I think most libertarians, if queried as to which amendment to the Constitution is most important, would answer “the 1st.” But a close second would be the 4th:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I bring this up because driving home from vacation last night, I’m pretty sure my family and I ran into a 4th amendment violation. Here’s the fact pattern: it’s approximately 9:15pm, I’m driving with my wife and two kids on a local road in rural North Carolina that will take us to I-95 North. As we pass through a small town, a car coming the other direction flashes it’s high beams at me. I laugh and turn to Sarah and say, “Gotta be a speed trap up here.” We round the next corner and find not a speed trap, but a road block, with two cop cars and three cops. There are two cars ahead of me at the checkpoint, with a cop talking to the driver of each car. One car passes through and continues without incident; the other car is directed to pull over to the side of the road, at which point the driver, a young African-American woman, gets out and continues talking to the cop. It’s my turn, and when I roll down the window, I say, “Evening, officer. What’s up?” The cop says, “We’re just checking driver’s licenses. Could I see yours?”

I complied, but in the back of my head I could hear my libertarian instincts. You should politely tell this clown to fuck off.

You see, no matter what any cop or lawyer or anyone else tells you, no governmental authority has the right to stop you at a checkpoint and start searching you or your stuff, unless they have either reasonable suspicion that you have committed a crime, or your consent. There is only one exception to this: DWI checkpoints, which were upheld as Constitutional by a controversial 6-3 Supreme Court decision in Michigan Dept. of State v. Sitz (1990). That’s it. Period. And even then, all then can do is verify that you have not been drinking. Nothing else without either your consent or reasonable suspicion. (If the police do have reasonable suspicion that you may have committed a crime, they have wider latitude to do things like briefly detain you and pat you down for weapons. But they still do not have the right to search your vehicle or person without your consent. That requires either a warrant, your consent, or “probable cause.”)

The Supreme Court has consistently ruled that other random checkpoints — such as checkpoints to search for drug possession — are unconstitutional. (Note that certain non-random checkpoints, such as roadblocks to catch fugitives or border patrol checkpoints, are perfectly constitutional. However, at such stops the police are confined to their task at hand, and cannot widen their search beyond identifying you or your car as the fugitive and/or border violator. In theory, even if you had a garbage bag full of cocaine sitting under the passenger seat, a fugitive roadblock cop could not constitutionally arrest you if the drugs were found while you were at the checkpoint).

Of course, being the driver of the car somewhat complicates this particular request that was made of me. ID checks are in a legal grey area. If they had also asked Sarah for her license, it would have been almost certainly proper to politely tell them to fuck off.  But as for me, there is some doubt — it is required in most states that you both have a driver’s license to operate a vehicle and carry such license with you while you are operating the vehicle. Had they required me to open my trunk or empty my pockets, it would have been clearly unconstitutional and I could have simply denied their request. But the Supreme Court has never ruled (that I know of) on the specific question of whether you can be required to produce a driver’s license at a random checkpoint simply because you are driving (as opposed to under reasonable suspicion of a crime), and I suppose it’s not 100% that they’d strike down such a law.

But even if they did rule that ok ( and I have severe doubts they would), it would definitely not follow that such a checkpoint could then engage in further search activities. In fact, it would 100% not follow, since that would basically re-legitimize all previously-unconstitutional random checkpoints. So keep reading.  (As an aside, in Hiibel vs. Nevada, the Supreme Court ruled that you can be required by state law to identify yourself to cops without reasonable suspicion when on foot or a passenger in a car, but clearly stated that this was just giving them your name; they implicitly indicated that a state law requiring non-aliens to carry government identification would be presumptively unconstitutional).

But back to the story. So the cop asks me for my license. Now, there are libertarians out there who advise that you should fully assert your constitutional rights in all dealings with the cops. In effect, just be unfailingly calm and polite, say nothing of substance, and as soon as the cop makes a dubious 4th-amendment request or asks you to waive your rights, respond with a polite, “Excuse me officer, am I being detained, or am I free to go?” and a “I know you are just doing your job, but I don’t consent to any searches.” This is what Flex Your Rights suggests in their video series Ten Rules for Dealing With Police, which I highly recommend (you can find most of it on youtube). The video series is aimed at members of racial minority groups, college students, the elderly, and others who are routinely targeted by cops that prey on people either ignorant of the law, or easily tricked into giving up their rights. And I think it’s great advice in general.

But like most libertarian maxims, it could use a little discretion.  Never talking to the police, even in situations where it’s beyond obvious that cooperation and waiving your rights will result in a speedy and friendly end to the encounter, is just stupid. Especially since the cops might themselves be ignorant of the 4th amendment implications. Sure, I could have refused to hand over my driver’s license last night and eventually I (probably) would have won. But it might have been quite a while. I could have been arrested by the cop who didn’t know the law. Hell, North Carolina might have some unconstitutional law on the books allowing for this type of thing. Do I really need to turn this into litigation in the federal courts? No way. And even worse, maybe I don’t know my law, or understand the situation: what if this was a fugitive roadblock, and checking ID’s is perfectly legal there?  And 4th amendment law is incredibly nuanced. I’m not an attorney, much less a constitutional law expert; I may not understand all aspects of the situation. At any rate, it was obviously not worth it.

So I complied, and 15 seconds late we were getting ready to roll out. In fact, because I consented, there was absolutely nothing unconstitutional about my stop. And that’s important to remember — no matter what is prohibited by Supreme Court ruling or state constitution, it’s all fine if you waive your rights and consent to it. And it’s also perfectly fine for the police to ask for your consent, or to even try to trick you into giving your consent. In order to be protected by the 4th amendment, you have to actively invoke it, or at least not waive it away. The moment I voluntarily handed over my driver’s license, any 4th amendment claim I had disappeared in relation to charges stemming from them looking at my license (I could have still objected to further searches, such as a request to open my trunk).

So we started to pull away.

And then I saw something I won’t soon forget — the African American girl was standing by the trunk of her car while the third officer poked around inside of it, and she did not look happy. She wasn’t crying, but she had that look on her face like she was praying someone would come help her. And again I felt like I had something of a moral dilemma to deal with in just a split second. I’ve got two kids sleeping in the back of a car that’s got 300 miles still to drive at 9pm at night. But the girl really could have used some advice right then, and by all appearances she was about to get railroaded by an unconstitutional checkpoint that she could probably avoid if she doesn’t waive her rights against involuntary searches. It would have taken me less than a minute to pull the car over, walk over to her, and remind her that she always has the option to (1) stop telling them anything; (2) say she doesn’t consent to any further searches; (3) ask them if she is free to go; and (4) ask to speak to an attorney if they say her brief detainment is turning into an arrest. And that would have been 100% legal for me to do. But boy would it have been asking for a world of hassle.

And so we drove away.

I don’t want to make the story too dramatic — I spent the better part of the next hour thinking about it, but truth be told I was thinking more about this blog post than about the fate of the girl two cars in front of me — but I do wish I could find out the details of why they had set up the roadblock and what happened to the girl. Maybe there’s a simple explanation for it. She could have been the fugitive they were looking for. Maybe it was actually a DWI checkpoint and she was about to take a sobriety test that she was destined to fail. But my personal opinion was that it was a bullshit pretense to fish for criminal activity, and a clear 4th amendment violation in its setup, design, and execution. In other words, it was designed to prey on people who didn’t know their rights.

And as such, it is almost always going to get real shady, real fast. If the cops are randomly stopping people without any direction guiding their activity (like looking for drunk drivers), they are almost intuitively going to start profiling people. A married white couple with two kids sleeping in the back gets through in 15 seconds, while an African-American girl driving alone gets hassled? You don’t say. And lest you think I’m steering this toward some sort of point about racial discrimination in the police force, I’m not. The upshot that should be taken away from this is the libertarian one: the government is not empowered to randomly search your home, vehicle, or personal effects. But the burden is on you to enforce that prohibition. It’s fine if you don’t — I didn’t even test the waters in this case by, say, pretending I didn’t have my license with me — but it’s definitely sub-optimal if most citizens don’t know that the burden is on them. There’s a meta component to this; learning your rights and considering your options can lead to an aggregate situation where police misconduct is curtailed.