State Ex Rel. Ekstrom v. Justice Ct. of State ( 1983 )

HAYS, Justice.

On August 26, 1982, from 7 p.m. to 12 p.m., and on September 6,1982, from 3 p.m. to 9 p.m., every car heading south on Highway 93 near Kingman, Arizona was stopped. The stops were conducted by agents and officers of the Department of Public Safety (DPS), the Motor Vehicle Division of the Department of Transportation, and the Cooperative Enforcement Unit (a drug enforcement unit) at a port-of-entry located at the junction of U.S. 93 and Route 68. The port-of-entry consists of a building, lanes covered by an awning, lighting for night hours and traffic control devices which flash either yellow or red when the port-of-entry is in operation.

Each of the defendants in this matter was stopped at the Kingman roadblock on August 26 or September 6, 1982. Aguilar, Jones and Glen were arrested for driving while intoxicated (DWI), A.R.S. § 28-692(A) or (B), and Lowe was arrested for driving while under the influence of drugs, A.R.S. § 28-692(L) and for possession of marijuana. All the charges were filed in the Justice Court, Kingman Precinct No. 1 and were consolidated on identical motions to suppress. The justice of the peace ruled that the roadblock as it was operated in Kingman was unconstitutional under the fourth amendment to the United States Constitution and granted the motions to suppress the evidence gathered therefrom. This petition for special action was filed by the Mohave Deputy County Attorney. We have jurisdiction pursuant to rule 8, Special Actions, Rules of Procedure, 17A A.R.S.

The parties have stipulated to the following facts. The primary purpose in establishing the roadblock was to enforce the state’s drunk driving laws by discovering drunk drivers; secondarily, the agents at the roadblock checked vehicle registration and licensing. The decision to operate roadblocks in Kingman was made by Lt. John Tibbetts, a DPS officer in charge of the DPS District with headquarters in Kingman, who decided when, where and how to conduct the operation. Lt. Tibbetts gave the approximately six police cars and twelve officers involved in each roadblock no instructions regarding the procedure to be followed. “They were not told what to do if a vehicle turned around to avoid the roadblock. They were not told whether to inspect visible cans or bottles. They were not told whether to shine flashlights in each vehicle that was stopped after dark. They were not told whether to smell inside each vehicle to detect the smell of alcohol.” DPS placed pylons and lighted flares on the highway about 150 yards from the port-of-entry to channel all oncoming traffic into the roadblock. No warning signs or advance flashing lights announced the roadblock or its purpose, nor did DPS advise drivers in advance that roadblocks would be operated near Kingman on August 26, 1982 or September 6, 1982.

Drivers stopped at the roadblock were required to produce their driver’s license and vehicle registration while DPS officials visually inspected the driver and the interi- or and exterior of his car. The officers looked for any indication of alcohol impairment including attempting to smell whether there was alcohol on the driver’s breath or alcohol in the car, inspected visible cans and bottles, and shined flashlights into the interior and on the car’s occupants. Vehicles were detained from 30-40 seconds to 5 minutes at the Kingman roadblocks. If the driver’s papers were not in order or there was a need for further questioning or investigation, the car was referred to a secondary inspection point where delayed for a longer period of time. If the DPS official determined there was probable cause to believe a driver was driving while intoxicated, or evidence of some other statutory violation was discovered, the driver was arrested.

DPS estimates that 5,763 vehicles were stopped at a number of roadblocks in Arizona on September 6,1982, and, as a result of those stops, fourteen persons were arrested for driving while intoxicated. Three of the fourteen were arrested at the Kingman roadblock. At the Kingman roadblocks on the two dates combined, DPS issued 13 DWI arrests, 71 license and registration citations, 33 warning and repair orders, 4 drug arrests, 4 liquor arrests, 3 misdemean- or arrests and one felony warrant arrest.

The parties agree that stopping an automobile and detaining its occupants constitutes a “seizure” within the meaning of the fourth and fourteenth amendments, even though such investigatory stop is brief and limited in purpose. Delaware v. Prouse, 440 U.S. 648, 653, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 (1979). “Both the Fourth Amendment to the Constitution of the United States and Article 2, § 8 of the Arizona Constitution, providing that ‘No person shall be disturbed in his private affairs * * * without authority of law’ protect travelers upon the public highways from harassment by government agents if there is no basis to support a founded suspicion of criminal activity.” State v. Ochoa, 112 Ariz. 582, 584, 544 P.2d 1097, 1099 (1976).

Whether the fourth amendment was violated by the Kingman roadblocks turns on whether a vehicle may be stopped at a temporary checkpoint for brief questioning of its occupants even though there is no reason to believe the driver is drunk. In State v. Ochoa, supra, we held that a police officer may not randomly stop the driver of a motor vehicle on a public highway in Arizona to check his vehicle registration and operator’s license for the purpose of ascertaining whether he is violating the law. We noted a valid distinction between a stop made for the purpose of discovering a crime in the first instance and a stop made to investigate a crime already known to have been committed. “The former is unauthorized under the fourth amendment while the latter is permissible if it meets the test enunciated in Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968).” State v. Axley, 132 Ariz. 383, 390, 646 P.2d 268, 275 (1982). However, we did not reach the questions presented by a roadblock-type stop conducted for the purpose of ascertaining whether a crime has been or is being committed. See State v. Graciano, 134 Ariz. 35, 37 n. 2, 653 P.2d 683, 685 (1982).

To determine whether a particular law enforcement activity is permissible under the fourth amendment, the facts upon which the activity is based are measured against an objective standard such as probable cause or some other less stringent test. Terry v. Ohio, supra, 392 U.S. at 21-22, 88 S.Ct. at 1880. In deciding what objective standard is applicable, the United States Supreme Court has employed a balancing of interests technique which establishes the quantum of evidence necessary to justify certain distinct types of official action. This balancing of interests requires that the intrusion caused by the police conduct on an individual’s fourth amendment interests be weighed against its promotion of legitimate government interests. “In those situations in which the balance of interests precludes insistence upon ‘some quantum of individualized suspicion,’ other safeguards are generally relied upon to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’ ” (citations omitted). Delaware v. Prouse, supra, 440 U.S. at 654-655, 99 S.Ct. at 1396-1397.

Two distinct lines of cases treat very limited kinds of searches or seizures as not unreasonable in circumstances short of probable cause. In Terry v. Ohio, supra, the Court held that a brief stopping for investigation requires a lesser quantum of evidence than an arrest. A “Terry” stop permits a police officer, in an appropriate manner, to conduct brief, unplanned, individualized encounters under circumstances giving rise to a reasonable suspicion that criminal activity may be afoot. “And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. at 1880.

Contemporaneously with Terry, the Court was confronted with another law enforcement activity, that of making a routine annual inspection of an apartment building without probable cause to believe the city housing code was being violated. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). In determining the quantum of evidence necessary to sustain this activity, the Court concluded that the balance of interests precluded insistence upon some quantum of individualized suspicion because the need to search outweighed the invasion the search entailed. The Court held that reasonable standards based upon such factors as the passage of time, the nature of the building or the condition of the entire area would suffice to establish the right of inspection by warrant. “[T]he public interest demands that all dangerous conditions be prevented or abated, yet it is doubtful that any other canvassing technique would achieve acceptable results.” Id. at 573, 87 S.Ct. at 1735. The three factors relied upon by the Court are (1) the unique government and public interest in universal compliance with housing code standards; (2) the inability to accomplish an acceptable level of code enforcement under the traditional probable cause standard; and (3) the relatively minimal invasion of personal privacy and dignity attendant to periodic area inspection programs because the inspections are neither personal in nature nor aimed at the discovery of evidence of crime. Id.

With this background, the United States Supreme Court considered the legality of investigative stops of automobiles where the officer making the stop has neither probable cause nor reasonable suspicion to believe the car or its occupants are violating any applicable laws. In United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975), the Court addressed the practice of using roving patrols to stop cars to search for illegal aliens based upon criteria such as the apparent Mexican ancestry of the occupant. The Court concluded that even though the public interest in stemming the flow of illegal immigrants into the United States was substantial, the intrusion of roving patrols was too great. “[T]he nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators. Consequently, a requirement of reasonable suspicion for stops allows the government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.” Id. at 883, 95 S.Ct. at 2581. The Court then held that the balance of interests requires a reasonable suspicion for a roving patrol to stop a car.

In United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), the Court found that the balance of interests tipped in favor of precluding insistence upon some quantum of evidence. The case involved a fixed checkpoint located away from the international border with Mexico, authorized by responsible officials, where cars were briefly stopped and the occupants questioned. The three factors discussed in Camara were persuasive: the reasonableness of the procedures followed at the checkpoints made the intrusion minimal, the public interest in such checkpoints was found to be great, and “... the need for this enforcement technique is demonstrated by the records in the cases before us.” Id. at 562, 96 S.Ct. at 3085. (The records before the Court indicated that in 1973 approximately 17,000 illegal aliens were apprehended at this checkpoint. Id. at 554, 96 S.Ct. at 3081). The crucial distinction between United States v. Martinez-Fuerte, supra, and United States v. Brignoni-Ponce, supra, is the lesser subjective intrusion (“the generating of concern or even fright on the part of lawful travelers”) caused by a routine checkpoint stop than by roving patrols. United States v. Martinez-Fuerte, supra, 543 U.S. at 558, 96 S.Ct. at 3083.

In Delaware v. Prouse, supra, the Court recognized the state’s vital interest in ensuring that licensing, registration and vehicle inspection requirements are being observed. However, the enormity of the intrusion of a program of roving spotchecking was found not sufficiently productive to justify the invasion upon fourth amendment interests. “Absent some empirical data to the contrary, it must be assumed that finding an unlicensed driver among those who commit traffic violations is a much more likely event then finding an unlicensed driver by choosing randomly from the entire universe of drivers.” 440 U.S. at 659, 99 S.Ct. at 1399. In so holding, the Court stated that questioning all oncoming traffic at a roadblock-type stop might tip the balance of interests in favor of precluding a requirement of reasonable suspicion because a permanent checkpoint is less intrusive than random stops.

Applying the principles of these eases, our first step is to balance the public interest in roadblocks against the individual’s fourth amendment interests. While a roadblock is, in theory, less intrusive than the roving patrols found impermissible in United States v. Prouse, supra, and United States v. Brignoni-Ponce, supra, we cannot agree that the intrusion generated by the Kingman roadblocks was minimal. The record establishes that the Kingman checkpoints involved a not insubstantial amount of discretionary law enforcement activity and that the manner in which the roadblocks were operated was somewhat irregular. The roadblocks were set up at the discretion of a local highway patrolman and were operated without specific directions or guidelines. Officers were uncertain whether they should simply question the occupants of motor vehicles or whether they should seize the opportunity to cursorily search the vehicles for evidence of a violation. Motorists were taken by surprise, not having had prior notice of the location and purpose of the checkpoints. We find present in the Kingman operation the grave danger that such discretion might be abused by the officer in the field, a factor which caused the Court in United States v. Prouse, supra, much concern.

The state maintains that even if the intrusion is significant, such stops are reasonable under the fourth amendment because the public interest in apprehending drunk drivers outweighs the intrusion entailed. However, the record discloses no statistics concerning the extent of the problem of drunk drivers on Arizona highways nor does it indicate whether the Kingman roadblocks were more effective in dealing with the problem than the traditional roving patrols acting upon reasonable suspicion. We are well aware of the danger to life imposed by the drunk driver and we agree that the public has a substantial interest in ensuring that people who are inebriated do not operate vehicles on our highways. In the past, the foremost method of enforcing the DWI laws has been by observing how the person drives. The state has stipulated that “DPS officials, by observing and patrolling, regularly arrest drivers for DWI when there are no roadblocks. DPS officers are trained to detect drunk drivers on the road on the basis of observation. An experienced DPS officer becomes highly skilled at detecting drunk drivers by watching how a person drives. Without roadblocks, an experienced DPS officer can detect many drunk drivers.”

By the foregoing quotation, we see that the state has in effect stipulated itself out of court. If there is an adequate method of enforcing the drunk driving statute, there is no pressing need for the use of an intrusive roadblock device. We have no empirical data in the record before us with which to weigh the reasonableness of the roadblock intrusion upon individual rights against the needs of the state.

It is apparent from the state’s pleadings and oral argument that it hoped to sustain their position by asserting that roadblocks are permissible to check drivers’ licenses and vehicle registrations; hence, drunk driving enforcement could be an incidental beneficiary. The record reflects that the state stipulated that the roadblocks were undertaken to enforce the provisions of the DWI laws. We cannot approve subterfuge even in a worthy cause. The roadblocks were for DWI enforcement; we therefore have addressed that issue and that issue alone.

The order of the lower court granting defendants’ motions to suppress is affirmed. Relief denied.

HOLOHAN, C.J., and GORDON, V.C.J., concur.