As has been noted earlier here at Techdirt, the NHTSA (National Highway Traffic Safety Administration) has been collaborating with law enforcement agencies around the nation to collect blood and saliva samples from drivers. This collection is part of a NHTSA “survey” which is looking to determine how often drivers drive while possibly impaired by drugs or alcohol. Providing the NHTSA with either of these fluids is completely optional (citizens are rewarded monetarily for their contribution), but the use of uniformed officers (supposedly solely for crowd control and security of the payment funds) and patrol cars has given many drivers the impression that these stops (and collections) are actually mandatory — or at the very least, highly recommended.

The Fort Worth, TX police department found itself on the receiving end of a considerable amount of criticism for its participation in the blood/saliva collections. The PD first attempted to deflect the criticism by offering standard excuses. When that failed to work, the police chief offered a very contrite apology for participating in the survey and “jeopardizing the public trust.”

This backlash hasn’t slowed the NHTSA which has taken its blood and saliva survey to Reading, Pennsylvania. While the outrage wasn’t nearly as pronounced as it was in Ft. Worth, it was still notable. However, Police Chief William Heim hasn’t seemed too concerned by citizen complaints. He called the whole thing “innocuous” and made this laughable assertion:

“People are not pressured by police presence to do something they don’t want to.”

Au contraire, Chief Heim. Police presence is often all it takes to make voluntary experiences seem mandatory. Ricardo Nieves, one of those flagged down by Reading police officers, felt the experience was anything but voluntary, and that attempting to leave would have been greeted by a possible arrest.

The Reading city council and the mayor himself also expressed concern about the use of police officers to acquire “voluntary” blood and saliva samples. For his part, Chief Heim appears to be ready to just ride out this outrage without offering any concession towards the offended public.

But if that’s what Heim had planned, Nieves just threw a legal wrench into the works. Nieves has sued the city of Reading, Chief Heim, Mayor Vaughn Spencer, two unnamed employees of the private contractor (Pacific Institute for Research & Evaluation [PIRE]) performing the fluid collections, as well as PIRE itself

Nieves claims his Fourth Amendment rights were violated by the supposedly voluntary collection, which felt much more mandatory thanks to the police presence. Here’s his description of the incident.

On Friday, December 13, 2013, plaintiff was traveling on the Bingham Street Bridge into the City of Reading, Pennsylvania, a public roadway. A cruiser owned and operated by the City of Reading Police Department was parked by the side of the street with its lights flashing where plaintiff was. Bright orange security cones lined the lane where plaintiff was driving. Plaintiff was in the right hand lane and the lane to plaintiff’s left was full of traffic such that he could not pull over to change lanes.

Defendant Doe stepped out into plaintiff’s lane of traffic, blocked his further advance, and flagged him to pull off the public road into a parking lot on Laurel Street. Having no ability to advance further on the road, and with no ability to move into the left-hand lane because of traffic, plaintiff drove into the parking lot. In the parking lot were five to seven improvised parking spaces outlined on three sides with orange security cones. Nieves pulled into one of these security cones.

Nieves reasonably believed under the totality of the circumstances that he was being stopped by the Reading Police Department because of the flashing lights of the police car on the street, the fluorescent orange cones on the street and in the parking lot, and the presence of a police car in the parking lot that was occupied by a police officer.

Jane Doe, a woman with a clipboard came up to plaintiff’s car and began to speak to him.

Jane Doe spoke quickly and said several things, including that plaintiff was not being cited, that plaintiff had done nothing wrong and that plaintiff was not being “pulled over.”

The last statement was clearly false, because plaintiff had only pulled over after John Doe had stepped into the middle of plaintiff’s lane of traffic on the public street and flagged plaintiff into the parking lot, all while lights were flashing on the police car parked at the location.

Defendant Doe stated that the purpose of the stop was a survey of drivers’ behavior and that she wanted to take a cheek swab to check for the presence of prescription drugs. She also stated that plaintiff would be paid if plaintiff agreed to the same.

Plaintiff refused to provide the cheek swab she requested.

Jane Doe then tried a second time to convince plaintiff into providing a cheek swab. Plaintiff again refused to provide a swab.

A third time Jane Doe again tried to coerce plaintiff into giving a cheek swab. At this point plaintiff stated to her very firmly, “No. Thank. You.”

Jane Doe then tried to hand plaintiff a pamphlet, which plaintiff did not accept. Jane Doe then walked away from plaintiff’s car. Plaintiff then tried to exit the parking lot but found no means of egress. Other cars had by then also apparently been pulled off the road.

Finally, a Reading police officer waved Nieves towards where he had been originally flagged down and indicated he should re-enter traffic there.

Nieves is asking for a permanent injunction preventing the Reading PD (and others) from utilizing “suspicionless seizures” like the NHTSA’s fluid collection survey. He’s also seeking unspecified damages for Fourth Amendment violations and false imprisonment.

As he points out in the filing, at no time did Nieves feel he could leave without being subjected to arrest and prosecution. Such is the power of law enforcement officers and their vehicles, even if they are supposedly off-duty and serving only as “security.”

That’s one way the Reading PD’s compliance with the NHTSA may come back to haunt them. As Scott Greenfield points out, this voluntary checkpoint being staffed with police officers and their flashing lights also hurts the chances of future police checkpoints running unchallenged.

The use of police to conduct this NHTSA survey has fundamentally altered the equation of a car stop, and the cops have done this to themselves. Aside from the absurd Georgia decision, there was never a suggestion that a driver had authority to ignore the “command” to pull over from a cop with lights blazing. That can no longer be said as a matter of law now that the police have squandered their authority to assist in a “voluntary survey.”

Flashing lights look no different when it’s a lawful sobriety checkpoint than when it’s a voluntary survey conducted by private contractors for a government agency. While the former requires compliance, the latter is of no consequence whatsoever. To borrow from Prouse’s rationale, just as there is no law preventing police from chatting you up like anyone else on the street, there is no law requiring you to chat ‘em back. Not in the mood to chat? Keep walking.

Not in the mood to take a survey? Keep driving. Forget those flashing lights. This is the message that comes of the extension of authority without any lawful basis or judicial approval.

Of course, this is hardly a victory for citizens. Greenfield notes that bypassing a set of flashing lights that could be taken either way (voluntary/mandatory) may just net citizens brand new sets of bullet holes.

Chief Heim claims it’s all voluntary and not a big deal, but anyone arriving at these not-mandatory checkpoints won’t know that until he or she has repeatedly refused to surrender blood or saliva. This whole situation could have been avoided by either a) not allowing law enforcement officers to participate (off-duty or not) or b) posting signage well in advance of the stop that participation was completely voluntary and indicating clearly where those wishing to bypass the stop could route themselves. Instead, these agencies lent their reputations and implied “color of law” to private contractors fronting for a regulatory agency and now, everyone involved — cops and citizens — is worse off for it.

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