Government managed to save face on checkpoint ruling

A recent decision put the Sala IV constitutional court in the news when it restricted random searches of vehicles at the impromptu checkpoints often set up by law enforcement agencies.

Despite the Sala IV ruling, police still have the power to make identity checks as they did here Saturday night. Photo: Ministerio de Gobernación, Policía y Seguridad Pública/Ingrid Luna

Reaction from the public, the security ministry, and President Laura Chinchilla was quick to condemn the judgment, even before the main text was available. Many seemed to believe border controls, hot pursuit, and other means of law enforcement were prohibited by the ruling. The individual who filed suit was identified by his full name in the document, unusual in legal cases. He was pilloried and many respondents of newspaper opinion posts demanded the sacking of the Sala IV as not representing the majority.

Apparently having been advised of the content of the ruling which proved little different from international treaties to which Costa Rica is a signatory, José María Tijerino, security minister, issued a press release announcing that roadblocks would continue as long asnoticia criminis was available indicating the commission of an actual crime. Tijerino emphasized that no action would be against the court ruling but said he expected room to work while still maintaining the roadblock concept. This way the government managed to save face.

The press release did end on an ominous note, with Tijerino saying “for drug traffickers, it will make their work easier, since the controls we were using just yesterday will no longer be available.”

Justification for a search could be a report of a crime to 911 or some other sort of tipoff, an offender seen in the act, or pursuit on the part of other authorities. The latter would more likely be by judicial investigators, which, strictly speaking, are part of the judicial branch of government. Most of the “preventive” law enforcement in Costa Rica is by the Fuerza Pública which is the public security ministry.

A few days later, when it was evident that the court had only restricted search and detention of vehicles without what would be called probable cause in other countries, politicians and the Spanish-language press fell silent. Ultimately the definition of probable cause and procedure during roadblocks should be familiar to most expats, though it will probably take a few more court cases to define protocols.

Absent from the debate was the fact that entry to a dwelling requires a warrant from a judge, and this case proved only an extension of that logic. The ruling stated “It is a fact, within the conformities of the law, that police can exercise controls to identify persons, check migratory status, control contraband or traffic of animal and plant species, among others,” said the opinion, referring to a 2002 court case on a fixed checkpoint between Cartago and San Isidro del General on the Interamericana highway. “It is not possible that these controls take place in an indiscriminant manner and much less that persons be forced to permit access to the interior of their vehicle, without noticia criminis or probable cause . . . .”

Probable cause in the United States has been refined over the years with numerous Supreme Court decisions. One of the original cases dates from 1925 and searching cars for moonshine.

But in the case of car searches, by definition most stops will be for traffic violations. Since Costa Rican traffic police are a separate force from the Fuerza Pública that usually conducts roadblocks, more opportunity for searches will likely come with cooperation. The fact that in Costa Rica citizen or foreigner alike can be obliged to produce identification (for now) provides an opening for contact lacking in the United States.

Retired detective Robert McDonald, who lives here, describes procedures in his California department as using permitted random encounters focused on public safety issues, particularly drunk driving, to establish contact with potential offenders. He said probable cause must still be established on the ground for specific reasons before any search is undertaken.

The definition of probable cause for search in the U.S. is peppered with terms like “more likely than not,” “reasonable suspicion,” and “more than suspicion.” According to Curry County District Attorney Everett Dial, Oregon law allows for searches of a car when the occupant is arrested for something else, for example a driving under the influence violation. He said that if a “safety” pat-down looking for weapons should find a meth pipe, that would be probable cause to think there was contraband in the car and it can be searched. (Or it can be in plain sight.)

But, according to Oregon procedural manual, “the car must be mobile before the stop, and must be attended and operable, to allow the search.” The presence of another person in the car complicates the matter. In this case, Fourth Amendment law makes distinctions between “person, residence, vehicle and property.” The fact that a car can be driven off is relevant to the suspicion required to search it.

Dial said Oregon law doesn’t allow profiling. Elsewhere, profiling or not, the “faulty equipment traffic stop” is listed as the most common justification for a stop leading to a significant arrest by the Florida Highway Patrol Contraband Interdiction Program. According to an internal poll, excessive window tint is a favorite.

As protocols presumably develop to justify checks, some sort of profiling will be needed in Costa Rica. The courts have not pronounced on this. Profiling per se is less likely to run against laws about equal treatment and discrimination than in the United States. While Costa Rica did have a sort of segregation of its small black minority at one time, prejudice in setting profiles is unlikely to be an issue. A Nicaraguan accent or appearance is far more likely to attract attention. Migration status is specifically stated to be grounds for inspection.

While it is presumptuous to assume case law will develop along the same lines as it did historically in the United States, the underlying concept is similar. The Sala IV finished its opinion saying “The indiscriminate practice of police roadblocks, with no concrete objective, ends converting a human individually recognized into a mere satisfaction of collective interests, which is inadmissible in a democratic state of Law.”

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