Aug 22 2022

“Sobriety checks” of motorists as pretext for ID checks

In a disturbing decision, a 3-judge panel of the the 9th Circuit Court of Appeals has upheld the arrest of a driver who who refused to show ID on demand of police at what was purportedly a “sobriety” checkpoint for motorists in Vallejo, California.

All charges against the driver, David P. Demarest, were dismissed before Mr. Demarest filed his Federal lawsuit against the police. The 9th Circuit opinion didn’t address whether any conviction would have withstood Constitutional scrutiny. But the 9th Circuit dismissed Mr. Demarest’s complaint against the police and the city of Vallejo for violating his civil rights by demanding that he show ID at a “sobriety” checkpoint without a warrant or probable cause to believe that he had committed any crime, and arresting him when he declined to show ID.

The tortured reasoning of the decision, Demarest v. City of Vallejo, No. 20-15872, decided August 16, 2022, hinges on the dubious and self-serving claim by the police that their “intent” wasn’t to use the “sobriety” checkpoint for general law enforcement purposes, that ID checks are an objectively permissible purpose for a checkpoint as long the subjective intent of the police wasn’t to operate a general law enforcement dragnet (as in fact it almost certainly was),  and that the ID checks only minimally delayed most motorists beyond the delay that would have been occasioned by sobriety checks.

The decision notes that drivers were required only to show “facially valid” drivers licenses, which were not checked for outstanding wants or warrants.But that is treated only as evidence of whether or not the checkpoint was intended for general law enforcement purposes, and not as necessary dispositive of whether the ID demand was Constitutional:

The non-law-enforcement nature of the license checks in this case is especially clear, the City [of Vallejo] concededly did not use the license checks to conduct on-the-spot warrant checks. Cf. United States v. Bernacet, 724 F.3d 269, 271, 273–74 (2d Cir. 2013) (addressing a license checkpoint in which officers ran licenses through multiple databases, including a “criminal history database”). The mere request to produce a facially valid license is a relatively modest additional intrusion on the liberty of a motorist who has already been properly stopped at a checkpoint.

In the case cited in this portion of the 9th Circuit opinion, U.S. v. Bernacet, the 2nd Circuit upheld criminal history and warrant checks of drivers, using a system that queries  multiple databases including the FBI’s error-ridden NCIC, at a warrantless, suspicionless motor vehicle checkpoint.

The effect of this decision is to invite police to demand ID at “sobriety” checkpoints.

For what it’s worth, the decision in Demarest v. Vallejo does not mention, and by its logic seems to leave intact, the 2019 decision of another 9th Circuit panel that passengers in motor vehicles, as distinct from drivers, cannot be required to show ID at checkpoints without individualized probable cause to believe that they have committed a crime.

[Update: “Demarest’s lawyer David M. Helbraun told the Vallejo Sun that he thought the court made a bad decision ‘because the city admitted it was not using the checkpoint to catch unlicensed drivers.’ Helbraun further said that then-Lt. Michael Nichelini said ‘under oath that the reason they were asking to see drivers licenses was to impress on drivers the authority of the police. That’s not a permissible purpose under the Fourth Amendment, and we are considering our options to appeal further,’ he added.” A “further appeal” would likely mean a petition for rehearing en banc by the 9th Circuit.]