Motorists driving on expressways around Flint are getting surprised by a stunning tactic that the Genesee County sheriff has been using to fight the flow of illegal drugs -- one that legal experts said will not withstand a court challenge.
At least seven times this month, including Tuesday, motorists have said they have seen a pickup towing a large sign on I-69 or U.S.-23 that depicts the sheriff's badge and warns: "Sheriff narcotics check point, 1 mile ahead -- drug dog in use."
The checkpoints are part of a broad sweep for drugs that Genesee County Sheriff Robert Pickell and his self-titled Sheriff's Posse said are needed, calling Flint a crossroads of drug dealing because nearly a half-dozen major roads and expressways pass in and around the city. Pickell said he decided to try checkpoints when he learned that drug shipments might be passing through Flint in tractor-trailers with false compartments.
"We're doing everything by the book," Genesee County Undersheriff Christopher Swanson said. "We think there's major loads (of drugs) coming through here from all over, every day. And this is one of the tools we use -- narcotics checkpoints."
He said the dogs are used to sniff around the vehicles to check for drugs.
The practice has legal experts on searches and seizures at two law schools in Michigan, a constitutional law expert in Lansing and the American Civil Liberties Union calling the practice out of bounds and out of touch with state and U.S. Supreme Court rulings that ban such practices.
Based on a case out of Indianapolis, the U.S. Supreme Court held in 2000 that narcotics checkpoints where everyone gets stopped on a public road are not legal and violate Fourth Amendment protections against illegal searches and seizures, professor David Moran at the University of Michigan Law School said.
Wayne State University Law School professor Peter Henning said police can set up roadblocks to search all who pass by, but only if a crime has just been committed.
And Genesee County Prosecutor David Leyton, who said he was not consulted by Pickell about the checkpoints, said that after a court challenge, the Michigan Supreme Court ruled in 1990 that so-called "sobriety check lanes," put in place to nab drunken drivers, were illegal.
The new practice of narcotics checkpoints "certainly brings up probable-cause issues," Leyton said Thursday.
Leyton said he has no power to stop the practice, however. That, he said, would require someone arrested at a checkpoint to contest the evidence in court.
The checkpoints have caused an uproar, officials said. And, as a result, the sheriff's office has altered its methods: Instead of using the checkpoints daily -- even Sundays when they started at the beginning of the month -- they are used sporadically. And instead of stopping everyone, law enforcement has been putting the signs out and waiting for a motorist to make an illegal U-turn in the freeway median to try to avoid the checkpoint, thus giving them cause to pull the driver over and search the vehicle.
But even that method raises question, U-M professor Moran said. The technique has not been tested in Michigan courts, he said. But judges would take a dim view of it because "it's perilously close to entrapment," he said.
"It's just the kind of shabby treatment that the Fourth Amendment was designed to prevent," Moran said.