Thirty-two months after being stopped at an illegal multi-jurisdictional task force operation masquerading as a 'sobriety checkpoint', the TOPD finally implemented sobriety checkpoint guidelines. We were first notified of the existence of these guidelines three months after the fact in a letter from the defendant's attorney dated November 23, 2005. The letter acknowledges the new policy but goes on to request a stipulation from me as a pre-condition to releasing the guidelines. The stipulation was that I agree to a protective order against public disclosure and any related court filings be made under seal.
I refused to so stipulate but received a copy of the policy several months later anyway with no further demands for secrecy.
The discussion below will focus around sobriety checkpoint guidelines in general, malfeasance associated with guidelines in this case, and compare/contrast this new policy with guidelines from the Pima County Sheriff's Department.
Ever since SCOTUS first created a fourth amendment loophole in United States v. Martinez-Fuerte to allow suspicionless checkpoints under certain circumstances, checkpoint guidelines have played a fundamental role within the courts in determining whether or not any particular roadblock operation is 'legal'. More to the point, most courts have determined that well-defined guidelines are fundamental to limiting abuse during such suspicionless operations. Abuse resulting from "standardless and unconstrained discretion" on the part of officers conducting checkpoint operations including but not limited to suspicionless trunk searches, unreasonable demands for documentation and I.D., joint operations with federal agencies, searches for illegal aliens and narcotics, discriminatory behavior against different classes of individuals, and other enforcement activity having nothing to do with detecting and removing impaired motorists from public highways.
As such, the existence of sobriety checkpoint guidelines are considered a pre-requisite by most jurisdictions to conducting 'legal' sobriety checkpoints. This is why we subpoenaed a copy of the TOPD guidelines in 2003 during my defense while being maliciously prosecuted in the Ajo Justice Court. This is also why the tribal police lied to the justice court in order to hide the fact that they didn't actually have guidelines in place at the time of the incident. Instead of owning up to this fact during proceedings initiated by the tribal police, they instead notified the court that the subpoenaed documents would not be turned over because they were the property of the tribe and fell outside the court's jurisdiction. While I suspected there weren't any guidelines to turn over at the time, the deception didn't become obvious until after I filed this lawsuit against several tribal police officers and subpoenaed the documents a second time in federal court.
Evidence of the deception, beginning with justice court proceedings appear below:
County Prosecutor Philip Perkins: "No, Your Honor, ...(UNINTELLIGIBLE)... that I had issued to Lieutenant Ford, who is the commander of the field operation on the check points, there was a question that asked him bring the check point operational procedure written document with him. He came to court today and apprised me that his request for that had been turned down and he was told that it was an internal document and was not going to be permitted to used in court."
Court: "Mr. Perkins, is it your understanding that that is regarded as an internal document and that it would not be...did you say it was an internal document that would not be made available to you?"
Mr. Perkins: "That's what Lieutenant Ford advised me why he was not able to bring that here."
The Court: "Alright, Thank you."
Mr. Perkins: "That up until I guess today, when he tried to come over here with it, that he was advised that he had been turned down. Apparently the only way that it can be obtained would be if the attorney general for the tribe were to approve it, and then only for the dissemination to the requested party and not to the public." - Dec 9, 2003 Evidentiary Hearing
Court Order: "The court inquires if the State is prepared to proceed. Mr. Perkins advises that he has subpoenaed documents concerning the guidelines for roadblock from T.O.P.D. which he is now advised are internal documents and have not been provided to him. He asks that the court continue this matter to allow him the opportunity to obtain these documents." - Dec 9, 2003 Court Order
After the tribal police refused to comply with the court order, the judge dismissed charges against me with prejudice. Final evidence of the deception didn't arise for another 15 months however after the defendant police officers responded to our discovery request:
Plaintiff Request: "Any and all documents related to procedures and guidelines for operating a roadblock (including, but not limited to, sobriety checkpoints) by the Tohono O'odham Police Department (TOPD)"
Defendant Reply: "The TOPD maintains a copy of the 1989 opinion and order of the Judicial Court of the Tohono O'odham Nation in Tohono O'odham Nation v. Ahill and other consolidated cases, which authorizes the tribal police to conduct sobriety checkpoints within the Nation under tribal authority. A copy of this opinion is produced herewith. There is no other particular permanent written guideline dedicated to operating sobriety checkpoints or roadblocks in the TOPD." - Responses to Plaintiff's Request for Production of Documents and Things (Mar 2005)
The foregoing makes it clear the reason the TOPD refused to obey the justice court subpoena was not because of sovereign immunity concerns but rather because the police lied about the existence of checkpoint guidelines and the only way to cover up the deception was to refuse to provide them to the court.
Having forced the issue by filing a civil lawsuit and subpoenaing the documents in federal court, the defendants finally read the writing on the wall and generated guidelines that went into effect in August 2005. In standard TOPD fashion however, the defendants initially sought to keep the new guidelines secret by stipulating that they be filed under seal with a protective order to block any public release. I refused to voluntarily agree to such restrictions and several months later the defendants backed off and released the guidelines without any further gag order attempts.
After reading the TOPD guidelines and comparing them with those generated by other jurisdictions, it became apparent why they wanted them filed under seal. The guidelines fail to limit the scope of roadblock operations to its stated purpose, continues to force individuals to incriminate themselves, and continues to promote the practice of jurisdiction shopping with the use of tribal, state, and federal law enforcement powers.
To start with, the policy allows the TOPD to demand answers to the following questions:
a. Have you consumed any alcohol or controlled substance today?
b. Are you a native American enrolled with a recognized Native American Tribe?
c. Are you a resident of the Tohono O'odham Nation?
d. Please show me your drivers License and your vehicle registration.
While the first question is considered reasonable at sobriety checkpoints, the remaining three are problematic. The second and third questions are a mechanism the tribal police have used in the past to discriminate against individuals based upon their tribal affiliation. In 2003, Lt. Ford admitted to my defense attorney that he only enforced seat belt and insurance requirements against non-tribal members even though tribal members are required to obey state law on a state highway and tribal police have state law enforcement powers. This admission is also evidence that the TOPD were conducting roadblock operations under state as well as tribal authority which is a separate point of contention in this lawsuit. Given the wording of the new policy, it's clear the tribal police still seek to selectively apply local, state and federal law depending on who has been stopped instead of limiting the scope of sobriety checkpoint operations to the minimum level of intrusion necessary to detect and remove impaired motorists from the road.
The fourth question is the most onerous. By itself, a license and registration check has nothing to do with impairment and everything to do with general crime control and the Supreme Court has made it clear general crime control cannot be part of the purpose of a sobriety checkpoint. In the past, the TOPD has used such demands at sobriety checkpoints for multiple purposes. The TOPD use drivers licenses to conduct general warrant background checks on everyone stopped during checkpoint operations. They also use this opportunity to evaluate a driver's impairment level. Oftentimes officers use flashlights equipped with passive alcohol sensors. When a driver rolls down his/her window to respond to a drivers license demand, the officer places the flashlight in or near the open window in an attempt to detect alcohol. The speech and coordination of the driver is also evaluated in order to make an assessment. Finally, documentation checks at TOPD roadblocks have historically been used as a mechanism to help identify illegal immigrants on behalf of the U.S. Border Patrol. None of the purposes described above are consistent with 'legal' sobriety checkpoint operations.
The definitive roadblock cases adjudicated by the Supreme Court have made it clear that license and registration checks were only conducted on individuals diverted to secondary inspection stations AFTER reasonable suspicion was established. Documentation checks were NOT part of the primary stop or purpose of the operation. This nuance becomes clear when we look at recent sobriety checkpoint guidelines, briefing sheets, and memos generated by the Pima County Sheriff's Department (PCSD) which is one of the closest law enforcement jurisdictions to the TOPD. In addition, a recent Tennessee Supreme Court ruling addressed the use of license/ID checks at suspicionless checkpoint operations although the context was slightly different than that associated with this case.
In PCSD documents, the county sheriff makes it clear that individuals stopped at sobriety checkpoints not only have a right to refuse to answer questions but may also refuse to roll down their window and interact with the stopping officer:
"Drivers who refuse to roll down their windows in order to avoid contact with a law enforcement officer will be waived through and may be followed by an observation car unless reasonable suspicion/probable cause exists to further the investigation."
In addition, PCSD briefing sheets state:
"A motorist who chooses to avoid the checkpoint should be allowed to proceed unless traffic violations are observed or probable cause exists to take other action. The mere act of avoiding a checkpoint will not constitute grounds for a stop."
Finally, PCSD briefing sheets only allow one question to be asked during the initial stop unless reasonable suspicion exists:
"The following question/statement shall be made upon approaching a vehicle: 'Good evening, this is a Sobriety Checkpoint aimed at deterring impaired driving. Have you consumed any alcohol and/or drugs today?'"
These restrictions have been put into place for a good reason. Individuals cannot be forced to incriminate themselves. If individuals have an opportunity to avoid a roadblock or refuse to answer questions directed to them at a roadblock, any cooperation offered represents a voluntary waiving of their rights. The PCSD recognizes this fact and have written their guidelines accordingly. The TOPD on the other hand has little respect for individual rights which is not only reflected in the agencies historical record but in this new policy as well.
A non-inclusive list of offending aspects of this policy appear below:
* The policy makes no attempt to define what authority the TOPD operates under during checkpoint operations - tribal, state, or federal. In the past the TOPD has used all three jurisdictions interchangeably depending on what's most convenient for them at the time. When called to task under one jurisdiction however, they rely upon a different one to cover up their actions. This creates ambiguity in roadblock operations and the rights of individuals affected.
* The scope of the policy exceeds that allowed by the Supreme Court for suspicionless sobriety checkpoints. License and registration checks have nothing to do with impairment. Nor do general warrant background checks that accompany a license check.
* The policy continues on with business as usual and places no serious restrictions on the discretion of on-scene officers.
* The policy indicates that tribal police may place 'No U-turn' signs to prohibit individuals from turning around to avoid the checkpoint at certain locations without requiring the presence of a safe place for motorists to turn around if they so choose.
* The policy indicates that 'abusive language' constitutes a compelling reason to detain an individual. The policy makes no attempt to define what constitutes abusive language and the last time I checked, abusive language fell under the category of 'free speech'. Every court case I've ever read on the subject has found that abusive language does not constitute a violation of the law in and of itself. While it may not be the smartest thing to do, abusive language isn't a crime and does not create reasonable suspicion that an individual is impaired at suspicionless checkpoints.
* The policy indicates that the presence of a firearm in a stopped vehicle constitutes a compelling reason to detain an individual even though the right to keep and bear arms is a fundamental right at the state and federal level.
In summary, the new policy states the Tohono O'odham Police Department will:
"Satisfy Tribal, Federal, and State legal requirements"
It's clear however that the department hasn't spent much time researching those requirements. Rather, the TOPD is much more interested in seeing how much they can get away with than actually upholding the law. Given the history of the TOPD, these new guidelines do little to limit "standardless and unconstrained discretion" by tribal police officers but do formalize many of the abuses I experienced in 2002. As such, it's obvious that my request for injunctive relief against future TOPD checkpoints is still very much needed.