
constitutional. See, e.g., Davis v. Kansas Dept. of Revenue, 252 Kan. 224, Syl. ¶ 1, 843
P.2d 260 (1992); Deskins, 234 Kan. at 531, 542-43. Similarly, the DUI checkpoint in this
case was operated from 11 p.m. to 2 a.m.

Standards Set by Superior Officers

In Barker, 252 Kan. at 956, the court concluded that briefing the officers prior to
operating the checkpoint was sufficient to meet this standard. In its reasoning, this
briefing period, performed by an officer's superiors, was sufficient to instruct officers on
the expectations and procedures for the checkpoint. 252 Kan. at 956. Here, Officer Koos,
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the officer in charge of the checkpoint, provided two briefing sessions: one for the set-up
staff and one for officers arriving later. This process was to assure that all officers
attended at least one briefing. In preparation for the briefings, Officer Koos put together
handouts and a PowerPoint presentation. Clearly, the officers had uniform operating
standards established by their superior officers.

Advance Notice to the Public at Large

In both Barker and State v. Jackson, 24 Kan. App. 2d 38, 40, 942 P.2d 640, rev.
denied 266 Kan. 965 (1997), the court was not concerned about the absence of advance
warning to the public. The Barker court held that although desirable, "its absence does
not by itself vitiate the checklane." 252 Kan. at 956. On July 31, 2008, Officer Koos
received a forwarded email regarding the DUI checkpoint that was addressed to several
different media outlets. Although there was no evidence that the checkpoint was
advertised through these media outlets, this is not enough to "vitiate the checklane." See
Barker, 252 Kan. at 956.

Advance Warning to the Motorist Approaching the Checkpoint

The Barker court recognized that warning signs posted approximately 500 feet
before cars entered the checkpoint lane was adequate advance notice. 252 Kan. at 956.
Here, not only did the officers place a "DUI Checklane Ahead" sign 500 feet before
entering the checkpoint, they also had "Be prepared to Stop" signs posted before that.
According to Barker, these measures were sufficient to give advance warning to
individual approaching motorists.

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Maintenance of Safety Conditions

Officer Koos testified she took the officers' safety into consideration in planning
for the checkpoint. She made sure the area was well lit, level, and adequate advance
notice had been posted so the vehicles would not be dangerous to the officers. She also
made sure the officers wore appropriate traffic vests and carried flashlights. Officers set
up cones directing traffic. Officers were placed at each turn to direct the cars through the
cones into the enforcement lanes. Through traffic signage, the officers tried to control the
traffic flow to prevent cars from running into each other. The parking lot, where the
actual checkpoint was set up, was deemed safer than the roadway. Just as in Barker,
"great pains were taken by the State to insure the safety of all travelers, as well as the
officers in the operation." 252 Kan. at 956.

Degree of Fear or Anxiety Generated by the Mode of Operation

"The anxiety factor in Deskins does not speak in terms of hypothetical anxiety.
The Deskins factor is phrased 'fear and anxiety generated.'" State v. MacDonald, 253
Kan. 320, 323, 856 P.2d 116 (1993). The record is silent regarding actual fear or anxiety
generated by the checkpoint. But it can be assumed that "other vehicles [were] being
stopped, [so they could] see visible signs of the officers' authority, and [would be] much
less likely to be frightened . . . ."'" Michigan Dept. of State Police v. Sitz, 496 U.S. 444,
453, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990). Thus, without affirmative evidence in
the record, the presumption is that any concern or anxiety that may have existed
dissipated when a motorist saw the traffic signs, police officers, and other traffic control
devices.

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Average Length of Time Each Motorist is Detained

"The essence of the Fourth Amendment prohibition is to safeguard the privacy and
security of individuals against arbitrary invasions by governmental officials by imposing
a standard of reasonableness upon the exercise of those officials' discretion." Deskins,
234 Kan. at 540. Thus, in balancing governmental interests against the resulting intrusion
on the individual, reasonableness is the key. See 234 Kan. at 540-41.

In Sitz, the United States Supreme Court found that a 25-second delay for each
vehicle was not sufficient to violate constitutional standards. Likewise, in Davis the delay
time was roughly 31 seconds, and in Barker the delay amounted to about 45 seconds. In
each of these cases, the court found that the delay to the motorist was constitutionally
permissible and reasonable. Specifically, the Barker court took into account the purpose
for which detainment occurred and recognized that in some situations a longer
detainment would be necessary. 252 Kan. at 957. The court concluded that, overall, the
"officers complied with their initial plan of detaining motorists momentarily." 252 Kan.
at 957. Even though the delay was longer in this case, it does not amount to being
unreasonable.

During the operation of the 4-hour checkpoint in this case, 601 vehicles went
through. The police department reported that the average length of the stop was 147
seconds. The officers determined this average by randomly timing 14 vehicles as they
made their way through the checkpoint. Not only were the officers checking for
intoxicated drivers, they were also distributing brochures about the purpose of the
checkpoint, the effects of DUIs, and trying to educate the public as a whole. In balancing
the government's interest with the intrusion on an individual, it would appear, taken in its
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totality, the 147-second detainment was a reasonable amount of time to carry out the
checkpoint's purposes.

Physical Factors Surrounding the Location, Type, and Method of Operation

The Deskins court looked to the fact that there were 35 to 40 officers involved in
the checkpoint, it was set up in a well-lit area, there were red flashing lights, officers
were uniformed, and the location was chosen by supervisory personnel. As in Deskins,
the police department here performed briefings, set out cones with officers directing
traffic into the enforcement lane, the area was well lit, and the officers had flashlights and
wore appropriate traffic vests. Furthermore, supervisors—not the officers in the field—
chose the area to locate the checkpoint.

Rhodes argues that the checkpoint in question had no permanency and, therefore,
does not meet this factor. This misinterprets Deskins. The Deskins court ruled the
checkpoint constitutional without taking into account the permanency of the location. See
234 Kan. at 546 (Prager, J., dissenting). We agree with Deskins that the permanency of
the location is not the appropriate consideration for this factor.

The Availability of Less Intrusive Methods for Combating the Problem

It would appear this factor is wrapped up with the effectiveness factor as we look
to whether the goal of the checkpoint was accomplished and effective. See Barker, 252
Kan. at 957. Rhodes argues there were other less intrusive ways to prevent DUIs. like
putting the officers at the exit of a bar to explain the consequences of DUI or to advertise
through the radio. Similarly, Officer Koos admits there were less intrusive alternatives. In
support of Rhodes' argument, she introduces persuasive authority noting that "[n]othing
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in the record indicates that the only practical or effective means of apprehending drunk
drivers" is through a DUI checkpoint. Officer Koos testified that if education was the
only purpose of the checkpoint, advertising on the radio or television would be less
intrusive.

However, in considering less intrusive methods, not every conceivable alternative
to DUI prevention must be considered. If that were the case, a DUI checkpoint would
never be permissible because there would always be a less intrusive way to prevent drunk
driving—increase the penalty. Rather, a court looks to see if the goals of the checkpoint
were accomplished and effective. See Barker, 252 Kan. at 957. The State recognized the
checkpoint could have been done better and the results were probably not worth it. Even
with this recognition however, the checkpoint is not unconstitutional. The checkpoint was
still extremely effective in educating the public and, arguably, in getting drunk drivers off
the road.

The Degree of Effectiveness of the Procedure

In Deskins, 2,000 to 3,000 cars were stopped and only 15 persons arrested for
DUI. In Davis, 255 motorists were stopped and 7 DUI arrests were made. And in Sitz,
126 vehicles passed through the checkpoint and only 2 drivers were arrested for DUI.
From these cases, it is clear that effectiveness is not measured solely as a percentage of
cars stopped to arrests made. Rather, it must be judged in accordance with the original
goal. Here, 601 vehicles passed through the checkpoint and 10 DUI arrests were made.
Following precedent, it would appear that a 1.6% arrest rate is more than sufficient for
the effectiveness factor. Additionally, 601 drivers were educated on the effects of DUIs,
an impact with 100% effectiveness. That achieved one of the police department's
purposes.
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Any Other Relevant Circumstances Which Might Bear Upon the Test

All relevant circumstances have been considered above, and Rhodes does not
present any other factor that should be weighed in the analysis.

In balancing the Deskins factors together to weigh the State's interest in operating
the checkpoint with the intrusion on the individual, we conclude the police department
appropriately considered and carried out the majority of the Deskins factors in the
operation of its DUI checkpoint on August 22, 2008. It was, therefore, constitutional, and
the district court did not err in failing to suppress the results of the stop.

For her second argument on appeal, Rhodes argues the district court erred in
denying her motion to suppress the Intoxilyzer 8000 test results. She asserts the court
erred because the "City failed to establish that the police 'substantially complied' with
KDHE protocol." We disagree.

"[T]his court reviews the factual underpinning of a district court's decision for
substantial competent evidence and the ultimate legal conclusion drawn from those facts
de novo. The ultimate determination of the suppression of evidence is a legal question
requiring independent appellate review. [Citation omitted.] " State v. Moore, 283 Kan.
344, 349, 154 P.3d 1 (2007).

Rhodes also argues there was an inadequate evidentiary foundation for the
Intoxilyzer test results. We review this question as a question of fact, and "it is reviewed
for substantial competent evidence supporting the district court's finding." State v. Rivera,
42 Kan. App. 2d 914, 922, 218 P.3d 457 (2009), rev. denied 290 Kan. 1102 (2010). "So
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long as there is substantial competent evidence to support the finding, it will not be
disturbed on appeal." State v. Lieurance, 14 Kan. App. 2d 87, 91, 782 P.2d 1246 (1989),
rev. denied 246 Kan. 769 (1990).

In order for the State to introduce the results of a breath test, it "must lay a
foundation showing that the testing machine was operated according to the
manufacturer's operational manual and any regulations by [KDHE]." Lieurance, 14 Kan.
App. 2d at 91. In Mitchell v. Kansas Dept. of Revenue, 41 Kan. App. 2d 114, 123, 200
P.3d 496, rev. denied 289 Kan. 1279 (2009), the court stated: "If affirmative evidence
that a breath[-alcohol test] sample was not contaminated is presented . . . , this is a factor
the court may consider in deciding whether substantial compliance with the [breath
testing] protocol has been satisfied."

Here, Detective Moore testified he was so close to Rhodes he would have noticed
if she had vomited, belched, or regurgitated during the 20-minute deprivation period. He
did not hear or see any burp or regurgitation. This is affirmative evidence that the breath
test was not contaminated and, therefore, Detective Moore substantially complied with
the KDHE breath-testing protocol.

The State also must present evidence that the testing equipment was certified by
the KDHE. See Lieurance, 14 Kan. App. 2d at 91-93. Here, the evidence clearly showed
the instrument and operator were certified. Rhodes is not contending there was a
certificate in place for the testing equipment. Instead, she argues the "Johnson County
Sheriff's Office did not have a certificate for breath-testing issued by the [KDHE] that
evidenced the machine was certified pursuant to the administrative regulations in place
on and after March 14, 2008."

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This issue has recently been resolved by the Kansas Supreme Court in State v.
Ernesti, 291 Kan. 54, Syl. ¶ 7, 239 P.3d 40 (2010). The Ernesti court was faced with a
similar situation involving an Intoxilyzer 8000. The court recounted a brief history of the
statutory evolution because, as here, the issue centered on the validity of the certification
for an Intoxilyzer that was issued before the statutory changes occurred, and the testing
was completed before, under the new statutory regime, recertification occurred. See 291
Kan. at 57-58. The court rejected Ernesti's argument that the breath test results should be
suppressed because the certificate had not been certified under the new regulations. See
291 Kan. at 64-69. In the end, the Ernesti court concluded: "There is no requirement . . .
that the testing device be certified under regulations in effect on the date of testing;
rather, the device must simply be certified." 291 Kan. at 70. We are bound to follow
precedent, and thus, we conclude that because the testing equipment was certified,
although not under the new regulations at the time of testing Rhodes, it still substantially
complied with KDHE regulations.

Affirmed.

* * *

ATCHESON, J., dissenting: I respectfully dissent. Based on the City of Overland
Park's representation that its primary purpose for conducting the motor vehicle
checkpoint entailed publicizing particular opinions and views about driving and alcohol
use, I would find the exercise violated the First and Fourth Amendment rights of
Defendant Kelly Rhodes and the 600 other drivers who were waylaid. A state or local
government cannot use its police powers to create captive audiences as a means of
educating or advocating on particular subjects or issues no matter how popular or benign
15

the message. The implications of a contrary rule would be both stunning and disturbing.
Accordingly, the trial court should have granted the motion to suppress.

THE FACTS

In this case, the Overland Park police officer coordinating the checkpoint testified
at the suppression hearing that the principal reason for stopping motorists was to inform
them about drinking and driving. She described the goal as an "educational" one rather
than "actual enforcement" of driving under the influence laws. The officer told the district
court, "The check lane is about educating the public as a whole as far as the effects of
alcohol on their driving." A secondary purpose was to detect and arrest drunk drivers. In
its brief to this court, the City does not dispute that description of the objectives sought to
be accomplished and states by way of justifying the operation: "The educational impact
of a checkpoint is difficult to measure, but real nonetheless."

The police department conducted the checkpoint from 11 p.m. on August 22,
2008, until 2 a.m. the next morning on Metcalf Avenue, a major north-south thoroughfare
in the City. Motorists were required to turn off the street and into a parking lot where
officers "greeted" them, explained what was going on, looked for signs of alcohol use or
impaired driving, and handed out brochures about the risks of drinking and driving. The
officers' greeting and following discussion with the motorists is not detailed in the motion
to suppress. The participating officers apparently were given a general format to follow,
but each officer could tailor the delivery to suit his or her own approach. The brochure
given to every driver principally discusses the penalties for DUI and for furnishing
alcohol to persons less than 21 years old. If a motorist were not detained for additional
questioning or investigation as a suspected drunk driver, the City estimated he or she
would have been detained for about 2 1/2 minutes.
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The City posted a sign or signs informing approaching drivers of the checkpoint.
But the signage was set up past the last place a driver could turn off Metcalf Avenue
before reaching the checkpoint. In other words, every driver and his or her passengers
were diverted from their travels and delayed in the parking lot. In all, the police stopped
601 vehicles, yielding 10 DUI arrests.

STANDARD OF REVIEW AND CONSTITUTIONAL PROTECTIONS IMPLICATED

Because I apply undisputed facts as to the purpose of the checkpoint and otherwise
accept the factual findings of the trial court that Rhodes displayed visible signs of alcohol
consumption that would have justified investigation and then arrest had she been stopped
in a constitutionally acceptable manner in the first instance, my analysis addresses legal
issues. Appellate consideration of legal questions or conclusions is plenary. State v.
Fitzgerald, 286 Kan. 1124, 1126, 192 P.3d 171 (2008) (motion to suppress); Owen
Lumber Co. v. Chartrand, 283 Kan. 911, 916, 157 P.3d 1109 (2007).

The Fourth Amendment to the United States Constitution prohibits the
government from engaging in "unreasonable searches and seizures." The First
Amendment to the United States Constitution prohibits government action "abridging the
freedom of speech." Both of those protections against government interference with
individual freedoms have been incorporated through the Due Process Clause of the
Fourteenth Amendment to the United States Constitution and, therefore, limit the actions
of states and municipalities. Mills v. Alabama, 384 U.S. 214, 218, 86 S. Ct. 1434, 16 L.
Ed. 2d 484 (1966) (noting application of Free Speech Clause to state and local
governments); Mapp v. Ohio, 367 U.S. 643, 655, 657-58, 81 S. Ct. 1684, 6 L. Ed. 2d
1081 (1961) (acknowledging incorporation of the Fourth Amendment prohibitions on
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unreasonable searches and seizures through the Fourteenth Amendment and applying the
exclusionary rule to state court proceedings). The combination of free speech rights and
freedom from unreasonable seizure at play in this case appears to be a rarity.
Nonetheless, a number of settled legal principles guide the analysis of that interplay.
They compel the conclusion that the checkpoint impermissibly compromised the
constitutional rights of all who were detained.

MOTOR VEHICLE CHECKPOINTS AND THE FOURTH AMENDMENT

When law enforcement officers stop vehicles at a checkpoint, they seize the
occupants within the meaning of the Fourth Amendment. Michigan Dept. of State Police
v. Sitz, 496 U.S. 444, 450, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990); Delaware v.
Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 59 L. Ed. 2d 660 (1979) ("[S]topping an
automobile and detaining its occupants constitutes a 'seizure' under the Fourth
Amendment, 'even though the purpose of the stop is limited and the resulting detention
quite brief.'"). Typically, to be constitutionally reasonable, a seizure must be justified by
some particularized law enforcement suspicion that the person detained has committed, is
committing, or is about to commit a crime. Indianapolis v. Edmond, 531 U.S. 32, 37, 121
S. Ct. 447, 148 L. Ed. 2d 333 (2000); see Prouse, 440 U.S. at 663. The courts, however,
have found that checkpoints established for the purpose of detecting and arresting drunk
drivers are constitutionally permissible without that sort of individualized cause so long
as certain countervailing protections have been put in place to assure reasonableness and
to prevent arbitrariness. Edmond, 531 U.S. at 39 ("The Sitz checkpoint involved brief,
suspicionless stops of motorists so that police officers could detect signs of intoxication
and remove impaired drivers from the road."); Sitz, 496 U.S. at 447.

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If a government seizure causes only a minimal intrusion—something less than an
arrest—the court may balance the "gravity of the public concerns" prompting the
detention, the degree to which the detention advances the "public interest," and "the
severity of the interference with individual liberty" to determine its constitutional
propriety. Brown v. Texas, 443 U.S. 47, 50-51, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979);
cf. Terry v. Ohio, 392 U.S. 1, 22-24, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968) (The Court
considers the government interests at stake and the nature and the quality of the intrusion
on individual rights in determining the constitutionality of a seizure falling short of an
actual arrest.). In Sitz, the United States Supreme Court acknowledged the Brown
balancing as guiding the Fourth Amendment analysis for a DUI checkpoint. 496 U.S. at
450, 453; see 496 U.S. at 457 (Brennan, J., dissenting). That remains the analytical test.
See United States v. William, 603 F.3d 66, 69 (1st Cir. 2010).

But 4 years before deciding Brown, which is not a checkpoint case at all, the
United States Supreme Court upheld the constitutionality of a permanent vehicle
checkpoint the Border Patrol operated near the Mexico-California border as a means of
intercepting undocumented aliens. United States v. Martinez-Fuerte, 428 U.S. 543, 545,
96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976). Citing Terry, the Court essentially balanced
"the public interest against the Fourth Amendment interest of the individual." 428 U.S. at
555. Signs on the road announced the permanent checkpoint. At the checkpoint, all
vehicles had to stop for visual inspection by Border Patrol officers. Some drivers were
then subject to "secondary inspection" entailing questioning or "plain view" observation
of the vehicle and its contents, usually, although not invariably, based on officer
observations indicating a driver or a passenger might be an unauthorized alien. The Court
upheld the checkpoint, noting the substantial public interest in stemming the influx of
undocumented aliens and the comparatively minimal intrusion of the stop. 428 U.S. at
556, 559. The delay for a given motorist was brief, and the advance notice of the
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checkpoint combined with the requirement that all vehicles go through the initial
inspection reduced any concern and even fright on the part of the individuals and the
potential for arbitrary action on the part of the officers. See 428 U.S. at 558-59.
Accordingly, a vehicle could be stopped under those circumstances without any need for
particularized suspicion that the driver might be engaged in unlawful conduct. 428 U.S. at
562.

The Sitz Court also drew heavily on the reasoning of Martinez-Fuerte, since it
involved checkpoint stops, and applied those considerations to the challenged DUI
checkpoint. Sitz, 496 U.S. at 451, 453. The Border Patrol's procedures approved in
Martinez-Fuerte thus provided a template for evaluating the constitutionality of DUI
checkpoints. Noting disagreement among "experts in police science" as to the preferred
"method[] of apprehending drunk drivers," the Sitz decision recognized that DUI
checkpoints would satisfy Fourth Amendment requirements if certain standards were
applied. 496 U.S. at 453-54.

In Sitz, the United States Supreme Court suggested a constitutionally acceptable
checkpoint protocol needed to include steps aimed at reducing driver fear or anxiety over
the seizure as compared to a typical traffic stop in which an officer uses emergency
equipment to pull over a motorist suspected of a violation. 496 U.S. at 452-53. The Court
pointed out that checkpoints by their very nature tend to be less stressful to detainees than
individual traffic stops if for no other reason than seeing others in a like predicament.
Posting signs announcing the checkpoint helps meet that concern. Likewise, the Court
noted that under the checkpoint procedure challenged in Sitz every motorist was stopped,
thereby eliminating concerns over arbitrary detentions based on officers' exercise of
"unconstrained discretion" that rendered random, suspicionless car stops unconstitutional
in Prouse. Sitz, 496 U.S. at 453-54. The Court also found that a DUI checkpoint would
20

not violate the Fourth Amendment simply because it yielded what might seem to be a
comparatively low number of arrests measured against the number of motorists stopped.
See 496 U.S. at 448, 454-55 (1.6 percent of the drivers passing through checkpoint
arrested for driving under the influence; driver not detained for further investigation
passed through the checkpoint in about 25 seconds).

Looking at considerations raised in Prouse and Martinez-Fuerte, the Kansas
Supreme Court has established a multifactored standard for determining the
constitutionality of a DUI checkpoint under the Fourth Amendment. State v. Deskins, 234
Kan. 529, Syl. ¶ 9, 673 P.2d 1174 (1983); see State v. Barker, 252 Kan. 949, 953-57, 850
P.2d 885 (1993) (recognizing and applying Deskins factors). The majority opinion here
outlines those factors and makes a detailed application of them. In this case, the
checkpoint seems to have conformed to the standard set out in Deskins. But that
conclusion pretermits a more fundamental constitutional inquiry based on the purpose of
the checkpoint.

Following its decisions in Sitz, the United States Supreme Court held that law
enforcement agents could not constitutionally establish checkpoints for the purpose of
general crime detection or the interdiction of illegal drugs. Edmond, 531 U.S. at 41-42.
("Because the primary purpose of the Indianapolis narcotics checkpoint program is to
uncover evidence of ordinary criminal wrongdoing, the program contravenes the Fourth
Amendment.").The checkpoints at issue in Edmond were designed and apparently
operated much like the DUI checkpoint in Sitz. But the purpose was to identify and arrest
persons possessing illegal drugs. The officers inquired of the drivers and had drug-
sniffing dogs at the ready. The Court found checkpoint stops aimed at such general
criminal activity to be unacceptable under the Fourth Amendment because they relied on
no particularized suspicion and failed to serve an immediate public interest, such as
21

arresting drunk drivers on the road or interdicting undocumented aliens shortly after they
crossed the border. 531 U.S. at 43. In short, the Court found that a checkpoint program
"whose primary purpose is ultimately indistinguishable from the general interest in crime
control" failed to satisfy Fourth Amendment requirements for a permissible seizure. 531
U.S. at 44.

Particularly significant here, the Edmond Court recognized that the primary
"programmatic purpose" for the checkpoint controls that determination. 531 U.S. at 46. In
turn, the Court rejected the city's argument that a secondary purpose of identifying and
arresting impaired drivers would resuscitate an otherwise constitutionally defective
checkpoint operation. As the Court stated: "If this were the case, however, law
enforcement authorities would be able to establish checkpoints for virtually any purpose
so long as they also included a license or sobriety check." 531 U.S. at 46.

In its last substantive case on the issue, the United States Supreme Court held that
a police checkpoint might be constitutionally permissible as a means of finding witnesses
to a recent crime. Illinois v. Lidster, 540 U.S. 419, 426-27, 124 S. Ct. 885, 157 L. Ed. 2d
843 (2004). In that case, the police set up a checkpoint near the location of a fatal hit-and-
run accident a week earlier in hopes of contacting witnesses. Each vehicle was delayed
on the road for a matter of seconds as officers asked about any information the occupants
might have concerning the hit-and-run. Lister was arrested for DUI because he displayed
signs of intoxication; he sought to suppress that evidence as the product of an illegal
seizure. The United States Supreme Court analogized a checkpoint stop to elicit
information about a specific crime to a voluntary encounter between a law enforcement
officer and a pedestrian. In both instances, the citizen may decline to provide information
and may not be detained any longer than necessary to establish as much. 540 U.S. at 424-
25. But the Court recognized that stopping vehicles would be more intrusive and amounts
22

to a Fourth Amendment seizure, whereas a police officer speaking to a pedestrian in a
purely voluntary encounter does not. Although declining to find that sort of checkpoint
presumptively unconstitutional, the Court held that the Brown balancing should be
applied to the particular circumstances. 540 U.S at 426-27.

Those cases collectively establish that motor vehicle checkpoints may be used in
conformity with the Fourth Amendment as a means to detect and arrest drunk drivers, to
inquire about leads in a particular crime when there is some reason to believe motorists in
the vicinity might have relevant information, and, at least near the national borders, to
interdict undocumented aliens. Those checkpoints must be operated in a way that
substantially curtails or eliminates the ability of law enforcement officers to selectively
detain drivers, minimizes the delay, and guards against causing undue anxiety or unease
on the part of those stopped. The common element to those checkpoints is a carefully
circumscribed investigatory function. In the DUI and immigration stops, that
investigation is aimed at a particular systemic problem—either drunk drivers or (again,
near border crossings) the influx of undocumented aliens—and identifying persons
engaged in those illegal activities. The other permissible investigatory function seeks to
identify witnesses to a specific crime based on articulable reasons to believe motorists
traveling through the checkpoint might have such information. A properly configured
checkpoint to determine if drivers have valid licenses also probably comports with the
Fourth Amendment. See Edmond, 531 U.S. at 47 n.2.

In addition, the Edmond decision establishes a counterpoint to what is
constitutionally permissible even within the sphere of investigatory activity. It recognizes
that a motor vehicle checkpoint intended as a means of generally investigating criminal
wrongdoing cannot withstand review under the Fourth Amendment. See 531 U.S. at 43-
23

44. And that is true even if the checkpoint has a secondary permissible purpose of
detecting drunk drivers.

The majority here upholds the checkpoint that snared Rhodes because it satisfies
the Deskins standards for an acceptable DUI detection operation. But that analysis and
the checkpoint's conformity with Deskins bypasses the more fundamental constitutional
issue. The propriety of the purpose for the checkpoint presents a threshold determination
in the Fourth Amendment inquiry. Edmond, 531 U.S. at 46; William, 603 F.3d at 68. The
Overland Park checkpoint was not set up with the principal goal or "programmatic
purpose" of interdicting drunk drivers. It was established primarily to fulfill an
educational function. That is, the main objective entailed communication of a set of ideas
the City of Overland Park concluded would benefit those drivers and their passengers
seized and detained in the checkpoint process. There is no exception to the Fourth
Amendment that allows government agents to effect seizures of individuals for that
reason. A government entity may not exercise its police powers—specifically its
authority to detain citizens otherwise going about their business—as a means of
publicizing a viewpoint on a given issue. Such a constitutional limitation would seem to
follow ineluctably from Edmond: If law enforcement officers cannot use a motor vehicle
checkpoint to investigate crime generally, they cannot step out of the investigatory sphere
altogether to use a checkpoint for some entirely different purpose.

FREE SPEECH IMPLICATIONS

The constitutional impropriety of the Overland Park checkpoint is only redoubled
because the purpose impaired free speech rights protected in the First Amendment. The
checkpoint created a captive audience, using the government's power to seize and detain,
to facilitate publication of the City's desired message. That cannot be squared with
24

established free speech principles. The checkpoint implicates the rights of the detained
motorists to be free from communication forced upon them as members of a captive
audience. It also engaged the City as both a speaker and a regulator of speech.

First and foremost, of course, the Free Speech Clause aims to curtail government
interference with or domination of the exchange of information and viewpoints within the
body politic. In other words, governmental institutions may neither commandeer the
marketplace of ideas nor use their special authority and power to promote or retard trade
in particular products in that arena. New York State Bd. of Elections v. Lopez Torres, 552
U.S. 196, 208, 128 S. Ct. 791, 169 L. Ed. 2d 665 (2008) ("The First Amendment creates
an open marketplace where ideas, most especially political ideas, may compete without
government interference."); Thomas v. Collins, 323 U.S. 516, 537, 65 S. Ct. 315, 89 L.
Ed. 430 (1945) (In striking down a Texas statute requiring union organizers to register
with the secretary of state, the Court observed: "'Free trade in ideas' means free trade in
the opportunity to persuade to action."); 323 U.S. at 545 (Jackson, J., concurring) ("The
very purpose of the First Amendment is to foreclose public authority from assuming a
guardianship of the public mind through regulating the press, speech, and religion."); see
Thornhill v. Alabama, 310 U.S. 88, 95-96, 60 S. Ct. 736, 84 L. Ed. 1093 (1940). The
principle, though broad, forms a cornerstone of free speech jurisprudence and supports
other, more specific rules. Most of the rules based on that principle deal with government
entities as regulators of speech rather than as disseminators of speech. Even so, they
largely frame the outcome here.

In service of that fundamental principle, the United States Supreme Court has long
recognized that a governmental entity may not compel speech or require a citizen to
engage in communication under threat of punishment. See Wooley v. Maynard, 430 U.S.
705, 713, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977). Thus, New Hampshire had to allow
25

motor vehicle owners to obscure the state motto "Live Free or Die" on their license plates
because, consistent with the Free Speech Clause, a State cannot "require an individual to
participate in the dissemination of an ideological message by displaying it on his private
property[.]" 403 U.S. at 713; see Wooley, 430 U.S. at 714 ("The right to speak and the
right to refrain from speaking are complementary components of the broader concept of
'individual freedom of mind.'"); Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.
Ct. 1178, 87 L. Ed. 1628 (1943) (School children may not be compelled to recite the
pledge of allegiance under threat of expulsion.). Here, of course, the drivers and their
passengers were not compelled to speak, but they were compelled to receive oral and
written communication they neither solicited nor necessarily wanted. And law
enforcement officers detained them for a measurable period specifically for that purpose.
The City, through the checkpoint, created a captive audience for its message.

Although a governmental entity typically cannot curtail information third parties
disseminate to members of the public based on content, it may step in to regulate the
means of dissemination in certain circumstances. Bolger v. Youngs Drug Products Corp.,
463 U.S. 60, 72, 75, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983) (striking down statute
prohibiting mailing of unsolicited advertisements for contraceptives). In Bolger, the court
stated: "The First Amendment 'does not permit the government to prohibit speech as
intrusive unless the "captive" audience cannot avoid objectionable speech.'" 463 U.S. at
72 (quoting Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 542, 100
S. Ct. 2326, 65 L. Ed. 2d 319 [1980]). That's because the purported captive audience—in
Bolger, those persons receiving the mailings in their homes—may avoid the message
"'"simply by averting their eyes."'" 463 U.S. at 72; see also Erznoznik v. City of
Jacksonville, 422 U.S. 205, 210-11, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975) (In striking
down an ordinance prohibiting drive-in movie theaters from showing films containing
nudity if the screens could be seen from public places, the Court held that the burden to
26

avoid objectionable communication falls on the citizen to avert his or her eyes rather than
on the government to limit that speech.). The government may not inhibit protected
speech on so gossamer a ground.

Nonetheless, the government does retain the authority to limit "captive audience"
communication when the recipient cannot so easily avert the messenger or the message.
Frisby v. Schultz, 487 U.S. 474, 484-85, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988) (A
city may adopt an ordinance limiting picketing in the immediate vicinity of a private
residence consistent with the First Amendment and the resident's privacy right to avoid
being an "unwilling listener" to an external message while in his or her own home.); see
Snyder v. Phelps, 562 U.S. ___, 131 S. Ct. 1207, 1218, 179 L. Ed. 2d 172 (2011)
(recognizing those sorts of legitimate government limitations on the means of
disseminating speech); Madsen v. Women's Health Center, Inc., 512 U.S. 753, 772-73,
114 S. Ct. 2516, 129 L. Ed. 2d 593 (1994) (In upholding an injunction prohibiting yelling
and use of loudspeakers by antiabortion protestors at a clinic, the Court noted the
restriction to be content neutral and stated: "'If overamplified loudspeakers assault the
citizenry, the government may turn them down.'") (quoting Grayned v. City of Rockford,
408 U.S. 104, 116, 92 S. Ct. 2294, 33 L. Ed. 2d 222 [1972]). In Lehman v. City of Shaker
Heights, 418 U.S. 298, 304, 307, 94 S. Ct. 2714, 41 L. Ed. 2d 770 (1974), a majority of
the United States Supreme Court recognized that a municipal transit system could refuse
political advertising for display inside its buses even though it accepted ads for products
and services because, in part, the message would be inflicted on a captive audience of
riders. Speaking for four members of the Court, Justice Blackmun stated Shaker Heights
conformed to the First Amendment in prohibiting political messages on the buses "to
minimize . . . the risk of imposing upon a captive audience." 418 U.S. at 304. Justice
Douglas concurred, providing the fifth vote for a majority judgment, and observed:
"[T]he right of commuters to be free from forced intrusions on their privacy precludes the
27

city from transforming its vehicles of public transportation into forums for the
dissemination of ideas upon this captive audience." 418 U.S. at 307 (Douglas, J.,
concurring in judgment).

By the same token, a state or municipality cannot itself impose communication on
a captive audience it creates through the exercise of uniquely governmental authority to
seize and detain, thereby depriving the audience members of the ability to avoid the
message simply by looking or walking away. Here, the drivers funneled into the
checkpoint had no choice; they were compelled to stop and participate in the process. The
Fourth Amendment prohibition on unreasonable seizures alone may be sufficient to
render the checkpoint unconstitutional. A seizure to facilitate the government's own
communication may be unreasonable per se absent some extraordinary and immediate
risk imperiling public safety. But free speech considerations ought to cement that
conclusion even if they might fail as a wholly independent basis to prohibit motor vehicle
checkpoints as a medium for government communication.

Here, of course, the City itself engaged in communication by having its police
officers hand out flyers—the venerable practice of leafleting. See Lovell v. Griffin, 303
U.S. 444, 452, 58 S. Ct. 666, 82 L. Ed. 949 (1938). The circumstances, however, made
the offer of the leaflet (and whatever remarks came with it) one the motorists could not
refuse. Judicial treatment of government entities as speakers rests on comparatively new
and somewhat undeveloped legal theory. Pleasant Grove City, Utah v. Summum, 555
U.S. 460, ___, 129 S. Ct. 1125, 1139, 172 L. Ed. 2d 853 (2009) (Stevens, J., concurring)
(describing the government speech doctrine as "recently minted" and of "doubtful
merit"); see 129 S. Ct. at 1141 (Souter, J., concurring in judgment). Overland Park's use
of checkpoints for communication appears to outstrip those theories. The government
speech doctrine recognizes that a governmental entity may engage in communication
28

promoting a particular viewpoint without violating the First Amendment. Pleasant Grove
City, 129 S. Ct. at 1131 ("A government entity has the right to 'speak for itself.'")
(quoting Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229, 120
S. Ct. 1346, 146 L. Ed. 2d 193 [2000]). That is, when the government speaks, it need not
take into account competing positions on an issue and publicize those views along with
its own. 129 S. Ct. at 1131. Nor are government entities confined to communicating banal
or popular views. And they may use their power to tax to fund that communication even
though some taxpayers almost certainly hold deep-seated contrary opinions. Johanns v.
Livestock Marketing Assn., 544 U.S. 550, 562, 125 S. Ct. 2055, 161 L. Ed. 2d 896 (2005).

The contours of a government's rights as speaker remain ill-defined. The doctrine,
however, does acknowledge limits on what a government may communicate and how it
may communicate. Pleasant Valley Grove, 129 S. Ct. at 1131 ("This does not mean that
there are no restraints on government speech."); 129 S. Ct. at 1140 (Breyer, J.,
concurring) (Government speech should be treated "as a rule of thumb," recognizing that
a governmental entity could communicate in a way that "might well violate the First
Amendment."); Sutliffe v. Epping School Dist., 584 F.3d 314, 331 & n.9 (1st Cir. 2009).
And the doctrine appears to deal with the content of government speech—not the means
of communication. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819,
833, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995) ("[W]hen the State is the speaker, it may
make content-based choices."); Downs v. Los Angeles Unified School Dist., 228 F.3d
1003, 1013 (9th Cir. 2000), cert. denied 532 U.S. 994 (2001) ("[W]hen a public high
school is the speaker, its control of its own speech . . . is measured by practical
considerations applicable to any individual's choice of how to convey oneself: among
other things, content, timing, and purpose."). Accordingly, a governmental entity has
some obligation to self-regulate the means it uses to communicate and may not deploy
especially intrusive powers, such as the seizure of citizens, to facilitate its
29

communications. Otherwise, governments would command undue methods of competing
in the marketplace of ideas having no counterpart among the methods available to private
participants.

A State, therefore, may promote an appreciation of history—New Hampshire's
declared goal in Wooley for including its motto on license plates—or other messages
through a variety of acceptable (and commonly available) channels. The City of Overland
Park may educate about the perils of drinking and driving in all kinds of ways, such as
public service announcements in local media, billboards, or information posted on its
website.

But when a government entity speaks, it cannot unsheath a weapon as potent and
unmatched as the power to seize even if the message ostensibly promotes the
commonweal. That must be so in large measure because the First Amendment does not
pick and choose among ideas, giving safe harbor to those commonly considered well-
intentioned and falling away from those viewed as offensive or ill-conceived. Bose Corp.
v. Consumers Union of U.S., Inc., 466 U.S. 485, 504, 104 S. Ct. 1949, 80 L. Ed. 2d 502
(1984) ("Under our Constitution 'there is no such thing as a false idea.'") (quoting Gertz v.
Robert Welch, Inc., 418 U.S. 323, 339, 94 S. Ct. 2997, 41 L. Ed. 2d 789 [1974]). The
First Amendment applies equally regardless of the message conveyed. A speaker gets no
greater protection against government interference with his or her message because it
hews to the orthodoxy of the day. A necessary correlate for government speech must
recognize that a governmental entity cannot use its unique power and authority as a
means to communicate its chosen views even if those views presumably promote some
public good.

30

A prohibition on motor vehicle checkpoints for educational purposes does not
inhibit a government's message (or viewpoint), only the medium. It, therefore, would
function as a valid and, indeed, necessary time, place, and manner restriction on
government speech. See Snyder, 131 S. Ct. 1218 (A government may impose reasonable
time, place, or manner restrictions on otherwise protected speech of third parties.);
Frisby, 487 U.S. at 487-88 (A government may ban targeted residential picketing
precisely because the "'evil'" lies in "'in the medium of expression itself.'"). A
governmental entity, as regulator, may impose reasonable restrictions on the time, place,
or manner of a private party's protected speech so long as those limitations are content
neutral, tailored to serve a significant public interest, and permit sufficient alternative
channels of communication. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct.
2746, 105 L. Ed. 2d 661 (1989).

There is scant reason to suppose a governmental entity cannot be required to
regulate its own speech through such viewpoint-neutral limitations, especially where the
contemplated medium imperils the listener's fundamental rights. The government speech
doctrine should not be otherwise. Established principles of First and Fourth Amendment
law certainly are not. When a governmental entity fails to self-regulate in that way, the
courts may step into the breach to preserve the full measure of constitutional rights that
otherwise would melt away. There is nothing untoward in courts finding executive
decisions or legislative enactments to be violative of the Constitution and providing
appropriate remedies for any violation. See United States v. Raines, 362 U.S. 17, 20-21,
80 S. Ct. 519, 4 L. Ed. 2d 524 (1960); Berentz v. Comm'rs of Coffeyville, 159 Kan. 58,
62-63, 152 P.2d 53 (1944). That, of course, is the enduring jurisprudential nugget of
Marbury v. Madison, 5 U.S. (1 Cranch) 49, 69-71 (1803).

31

An educational motor vehicle checkpoint, then, cannot be constitutionally
permissible. If it were, the City could set up checkpoints to hand out literature promoting
an increase in the mill levy or sales taxes to put more police officers on the street. A
majority of some future city council might be tempted to do the same to publicize a point
of view on any number of issues, controversial or otherwise. And, presumably, Overland
Park police officers could stop pedestrians on the street and detain them long enough to
listen to a sermonette on drunk driving. Or those officers could round up people walking
by city hall and march them to the building's foyer to watch a 60-second video. Those
sorts of intrusions cannot be reconciled with constitutional protections designed to afford
citizens a buffer against overly meddlesome government, particularly in the sensitive
areas of free speech and religious practice under the First Amendment and of physical
integrity of one's person under the Fourth Amendment.

CONSIDERING LOOSE ENDS OF A SORT

Two considerations remain unaddressed in this analysis and, thus, could be
described as loose ends. The first is whether the good-faith exception to the exclusionary
rule might salvage the seizure of Rhodes and the evidence then obtained from her. I
endeavor to tie up that loose end. The second deals with the propriety of combining DUI
checkpoints with ancillary educational functions. I comment on that but leave the end
dangling, since it really does not affect this case.

The exclusionary rule requires that the State be precluded from presenting
evidence obtained in violation of the Fourth Amendment to convict a criminal defendant.
The purpose is not to protect the defendant so much as to preserve the integrity of those
constitutional rights by deterring police conduct that degrades them. Herring v. United
States, 555 U.S. 135, ___, 129 S. Ct. 695, 700-01, 172 L. Ed. 2d 496 (2009); United
32

States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). That is, if
law enforcement officers cannot benefit from violating search and seizure rights because
any evidence obtained will be useless in a prosecution, they will avoid committing such
violations. Elkins v. United States, 364 U.S. 206, 217, 80 S. Ct. 1437, 4 L. Ed. 2d 1669
(1960) (The exclusionary rule's "purpose is to deter—to compel respect for the
constitutional guaranty in the only effectively available way—by removing the incentive
to disregard it."). In turn, innocent citizens will be spared the consequences of that
impermissible law enforcement conduct in the future. See Leon, 468 U.S. at 919-20.

But the courts have engrafted a good-faith exception onto the exclusionary rule.
The exception comes into play if the deterrent effect of suppressing the challenged
evidence is scant as compared to the cost of denying prosecutors the use of that evidence
in the particular case. Herring, 129 S. Ct. at 700-01 (The exclusionary rule need not be
applied when it would provide "marginal deterrence" as measured against the societal
cost of that application, typically in "letting guilty and potentially dangerous defendants
go free[.]"); Leon, 468 U.S. at 907-08. (Herring and Leon stand as the United States
Supreme Court's bookend decisions on the good-faith exception to the exclusionary rule.
The Court recognized the exception in Leon, and Herring presents the most recent
exegesis on the subject.) The good-faith exception paradigmatically comes into play
when a law enforcement officer conducts a search based on a warrant signed by a judge
that is later determined to be legally insufficient. Suppressing any evidence seized in that
situation would not change the law enforcement officer's future conduct, since the officer
did what was proper in getting a judge to review and approve the warrant. The error was
the judge's, and the exclusionary rule is highly unlikely to affect judicial conduct. See
Leon, 468 U.S. at 900, 916-17, 926.

33

Conversely, however, the exclusionary rule can and should be applied when the
police conduct is "sufficiently deliberate that exclusion can meaningfully deter it, and
sufficiently culpable that such deterrence is worth the price paid by the justice system."
Herring, 129 S. Ct. at 702. The rule then "serves to deter" police conduct that is either
intentional or results from "recurring or systemic negligence" and compromises the rights
protected by the Fourth Amendment. 129 S. Ct. at 702. The Leon Court made much the
same point in explaining when the good faith exception should not be invoked: "If
exclusion of evidence . . . is to have any deterrent effect, therefore, it must alter the
behavior of the individual law enforcement officers or the policies of their departments."
Leon, 468 U.S. at 918.

This case presents a near perfect example of when the exclusionary rule should be
applied. Rhodes is a misdemeanant—she was prosecuted in municipal court—charged
with an offense that entails no criminal intent. (That is not to suggest drunk driving
should be minimized. The collective cost of drunk driving on a national scale is profound.
But the exclusionary rule weighs the impact of lost evidence on a particular prosecution
without regard to the global impact of the type of crime.) The Fourth Amendment
violation here resulted from a programmatic or systemic decision of the Overland Park
Police Department to run a motor vehicle checkpoint principally for an educational
purpose. The purpose cannot be justified under existing Fourth Amendment precedent.
But the police department likely would continue such checkpoints until given a tangible
reason to discontinue them. The exclusionary rule does so. The police department ought
to be deterred if evidence obtained through the checkpoint may not be used to prosecute
drunk drivers interdicted as part of the secondary purpose of the operation.

On the other side of the balance, the checkpoint had a deleterious effect on
Rhodes' Fourth Amendment protection against unreasonable seizure. But unlike the
34

typical criminal case, the Fourth Amendment degradation didn't end with the defendant.
The rights of all the other drivers and their passengers were violated. Each of them may
well have had a civil action under 42 U.S.C. § 1983 (2006) for declaratory and injunctive
relief, at least nominal damages, and attorney fees. (Because the checkpoint was
conducted in 2008, the statute of limitations on any civil suit has run. See Owens v.
Okure, 488 U.S. 235, 249-50, 109 S. Ct. 573, 102 L. Ed. 2d 594 (1989) (limitations
period for § 1983 action incorporates state statute governing general personal injuries);
K.S.A. 60-513.) The collective violation of more than 600 persons' Fourth Amendment
rights weighs heavily in favor of applying the exclusionary rule.

My analysis raises the question of when (or if) an educational purpose might be
incorporated into a motor vehicle checkpoint as a subsidiary objective. The issue is not
directly in play here, since the primary purpose was an educational one and that, in my
view, must be constitutionally infirm. In other words, a government entity cannot operate
a checkpoint with the sole or even primary aim of disseminating a message to those
seized absent an immediate crisis, such as an impending natural disaster, demanding use
of all available channels of communication to avoid imminent loss of life.

If a governmental entity operates a checkpoint with the stated primary purpose of
detecting and arresting drunk drivers, may it then fold in a secondary educational
function? The question opens up both legal and factual issues. A defendant likely could
challenge the government's claim as to which was the true primary purpose and which
was secondary, thus presenting a fact determination for the court hearing a motion to
suppress. Even if the primary purpose were catching drunk drivers, an entirely unrelated
secondary educational goal—touting the benefits of attracting casino gambling as a way
of generating municipal revenue—might sufficiently taint the operation so as to make any
evidence obtained constitutionally infirm. I leave that issue for another day. Likewise, I
35

pass on the issue of whether the Overland Park checkpoint in this case would have been
constitutionally acceptable if the primary purpose were DUI detection and arrest and the
secondary purpose were distribution of educational material on the dangers of drinking
and driving, an obviously related topic. See State v. Reynolds, 319 N.J. Super. 426, 432-
33, 725 A.2d 1129 (1998) (In a pre-Edmond case, the court finds distribution of literature
on drunk driving at a DUI checkpoint would not violate the Fourth Amendment.).

CONCLUSION

States and municipalities may operate motor vehicle checkpoints to identify and
arrest drunk drivers without offending the Constitution. But governments cannot use
those checkpoints as a means of communicating information or ideas they consider
beneficial or worthwhile. I would reverse the decision of the district court and remand
with directions that the motion to suppress be granted.