A client whom I was representing on a DUI case dropped off a paper with my secretary, wanting me to call him and explain what it meant. I reviewed the paper, which was a simple, unassuming letter from the U.S. Supreme Court about granting leave for a petition for writ of certiorari. Not necessarily believing it was anything other than an order allowing the mere filing of a Petition for Writ by the State on a previous case that the client had won on appeal with the public defender’s office, I initially set the paperwork aside.
A day or two later, while listening to the radio, I heard that the United States Supreme Court had just accepted a case involving a DUI roadblock case out of DuPage County. That sounded familiar. When I arrived back to the office, I read the paperwork that my client had dropped off for a second time. This was that case!
But before I jump ahead, let me fill you in on the case of the People of the State of Illinois v. Robert Lidster from the beginning.
On August 30, 1997, around midnight, Lombard police set up a roadblock on North Avenue. One week prior at the same location and at the same time, a 70-year-old bicyclist had been killed in a hit-and-run accident. The officers stopped all eastbound traffic and passed out flyers about the accident, with the intent of locating persons who may have knowledge regarding the incident. The stop of each motorist (not otherwise detained) took about 10 to 15 seconds, with a line of about 10 to 15 cars in each lane. At the roadblock, which the police deemed an "informational checkpoint", each motorist handed a flyer and was questioned as to whether they had been in the area the week prior, and if they had seen anything unusual. Several of the motorists were sent to secondary staging areas. A chase vehicle was located on a side street in order to stop any vehicle which attempted to avoid the roadblock. No written guidelines were in effect to limit the field officers’ discretion. No advance publicity was given to the public regarding the roadblock. At trial, the police stated they were only looking for witnesses and denied that they were also looking for the suspect, despite having information regarding the color, make, and model of the suspect’s vehicle.
While conducting the roadblock, Robert Lidster approached, allegedly almost striking one of the officers. The police, noting typical signs of intoxication, directed Lidster to the secondary staging area. There, Lidster failed field sobriety testing, and was arrested for DUI.
THE TRIAL COURT DECISION
Tony Coco, Senior Assistant Public Defender, was assigned to represent Robert Lidster. Little did he know that this case would end up in Washington, D.C. Upon reviewing the police reports, Tony noted that he had never seen an "informational roadblock" before. "It was peculiar," Tony stated. "The Fourth Amendment issues were obvious", he added. "Terry1 says you need reasonable and articulable suspicion to stop someone, and the facts here were not in dispute. The hit and run involved a car unlike Lidster’s, and this (roadblock) was one week later. No way was Lidster in the prior hit and run," said Coco.
Coco filed his Motion to Quash Arrest and Suppress Evidence even prior to interviewing Lidster. Lidster denied having ‘almost run the Officer over’, and Tony felt that this was a secondary issue. Another attorney in the office, Julie DiCaro, assisted Tony. Coco subpoenaed the roadblock records, and the State responded with a Motion to Quash the Subpoena. "People v. Bartley 2 (an Illinois Supreme Court case) requires the police to follow certain standards (for roadblocks)," said Coco. This included advance publicity, fixed procedures, etc.
Eventually Judge Dwyer ordered the roadblock records to be produced. They revealed very little about this event, because the guidelines in Lombard were limited to sobriety checkpoints.
At the hearing, Coco questioned Detective Ray Vasil, who admitted that there was no advance publicity or guidelines in effect. Coco argued that the roadblock was unreasonable in violation of the Fourth Amendment. Judge Dwyer disagreed, finding that the roadblock was reasonable in scope and length.
Later the Defendant was tried and convicted at a bench trial. Coco made the decision to appeal the case. Coco felt quite strongly that an appeal was worthwhile. "The facts were unusual, the law in Illinois was favorable, and it was an issue of first impression," Coco added.
THE SECOND DISTRICT APPELLATE DECISION
The Second District Appellate Court reversed the trial court’s ruling, finding that the roadblock at issue was a violation of the Fourth Amendment of the U.S. Constitution’s prohibition against unreasonable search and seizure. Justice McLaren, authoring a unanimous opinion, stated:
"[i]f investigating such a crime could be the basis for a roadblock, police could stop all cars entering or leaving town virtually every day on the chance that someone might have seen something that would aid the investigation."3
The Appellate Court noted the State’s argument that public interest in seeing the hit-and-run solved was substantial and that the police took reasonable steps to minimize the intrusion on the motorists’ rights. The Court stated that even if true, a recent U.S. Supreme Court decision, City of Indianapolis v. Edmond4, had strongly suggested that a criminal investigation could never form the basis for a roadblock, at least in the absence of some emergency circumstances not present in Lidster.
The State had also argued that the proper test for determining the constitutionality of the roadblock was the one found in Brown v. Texas5. In Brown, , the U.S. Supreme Court stated that the reasonableness of a seizure required the court to weigh the gravity of the public concerns served by the seizure and the degree to which the seizure advances those interests against the severity of the intrusion with individual liberty.
The Appellate Court additionally commented that there was no measurable manner in which the seizure could be shown to be effective in advancing the public interest in solving the hit-and-run. Recognizing that "the choice among reasonable enforcement alternatives must be left with local governmental officials who have a unique understanding of, and responsibility for, limited public resources,", the Court further stated that:
"this does not mean that courts must blindly defer to whatever enforcement techniques are chosen by officials, because courts must analyze these techniques to ensure that they are, in fact, reasonable in the context of the Fourth Amendment."6
When the decision came down from the Second District reversing Lidster’s conviction outright, Coco was pleased. "They saw it the way I saw it," Tony mused. Having transferred to the Felony Division of the Public Defender’s Office, Tony lost contact with the case.
THE ILLINOIS SUPREME COURT DECISION
Tony was unaware that the Illinois Supremes had even taken the case. A year later (or so), the Illinois Supreme Court, in a 4 to 3 decision, affirmed the Illinois Appellate decision finding the roadblock unconstitutional.7 Coco was surprised that the vote was that close. Indianapolis v. Edmond8 had been decided at this point, which reinforced my trial strategy and the Appellate Court’s rulings.
Before the Illinois Supreme Court, the Illinois Attorney General had taken over appellate prosecution from the DuPage State Attorney’s office. On the defendant’s behalf was now the Office of the State Appellate Defender.
The Illinois Supreme Court majority relied strongly on the recent U.S. Supreme Court case of City of Indianapolis v. Edmond. In Edmond, the City of Indianapolis had set up checkpoints on Indianapolis roads in an effort to interdict unlawful drugs. The Edmond Court first observed that:
[t]he Fourth Amendment requires that searches and seizures be reasonable. A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing. While such suspicion is not an ‘irreducible’ component of reasonableness, we have recognized only limited circumstances in which the usual rule does not apply. For example, we have upheld suspicionless searches where the program was designed to serve ‘special needs, beyond the normal need of law enforcement. . . . We have also upheld brief, suspicionless seizures at a fixed Border Patrol checkpoint designed to intercept illegal aliens, and at a sobriety checkpoint aimed at removing drunk drivers from the road.9
The Edmond decision rejected the use of drug checkpoints:
[i]f we were to rest the case at this high level of generality, there would be little check on the ability of authorities to construct roadblocks for almost any conceivable law enforcement purpose. Without drawing the line at roadblocks designed primarily to serve the general interest in crime control, the Fourth Amendment would do little to prevent such intrusions from becoming a routine part of American life.10
Seizing on the Edmond opinion, the Illinois Supreme Court majority found that the roadblock at issue in Lidster was designed primarily for the ‘ordinary enterprise of investigating crimes,’ a factor that the U.S. Supreme Court had found unacceptable in Edmond.
The majority of the Illinois Supreme Court in Lidster stated that an exception for informational roadblocks has the potential of making roadblocks ‘a routine part of American life’:
In 2000, 870 murders, 49,652 assaults, 25,168 robberies, 77,947 burglaries, 306,805 thefts, 55,222 motor vehicle thefts, and 2.899 arsons were known by police to have been committed in Illinois. . . . Should the police have been allowed to set up roadblocks to obtain information from the potential witnesses for each murder? What of robbery, aggravated criminal sexual assault, arson or any other serious crime? According to the State, for a period of at least a week after each crime, police could set up roadblocks with the specific purpose of making inquiries of persons who were possibly witnesses to a crime. The troubling specter then arises that the streets of Cook County, or at least the streets of Chicago, would be adorned with roadblocks, an outcome clearly unacceptable under Edmond.11
The final words of the majority opinion of the Illinois Supreme Court resounded:
The right of an individual to be free from unreasonable searches and seizures is an indispensable freedom, not a mere luxury. It cannot give way in the face of a temporary need... As the protector of the constitutional rights of all citizens of this state, this court is commanded to draw a ‘line at roadblocks designed primarily to serve the general interest in crime control’. Without such a line, the fourth amendment would do little to prevent intrusive searches and seizures from becoming a routine part of American life.12
Justice Thomas, whom I have personally called "The Great Dissenter" of Illinois (he seems to have enjoyed that moniker), also wrote the minority opinion in Lidster. There, Justice Thomas wrote that the majority had misconstrued the Edmond decision. He wrote that Edmond was both factually and legally distinguishable. Whereas the Edmond case involved a roadblock whose primary purpose was the investigation of the motorists themselves for unknown crimes, the Lidster case involved a roadblock where the drivers themselves were not being investigated, and the crime involved was known and specific – a hit-and-run homicide. Further, the stops in Edmond lasted two to five minutes; the stops in Lidster were generally 10 to 15 seconds. Edmond had drug dogs; Lidster didn’t.13
Justice Thomas wrote that the roadblock in Lidster did not involve the ‘general crime control’ prohibited in Edmond. Rather, the Lidster roadblock had a direct connection to highway safety, a factor found acceptable by the U.S. Supreme Court in Prouse14 and Sitz15. "The canvassing for information about a deadly hit-and-run crime that happened on the roadway would serve the purpose of highway safety in a similar fashion to checking licenses to ensure that only qualified drivers are operating motor vehicles."16
Thomas found that the situation in Lidster was akin to the emergency exception noted in Edmonds: "At the time the police set up the roadblock, the offender remained at large with his identity unknown. Thus, he continued to pose a safety risk to others on the road."17
Moreover, Thomas felt that the appropriate test to apply was Brown v. Texas,18 in stead of Edmond. He felt that the gravity of the public concern in solving the death of the bicyclist, when weighed against the severity of the interference with individual liberty, coupled with the degree to which the seizure advanced the public interest, rendered the roadblock reasonable.19
Lastly, Justice Thomas found the argument regarding the potential proliferation of roadblocks unfounded and unpersuasive: "[t]he majority’s reasoning is also defused by the reality that the amount of roadblocks would be limited by the scarce public resources available to police."20
THE UNITED STATES SUPREME COURT PROCESS
Through an update from the Illinois Public Defender’s Association, Coco learned that the case had been accepted for review by the United States Supreme Court. Coco was astute enough to feel some concern about their interest in the case, hoping that it would not be overturned. At the same time, Coco felt a sense of pride in knowing that a case that he had identified from its inception as a case of importance was going all the way to the United States Supreme Court.
This is where I come back into the picture.
I called Mr. Lidster, the client, and told him the incredible news. Remember the case that you had before the one I handled, where the public defender represented you, I asked? Well, that case has been accepted for review before the United States Supreme Court!!
Knowing that going to the Supremes for a lawyer is like going to the Super Bowl for a football player, I waited closely for his excited response. Then, after a pause, his response came. "You mean I could still lose that (expletive) thing?" he clamored. It was then that I realized that a criminal defendant doesn’t quite see the Supreme Court like us lawyers.
After asking me if I could help him (my "YES!!" followed faster than a speeding bullet) my staff immediately undertook to notify the appellate defender’s office that we were going to represent Mr. Lidster, and to please contact me to arrange a transfer of the files. That was Friday afternoon.
On Monday, we contacted the Supreme Court Merits Clerk and sent them notice of representation, requesting to proceed in forma pauperis (at no cost to defendant).
The first significant step in the process after a case has been accepted by the Supreme Court is the creation of the Joint Appendix. The Joint Appendix is like a crib sheet for the Record on Appeal. Both sides attempt to come to an agreement about the most important pleadings, exhibits and items. Here, the agreement was simple – a transcript of the hearing on the Motion to Quash Arrest and Suppress Evidence, a copy of the police flyer/handout, and the Second District Appellate Court and Illinois Supreme Court decisions.
AMICUS CURIAE BRIEFS
The process of obtaining amicus curiae (friends of the court) briefs is like drafting players in professional sports. An organization can file a brief as a friend of the court without leave, so long as both sides agree. If either party objects, permission of the court is required.
I had no immediate amicus curiae suitors. I picked up the phone, and contacted the National College of DUI Defense, an association containing the top DUI defense attorneys in the country. I had been admitted as a member some two years prior, but did not know any of the attorneys very closely. Each year, the DUI College has a summer session at Harvard, taking apart breathalyzers, studying forensic science, reviewing new defense strategies, and practicing trial techniques. I had met many of the Regents of the College the past summer, and called the President of the College. After some jockeying, they developed a team for amicus curiae brief drafting.
Basically, the DUI College was brought in when the State’s amicus brief included, the State of Ohio and 22 attorneys general of the states and territories of the United States of America joined. We eventually added to each side — the State had the United States Solicitor General, the Illinois Association of Chiefs of Police, and the Criminal Justice Foundation from Sacramento California. On the defense side we added the National Association of Criminal Defense Attorneys, the Illinois ACLU, and the American Civil Liberties Union.
Writing the brief for the defendant took the better part of three months. Westlaw agreed to give the defendant unlimited access to all of its resources. I poured over hundred’s of roadblock cases from throughout the country, read law review articles covering everything from the origins and meanings of the Fourth Amendment, the History of the American Revolution and the Writs of Assistance, to transcripts of oral arguments previously heard on major Fourth Amendment cases before the U.S. Supreme Court. Eventually, the brief of the defendant came together, and was submitted for printing and filed with the Clerk.
All of the State and amicus briefs were equally filed, and the case was set for three months later on November 5, 2003 in Washington, D.C.
THE ORAL ARGUMENTS
How does one prepare for oral arguments before the United States Supreme Court? Read. It is no different than the bar exam, except there are no daily classes, and the materials are not necessarily pre-defined. You find everything that touches on the subject, and absorb it. One might think that there are not many United States Supreme Court cases on roadblocks. That would be correct, there are only about six. So, I had my partner Steve Armamentos pull together every case or article cited in any of the briefs - party or amicus. He eventually delivered 141 cases, and over 20 law review articles. These were then outlined, categorized, and prioritized. Major quotes were pulled aside from many cases for possible sound bites at oral arguments. My favorite materials were statutes that we had uncovered which were on the books during the reign of King George II. King George had created the offense of negligent carriage driving in the mid-1700’s (prior to the framing of the Fourth Amendment). Only the City of Naperville still has this offense on its books, and I understand that they still generate thousands from its enforcement against one Amish family in the southern part of the City. (Just kidding).
Brent Christenson, Chair of the DCBA Media Committee, arranged and videotaped a Moot Oral Argument at the Addison Village Hall for the Public Access channels. Neal Thompson from the DuPage County State’s Attorneys office agreed to act as opposing counsel. Justice Thomas Callum of the Second District Appellate Court provided introductory remarks about the appellate process, with Mark Schmidt acting as his interviewer. Former DuPage Judges Robert Cox and Lew Morgan, along with attorney Christopher Klis, were the Justices. Each of these individuals spent many hours preparing for the Moot Court, and the experience was as genuine as the real thing, with questions coming and answers flying. In fact, the ‘Justices’ were dead on with the issues, and many of the same questions were later asked by the real Court in Washington. The experience helped to get us focused on the issues. I am humbled by the kindness of everyone there for helping me to prepare.
For the real thing, Steve Armamentos was co-counsel, along with one of the authors of the National DUI College’s amicus brief, Troy McKinney from Houston, Texas. Steve scrambled to get admitted to the Court in time to sit at arguing counsel’s table, getting his application approved with weeks to spare. I told Steve that he had to be prepared to step-in if I had a stroke or something before the argument was finished. He knew I wasn’t kidding.
The week prior to Orals, the Georgetown Supreme Court Institute, an adjunct of the Georgetown University School of Law, arranged for a Moot Oral Argument. I looked at the room we were to use and the tables were arranged in a square. This eased my mind as I assumed the ‘Moot’ would be more of an informal critique, so I relaxed in the outdoor cafeteria on an unusually warm late October afternoon in Washington.
When I returned to the room on time, everything had been rearranged into a courtroom setting. There, sat three former clerks of the Supreme Court Justices, the Constitutional Law professor at Georgetown, the Criminal Law professor, and about 40 law school students. (Gulp!) For the next ninety minutes, I was grilled and cajoled into a healthy sweat. Then the justices proceeded to critique each and every aspect of my argument. Their criticisms ranged from a discussion of body posturing to ‘bullet phrasing’ to discussing what the Justices would really want to hear. It was the best preparation I could possibly have received, and I felt ready to take it to the final step.
THE WEEK BEFORE ARGUMENT
The Georgetown experience ‘set my mind right,’ to quote from "Cool Hand Luke," a sixties movie where Paul Newman portrays a convicted felon who is mentally broken by the prison warden. That night, Lenny Stamm, a DUI defense attorney from Baltimore, also arrived in town. We spent the evening talking about the case, and Lenny smartly pointed out that I should keep in mind the D.C. Sniper case, because it had frozen Washington for months, and roadblocks had frequently been employed all over the D.C. area to try to catch them. Coincidentally, the Sniper trial was proceeding the same week as the oral arguments.
That weekend, Los Angeles DUI Attorney Barry Simons joined the team. He had also co-authored the National DUI College’s amicus brief, covering the origins of the Fourth Amendment and its meaning to this case. Together, Troy, Barry, Lenny and I spent the weekend going through two-a-days, where they would play the justices, ask questions, and help massage my answers. We also discussed each Justice’s tendencies, and traded war stories.
On Monday we attended two oral arguments at the Supreme Court, one involving a bankruptcy case out of the Seventh Circuit, and the other entitled Maryland v. Pringle,21 involving a probable cause arrest of a passenger for drugs found in a vehicle. Lenny knew the public defenders on the Pringle case, and we later spoke to them about their experience. The Court’s demeanor on that day was extremely serious, with Justice Rehnquist barking to one of the arguing counsel to answer another Justice’s question.
The final team member, my partner Steve Armamentos, flew in on Tuesday, the night before oral arguments. We holed up in Troy’s hotel room, which by then had been dubbed the ‘War Room,’ and went through the final evening of preparations. (The movie ‘Dead Man Walking’ came to my mind briefly that night.). Around 10:30 p.m., after three hours of review, Barry Simons turned to me and said "Don, you’re ready, you’re prepared, and you’ve got it. Now get a good night’s sleep and enjoy the experience." No words could have been more reassuring. I went to my room, kissed my wife Nika good night, and fell asleep almost immediately.
THE DAY OF ARGUEMENT
My sister, niece, nephew, one daughter, and my in-laws had all flown into town to join in the experience. Also, Judge Dwyer, who had presided over the trial level portion of the case, arrived with his wife as a guest of the Supreme Court to watch the oral arguments. Judge Dwyer and his wife had read all the briefs in anticipation of the argument.
Remarkably, I slept without waking until about 7:00 a.m. (Argument was set for 10:00 a.m.) Nika ordered some coffee and generally stayed away so as to not jinx Due to a remand, Illinois v. Lidster was the only case on the call that morning. We were due to arrive at 9:00 a.m. that morning.
I met with Steve, and Troy, in the hotel lobby. We all took the cab down Pennsylvania Avenue to First Street, stopping in front of the building. When the cab pulled away, before me stood the white marble building entitled the "Supreme Court Of The United States." The words ‘Equal Justice For All’ shown particularly clear in its engravings at that moment, with about 30 to 40 people waiting at the front doors in a single-file line down the long marble steps. In front of us stood the highest Court in the land, and all I could think about was that the dream of walking in there to argue a case was about to become reality. It shook me.. Then I mentally slapped myself back into the moment at hand and walk up the steps, watching only the strings on my shoes as I made the climb. Entering a side door, I met with Barry and Lenny, kissed Nika goodbye, and we entered. We waited to be escorted, passing through several security points, obtaining our badges, until we finally reached the Lawyers Lounge.
The Lawyers Lounge is simple and ornate at the same time. Some leather chairs and couches appear on an oriental carpet, and there on the walls are hand-painted oil portraits of John Marshall and other famous Justices. Then, out from a side door appeared the Marshal of the U.S. Supreme Court.
A tall stoic man dressed in grey tuxedo tails, he told us that he had read the briefs, and found the case both interesting and exciting. He stated that all the Justices were very intrigued by the case, and he expected that the arguments would be brisk. At this point, I felt like I was in the ‘green room’ for the Oprah show. He told us that in a few minutes, we would be escorted to the Court Room. There, he told us that we could move freely about the room until shortly before the start of proceedings at 10 a.m. He suggested that we walk up to the Advocate’s Lectern, which has a crank on the side to raise or lower as one sees fit. Then, he quipped, "Although I wouldn’t touch it if I were you, because the thing’s about seventy-five years old, and you’ll probably break it."22
My co-counsel Troy asked the Marshal why the Chief Justice always gets up during argument and briefly leaves the room. (We had heard that this was a tradition of the Chief Justice going back quite many years, and had seen him do so on Monday). He remarked that Chief Justice Rehnquist had a bad back, and that he will get up, move behind the curtains where audio is piped in, and return to his seat in precisely twenty-three seconds. So much for tradition. Later, Steve Armamentos would tell me that he had timed it on his watch at twenty-two seconds. So much for my co-counsel being prepared to back me up in the middle of argument in case I had that stroke.
The Guide for Counsel In Cases to be Argued Before the Supreme Court of the United States,23 a booklet issued by the Clerk of the Court of the United States Supreme Court, is a precision document of the Dos and Don’ts for lawyers appearing for a case there. It is also about as anal-retentive as the Tax Code. Some of my favorite ‘suggestions’ in this 21-page booklet included:
a) if two Justices as you a question at the same time, answer the senior most Justice first;
b) if a Justice asks you a hypothetical question, do not answer that your facts are different - the Justice asking the question already knows that and expects an answer anyway;
c) never look at the clock located high on the wall behind the Justices;
d) turning pages in a notebook appears more professional than flipping pages of a legal pad; and
e) "[t]he quill pens at your argument table are gifts to you–a souvenir of your having argued before the Highest Court in the land."24
Precisely at 10:00 a.m., a security door buzzer briefly sounded, followed by the loud ‘thwack’ of a gavel. Instantly, all nine justices appeared behind their respective chairs as the Clerk loudly declared "Oyez, Oyez . . . ." My heart almost jumped out of my chest.
When the case was called, Illinois Solicitor General Gary Feinerman stepped up to the lectern. As he began to speak, I had to keep telling myself to "Listen! Listen to what they’re saying Don!" My mind was racing so fast that random thoughts were shooting through me – "here we are . . . where is my wife sitting . . . gee, I’m hungry . . . Listen! . . . do you think Mark Dwyer will be mad if I win . . . listen you fool!" Eventually, I calmed down, still anxiously waiting for my turn. Each side is given 30 minutes exactly, but since the State going first can reserve any portion of its time for rebuttal sua sponte, I wasn’t sure just when I would start. Having no watch on my person, I kept sneaking peeks at the clock behind the Justices — Don, stop looking, they’ll catch you! — I kept thinking.
At any rate, eventually I stood up, moved to the lectern in complete silence with three hundred persons in a packed room, including my family, my friends, my Judge, my partner, and the nine Justices of the Supreme Court of the United States, and then spoke the words. "Mr. Chief Justice, and may it please the Court . . . ."
Justice Breyer asked the first question. "Why is this roadblock so unreasonable?" Hundreds of hours of research, writing, and preparation and there I stood like a deer in front of approaching headlights. "The right to be free from unreasonable seizure should remain inviolate," I squeaked out (or words to that effect). After Justice Breyer replied that he wasn’t really interested in flowery prose, and that he wanted an answer, the fire finally came back to my belly. "It’s midnight, on a dark highway, you’re on your way home, and suddenly 10 to 15 squad cars appear before you. As you creep forward in 3 lanes of traffic backed up with vehicles, you see the police individually questioning drivers. Some are pulled off to the side, and others are waved through. The anxiety builds. The police begin to question you — Where were you last week? Did you see anything unusual? — and you have not done anything wrong to justify the intrusion. That Justice Breyer is unreasonable. The remaining 28 ½ minutes were a blur. The red light at the lectern illuminated (signifying that it was time to shut up and sit down, as per ‘The Guide’). Chief Justice Rehnquist thanked me and I sat down.
The State had saved 3 minutes for rebuttal. But I knew at that point that I was done. No more questions, no more answers, nothing. So, while the Court continued to question and the State continued to argue, I looked down at the table in front of me and began to take everything that wasn’t nailed down – the pencils, the bookmarks, the legal pad, whatever. My quill pen was earned.
After arguments, I went to the Supreme Court Historical Gift Shop for souvenirs, and saw the sign "Quill Pens $2.86." My gift for arguing before the Highest Court in the Land, identical in every way, was available for the sale price of $2.86. Yet, as amused as I was, I knew that my quill pen was intrinsically different. I am looking at it right now as I write this piece (it now sits in a pewter inkwell), and I know that difference. Mine isn’t filled with ink; mine is filled with sweat, courage, family, freedom, and most of all a sense of pride.
THE UNITED STATES SUPREME COURT DECISION
The call from the Clerks office came the morning of January 13, 2004. The decision was for reversal. They would be emailing it as soon as Justice Breyer finished reading it from the bench. Still, with hopes that the reversal would not snare my client, I was hopeful. I read the opinion. I got slaughtered. The Court voted six for the State and three for the defendant. But the three in my corner simply felt the case deserved a remand.25
Justice Breyer wrote the decision for the majority. "The Illinois Supreme Court basically held that our decision in Edmond governs the outcome of this case. We do not agree," the Court’s opinion continues as follows:
[t]he Fourth Amendment does not treat a motorist’s car as his castle. . . . Information-seeking highway stops are less likely to provoke anxiety or to prove intrusive. . . . Further, the law ordinarily permits police to seek the voluntary cooperation of members of the public in the investigation of a crime. Practical considerations–namely, limited police resources and community hostility to related tie-ups—seem likely to limit any such proliferation [of roadblocks]. . . . And, of course, the Fourth Amendment’s normal insistence that the stop be reasonable in context will still provide an important legal limitation on police use of this kind of information-seeking checkpoint.26
Applying the test first enunciated in Brown v. Texas,27 the court found as follows: The relevant public concern, investigating a crime that resulted in human death, was grave. The stop advanced the grave concern, to a significant degree, while being appropriately tailored to the same location, at the same time and day of the week, one week after the death.28 Finally, and most importantly, the stop only minimally interfered with liberty of the sort the Fourth Amendment seeks to protect.29
The dissent, written by Justice Paul Stevens and joined by J. Souter and J. Ginsberg, agreed that the reasonableness test in Brown applied and that Edmond was not controlling.30 However, they felt that the case should have been remanded to the Illinois Supreme Court for further review applying the multifactor test prescribed in Brown.31
I will never forget the experiences that accompanied this case. The help that was offered by fellow DuPage Bar Association members, the encouragement of those closest to me, the support from lawyers across the country, and the opportunity to appear and argue for the sake of liberty and freedom, are memories that I will take well beyond. Suddenly, second place will never seem so bad again.
1. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
2. People v. Bartley, 109 Ill.2d 273, 93 Ill.Dec. 347, 486 N.E.2d 880 (1985).
3. People v. Lidster, 319 Ill.App.3d 825, 829, 747 N.E.2d 419,422, 254 Ill.Dec. 379, 382 (2d Dist. 2001)
4. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000).
5. Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).
6. Lidster, 319 Ill.App.3d at 829-830, 747 N.E.2d at 423, 254 Ill.Dec at 383.
7. People v. Lidster, 202 Ill.2d 1, 779 N.E.2d 855, 269 Ill.Dec. 1 (2002).
8. City of Indianapolis v. Edmond, supra at n. 4.
9. City of Indianapolis v. Edmond, 531 U.S. 32,37 121 S.Ct. 447,451-52, 148 L.Ed.2d 333,340-41 (2000).
11. People v. Lidster, 202 Ill.2d 1, 9, 779 N.E.2d 855, 860, 269 Ill.Dec. 1, 6 (2002).
13 Id. at 16.
14. Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979)
15. Michigan Department of State Police v. Sitz, 496 U.S. 444, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990)
16. Lidster, 202 Ill.2d at 16, 779 N.E.2d at 864, 2569 Ill.Dec at 10.
17. Id. at 19.
18. Brown v. Texas, supra, n. 5.
19 Lidster, 202 Ill.2d at 19.
21 Maryland v. Pringle, No. 02-0809, slip. op. (U.S. Dec. 15, 2003).
22 A picture of the Advocate’s Lectern is available at http://www.oyez.org/oyez/tour/lectern-from-courtroom-entry.
23 Guide available at www.supremecourtus.gov (October 2003 edition).
25 Illinois v. Lidster, 540 U.S. ____ (2004), No. 02-1060, slip. op. (U.S. Jan. 13, 2004).
26 Lidster, 540 U.S. ____ (2004), No. 02-1060, slip. op. at 2-6.
27. Brown v. Texas, supra, n. 5.
28 Lidster, 540 U.S. ____ (2004), No. 02-1060, slip. op. at 6-7.
30 Lidster, 540 U.S. ____ (2004), No. 02-1060, slip. op. at 8-9 (Stevens, J., dissenting).
Donald Ramsell is the immediate past president of the DuPage County Bar Association. Over the past 19 years, Don’s firm has handled over 12,000 DUI and criminal cases. In June 2000, Don was certified in Standardized Field Sobriety Testing under the National Highway Transportation Safety Administration curriculum, and later that year became certified as an SFST instructor in accordance with the International Association of Chiefs of Police curriculum.
In November, Don presented oral arguments before the United States Supreme Court on a DUI and roadblock case entitled Illinois v. Lidster.