By David Daggett
While this is may not be a topic of significant interest to many of you, it is one that prosecutors need be aware of as it has been pointed out that a couple of jurisdictions have had some problems in their courtrooms recently with sobriety checkpoint DUI cases. That’s really quite surprising given that as far as Maryland courts are concerned there are really only four primary cases on the subject and they haven’t changed in 28 YEARS! Sometimes a refresher course is needed and the following four cases are all you should really need to know about sobriety checkpoints.
United States v. Martinez-Fuerte, 428 U.S 543 (1976)
In Martinez-Fuerte, the Supreme Court held that stops made without individualized suspicion at certain fixed roadblocks did not violate the Fourth Amendment. Martinez and Fuerte had been separately stopped at a permanent border patrol checkpoint near San Clemente, California and were charged with transporting illegal aliens into the country, amongst other crimes. They moved to suppress the evidence, alleging Fourth Amendment violations based upon the constitutionality of the checkpoint, arguing that it was an unreasonable seizure and search.
The Supreme Court applied a balancing test, weighing the government interest in curbing the behavior in question versus the intrusion against Fourth Amendment interests. They found that there was a great need for the checkpoints in that the flow of illegal aliens was very difficult to control without these type of roadblocks and – balanced against this strong government interest – the intrusion on Fourth Amendment interests was minimal. The Supremes distinguished between a fixed checkpoint stop (as was the one in Martinez-Fuerte) and roving patrol stops. They noted that stops by the Border Patrol of a vehicle at a reasonably located permanent immigration checkpoint–operated by the Patrol away from the international border with Mexico–for brief questioning of its occupants, were consistent with the Fourth Amendment, even though there was no reason to believe that the particular vehicle contains illegal aliens. Since neither the vehicle nor its occupants were searched; visual inspection of the vehicle was limited to what could be seen without a search; and the relatively short duration of the stops, the fixed checkpoints were far less likely to “frighten or annoy the motoring public.” Id at 558
Martinez-Fuerte would go on to form the Constitutional foundation for subsequent sobriety checkpoint roadblocks that began springing up all over the country.
Little v. State, 300 Md. 485 (1984)
The seminal checkpoint case in Maryland is Little v. State, in which the Maryland Court of Appeals granted certiorari to determine whether such sobriety checkpoints violated the defendants’ constitutional rights under the Fourth and 14th amendments to be free from unreasonable searches and seizures.
As part of an effort to curb drunk driving, the Maryland State Police erected a number of roadblocks on state roads that had high alcohol related crash rates. The checkpoints were established on seven different dates in Harford County as part of a pilot program, commencing on December 12, 1982 and continuing through February 18, 1983. Harford County was selected because it had a fairly high rate of alcohol-related traffic fatalities. There was extensive statewide publicity announcing the commencement of the pilot program. MSAA’s own Joe Cassily, State’s Attorney for Harford County, was actually present for part of the checkpoint that netted the appellants in Little.
Comprehensive regulations governed the operation of the sobriety checkpoint program and they were reviewed and approved by the Superintendent of the State Police, the Attorney General and the Governor. As prescribed in the regulations, the roadblock locations were selected on the basis of data related to alcohol related crashes supplied by the State Highway Administration. The date, time and location of each roadblock was approved by the Chief of the Field Operations Bureau of the State Police. Three sites were selected for each night the checkpoints were in operation and the commissioned officer in charge was responsible for determining when to move from one site to another. One of the factors to be considered in changing locations was the level of traffic passing through the checkpoint.
The safety of motorists and officers was of primary consideration and roadblocks were to be established only where there were long stretches of straight level road, allowing divers to stop their vehicles safely. There were a number of other regulations that were established at each location, including:
- Shoulders at least twelve to eighteen feet wide;
- A manageable amount of traffic at each location;
- A safe place for motorists to make a U-turn before reaching the checkpoint;
- A regulation allowing the officer in-charge to suspend operations if traffic became too heavy;
- A sign placed about 250 feet in front of each checkpoint announcing the checkpoint;
- Nine uniformed officers wearing safety vests;
- At least one commissioned officer present to supervise;
- Flares to illuminate the checkpoint;
- Police vehicles parked on each side of the roadblock with their emergency lights activated;
- Regulations detailing the duties of each officer and brochures to be distributed, including providing an explanation of the purpose of the checkpoint.
Officers were instructed to look for signs of impairment and upon noticing any, were to instruct the driver to pull onto the shoulder, produce their driver’s license and perform some field sobriety tests.
A motorist wishing to avoid the checkpoint was allowed to make a legal U-turn or turn off to a side road, with no action taken unless they motorist drove erratically. A driver who stopped at the checkpoint but refused to roll down their window was allowed to proceed, though if certain signs of impairment were noticed the driver could be followed and subsequently stopped if indications of impaired driving was observed. Flashlights were used to illuminate the driver only; the officers did not inspect the area around the driver or the remainder of the passenger area.
Michael Little and Daniel Odom were both stopped at a checkpoint on January 1, 1983 between 1:50 a.m. and 2:50 a.m. I’m sure that all troopers in attendance were thrilled to be working the assignment on New Year’s Eve in the frigid temperatures. Both Little and Odom showed signs of impairment and were charged with various impaired driving offenses. Each filed a motion to suppress all evidence obtained as a result of the roadblock, claiming constitutional violations. Their motions were denied and each were found guilty of impaired driving violations and subsequently appealed their guilty verdicts. The Court of Appeals grabbed hold of the cases prior to the Court of Special Appeals hearing them in order to determine whether the roadblocks violated the appellants’ constitutional rights.
Court of Appeals Analysis
The Court acknowledged that under Delaware v. Prouse, 440 U.S. 648 (1979) a traffic stop is a seizure, but that only unreasonable seizures are prohibited. Reasonableness is determined by balancing the intrusion on the individual’s Fourth Amendment interests against the promotion of legitimate government interests.
The Court of Appeals conducted an exhaustive analysis of roadblock cases from across the country and came up with a list of factors that courts should look at in determining whether a particular roadblock is reasonable (numbers added for clarity):
Balanced against the State’s compelling interest in detecting and deterring drunk driving, the intrusion on individual liberties caused by the checkpoints is minimal. 1.) The checkpoints are operated under limitations imposed by clear, carefully crafted regulations approved by high level administrators. 2.) The regulations severely restrict the discretion of the officers in the field. 3) All vehicles are stopped; there is virtually no risk that motorists will be singled out arbitrarily. 4.) The procedures to be followed when communicating with each driver are set forth in detail in the regulations; thus, the risk of police harassment is greatly reduced. 5.) The amount of fright and annoyance caused to motorists who pass through the checkpoints is minimal. 6.) Adequate advance warning of the checkpoint is given; 7.) Motorists who do not wish to stop may make a U-turn and follow a different route. 8.) A driver who stops at the checkpoint but refuses to roll down the car window is allowed to proceed. 9.) The stops themselves last less than a half a minute. 10.) Officers do not interrogate motorists or search their vehicles. 11.) Each checkpoint is well illuminated and staffed by a sufficient number of uniformed officers to show that it is a legitimate exercise of police authority. 12.) Ample provision is made for the safety and convenience of the public; 13.) Operation of the checkpoints is suspended if traffic becomes congested. 14.) The sobriety checkpoints are operated pursuant to a comprehensive set of detailed regulations; 15.) They function in a manner that minimizes the possibility of fright and inconvenience to the public. Id at 913, 914
One of the ongoing arguments cited by defense attorneys in checkpoint cases is the supposed requirement that checkpoints be advertised in a newspaper and that the specific location must be announced. The Maryland Court of Appeals specifically addressed those issues in citing the Massachusetts case of Commonwealth v. McGeoghegan, 449 N.E. 2d 349,389 Mass. 137 (1983):
“For a roadblock to be permissible, it appears that the selection of motor vehicles to be stopped must not be arbitrary, safety must be assured, motorists’ inconvenience must be minimized, and assurance must be given that the procedure is being conducted pursuant to a plan devised by law enforcement supervisory personnel. While we do not suggest that advance notice is a constitutional necessity, advance publication of the date of an intended roadblock, even without announcing its precise location, would have the virtue of reducing surprise, fear, and inconvenience.”@ Id.
In addition, the Maryland Court of Appeals in Little went on to say that:
It is true that, unlike the situation in Martinez-Fuerte, motorists stopped at the Harford County checkpoints could not learn in advance of their location, nevertheless approaching drivers were given notice of the roadblock and an opportunity to turn around. No driver was forced to pass through a checkpoint; all were free to select an alternate route and proceed unimpeded.
While it doesn’t appear to be a requirement that sobriety checkpoints be advertised, even if they are publicized there is no requirement that the specific location be revealed. If a particular agency is going to conduct sobriety checkpoints, announcing the date on their website should suffice, for that should provide “advanced notice to the public at large.” See State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), 1185, which was but one of many cases cited in Little.
Brown v. State, 78 Md. App. 513 (1989)
While not a sobriety checkpoint case, Brown v. State nevertheless sheds much light on the constitutionality of checkpoints in general and factors to be considered in their validity. In addition, it’s just a fun case to read (and it’s only 8 pages!)
At approximately 2:30 a.m. on August 7, 1987 members of the Wicomico County Sheriff’s Department, Salisbury Police and Maryland State Police cordoned off a certain high crime area of Salisbury. Officers were stationed at the various exit points from that area to block off all traffic or pedestrians that might attempt to leave. Once the blockade was in place, the police intended to move into and approach anyone in the area, to obtain identification and to detain the person long enough to check for any outstanding warrants and/or to check for drug trafficking.
As the appellant, Robert Brown, attempted to drive away from the area, his vehicle was stopped by the police. At that point there was no indication that Brown had done anything wrong nor had he committed any traffic infraction. He was stopped solely because he was attempting to leave the cordoned off area. A deputy approached and noticed that there “was a lot of smoke in the vehicle…it didn’t smell like ordinary cigarette smoke…”, however the deputy didn’t know what it was. In-service training has come a long way since the early 80’s.
Well, one thing led to another and after a series of (very) questionable police actions Brown was arrested for possession of a large amount of crack cocaine. After being convicted and sentenced to three years in prison, Brown appealed, alleging that the trial court erred in denying his motion to suppress the evidence taken from him. The Court of Appeals didn’t mince words in responding, “We are quite convinced that it did and so shall reverse.”
The State argued that the dragnet operation was not unlike the sobriety checkpoint procedure in Little. Hopefully they were able to do so with a straight face. In the classic words of Judge Wilner, “[A]nalogizing this operation with the sobriety checkpoint at issue in Little…is about as valid as asserting an anaconda is like an earthworm because they are both elongated and move on their bellies.” In reading the case I actually felt sorry for the AG, but sometimes you just gotta take one for the team.
The Court of Special Appeals compared the procedures in place in Little versus those in place in Brown and found the latter to be severely lacking. Citing Little, the Court determined:
Even fixed roadblocks must comport with certain protective criteria to pass muster, however. “As a general rule,” the Little Court noted …”the constitutionality of traffic checkpoints has been upheld where: (1) the discretion of the officers in the field is carefully circumscribed by clear objective regulations established by high level administrative officials; (2) approaching drivers are given adequate warning that there is a roadblock ahead; (3) the likelihood of apprehension, fear or surprise is reduced by a display of legitimate police authority at the roadblock; and (4) vehicles are stopped on a systematic, nonrandom basis that shows drivers they are not being singled out for arbitrary reasons.”
The Brown court, like the Little court before it, then cited from State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), in which the Kansas appellate court determined that the following factors should be considered in “balancing the government’s interest against the intrusion on individual liberty”:
“‘(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.'”
Judge Wilner closed out the Brown opinion with the following:
In short, this was the kind of operation, both in design and in execution that is foreign to every precept embodied not only in the Fourth Amendment but in the very notion of due process of law. The police did not just violate the Constitution; they ignored it. The stop was illegal; the search of appellant’s pocket was illegal; the arrest was illegal; the fruits of the search and the arrest were inadmissible as evidence; and the convictions based on it will be reversed. At p. 521
Both the trial court and the Michigan Court of Appeals sided in favor of the complainants, determining that the program violated the Fourth Amendment. The United States’ Supreme Court ultimately granted certiorari.
The Supremes overruled the Michigan Court of Appeals, determining that the State’s interest in addressing the “increasing slaughter on our highways…which now reaches astounding figures only heard of on the battlefield” was much more pressing than the intrusion on motorists stopped briefly at sobriety checkpoints, which they characterized as “slight.” Id at p. 451
The Court held that for purposes of Fourth Amendment analysis, the choice among reasonable alternatives designed to prevent drunk driving remains with governmental officials who have a unique understanding of, and a responsibility for, the limited public resources that can be used to combat drunk driving and concluded with:
In sum, the balance of the State’s interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that it is consistent with the Fourth Amendment. The judgment of the Michigan Court of Appeals is accordingly reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. At p. 455
Justices’ Brennan, Marshall and Stevens in Sitz are quite vocal in their dissent, at one point calling sobriety checkpoints “elaborate and disquieting, publicity stunts.” @ p. 475. The dissent concludes with the following:
This is a case that is driven by nothing more than symbolic state action – an insufficient justification for an otherwise unreasonable program of random seizures. Unfortunately, the Court is transfixed by the wrong symbol –the illusory prospect of punishing intoxicated motorists – when it should keep its eyes on the road plainly marked by the Constitution.
It kind of makes you wonder whether the justices were tied up in a checkpoint at some point and missed a meal.
Sobriety checkpoints have been a key weapon in combating impaired driving over the years. They are continually used across the state (and nation) for this purpose. If you find yourself prosecuting such a case on your docket, make sure to summons the arresting officer; the intoximeter operator (if applicable); the commissioned supervising officer; have copies of the rules and regulations of the checkpoint (turned over in discovery); and be sure that the supervising officer can testify as to why that particular location was chosen. And it can’t hurt to have testimony of any advertisement.