Tomorrow night, July 6, at 4100 S. State, Unified Police Department and the Utah Highway Patrol will be pulling over cars from 9:30 p.m. until 2:30 a.m. in search of people driving under the influence. But are such checkpoints constitutional? ---
"The big reason for the checkpoint is to protect everybody's safety," says Lt. Justin Hoyal, the UPD's public-information officer, noting that at this time of year, many folks drink and drive following holiday celebrations.

But checkpoints have been vulnerable of late to questions regarding their constitutionality and intrusion into civil liberties. A bill that would have repealed law enforcement's ability to conduct the stops passed the House but was stopped in the Senate in the 2012 legislative session.

Some of the checkpoints' controversy results from the language used in the checkpoint plans that police departments put together, on which a local judge then has to sign off. 

Some plans are watertight, Shatz & Anderson attorney Charles Stewart says, while others, using a litany of possible offenses officers are checking for, can give rise to judicial concerns about throwing out a trawling net to see what you catch.

Stewart successfully raised the issue in the South Salt Lake justice court in November 2010, leading to a ruling by Judge Gregory Bown that labeled the South Salt Lake PD and UHP May 2010 checkpoint "unconstitutionally infirm." That resulted in the suppression of evidence from the traffic stop and Stewart moving to dismiss his client's DUI charge.

Several weeks ago, Stewart had a second victory over checkpoints, but this time in West Jordan 3rd District Court. In that case, it involved a UPD checkpoint, the same agency that is doing the checkpoint tomorrow night.

In that case, according to Stewart's brief to the court, at a UPD, UHP and Salt Lake County Sheriff's Office of Corrections checkpoint conducted in Midvale on Oct. 29, 2011, an officer had smelled the odor of alcohol on the driver and asked him to get out of the car. He subsequently was arrested for a DUI.

In Stewart's motion, he concluded, "In order for the administrative checkpoint plan to be constitutional, the plan must be limited to a narrow purpose. When an administrative checkpoint is allowed to check for multiple violations, or in this case 'any' violation, the checkpoint becomes less about safety and more on pretext stops." While the Midvale checkpoint, he continued, was "documented to be a driver license and registration check, [...] the multiple purposes listed [on the plan] and the broad language utilized for the checkpoint clearly indicate a different purpose."

On June 8, 2012, West Jordan 3rd District Court Judge Bruce Lubeck issued a ruling on Stewart's motion to suppress based on his client being "illegally seized and detained at an administrative checkpoint."

Lubeck wrote that while "checkpoints are to advance highway safety," they must be "narrowly tailored. Multipurpose and general warrant-like intrusions are contrary to the constitutional prohibition against unreasonable searches and seizures." He noted that "A checkpoint ostensibly to promote one purpose, for example driver's license checks, is unlawful if an impermissible purpose of general law enforcement is the true and primary purpose." 

In the Midvale case, Lubeck wrote, the purpose was to inspect license plates, owner paperwork and conduct equipment checks. That was fine, he noted, but the plan's instructions also included that it was to "detect and apprehend individuals suspected of criminal and/or traffic violations of Utah law or city ordinances," followed by a laundry list of possible offenses.

That didn't sit well with the judge: "It allows officers to look for, without suspicion, violations of any criminal or traffic law." Drawing on case law, he found the checkpoint "over broad" and granted Stewart's motion to suppress.

UHP's Lt. Hoyal says the scope of the Midvale checkpoint "was much more broad" than the checkpoint for tomorrow night. At 4100 South State, officers will be looking for drivers under the influence of alcohol, drugs and prescription drugs, he says. If they find probable cause that other crimes are being committed, then "action will be taken."

Stewart questions how effective checkpoints are, given that in some counties they have resulted, he believes, in zero DUI arrests. While there might be an argument for the benefits of deterrence such publicized operations might bring, some also argue that throwing out a net to see what you can catch flies in the face of American values.

Road blocks, Stewart says, "are antithetical to the American sense of liberty," noting the irony of UPD putting one up on July 4 weekend. "For that reason, state and law enforcement are held to a strict standard" when it comes to the constitutionality of the checkpoints. "If you're going to do it, by god, you need to dot every i and cross every t."