People v. Banks ( 1993 )

PANELLI, J., Dissenting

In Ingersoll v. Palmer (1987) 43 Cal.3d 1321 [241 Cal.Rptr. 42, 743 P.2d 1299] (Ingersoll) this court held by a vote of four to three that it is constitutionally permissible for a police officer to stop a motorist at a sobriety checkpoint even though the officer does not suspect, reasonably or otherwise, that the motorist is intoxicated. The court reached that conclusion by applying the administrative search rationale articulated in Brown v. Texas (1979) 443 U.S. 47 [61 L.Ed.2d 357, 99 S.Ct. 2637] and by comparing sobriety roadblocks to metal detectors at airports. (See Ingersoll, supra, 43 Cal.3d at pp. 1329-1331.)

Justice Mosk and I joined Justice Broussard’s dissent in Ingersoll. Since then, most courts have yielded to the overwhelming public pressure to approve this type of warrantless, suspicionless search. Under these circumstances there is little point in writing another long dissent. However, when future courts are asked to approve still more intrusive “administrative” searches by analogy to the sobriety checkpoint, it may be useful for them to recall the reasons why some of us were unwilling to take even the first small steps in this direction. In Justice Broussard’s words:

“The Fourth Amendment is highly inexpedient to law enforcement, yet to date we have not allowed mass detentions on the theory that these might prove useful in combating crime. I see no basis for distinguishing a drunk driving roadblock from any other mass detention established to prevent crime or apprehend wrongdoers. While drunk driving is a revolting crime, it is not the only one which the community abhors. If we abandon constitutional protections to combat every abhorrent crime which has captured the public’s attention, we will find ourselves naked and unprotected in a hurry.” (Ingersoll, supra, 43 Cal.3d at p. 1356 (dis. opn. of Broussard, J.).)

At least the Ingersoll court saw the danger to our constitutional protections. Because it did, the court tempered its holding by distilling from the relevant cases a set of “functional guidelines for minimizing the intrusiveness . . . (Ingersoll, supra, 43 Cal.3d at p. 1341.) The court explained its reasons for including one of those guidelines, advance publicity, in these words: “Advance publicity is important to the maintenance of a constitutionally permissible sobriety checkpoint. Publicity both reduces the intrusiveness of the stop and increases the deterrent effect of the roadblock.” (Id. at p. 1346.)

For six years the Ingersoll guidelines, including advance publicity, have served the state well by minimizing the intrusiveness of one type of warrant-less, suspicionless search. Today, however, the majority concludes that “the United States Supreme Court’s analysis of the constitutionality of sobriety checkpoints in Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444 . . . establishes that advance publicity is not a constitutional prerequisite to the operation of such a checkpoint.” (Maj. opn., ante, p. 931.)

I am not entirely sure what this means. Perhaps the majority means to say only this: While the presence or absence of advance publicity is still relevant in assessing the intrusiveness, and thus the constitutionality, of sobriety checkpoints, an unpublicized checkpoint can still pass constitutional muster if it obtains a high score on the other seven Ingersoll factors. In a footnote the majority invites this interpretation with the statement that “nothing in our decision should be construed to suggest that any of the eight guidelines set forth in Ingersoll, including advance publicity (43 Cal.3d at pp. 1341-1347), are not relevant to a consideration of the intrusiveness of a sobriety checkpoint stop.” (Maj. opn., ante, p. 933, fn. 3, italics in original.)

If this is the correct interpretation of the majority opinion, then it is still possible as a matter of logic that the lack of advance publicity in a particular case will be decisive in holding unconstitutional a checkpoint that does not score high on the other seven Ingersoll factors.

Unfortunately, the opinion does not clearly say this. The majority repeats, but will not reaffirm, Ingersoll's statement that advance publicity is “important to the maintenance of a constitutionally permissible sobriety checkpoint.” (Ingersoll, supra, 43 Cal.3d at p. 1346, italics added; cf. maj. opn., ante, p. 931.) Then, as if to take back what the footnote gives, the majority declares that “a sobriety checkpoint may not be held violative of the federal Constitution simply because a court may believe that the law enforcement interests sought to be served by the checkpoint would more effectively be served by a level of advance publicity greater than that believed appropriate by politically accountable officials.” (Maj. opn., ante, p. 943.)

In my view the majority wants it both ways. Clearly it does not wish to encourage law enforcement officials to announce sobriety checkpoints in advance, but it also does not want to hold that advance publicity is irrelevant.

One good reason not to hold that advance publicity is irrelevant would be that the high court’s opinion in Michigan State Police Dept. v. Sitz (1990) 496 U.S. 444 [110 L.Ed.2d 412, 110 S.Ct. 2481], on which the majority places so much weight, would not support such a holding. Sitz was an action for declaratory and injunctive relief against the operation of a sobriety checkpoint program in Michigan. The plaintiffs “challenge[d] only the use of sobriety checkpoints generally” (id. at p. 450 [110 L.Ed.2d at p. 420]), and the court held that such checkpoints are constitutional if they satisfy the balancing test set out in Brown v. Texas, supra, 443 U.S. 47. This holding neither compels us, nor gives us a reason, to abandon the guidelines that we adopted in Ingersoll, supra, 43 Cal.3d 1321, for applying the Brown test in the context of sobriety checkpoints. This is especially true since the guidelines of the checkpoint program that the high court approved in Sitz did include publicity. (Sitz, supra, 496 U.S. at p. 447 [110 L.Ed.2d at p. 418]; see also id. at p. 475, fn. 19 [110 L.Ed.2d at p. 436] (dis. opn. of Stevens, J.).)

In summary, the majority invites law enforcement officials to dispense with advance publicity while reassuring those who fear for the vitality of the Fourth Amendment that all of the Ingersoll factors, including advance publicity, are still in effect. In view of this ambiguous message, the only prudent course of action is for law enforcement officials and courts to continue to determine in each case whether the lack of advance publicity has made each particular checkpoint too intrusive to satisfy the Fourth Amendment. Only then can we be confident that the Fourth Amendment is still alive and well.

Mosk, J., concurred.