If you’ve been routinely reading UtahPolicy during the 2012 Legislature, you’ve seen detailed an odd occurrence this general session: Law enforcement, a previous sacred cow for conservative legislators, has been several times curtailed by those same conservatives in favor of constitutional rights.
It used to be that any reasonable request from cops and prosecutors to catch and put away bad guys flew through the Legislature, with only a few, oddly-seen civil libertarians in opposition.
That’s no longer the case.
In fact, one could argue that the 2012 Legislature is seeing a paradigm shift in this regard.
The debate around HB140 Thursday morning in the Utah House is a perfect example.
It basically outlaws police checkpoints for all but a few instances. Specifically, it outlaws police checkpoints for DUI dragnets.
It’s a question of law enforcement going over that “thin constitutional line” as opposed to violation of a person’s constitutional right to unreasonable search and seizure.
HB140 passed, 41-33, in a relatively-close vote after a lengthy debate. It now goes to the Senate.
You can see the vote here. And there’s some odd bedfellows in the tally.
Any time you see conservative Rep. John Dougall, R-American Fork, on the same side of a close vote with liberal Rep. Brian Doughty, D-Salt Lake, you know something is up.
Even more interestingly, both Butterfield and his detractors admit that police checkpoints (or roadblocks) have been upheld by both the Utah and U.S. Supreme Courts, so the question of constitutionality has been decided.
True, law enforcement must meet several restrictions before cops can set up such checkpoints – including getting a judge to approve it beforehand and proper public notice – but still a majority of Utah House members, with Democrats and Republicans voting on both sides of the issue, say it is wrong to force law-abiding citizens into such searches without any reasonable suspicion for such a stop.
The HB140 vote comes as a resolution is introduced in the state Senate condemning Congress for passing a defense authorization bill the end of December that contains language that would allow federal authorities to arrest a U.S. citizen suspected of a terrorist attack and hold that person without bail for an indefinite period of time.
Freshman Sen. Todd Weiler, R-Woods Cross, a former top state Republican Party leader, in SCR11 outlines why that policy is unconstitutional and asks Congress to repeal the offensive language.
Several other measures, and the actions on them, point to a new feeling of trying to control what is perceived as over-reaching government on Utah’s Capitol Hill.
Rep. Craig Frank, R-Pleasant Grove, said he voted for HB140 after he and his family were stopped in a police roadblock one night last year.
Saying he always carries a copy of the U.S. Constitution with him, the incident lead him to open it and read, again, the 4th Amendment of the Bill of Rights that ensures no unreasonable search and seizure.
Several current and former police officers who now serve in the House rose to make emotional pleas not to undermine the brave law officers who can constitutionally use checkpoints as a legal mans to catch drunken drivers.
But those pleas fell short.
Who would have believed just a few years ago that either the Utah House or Senate would take off the table a way to catch drunk drivers? And this in Utah, which has some of the toughest alcohol control and DUI laws in the nation?
It no doubt helped Butterfield that he could cite a number of studies and statistics that show checkpoints are less effective in catching DUIs than what is called “saturation patrols” – a law enforcement tactic where trained DUI cops stake out, in large numbers, geographic trouble spots, like a row of bars or night clubs, and move in to grab likely DUIs when the police officers observe erratic behavior.
In those cases, said Butterfield, people are not being pulled over without cause and their vehicles searched for possible violations.
The cops observe a person staggering to his car from the bar or in following them see the driver weave around in traffic, drive without turning on their headlights or roll a stop sign or red light.
Frank said when he was ushered into a big box parking lot that had coned lanes and traffic backed upped he had to roll down his windows, the cops shined flashlights into his car, perhaps looking for open alcohol containers or sniffing for liquor breathe, and then waived him through. It took around 10 minutes of his time and left him with a bad feeling about what he and his family had to go through.
Butterfield said he had recently gone through a checkpoint and didn’t feel good about it either, which started his investigation into whether such police stakeouts were good public policy and legal.
Several opponents to HB140 complained that under the bill police could still hold a checkpoint in an effort to check boats for invasive species of mussels, feared to take over Utah lakes if introduced.
“You would allow a checkpoint for some species, but not for drunken drivers?” asked Rep. Lee Perry, R-Perry, currently a law officer. What kind of signal, Perry said, does that send to the public about which is more important – some mussels or drunk drivers?
Butterfield said it comes down to what works. You can’t tell if a boat being pulled on a trailer has the invasive species hanging on without stopping it at a checkpoint on a road going into or out of a boat loading area, and there is a better way to catch DUIs than in a dragnet – use saturation patrols.
“This is an important debate,” said House Majority Whip Greg Hughes, R-Draper.
“We (in the Legislature) have to weigh law enforcement practices with individual freedoms.
“This is not about being aggressive on DUIs. We all want that. We need to get DUIs off the road.”
But if it is OK to stop random cars to look for DUIs, what is the next step? Stop cars for any other possible crimes, like shoplifting? Asked Hughes.
DUI checkpoints don’t increase driving safety and don’t catch many DUIs, in part because they must be publicized by time and place and drunks can just avoid them, said Hughes.
Checkpoints, when balanced against individual freedoms, “are not good public policy,” he added.
And so you have it, Utah, of all places, moving to stop DUI roadblocks in favor of 4th Amendment rights.
I doubt you would have seen that in the last 20 years, when law enforcement and prosecutors got just about all they asked for from a Utah Legislature.