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Justice Stevens, joined by Brennan and Marshall, wrote a separate dissenting opinion. Addressing the question of effectiveness, he observed that the checkpoint that netted only two arrests involved 19 police officers — officers who could have been on patrol searching for drunk drivers. In reviewing the testimony and very revealing statistical data, he noted that the findings of the trial court, based on an extensive record and affirmed by the Michigan Court of Appeals, indicate that the net effect of sobriety checkpoints on traffic saucy is infinitesimal and possibly negative.
As to subjective intrusion, Stevens distinguished the facts in Martinez-Fuentez, so heavily relied on by Rehnquist:
A motorist with advance notice of the location of it permanent checkpoint [as in Martinez-Fuentez] has all opportunity to avoid the search entirely, or at least to prepare for, and limit, the intrusion on her privacy.
No such opportunity is available in the case of a random stop or a temporary checkpoint, which both depend lot their effectiveness on the element of surprise. A driver who discovers an unexpected checkpoint on a familiar local road will be startled and distressed....
This element of surprise is the most obvious distinction between the sobriety checkpoints permitted by today's majority and the interior border checkpoints approved by this Court in Martinez-Fuentez. [Id. at 463.]
Finally, Stevens noted that part of the balancing equation was being ignored: "The most disturbing aspect of the Court's decision today is that it appears to give no weight to the citizen's interest in freedom from suspicion less unannounced investigatory seizures.''
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